Five Years on, Georgia to Probe Facts of 2008 War

Late on August 7 five years ago, Georgian president Mikheil Saakashvili issued orders for troops to enter into South Ossetia and re-establish control of a region that had claimed independence since a conflict two decades before. Within days, his army was retreating before a superior Russian force which moved in to assist their South Ossetian allies.

Saakashvili remains president until an election in October, and is not eligible to stand again. Most of his effective powers have been stripped away by a government that was elected in October 2012, defeating his United National Movement.

As Georgians look back on the 2008 conflict, which resulted in immediate Russian recognition of South Ossetia and Abkhazia, followed by years of frosty relations between Tbilisi and Moscow, observers are discussing the likely implications of an investigation into Saakashvili's role as commander-in-chief.

Georgia's chief prosecutor set up a working group earlier this year to look into the legal basis for the conflict with Russia.

At a press conference in April, Prime Minister Bidzina Ivanishvili indicated that the investigation could lead to legal proceedings against Saakashvili.

"I think that the cause of this war must be investigated," he said. "There are a lot of questions about it."

He accused the president and the government of the time of "inadequate" actions before Russian troops ever entered South Ossetia.

"I think it was unjustified for military units to act and launch operations before the Russians crossed the border," he said.

Saakashvili's government always insisted the decision to send in troops was provoked by South Ossetian attacks and by the covert arrival of Russian forces.

Although Ivanishvili's administration has curbed Saakashvili's powers and arrested some of his closest allies, tackling him over the events of August 2008 is perhaps the most confrontational step yet.

Saakashvili hit back by warning the prime minister not to spread "the lie that Georgia started the war", and not to use the issue to get back in Moscow's good books.

Two days after his initial comments, Ivanishvili clarified that he held Moscow responsible for initiating the conflict.

"It was Russia that violated the territorial borders of a sovereign country and carried out aggression, [but] why did Mr Saakashvili succumb to an obvious provocation?" he asked.

Constitutional changes have shifted many of the president's powers to parliament, leaving Saakashvili powerless to block a probe.

"If it becomes necessary to question the Georgian president about the events of the August War, then the president must look on this with understanding," Ivanishvili said.

For his part, the president has insisted he will "not cooperate for one second with this anti-state investigation which seeks to undermine Georgia, and which directly targets our territorial integrity."

The Georgian parliament is to conduct its own investigation of the conflict, separately from the prosecution service.

According to Prosecutor General said Archil Kbilashvili, "Our duty is to study the legal aspects and to see whether war crimes were committed. What parliament is doing, or will do, is a different matter and has nothing to do with us."

Shortly after the conflict ended in 2008, the then parliament set up a commission to investigate it. Commission chairman Paata Davitaia said there was no examination of possible war crimes, and the focus was on the political causes.

Saakashvili's opponents say the commission's findings were a whitewash.

"The parliamentary commission created by the last parliament was designed solely to cover up Saakashvili's culpability," Kakha Kukava, leader of the Free Georgia party, said. "If the commission had investigated the matter objectively, it's clear that Russian culpability would still stand, but doesn't mean we shouldn't investigate Saakashvili's culpability as well."

The presidents allies say a fresh investigation is unnecessary and has political undertones.

Nugzar Tsiklauri, a member of the United National Movement minority in parliament, sees it as "absolutely unacceptable to conduct any kind of investigation accusing this country over the war".

Saakashvili's office issued a statement warning the Ivanishvili government that it ran the risk of encouraging more states - over and above Russia and a small handful of countries - to formally recognise South Ossetian and Abkhazian independence. That would further complicate Georgia's ultimate aim of regaining control over the two territories.

"The new government's approach could bring catastrophic results for our country, and responsibility for this will lie with those who initiated this investigation," the statement said.

Natia Katsitadze of the Georgian Young Lawyers' Association says that Saakashvili could face prosecution only after his presidential immunity expires, or in the event of a parliamentary impeachment.

External investigations into the 2008 war have produced reports accusing both sides of breaches of human rights conventions and international law, including forcible expulsions, torture, plunder and damage to property.

In theory, abuses committed by all parties to the conflict could be investigated by prosecutors from the International Criminal Court, ICC, in The Hague, either at the Georgian government's request or if they believe the national courts are incapable of handling the matter.

The ICC has looked at the events in question, but has not deemed Georgia to be a "situation", the first step towards an investigation by its prosecutors. That is in contrast to some Georgian media reports that the ICC is close to launching a probe.

Georgian justice minister Tea Tsulukiani has indicated that the matter should be dealt with in the domestic courts, although her staff have been cooperating with the ICC.

Aleko Tskitishvili, director of the Human Rights Centre in Tbilisi, pointed out that the key question was how the investigation would be framed.

Right now, he said, "It's very hard to say who is to blame for crimes that have not been investigated. All we know is that the Georgian government blames the Russian government for committing crimes, and the Russian government blames the Georgian government."

"If the question is whether President Saakashvili is responsible, no one will find out anything," he continued. "But the specifics, questions of individual crimes - that's for the investigation to discover. It needs to establish whether the defence ministry and the generals were following orders from the commander-in-chief when, for example, they used cluster bombs - which if I remember correctly, the Georgian government has admitted using."

In the event that proof of such a crime was established, he added, "The Georgian side must pay compensation, and the individual who ordered the weapons to be used must be punished."

Gia Nodia, a former education minister who is now a political analyst, said the government would need to tread carefully to avoid accusations from the international community that it was simply embarking on a political witch-hunt.

"If the overall, pre-existing impression of the war doesn't change, then there probably won't be much of a reaction. But if it appears that this is a means of punishing and ostracising opponents, then it will evoke serious criticism," he said.