ICC Investigation in Georgia: A Test for the Court’s Future

On January 27, Pre-Trial Chamber I of the International Criminal Court (ICC) authorized Prosecutor Fatou Bensouda to open an investigation into the 2008 conflict in Georgia, following an application made by Bensouda’s office in October 2015. It took the court almost eight years to come to this conclusion. One of the latest phases of the Office of the Prosecutor’s (OTP’s) assessment examined whether effective national investigations were taking place in Georgia and Russia. The OTP has only recently concluded that obstacles and delays hampered investigations in both countries and that an ICC investigation is necessary as national proceedings in Georgia have recently stalled.

The ICC investigation stems from crimes that allegedly occurred during the 2008 conflict in South Ossetia – a region of Georgia that had been under the control of pro-Russian separatists since the early 1990s. A fresh outbreak of hostilities between South Ossetian separatists and Georgian forces led to Russian military intervention in August 2008, with Georgian troops forced to retreat after a week of fighting. During the conflict, hundreds of people were killed and both sides were accused of using disproportionate force that endangered civilians. Human rights groups reported that ethnic Georgians living in South Ossetia were deliberately pushed out of their homes by a campaign of terror that included scores of murders and around 27,000 have been unable to return since. Georgian forces were also accused of attacking Russian troops who had been deployed in the region as peacekeepers under an earlier peace agreement with the separatists.

Since the end of the conflict, Georgian civil society groups have been constantly advocating for the international investigation of war crimes and crimes against humanity that may have been committed. These groups have also compiled and lodged hundreds of complaints on behalf of over 1,000 victims to the European Court of Human Rights.

Following the prosecutor’s request to open an investigation in October 2015, Georgian groups helped victims to comment, or make “representations,” to the pre-trial chamber on whether or not the request to open an investigation is in their interest and on the scope of the proposed investigation. In total, the chamber received representations by or on behalf of over 6,000 victims, which in conjunction with the prosecutor’s request and supporting materials, helped the judges to decide on opening the investigation.

The pre-trial chamber’s decision signifies a very important first step in recognizing the harm suffered by the victims and the fight against impunity for the crimes committed in relation to the 2008 conflict. According to the ICC pre-trial chamber decision, such crimes include the crimes against humanity of murder, forcible transfer of population, and persecution, and war crimes, including attacks against the civilian population, willful killing, intentionally directing attacks against peacekeepers, destruction of property, and pillaging allegedly committed in the context of the conflict between July 1 and October 10, 2008.

In addition, the chamber has taken into consideration the Georgian victim groups’ request to broaden the scope of investigation. As a result, it decided not to limit it to the aforementioned crimes, but to allow the prosecutor to investigate all crimes allegedly committed within the jurisdiction of the ICC, including sexual violence, arbitrary detention of civilians, and torture of prisoners of war.

This is the first time that the court has launched a full-scale investigation of crimes emerging from a conflict outside the African continent. The ICC investigation in Georgia will be an important test case for other situations, and the way it proceeds will tell much about what could happen in Ukraine or Palestine, as well as in Afghanistan or Iraq, which are currently under preliminary examination by the OTP.

Many challenges remain. This is the first time an ICC investigation has brought it into a potential confrontation with a powerful, UN Security Council member state that is not a party to the Rome Statute. In addition, the separatist administration of South Ossetia is only recognized by Russia and a handful of other states, and it remains under the political sway of Moscow, raising further difficulties for the investigation.  So far, official statements from Russia have not been supportive. The spokeswoman of the Foreign Ministry, Maria Zakharova has declared that Russia is disappointed with the chamber’s decision to support the case. Among ethnic Georgian victims, there is a general fear that the court might not be able to arrest alleged perpetrators if Russia does not cooperate with the investigation.

Georgia, meanwhile, has been a member of the ICC since 2003 and has an obligation to cooperate fully with the court in this investigation. This does not automatically guarantee effective cooperation between the two throughout the entire process. For example, execution of arrest warrants for Georgian citizens may become problematic if the investigation progresses to this stage. So far, however, the official statements from Georgia are rather supportive and gives one hope that the cooperation will continue in this spirit. The pre-trial chamber’s decision to proceed with the investigation was widely welcomed by Georgian victim groups, as well as by high level officials including the Prime Minister Giorgi Kvirikashvili and the Minister of Justice, Tea Tsulukiani. The latter has emphasized the importance of the chamber’s decision and stated that Tbilisi will continue to actively cooperate with the court.

It remains to be seen whether Russia can be persuaded to cooperate with the South Ossetia investigation. But it is clear that what Moscow decides to do will have an impact on the efforts of the 123 members of the ICC to establish and strengthen international justice. The failure in Georgia’s situation to bring perpetrators to justice may close door to the court’s further development and jeopardize the international justice system overall.

Meanwhile, the decision to open an investigation has implications for the work of civil society, victims, and the local media in both Russia and in Georgia.  Neither country has been subject to an ICC investigation before. Capacity building at the local level is necessary, and, ideally, there should be public debates and proactive information sharing to educate victims and the general public on the issues. Both Russia and Georgia should provide assistance to victims’ groups and ensure adequate protection and participation before the court. Both countries ultimately have much to gain from making the ICC’s South Ossetia investigation a success.

Nika Jeiranashvili is the Human Rights Program Manager at the Open Society Georgia Foundation.

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