US European Command's Joint Assessment team and officials from the Georgian government touring Gori homes to assess damage find this Russian missile booster largely intact, August, 2008. Wikicommons/ US Navy/Lt.Jim Hoeft. Some rights reserved.On
27 January the International Criminal Court (ICC) in The Hague made a milestone decision for international
justice when it decided to authorize Prosecutor Fatou Bensouda’s request to
open an investigation into alleged crimes committed during the 2008 war
between Russia and Georgia.
The question now is how to support the Court in its attempt to bring accountability to the Caucasus.
In
August 2008 Georgian forces launched a military attack on the breakaway region of South Ossetia. Russia
intervened on behalf of the separatist authorities and entered Georgian
territory with sizeable forces. Large-scale military operations only lasted
a few days, but attacks
on the civilian population continued after the cease-fire agreement was signed. While Russia recognized
South Ossetia as an independent
state, almost all other states still consider the region part of Georgia.
Since
Georgia has ratified the Rome Statute, the Court has jurisdiction over crimes on Georgian
territory under certain conditions. The decision of the Pre-Trial Chamber
of the Court agrees with
the Prosecutor in that there is a reasonable basis to believe that war crimes and crimes against humanity
were committed. The Court refers to cases of deliberate killing and the
forcible displacement of thousands of ethnic Georgians. In a separate,
concurring opinion, one of the Court judges highlighted the death and
destruction resulting from indiscriminate attacks on civilian targets.
The
decision represents an indictment of Russian and Georgian justice authorities. One of the conditions for an
authorization is that domestic justice organs have been unable or
unwilling to investigate crimes. The Court cites “a situation of inactivity”
on the part of Georgian
authorities, and rejects Russia’s position that South Ossetia is responsible for investigating, as it is
“not … a recognized state”.
The
Court’s decision suggests that there has been a congruence of interest between Russia and Georgia in doing
nothing. Both sides are probably responsible for crimes, although forces
under Russian control are implicated in the most serious crimes. The
Court policy is to investigate
senior commanders rather than low-ranking soldiers.
Military
and political leaders could potentially be charged with war crimes, including the former
Commander-in-Chiefs, Georgia’s Mikheil Saakashvili (currently Governor of Odessa in
Ukraine) and President Vladimir Putin, portrayed as the de facto leader of
the Russian campaign
by state media.
This
is the Court’s tenth investigation, but only the third that has been opened at the request of the Office of
the Prosecutor. The other investigations have been opened in response to
requests from the UN Security
Council or state parties to the Court. It is also the first investigation to take place outside of
Africa. As such, it is a test case with bearing on other situations that the ICC
has under preliminary
examination, such as Afghanistan, Ukraine and the armed conflict in Gaza in 2014.
It
took an African prosecutor to bring the Court to Europe, and by coming here it is entering unmapped legal
territory and opening up a new frontier for international justice. By claiming
jurisdiction over Russian
forces that may have committed crimes in Georgia, the Court is implicitly challenging a major military power
and UN Security Council member. Like Israel and the US, Russia has not
ratified the Rome Statute
and is therefore not a state party to the Court.
The
investigation will be the Court’s biggest challenge in terms of state cooperation to date and the first
signals from the respective governments are mixed. While Georgia so far has
said it is ready to cooperate,
the Russian government has expressed “disappointment” that the Prosecutor has “started an investigation
aimed against the victims of the attack”, namely the South Ossetian civilians
and a Russian peacekeeping
contingent.
“Russia
stood at the origins of the ICC’s founding, voted for its establishment and has always cooperated with
the agency,” said the Foreign Ministry, adding that “Russia hoped that
the ICC (would) become
an important factor in consolidating the rule of law and stability in international relations.”
However, after the ICC decision to authorize an investigation, “the Russian
Federation will be forced to fundamentally review its attitude towards the
ICC.”
Russia
is right to call on the Prosecutor to investigate Georgian attacks on South Ossetia civilian targets.
However, there is nothing in the decision of the ICC that precludes an
efficient investigation of these allegations. Hopefully, Russia will
therefore provide access so that the Prosecutor can “talk with South
Ossetia’s representatives, civilians, who can show their photo albums with
pictures of the loved ones they had lost,” as the Russian Foreign
Ministry recommended in its statement.
The
dissolution of the Soviet Union resulted in a number of armed conflicts. These wars have been characterized
by grave violations of international law, such as mass killings of
non-combatants and the use of torture. Another common denominator is lack of
accountability. No one
was punished for crimes. Impunity can be seen as a driving force behind the conflicts. When there are no
consequences except political dividends, why not go to war? The threshold for
armed conflict remains dangerously low in the post-Soviet region, as the
war in Ukraine illustrates.
While
the crimes committed in Georgia are few compared to the horrors of Chechnya (or the carnage in Syria), the
investigation could help change the climate of impunity. It may also have an
impact further afield.
Israel is following the developments closely. One can view Israel’s many criminal investigations and the
upcoming state comptroller’s
report on the Gaza armed conflict as responses to the possibility of an ICC investigation.
Whatever
the final outcome of the investigation, the Court’s decision represents an implicit recognition of the
6335 victims from Georgia and South Ossetia that have contacted the court
with claims. Their hope
for justice remains very much alive. The decision also represents a victory for a number of Georgian, Russian
and international human rights groups that documented crimes in 2008 and
called for accountability.
Both the request of Ms. Bensouda and the decision of the Pre-Trial Chamber refer to documentation provided
by civil society.
Russia
has a troubled history of cooperating with foreign and international justice authorities and
recently passed a law that allows it to ignore decisions by the European Court
of Human Rights. It
will not be easy to complete the task the ICC has taken on, but not to try would have been a victory for
impunity. Whether the investigation will succeed depends to a large
extent on the support of the international community, not least the EU and
the United States.