Development / Politics

Georgia and the ICC: firm beginning, uncertain outcome

 

On January 27th, the International Criminal Court commissioned an inquiry, concerning the crimes committed during the armed conflict between Russia and Georgia, during the summer of 2008. Despite being criticized for exclusively targeting the African continent during its first years, the Court has not ceased to conduct fair and transparent trials, in the interest of justice.

Georgia signed the Statute of Rome on July 18th, 1998 and ratified it on September 5th, 2003, this making it the 92nd State Party of the International Criminal Court. In August 2008, shortly after the conclusion of the armed conflict between Russia and Georgia, the Prosecutor Luis Moreno Ocampo announced the start of the preliminary examination of the country situation. On the basis of information acquired during the examination, incumbent Prosecutor Fatou Bensouda concluded that the crimes committed in Georgia during the armed conflict of 2008 fall under the jurisdiction of the Court. In line with Article 15 (3) of the Rome Statute, she submitted a request to open an investigation concerning the situation. In October the Presidency assigned the  Situation in Georgia to Pre-Trial Chamber I, which had concluded in January: “ there is a reasonable basis to believe that crimes within the Court’s jurisdiction were committed in and around South Ossetia, Georgia, between the 1st of July and the 10th of October 2008.”[1]

What then, is the precise strategy adopted by the Court during the course of the investigation? Some might argue that the ICC and its Prosecutor are searching for a way out of the African continent, but as former International Criminal Court Prosecution Coordinator Alex Whiting has written, “if the Prosecutor simply wanted to use the Georgia case to get out of Africa or to take on a major power, she could have done so years ago.”[2] Others contend that the Prosecutor aims to be proactive in shaping the “international narrative condemning Russian aggression”,[3] yet the Prosecutor has meticulously avoided to be involved into political, power-play games. While I agree that the Court is “exhibiting readiness to tackle politically sensitive conflicts involving powerful actors”[4], the opening of investigations is rather a direct result of the development of preliminary examinations.

Started almost a decade ago, the preliminary examinations demonstrate there is a reasonable basis to believe that a) that crimes were committed during the aforementioned armed conflict; b) that these crimes fall within the jurisdiction of Court. The Prosecutor is compelled to open investigations into a Situation that has been sitting in Court for 7 years already.

To date, all interested parties – Georgia, Russia and South Ossetia, showed cooperation with the Court, either by sending documents to The Hague[5] or by demonstrating commitment to supporting the legal proceedings before the Court.[6] Nevertheless, the outcome of these investigations is neither predictable, nor necessarily successful. It is interesting to note that Georgia, as a State Party to the ICC, has not requested an investigation to be commissioned earlier. It could be the case that Georgian forces illegally attacked Russian peacekeepers on the night of August 7 makes the Georgian government uncomfortable. In addition, it will be particularly interesting to observe how the Court will pass a verdict on South Ossetia, a long-term disputed territory, and the crimes it will potentially prosecute before the Court in this respect. Most probably, the ICC will trigger its jurisdiction on war crimes and crimes against humanity, but crime of aggression, as suggested by Mark Kersten, will not likely be one of them.

What about the next step? The investigations will be lengthy and burdensome, despite a lack of cooperation on behalf of interested parties. Still, the Situation of Georgia illustrates a possible pattern for other Situations under preliminary examination at the ICC. For instance, preliminary examinations were underway during 2007 concerning Afghanistan, and it may be that, following the same rationale as the Georgian case, the OTP will request the opening of investigations in a couple of years. As challenging as it might be, the investigation into the Georgian issue sets two precedents for the Court: a) this is the first investigation of this type to be taking place outside Africa and b) the involvement of non-State Parties into the investigations (Russia and South Ossetia) is unprecedented.

Anca Elena Ursu

[1]Coalition for the International Criminal Court, ICC opens investigation in Georgia, available at:  http://www.iccnow.org/documents/CICCMA_GeorgiaInv_Jan2016.pdf

[2]Alex Whiting, The Significant Firsts of an ICC Investigation in Georgia, available at: https://www.justsecurity.org/26817/icc-investigation-georgia/

[3] Mark Kersten, Why is the International Criminal Court stepping out of Africa and into Georgia?, available at: https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/05/why-is-the-international-criminal-court-stepping-out-of-africa-and-into-georgia/

[4] Thomas Escritt, ICC prosecutor plans probe into 2008 Georgia-Russia war, available at: http://www.reuters.com/article/us-warcrimes-georgia-idUSKCN0S219620151008

[5] tass.ru, South Ossetia wants International Criminal Court to use its materials in investigation, available at:

http://tass.ru/en/world/853204

[6] Civil.ge, Georgia Says to ‘Cooperate Actively’ with ICC in 2008 War Probe, available at: http://civil.ge/eng/article.php?id=28943

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