The Prosecutor’s Office of the International Criminal Court seeks authorization for investigation into the situation in Georgia – what is next?
By Nino Tsereteli, Researcher, MultiRights/PluriCourts
On 8 October 2015, the Prosecutor’s Office (OTP) declared of its intention to seek the Pre-trial Chamber’s authorization to open an investigation in the situation of Georgia. This determination is based on the materials accumulated through its preliminary examination ongoing since 14 August 2008. This announcement does not come as a surprise. According to the previous reports of the OTP, in the course of seven years, the authorities of neither of the two countries concerned (Georgia and the Russian Federation) have prosecuted alleged perpetrators, despite general statements about ongoing investigations. In its 2014 Report on Preliminary Examinations (para 153), the OTP warned that it would seek authorization for investigation.
The investigation into the situation in Georgia will be the first for the international Criminal Court (ICC) outside Africa and potentially involving the nationals a powerful non-party, the Russian Federation.
2. Parameters of the Situation
According to the OTP, the investigation, if authorized by the Pre-Trial Chamber, will address war crimes and crimes against humanity allegedly committed from 7 August 2008 to 10 October 2008.
According to 2013 OTP Report on Preliminary Examinations (paras. 163-165), there was “a reasonable basis to believe that South Ossetian forces committed war crimes and crimes against humanity (forced displacement of ethnic Georgians, accompanied with acts of violence and destruction of property). The assessment of other alleged criminal conduct (namely those of Russian and Georgian armed forces) was inconclusive.
2014 OTP report referred to two categories of alleged crimes. The first relates to alleged forcible transfer of ethnic Georgians by South Ossetian forces accompanied with pillaging and destruction of property from August 2008 to October 2008 (paras 138-140). Another category is alleged attacks against Russian peacekeepers, but in contrast to the first category, the OTP admitted that the information available on this attack remained inconclusive.
3. Potential Cases
If authorized by the Pre-trial Chamber, the investigation can target any individual irrespective of nationality, in the context of this situation, for the crimes falling under the ICC’s jurisdiction. The OTP promised to the Pre-Trial Chamber to provide detailed information about alleged criminal conduct of three groups: South Ossetian forces, the armed forces of Georgia and the armed forces of the Russian Federation. The 2014 Report gives indication about the OTP’s initial selection of potential cases (see above), but this selection is without prejudice to any further findings (paras. 136- 137).
According to the information that the OTP made available, only the evidence regarding criminal conduct of South Ossetian forces is conclusive. Allegations related to war crimes and crimes against humanity are raised with respect to South Ossetian forces exclusively and not against Russian military leadership, despite considerable evidence of de facto control exercised by them over South Ossetian forces before, during and after the armed conflict of August 2008. Moreover, there was an awareness of large-scale crimes being committed in the Georgian enclaves of the Russian occupied South Ossetia for months, usually in the presence if not with active participation of Russian military servicemen, but no measures were taken to prevent widespread destruction that made the return of almost 20 000 forcibly displaced ethnic Georgians impossible. On top of that, as indicated below, the Russian authorities made no efforts to investigate conduct of the South Ossetian forces any time thereafter.
4. Admissibility of potential cases
Under Article 53 (1) (b) of the Rome Statute, in order to initiate investigation, the OTP needs to consider whether “the case is or would be admissible under Article 17”. At preliminary examination stage, there is not yet a ‘case’. This preliminary assessment of admissibility will center on potential cases (see Policy Paper on Preliminary Examinations, November 2013, paras. 43-44). It consists of assessment of national proceedings (complementarity) and of gravity.
As regards complementarity, the OTP needs to determine if there are or have been any relevant national investigations or prosecutions with respect to the same person concerning the same conduct that the ICC is interested to pursue. The states could preclude the ICC engagement by genuine investigations and prosecutions.
The alleged crimes of South Ossetian forces are not investigated by Russian investigative authorities, despite numerous well-documented reports. OTP reports indicate that aside from collecting materials on conduct of Georgian forces, they have only verified allegations against Russian military servicemen (para. 148 of the 2014 OTP Report on Preliminary Examinations). No reference to the investigation into the conduct of South Ossetian forces is made. It is not excluded that the Russian authorities will invoke the South Ossetian statehood as an excuse, even though it is widely acknowledged that this territory is occupied, with its leadership fully funded and controlled by Russian authorities. It may be doubtful that after their inaction since 2008, Russian investigative authorities will genuinely investigate and prosecute in the future or cooperate with the ICC with regard to those cases, including by allowing access to the occupied territories.
Alleged attacks against ethnic Georgians have been investigated by Georgian authorities since 2008 but no decision regarding prosecution of specific persons has been publicly announced. The ICC may engage in two scenarios: a) If Georgian authorities ‘compete’ with the ICC for some of these potential cases and are found to be unable to prosecute (e.g. due to the lack of access to the territory) or b) if they want the ICC to do the job for them.
The statement by the Georgian Ministry of Justice dated 8 October 2015 indicates that they are willing to cooperate with the ICC, but exact parameters of burden-sharing are not entirely clear yet.
As regards the alleged attack against Russian peacekeepers, allegations against Georgian military servicemen are being investigated both by Russian and Georgian investigative authorities. According to the OTP reports, the two states provided contradictory materials on this matter. It remains to be seen whether any of these investigations will be seen as credible or the ICC will step in.
As regards the requirement of gravity, it includes both quantitative and qualitative considerations (para 61, Paper on Preliminary Examinations). Interestingly, the OTP indicates that
“The principle of impartiality … does not mean an ‘equivalence of blame’ between different persons and groups within a situation, or that the Office must necessarily prosecute all sides, in order to balance-off perceptions of bias; instead, it requires the Office to focus its efforts objectively on those most responsible for the most serious crimes within the situation in a consistent manner, irrespective of the States or parties involved or the person(s) or group(s) concerned”. (Para 66, Paper on Preliminary Examinations)
There is considerable evidence on widespread and systematic attacks against ethnic Georgians in South Ossetia’s Georgian enclaves and adjacent areas. It may be doubted if the alleged attack against peacekeepers (credible unless it is proved that they lost their neutrality, due to participation in hostilities, as Georgian authorities argued) meets the gravity threshold. According to the report of the International Independent Fact-Finding Mission, Russia claimed in the morning of August 8 (after the incident in question) that two peacekeepers were killed and five were wounded (Report, Volume 1, para 17, p. 21
5. Prospects of Cooperation
Since initiation of investigation in 2008, the OTP has conducted several visits, both to Georgia and to the Russian Federation to track the progress in investigation and commended both governments for the willingness to cooperate. Georgia as a state party has an obligation to cooperate with the ICC (Art.86, the Rome Statute). The Russian Federation is not a state party to the Rome Statute. It will most likely continue its attempts at using the ICC against the former Georgian leadership, even though its vastly inflated claims about casualties inflicted by Georgian forces were not taken seriously by the international community. On the other hand, its cooperation is doubtful if the investigation goes after Russian military servicemen or even South Ossetian leadership. Even if it gives access to the occupied territory, seven years after the armed conflict, the prospect of recovering/verifying evidence, except for evidence of complete destruction of ethnic Georgian villages, may be doubted.