The Georgian Experience: A Story of How the ICC is Failing Victims in its First Case Outside Africa

This commentary is written by Nika Jeiranashvili, Executive Director of Justice International, and is a reflection of his prior years of experience working to bridge the gap between victims of the 2008 conflict in Georgia and the International Criminal Court. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. 

Before the ICC

It was about three years ago when I first heard rumors about the International Criminal Court (ICC) opening a formal investigation into crimes allegedly committed during the 2008 conflict between Georgia and Russia. (The matter had already been subject to a preliminary examination by ICC Office of the Prosecutor (OTP) since 2008.)  At the time, I was working at the Open Society Foundation office in Tbilisi as a human rights program manager.

The conflict took place 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.

Our program portfolio of work included support to civil society groups working with victims from all sides of the conflict. Together with other Open Society colleagues across globe, we helped civil society document alleged crimes, provided legal aid and psychosocial rehabilitation services to victims, and advocated on their behalf.

The rumors of the ICC’s potential investigation arrived seven years after the conflict. In the meantime, civil society had carried out numerous efforts to seek justice for the victims. However, these efforts turned out ineffective as national investigations in Georgia and Russia failed due to political unwillingness and inability to prosecute potential perpetrators. In addition, no progress had been made in regional human rights courts despite hundreds of complaints lodged to the European Court of Human Rights on behalf of thousands of victims from all sides.

The 2008 conflict appeared to be an issue that was too big and serious to be confronted at the local or even regional, level. Consequently, the ICC investigation had become the only viable option for the victims to seek justice. It was in these circumstances that the idea of the ICC prosecutor requesting judges to authorize an investigation proprio motu sounded very promising.

In the years since the conflict, much had changed in Georgia. A new government replaced the previous one, resulting in the prosecution of some former high-level officials on abuse of power and corruption related charges, while others had fled the country.  Most civil society leaders who had been working with victims’ communities after the 2008 conflict, moved to different positions, joining executive and legislative branches of the government or other institutions, with minimal focus on the conflict and its aftermath.

While civil society in Georgia has accumulated expertise by working on cases before the European Court of Human Rights over the past two decades, we had no prior experience of working with the ICC. Although the prospect of the ICC investigation gave many in civil society hope, there was also concern because we did not fully understand the process.  In a highly polarized environment, such as the one in Georgia, there is always a risk that an ICC investigation could be subject to misinterpretations and be misused for political expediency. Proper preparations would be required if indeed the rumors about the investigation were true.

The Opening of an Investigation

In an effort to learn more about the status of the situation in Georgia, I visited The Hague in the summer of 2015. At this time, I met with the court’s Public Information and Outreach Section (PIOS), as well as with the OTP, to discuss civil society’s need to receive more information in order to prepare victim communities and others for a potential request to open an investigation.

Despite the fact that both PIOS and OTP understood importance of our intentions, they did not reveal whether the request was indeed going to happen due to the confidentiality of their work. That summer, I returned to Tbilisi without any news, yet I had a feeling that something big was going to happen.

A few months later, in October 2015, the ICC Prosecutor Fatou Bensouda asked judges to initiate an investigation into crimes against humanity and war crimes allegedly committed in the context of the conflict between July 1 and October 10, 2008. That same day I got a call from The Hague with a request to organize a meeting in Tbilisi between ICC officials and civil society in the country for the court’s first mission to Georgia.

Following the prosecutor’s request, civil society organizations had one month to help victims make representations, which was a chance to tell ICC judges what they thought about a potential investigation. By the end of 2015, the court had received over 6,000 victim representations from all three sides, including Georgia, Russia, and South Ossetia. The victims supported the prosecutor’s decision and even requested widening the scope of investigation.

On January 27, 2016, Pre-Trial Chamber I authorized the prosecutor to open investigation and expanded the scope of the investigation to include additional crimes allegedly committed within the jurisdiction of the ICC, including sexual violence, arbitrary detention of civilians, and torture of prisoners of war.

This was truly an exciting moment for Georgian civil society; after almost eight years of waiting, there was hope for victims that justice would prevail. I believe it was also a pivotal moment for the court as well because this was the first time the ICC was going to investigate a situation outside Africa. It was also the first time the court was going to deal with an international armed conflict involving a powerful UN Security Council member state, which is not a party to the Rome Statute.

Together with my colleagues from local and international organizations, we discussed with ICC officials from various sections of the court the numerous challenges the Georgia investigation faced. However, we perceived the situation not only as a challenge, but also as an opportunity for the court to change the narrative that it was intentionally targeting African countries and show that it truly stands for ending impunity globally.

