ICC Prosecutor Seeks Investigation of Russia-Georgia War

Prosecutor Fatou Bensouda says there are reasonable grounds to look into crimes allegedly committed during 2008 conflict.

More than seven years after Georgia's war with Russia, the prosecutor of the International Criminal Court in The Hague has asked judges to authorise an investigation into war crimes and crimes against humanity committed during the conflict.

In August 2008, war broke out when Georgian troops entered the breakaway region of South Ossetia to re-establish control over it. Russian army units crossed the border and drove them out, pressing on beyond South Ossetia's boundary to within a few kilometres of the Georgian capital. They also moved south from Abkhazia to occupy parts of western Georgia.

Hundreds died during the brief conflict and more than 100,000 were displaced. Moscow withdrew its forces into Abkhazia and South Ossetia, and swiftly recognised both places as sovereign states, to the dismay of Tbilisi and the international community.

The International Criminal Court (ICC) has since August 2008 pursued a preliminary investigation into crimes committed during the conflict. On October 13, ICC prosecutor Fatou Bensouda took matters a step further by requesting the court to authorise a full investigation since in her view "there is a reasonable basis to proceed" with this.

The investigation, if approved, will cover the period July 1 to October 10, 2008. Georgian forces launched an offensive in South Ossetia on August 7, and the Russian army swiftly moved into the region, advancing beyond South Ossetia's boundary. A ceasefire was brokered on August 12, but Bensouda's application says that "crimes continued to be committed". Following a later agreement, "Russian troops withdrew behind the administrative boundary line of South Ossetia by October 10, 2008 at the latest", the document says.

The ICC has a mandate to investigate crimes against humanity, war crimes and genocide, when national authorities prove unwilling or unable to do so, on the territory of states that have signed its founding document, the Rome Statute.

Although South Ossetia claims independence and is under Russian military occupation, the territory is internationally recognised as part of Georgia and therefore falls under the ICC's jurisdiction. The ICC prosecutor does not refer to events in and around Abkhazia, which saw a simultaneous Russian troop advance south of the boundary line, followed by a withdrawal.

GEORGIANS GATHER EVIDENCE AT HOME BUT NOT IN RUSSIA

In the months that followed the conflict, at least three separate independent investigations gathered evidence of torture, executions, looting and the burning of villages during and after the week-long war.

One of these, a 2009 report called August Ruins prepared by five Georgian non-government organisations, called on the ICC to pursue the investigation further.

"This publication never had an ambition to be a comprehensive assessment because we only had access to Georgian-controlled territories," said Ana Natsvlishvili, the chairperson of Georgian Young Lawyers' Association, which was involved in compiling the report.

In the years that have followed, Georgian NGOs continued to advocate for an ICC investigation, stressing the "undeniable role" the ICC must play in ensuring justice.

Since neither the United Nations Security Council, nor Georgia, nor any other ICC member country has referred the case to the court, an application by the prosecutor to the pre-trial chamber is the only avenue to an investigation.

"We are really pleased that the prosecutor made this very important move and asked the pre-trial chamber to authorise the investigation," Natsvlishvili said.

Bensouda's application states that there is reasonable basis to believe that crimes were committed by all parties - Georgia, Russia and South Ossetia - during and after the brief war and after the ceasefire.

Specifically, the application states that there is reasonable basis to believe that South Ossetian forces, with the possible participation of Russian forces, committed war crimes by killing and forcibly displacing ethnic Georgians. The prosecutor states writes that there is reason to believe that both South Ossetian and Georgian armed forces committed war crimes by attacking peacekeeping missions. South Ossetian forces may have also committed crimes against humanity through "a systematic attack against ethnic Georgian civilians in South Ossetia". Finally, an investigation would look into alleged "indiscriminate and disproportionate" attacks against civilians by both Georgian and Russian armed forces.

Tinatin Khidasheli, who wrote and edited the 2009 NGO report August Ruins, is now Georgia's defence minister. She says she is confident the Georgians did not commit war crimes.

"To the best of my knowledge - and I think I know more than many people in this country or in my northern neighbouring country about this war, especially now I'm even stronger than I was at that time because now I have access to documents which I didn't have at that time," she told IWPR. "As much… as much as I hated everything [then president Mikheil] Saakashvili was doing in this country especially for the last seven years of him in power, there is no proof that there was any crime committed by Georgians."

The alleged attacks by Georgian forces against Russian peacekeepers are particularly contentious. Peacekeepers hold protected civilian status under international law, but Khidasheli and others argue that they lost that status by opening fire on Georgian troops.

"The peacekeepers were ordinary enemy combatants, [just like] the armed forces of the Russian Federation who entered Tskhinvali. Absolutely no difference between them," Khidasheli said. "And if you have an army shooting at you, yes, you will respond if you are a soldier with a gun on the other side."

WHY IS BENSOUDA SEEKING AN INVESTIGATION NOW?

After several years of preliminary examinations, the ICC prosecutor determined in 2011 that there was a reasonable basis to believe that war crimes and crimes against humanity had been committed. So why is the prosecutor only now pursuing an investigation?

The prosecutor explains the timing by arguing that the national authorities of Russia and Georgia were previously conducting their own investigations, and it appeared as though these were making progress. As a court of last resort, the ICC can only step in if national authorities prove unwilling or unable to investigate themselves.

According to the prosecutor's application, the Georgian government notified her this March that it had suspended its investigations indefinitely.

