Ending impunity in Europe?

November 2008. South Ossetia. Tskhinvali. The Parliament was destroyed. Paris to Kiev

South Ossetia. Tskhinvali. In November 2008, the Parliament was destroyed. © Paris to Kiev

In this post from Open Democracy, Aage Borchgrevink and Simon Papuashvili write on the challenge of state cooperation for a successful International Criminal Court (ICC) investigation into alleged crimes committed during the 2008 South Ossetia conflict involving Russia and Georgia.

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 decisionrepresents 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.

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