Little Progress Made

During the first year of the investigation, the court appeared to have little engagement in the Georgia situation. The country and the region were unfamiliar to the court, as much as the institution of the ICC was unfamiliar to Georgians and Russians. Most of the people within the court involved in the investigation had no knowledge or experience working in this region. This has resulted in various misconceptions from the court’s side about the new situation and delays in the investigative process. For almost a year, there was scant evidence that the OTP had undertaken any activities on the ground.

This improved during the second year of the investigation. During this time, the OTP set up a team of investigators and launched various activities. However, due to the confidential nature of these activities, the public did not get sufficient information about the OTP’s efforts.

In March of this year, as part of my new position with Justice International, I had an opportunity to visit victim settlements with other civil society groups in Georgia. The goal was to provide information to the victims on the ICC’s investigation, while at the same time, gather information on their current needs and living conditions.

The majority of victims that we interacted with have not heard about the ICC investigation.  This is largely because of the court’s failure to provide outreach activities throughout the last two years. Furthermore, there appears to be no involvement from the Trust Fund for Victims, which could help make the process more meaningful to those harmed in the conflict. Georgian civil society continues to be the only ones that have visited the communities since the opening of the investigation.

The ICC has managed to appoint a head for the country office in Georgia, but this office is not yet operational and consists of only one other temporary staff member. Furthermore, the head of office and other staff member do not speak the local language, which severely limits their effectiveness. This causes further delays in the process, once again leaving the victims and public at large in an informational vacuum.

The lack of outreach and incapacity of the country office is fused with silence from the OTP’s side regarding the investigative activities. Due to the confidential nature of the investigation there is little known about the activities being implemented by the prosecutor’s office. This has led to further ambiguity in the process, providing space for misinterpretation and false information about the ICC, damaging its credibility.

Further compounding this problem, it that victims in Georgia are now witnessing a parallel investigation process undertaken by South Ossetia’s de-facto authorities. The public became aware of this parallel process last year, when the South Ossetian Prosecutor’s Office handed the list of 77 Georgian officials over to the Russian Prosecutor General’s Office with a request to put them on Interpol’s list of wanted persons. According to the South Ossetian officials, the listed individuals are accused of committing war crimes and genocide of Ossetian people during the 2008 conflict. The parallel investigation revealed its seriousness at the beginning of this year, when, on February 22, former Georgian army member, Archil Tatunashvili was detained by South Ossetian security forces on charges of genocide of Ossetian people. The next day, Tatunashvili was found dead at a local hospital, quoted to have ‘slipped down the stairs.’

Despite many requests from Georgian officials and the international community, authorities in South Ossetia waited one month after his death to transfer Tatunashvili’s body back to his family. This delay caused a public uproar in Georgia, resulting in short blockade of strategically important Tbilisi-Poti highway and Tbilisi-Vladikavkaz road in late February. This was followed by Georgian PM’s emotional appeal to Putin, expressing readiness to “overlook relations between the two countries.”

This situation has revealed the high stakes of having a polarized investigative process.  It has also revealed that the OTP is not the only one with authority to investigate crimes allegedly committed during the conflict, and however the process ends, it will have an enormous effect on Georgian and regional politics. In the eyes of victims and general public, the parallel investigation is much more tangible than the one conducted by the ICC.

The lack of investigative progress by the ICC has also had the result of donors withdrawing support to work related to the court’s investigation. The only grant-making organization that continues to support the victims’ groups is Open Society Foundations. However, it is a relatively small donor in the region and cannot support the court and victims’ groups without help of other international organizations.

What’s Next?

This year, the international community celebrates the 20th anniversary of the Rome Statute, marking a significant achievement of establishing a permanent institution to deal with the world’s most horrendous crimes. At the same time, the victims of the 2008 conflict commemorate 10 years since the violence occurred.  When analysing Georgia’s experience, one might wonder whether the court has learned from its previous mistakes, as it is failing victims in its first and only investigation outside Africa.

Nevertheless, any failure should not be attributed solely to the ICC. The international community shares part of the blame because it has distanced itself from the investigation since the beginning.  The Georgia situation is a complex matter that requires joint efforts from the various organs of the court, the Trust Fund for Victims, and from the international community to avoid further disengagement from the victims and public in Georgia.

The situation in Georgia requires a new, holistic approach from the ICC, considering all aspects to make this process meaningful for victims. The recent changes in the court’s management with the election of a new presidency and Registrar perhaps can provide one last hope that despite so much delay; the ICC can get on the right track.


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