Khidasheli questions whether Georgia's investigation could have ever been effective.

"There is no single argument anybody can bring how an investigation by Georgia could ever, from the first day of the conflict, be effective," she said. "We cannot go into the occupied territory. We cannot go to Russia to have the witnesses questioned. We have no access to the evidence. It is a joke."

Khidasheli says she is gratified but confused by the possibility of an ICC investigation.

"I'm far from having any doubts as to the independence of the [ICC] prosecutor or the court, but at the same time, we all know, unfortunately, that global world politics always has a role in these kinds of situations," she said.

Alex Whiting, a Harvard law professor, previously worked in the Office of the Prosecutor at the ICC and also acted as an external expert for the August Ruins report. He explained to IWPR why the ICC prosecutor was taking action now.

"I think that the ICC could have demonstrated earlier that there would be no domestic prosecutions and that therefore the investigation would be admissible at the ICC, but two factors made the court take its time. First, the court is extremely busy and stretched for resources, so there is a backlog of cases to be investigated. Second, it was clear that neither Russia nor Georgia was eager to have an investigation - although Georgia is a state party to the Rome Statute, it never asked the ICC to investigate crimes from the war - and therefore the Court knew that the investigation would be difficult and the chances of success diminished," he said. "But ultimately, even if the ICC sees little cooperation from the countries at issue, it will push forward with an investigation if there is a basis for it, as there is in this case."

If an investigation into the war goes forward, which Whiting says is very likely to happen, it would be a first for several reasons. First, it would be the first time the ICC has opened a full investigation outside Africa.

Since the court began operations in 2003, its nine investigations have covered eight African countries.

For Natsvlishvili, the expansion beyond Africa is significant.

"For me it is a significant message for European states and European politicians, as well, that international crimes, war crimes, crimes against humanity - it's not something happening far away just in African countries which are developing and don't have strong institutions or stable environment," she said. "It's not just African problems."

The investigation would also be the first to significantly involve a country that is not a signatory to the ICC's statute - Russia. But that could also limit the possibility of a conviction. The investigation will require cooperation from all sides. Without that, Whiting says, the chances of success are much reduced.

In a recent article in Just Security, Whiting suggests that the allegations against the Georgian armed forces, in particular, will be hard to prove. He says he would not count on any suspects appearing at The Hague any time soon.

SECURING JUSTICE A LENGTHY PROCESS

The ICC already faces criticism for failing to bring suspects to trial. Last year, the prosecutor was forced to dropped her case against Kenyan president Uhuru Kenyatta, related to election violence in 2007-08, after the national government failed to hand over key evidence.

Since the court began operations in 2003, it has only secured two convictions, though proceedings against 25 individuals are ongoing.

The court's lack of successful prosecutions can be blamed in part on a lack of money. However, its budget, and the budget of the Office of the Prosecutor in particular, has grown in recent years. In 2013, the Office of the Prosecutor had 28.3 million euro to work with. Its proposed budget for 2016 is more than 46 million euro.

So far, both Georgia and Russia have cooperated with the prosecutor. Whiting notes that although neither has requested an ICC investigation, each might have its own motives for supplying information.

"Because there are two countries involved in this case, each country will have incentives to cooperate against the other country and to provide information about alleged crimes committed by the other. The ICC will have to scrutinise such evidence carefully, but it could also provide the court with real opportunities to develop cases," he told IWPR by email.

There is still a long way before prosecutions and trial cases appear on the horizon.

The Georgian Young Lawyers' Association is now working to mobilise the victims of the war. They have until November 12 to make a declaration to the pre-trial chamber about whether an investigation should be opened.

Natsvlishvili says many victims in Georgia have remained vocal over the years, "so we'll make sure this voice reaches the court".

But she says the lawyers' association and other human rights organisations also have another task - managing expectations.

"I don't want the victims to have very high and unrealistic expectations and then again be disappointed and feel the pain a second time," she said. "I think there will be some disappointments, even if the investigation goes forward and even if some parties are brought to justice."

Natsvlishvili says that what most victims want is an acknowledgement of what happened to them. "They want recognition of the crime committed, and they want recognition of their suffering," she said.

Many suffered material losses - houses, land and other property - and will want restitution. The ICC has a Trust Fund for Victims that is mandated to offer reparations in the event of a conviction and general assistance irrespective of a conviction. But it is not obliged to do so, and it has very limited funds. It currently only supports projects in northern Uganda and in the east of the Democratic Republic of Congo.

Natsvlishvili remains optimistic about this ICC process.

"It's very important for the court to open up the investigation, because it is the only way we can have justice - partial justice, because I'm stressing that there is no turning the clock back for such crimes - but still it is important to get the sense of justice and for us to believe that the institutions which have been created, the laws which have been created, are not just sheer paper, but that there are people, there are courts, and there are mechanisms which can work if crimes against humanity or crimes are committed. We need to believe in it," she said.

If the investigation goes forward, Khidasheli says the consequences will extend beyond Georgia.

"This investigation will affect everybody's relations with everybody," she said. "Not just with Russia and South Ossetia, but Russia-West, Georgia-West, and every other country who is interested or should be interested in the case, because if they're investigating war crimes or crimes against humanity on the territory of a Council of Europe member state by another Council of Europe member state... then it concerns everybody who's party to this."

The ICC's decision whether or not to open an investigation could take several months or longer.

Heather Yundt is an IWPR trainer and multimedia producer based in Tbilisi.