What Difficulties will ICC Face in Russia-Georgia 2008 War Crimes Investigation?

BY LORETA MATULEVIC

In the International Criminal Court’s long history of investigating war crimes, the 2008 five-day Russia-Georgia armed conflict was the first conflict outside of Africa to attract the ICC’s attention. Even so, it witnessed a long road to the final investigation authorization. The impetus for considering the investigation was the violent clashes between Russia and Georgia over the breakaway regions of Abkhazia and South Ossetia in 2008. The war left many people killed, wounded, and displaced. Before the ICC’s full involvement, the parties to the conflict conducted their own internal independent investigations; but the war crimes and crimes against humanity remained unresolved and unpunished, with no further development.

Russia-Georgia war crimes first attracted the ICC’s attention on 14 August 2008, when the ICC prosecutor started a preliminary examination of the situation in Georgia. The interest in the case emerged due to ongoing crimes and Russia’s – a UN Security Council member – involvement. Furthermore, as the August 2008 war was one of the few major non-African international disputes of that time, the ICC used its involvement as a fundamental step in potentially establishing its worldwide long-term existence and dominance. Finally, after seven years, on 13 October 2015, the preliminary examination led to ICC Prosecutor Fatou Bensuda’s announcement that there were reasonable grounds to proceed with an investigation into the alleged crimes that occurred during the August 2008 armed conflict. The investigation, having officially begun on 27 January 2016, will cover the period from 1 July to 10 October 2008, will focus on South Ossetia region and ‘buffer zones,’ and will examine crimes against humanity and war crimes. There are a few aspects to consider, however, which bring to question the plausible success of the investigation.

The ICC, as the court that prosecutes genocide, war crimes, and crimes against humanity, obliges members to cooperate as its decisions are binding. The founding treaty is the Rome Statute, established in 2002, which the ICC uses to achieve international justice and establish rule of law. However, for the ICC to exercise its full jurisdiction, countries must be signatory of the Rome Statute. Georgia ratified the Rome Statute in 2003, which gives ICC the right to exercise jurisdiction on the territory of Georgia and/or actions committed by its nationals. In addition, despite South Ossetia’s and Abkhazia’s declared independence, the international community recognizes the two regions as parts of Georgia, which also gives the ICC the right to pursue the investigation on those territories. Russia, on the other hand, signed the Rome Statute in 2000 and cooperated with the court, but has never ratified it, leaving the ICC without jurisdiction in Russia’s territory. In 2016, Russia formally withdrew its signature, declaring that the ICC did not live up to its expectations. Such dynamics mean that the ICC’s success in the investigation process and its outcomes could be ambiguous. Investigating actions of Georgian nationals puts the burden on one side of the coin. The ICC’s prosecution will mainly deal with Georgia, leaving Russia aside with its own independently continued domestic proceedings. This may do some good for Russia, considering the crimes by Georgian militias against Russian peacekeepers. But two-party inclusion is missing, which doesn’t reflect well on the fairness of the ICC proceedings.

In this delicate situation, some factors also reflect poorly on the ICC’s work efficiency and effectiveness. One of those is the unraveling length of the preliminary investigation until the final investigation approval in 2016. The Court states that it will only intervene if national legal systems are unable or unwilling to investigate and prosecute perpetrators of genocide, crimes against humanity, and war crimes. However, the ICC can be criticized for taking too long to call for action. Considering the lengthy preliminary investigation, investigation procedures are demonstrably slow and time-consuming. There are a few explanations for such a lengthy process. One suggests that at the time of the investigation, the ICC’s already finite human and financial resources were stretched to the maximum, which made it difficult to further the investigation. Others argue that the ICC moved slowly so as to give enough time for Georgia and Russia to carry out their own independent domestic investigations. These investigations eventually proved to lead nowhere, which indicates that perhaps the ICC didn’t need to postpone its investigation for seven as opposed to taking over after a couple years of weak progress on the part of Russia and Georgia. Some others, convincingly, evidence commitment and adherence issues. After all, neither Georgia nor Russia have ever requested the ICC’s investigation and aimed at bringing justice to the table on their own. That being said, Georgian nationals seemed to welcome the ICC’s involvement, particularly those victims for whom the perpetrating war criminals remain unpunished.

Judging from past experience, the current investigation will undoubtedly witness the same hurdles in the upcoming years, but with additional aspects to consider. One key caveat evidenced from other ICC’s investigations is bringing suspects to the trial. This will face immense challenges in the Russia-Georgia case, particularly considering that Russia, a UN Security Council member state and a non-signatory of the Rome Statute, is for the very first time involved. Such prosecutions might leave Russia, whose cooperation is greatly needed, highly dissatisfied with unfolding events. The key for the investigation’s success is Russia’s clear and ongoing commitment throughout the whole investigation process; whereas Georgia, as a signatory of the Rome Statute, is obliged to engage in the proceedings. On the flip side, parties’ full cooperation will also pose some threats. By providing a fair amount of information on alleged crimes committed by one another, the states might deliver distorted and/or overstated information. This will make the ICC highly vulnerable to the information flow, which will require careful additional scrutiny to ensure its validity. This may turn the investigation into yet another lengthy process.  If executed well, however, the case will be a detailed and cautiously examined one. As such, after seven years of preliminary investigations, there will probably be at least another seven years of prosecution because some of the ICC’s internal factors, as well as the dynamics of the prosecuted states, will hinder the proceedings and result in questionable outcomes.

However, considering the relevant parties’ unwillingness to investigate violations against humanity and war crimes, the ICC remains the only independent institution capable of examining the case. The fact that the ICC for the very first time has stepped onto the soil of a non-African conflict stresses the ICC’s ultimate involvement and accountability. In fact, despite the many flaws and hurdles discussed earlier, the ICC is nonetheless significant in its active engagement. But the final outcomes will, indeed, equally boil down to the parties’ commitment and the ICC’s investigation management skills.

Crimes against humanity and war crimes are common in all world regions and the world requires better scrutiny of armed conflicts. As the number of cases is in fact growing, internal and external improvements in the ICC’s investigation procedures are also needed. Those should involve growing human and financial resources and ensuring commitment and adherence that will oblige countries to equally and fully cooperate. The case on the Georgia-Russia war may mark the beginning of new world perceptions on armed conflict prosecution. The international involvement indicates that the issue is acknowledged on an international level, but also leads to two key questions: how long will it take to prosecute the criminals and how will state dynamics be managed so as to deliver a well-executed investigation? Such factors, on the one hand, will ultimately add on to the investigation challenges; on the other hand, the investigation’s success will show the importance of and commitment to justice and prosecution of humanitarian law violations.

Image source: hrw.org

About the Author 

Loreta Matulevic is an intern with the Eurasian Conflicts Studies (formerly Armed Conflicts) Project at the ERA Institute. 

DISCLAIMER: The views and opinions expressed in the article are solely those of the author(s) and do not necessarily reflect the official policy or position of the ERA Institute.

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