ICC Judges Authorize Investigation Into Georgia’s 2008 War

Georgian Troops South Ossetia 2008

Georgian Troops in South Ossetia in 2008

Today, Pre-Trial Chamber I of the International Criminal Court (ICC) authorised the Prosecutor to proceed with an investigation for war crimes and crimes against humanity allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008.

On 13 October 2015, the ICC Prosecutor submitted her “Request for authorisation of an investigation pursuant to article 15” of the Rome Statute, asking for authorization from Pre-Trial Chamber I to proceed with an investigation into the situation in Georgia.

After examining the request and the supporting material, the Chamber concluded that there is a reasonable basis to believe that crimes within the ICC’s jurisdiction have been committed in the situation in Georgia.

Such crimes include crimes against humanity, such as murder, forcible transfer of population and persecution, and war crimes, such as attacks against the civilian population, wilful killing, intentionally directing attacks against peacekeepers, destruction of property and pillaging allegedly committed in the context of an international armed conflict between 1 July and 10 October 2008.

The Chamber also found that potential cases arising out of the situation would be admissible before the Court and that there are no substantial reasons to believe that an investigation would not serve the interests of justice taking into account the gravity of the crimes and the interests of victims.

In a statement following the Pre-Trial Chamber’s decision, the ICC Prosecutor, Fatou Bensouda, said that the timing of the Prosecution request for authorization of an investigation into the situation in Georgia was determined by the pace, and eventually, lack of national proceedings. Until recently, the competent national authorities of both Georgia and Russia were engaged in conducting investigations. However, last year, relevant national proceedings in Georgia were indefinitely suspended, which led to the Prosecution’s request for authorization to investigate.

The Office of the Prosecutor continues to monitor relevant proceedings in Russia, which are still on-going.

ICC to Open Investigation Into Russia-Georgia Conflict

Russia Georgia 2008 ConflictOn 13 October 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested the judges of Pre-Trial Chamber I of the Court for authorisation to open an investigation into the alleged war crimes and crimes against humanity in relation to the August 2008 armed conflict in Georgia.

The situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between South Ossetian separatists, supported by Russia, and Georgian forces turned into an armed conflict.

While Russia is non-member state after signing, but not ratifying, the Rome Statute, Georgia became a member of the ICC in 2003, providing the ICC with jurisdiction over Rome Statute crimes committed on its territory from 2003 onwards.

The Prosecutor found a reasonable basis to believe that war crimes and crimes against humanity were committed in the context of the armed conflict. This includes alleged crimes committed as part of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

According to the Prosecutor between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign.

Until recently, the competent national authorities of both Russia and Georgia were engaged in conducting investigations against those who appeared to be most responsible for crimes which are the subject of this application. However, more recently, national proceedings in Georgia have stalled, thereby making the potential case admissible due to State inaction. Some investigations may nevertheless be underway in Russia, meaning that the ICC might not have full jurisdiction over crimes covered by those probes.

If the Pre-Trial Chamber authorises the Prosecutor to open the investigation, this would be the first ICC investigation that is not involving an African country. The request comes amid plans of South Africa to leave the International Criminal Court which sparked fears that this might lead to a broader African withdrawal.

However, it is argued that the Prosecutor’s decision to move forward on Georgia is not made in light of a prosecution strategy to move cases out of Africa, but that after seven years the case simply demanded to be taken forward.