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.

Russia Opposes France Proposal on Limited Veto Power

Image1Yesterday, Ambassador Vitaly Churkin held a press conference assuming Russia’s presidency of the United Nations Security Council for September during which he commented on the UNSC reform and proposals on veto limitations. Commenting on the proposed initiative by France to limit UNSC permanent members veto powers, Churkin said it was a “populist” idea and that a compromise on a UNSC reform was nowhere in sight.

Ambassador Churkin has first addressed negotiations around the admission of new permanent members, introducing a third-category of long-term non-permanent members: “We want a historic compromise to be reached between the two main camps: Those who want to have new permanent members and those who don’t want to have permanent members, and advocate a reform with a new category of intermediate countries which will be elected for a longer period of time than the current two years for the current non-permanent members.” Continue reading

Russia vetoes UNSC Resolution on a Tribunal for Downed Flight MH17

Debris at the crash site of Malaysia Airlines Flight MH17, near the village of Grabovo, Ukraine ©AP

Debris at the crash site of Malaysia Airlines Flight MH17, near the village of Grabovo, Ukraine ©AP

At the last UN Security Council meeting, held on Wednesday 29 July, the Russian federation vetoed draft Resolution S/2015/562 on the creation of an International Criminal Tribunal for Malaysia Airlines Flight MH17 (ICTMH17). The resolution included a draft Statute providing for the prosecution of suspects accused of downing flight MH17 on 17 July 2014, killing 298 people including 193 Dutch citizens. Eleven countries on the 15-member council voted in favour of the proposal by Malaysia, Australia, the Netherlands and Ukraine, while three countries abstained: China, Angola, and Venezuela.

Earlier on the day, Dutch Prime Minister Mark Rutte had called Vladimir Putin to appeal on him directly to support the creation of the ICT. Based on the Law on International Crimes, Dutch prosecutors have opened an investigation into the crash of Malaysia Airlines flight MH-17 on suspicion of murder, war crimes and intentionally downing an airliner. Russia said discussions on a dedicated ICT should be postponed until the two Dutch-led investigations into the crash release their reports.

MH17 Crash: Russia Against a UN Tribunal

MH17 CrashRussian President Vladimir Putin has rejected calls for the establishment of a UN tribunal to prosecute suspects in the MH17 air disaster over Ukraine.

Mr Putin made the remarks ahead of the first anniversary of the crash yesterday. The crash killed 298 people.

The Kremlin said in a statement that Mr Putin had “explained Russia’s position regarding the premature and counter-productive initiatives of several countries, including the Netherlands, on the establishment of an international tribunal”. Russia also criticised what it said was politicised media coverage of the disaster.

For Mark Rutte, the Dutch Prime Minister, the establishment of a tribunal would help secure justice and would also constitute “the best guarantee of co-operation from all countries” in trying to secure justice.

The airliner was flying from Amsterdam to Kuala Lumpur when it crashed on 17 July 2014.

Western nations believe there is growing evidence that the plane was hit by a Russian-supplied missile fired by pro-Russian rebels in the area. However, Russia blames Ukrainian government forces.

The Netherlands is leading the criminal investigation into the disaster. It is being assisted by Belgium, Australia and Ukraine.

The Dutch Safety Board will release a final report on the cause of the crash in October.

Russia Vetoes UN Resolution to Call Srebrenica Massacre as ‘Genocide’

Srebrenica MassacreRussia has vetoed a United Nations Security Council resolution that would have described the Srebrenica massacre as “genocide”.

Russia’s UN Ambassador Vitaly Churkin said adopting it “would be counter-productive, would lead to greater tension in the region”.

Four members of the Security Council abstained while the remainder voted in favour.

The motion had angered Serbia, which rejects the term. Serbia does not have a seat on the Security Council, and had asked ally Russia to block the resolution.

The Serbian President, Tomislav Nikolic, called it a “great day” for his country.

The resolution had been drafted to mark the 20th anniversary of the atrocity, which came amid the bloody break-up of Yugoslavia into independent states.

During the Bosnian War, which saw Serbia-backed Bosnian Serb forces fighting the Muslim-led Bosnian government, thousands seeking shelter at what was supposed to be a UN refuge were slaughtered.

The resolution said that “acceptance of the tragic events at Srebrenica as genocide is a prerequisite for reconciliation”.

Ambassador Samantha Power, U.S. Permanent Representative to the United Nations criticized Russia’s veto, qualifying Russia’s veto as heart-breaking for the families and saying that “it is a further stain on this council’s record.” She argued amongst other things that the crime of genocide is “the crime that the United Nations Genocide Convention was written and ratified to prevent and punish. The crime of genocide in Srebrenica is what the genocide convention — which all of us have ratified — exists to prevent and punish. Reconciliation cannot be built by burying the dark parts of one’s history, however unsettling they may be.”

The Ambassador also highlighted the numerous testimonies which took place before the International Criminal Tribunal for the former Yugoslavia (ICTY), describing the atrocities and leading the Yugoslavia Tribunal to convict numerous people of genocide in relation to the Srebrenica killings.

Red Cross: “Ukraine is Officially in a War”

Ukraine ConflictAccording to Western diplomats and officials, the Red Cross has made a confidential legal assessment that Ukraine is officially in a war. Such statement would open the door to possible war crimes prosecutions, including over the downing of Malaysia Airlines MH-17.

“Clearly it’s an international conflict and therefore this is most probably a war crime,” one Western diplomat said in Geneva.

The Red Cross has not made any public statement – seeking not to offend either Ukraine or Russia by calling it a civil war or a case of foreign aggression – but it has done so privately and informed the parties to the conflict.

“The qualification has been shared bilaterally and confidentially. We do not discuss it publicly”, said Anastasia Isyuk, the Red Cross spokeswoman.

The designation as a war – either international or civil – changes the situation as it turns both sides into combatants with equal liability for war crimes, which have no statute of limitations and cannot be absolved by an amnesty. Continue reading

Russia and China Veto Security Council Resolution on Syria Referral to ICC

UN Security Council (c) UN/Evan Schneider

UN Security Council (c) UN/Evan Schneider

Today, at 10h00 New York time, the UN Security Council voted on a draft resolution introduced by France to refer the situation in Syria to the International Criminal Court (ICC). The resolution failed to pass when Russia and China, permanent members of the Council, vetoed the resolution.

Samantha Power, US Ambassador to the UN, in her statement following the vote criticised Russia and China for impeding access to justice for the

Syrian people. She also emphasised the importance of holding Russia and China to account:

“While there may be no ICC accountability today, there should be accountability for those members of this Council that have prevented

accountability.”

The US agreed to support the resolution after ensuring that Israel would be protected from prosecution before the Court in relation to its occupation of Golan Heights in Syria. Responding to criticisms that the resolution was biased, Power said:

“I agree. [The resolution] was biased in favour of establishing facts, tilted in favour of establishing peace.”

The veto has been called an “endorsement of impunity” by the Lithuanian representative and “disgraceful” by the United Kingdom.

The result is unlikely to come as a surprise following the statement made yesterday by Vitaly Churkin, Russia’s Ambassador to the UN, who called the resolution:

“simply a publicity stunt which will have a detrimental effect, unfortunately, on our joint efforts in trying to resolve politically the crisis in Syria.”

Today’s vote marked the fourth veto of the Syrian situation in the last three years.

Since Syria is not a party to the Rome Statute of the ICC, the Court may only exercise its jurisdiction over the situation if Syria were to accept the jurisdiction of the Court by way of an Article 12(3) declaration or the Security Council were to refer the situation to it.