News. On January 27th 2016, the judges of the ICC Pretrial Chamber have finally decided to approve the opening of an official investigation into the 2008 war between Russia and Georgia. This follows the claim of the ICC Prosecutor back in October 2015, who announced that she had evidence suggesting that both sides had killed peacekeepers during the armed conflict, which amounts to a war crime. This will be the ICC’s first investigation into a conflict taking place outside an African country.
In 2008, shortly after the end of the armed conflict between Georgia and Russia, Prosecutor Luis Moreno Ocampo declared the beginning of a preliminary examination. The ICC prosecution is seeking to investigate allegations of crimes against humanity as well as war crimes committed in Georgia between July and October 2008. Based on those evidence, the current Prosecutor, Fatou Bensouda, concluded that the events that happened in Georgia at the time were crimes that fell under the jurisdiction of the court and she then proceeded to submit a request to open an investigation in October 2015. The prosecution has determined that there is a reasonable basis to believe that South Ossetian forces committed the crimes against humanity of murder, deportation, and persecution as well as the war crimes of murder, destroying the enemy’s property, and pillage in a campaign to push ethnic Georgians out of South Ossetia. Moreover the prosecution also determined that there was enough reason to believe that an alleged attack happened on August 7 and 8th on Russian peacekeepers committed by Georgian forces as well as an alleged attack on Georgian peacekeepers committed by South Ossetian forces on August 7th, which amount to the war crime of attacking personnel involved in a peacekeeping mission. Following those claims, more than 6’000 alleged victims made representations in the court in December 2015.
The decision of the judges
When the prosecutor seeks to act on her own motion, an ICC pretrial chamber composed of three judges, needs to first authorize the investigation, which is what happened in the end: the judges decided in January 2016, that “there is a reasonable basis to believe that crimes within the Court’s jurisdiction were committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008”. With the start of the investigation around the corner, it is important to note that Russia is not an ICC member country, but Georgia is, since it has ratified the Rome Statute on September 5th 2003. The ICC has jurisdiction over crimes that are committed on the territory of states parties, regardless of the nationality of those who allegedly committed the crimes, which means that the jurisdiction of the ICC will extend to crimes committed by Russian nationals on Georgia’s territory. Since the court has now authorized an ICC investigation, the Georgian government will have to cooperate fully with the court, while the Russian authorities will not be bound by the same obligation.
The ICC, a tool of Western Imperialism?
The ICC has been criticized many times for exclusively targeting and investigating African countries and a lot of questions have been asked regarding the choice of the armed conflict and whether choosing a war happening outside of Africa was a strategy established by the ICC Prosecutor to search a way out of Africa. Since it began investigating in 2003, the ICC has indeed investigated eight African countries which led many African leaders and countries to accuse the court of unfairly targeting African leaders. Some countries such as South Africa, have even started to reconsider their relationship with the Court and threatened to withdraw from it. Many of them have called the ICC a “race hunting” institution as well as a “tool of Western imperialism” even though African states have themselves requested the majority of these interventions. On top of that, it is also important to point out that African countries are the largest regional block of ICC member countries and in five countries, respectively – Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Uganda, and Mali – the ICC Prosecutor began an investigation following the request or grant of jurisdiction by the governments themselves. Finally, in Darfur, Sudan and Libya, the Prosecutor of the ICC acted by following the referral made by the UN Security Council.
Cases chosen by the court: a controversial matter
On the other hand, international justice has also been applied in an uneven manner, and this can be illustrated with the failure of some countries to join the ICC and the issue of determining which situations to refer to the court when serious crimes are committed in countries that are not members of the ICC. The choice of the cases selected by the ICC can quickly become a highly controversial subject but the court has made it clear that regional balance is not a factor that is taken into account in the selection of situations. As Human Rights Watch clarifies, “since the ICC is an international court operating in what are often highly politicized contexts, the prosecutor and the court need to be clear in their decision-making that the court is an independent, judicial institution.”
Easy conclusions can be made
With this deep criticism towards the ICC, it may be easy to conclude that the court opened the investigation in Georgia in order to reduce the strong criticism, but this conclusion is a rushed and hasty one. If we analyze the situation a little closer, we realize that using Georgia as its road out of Africa is a risky strategy for the court and would also make little sense given the timeline of the decisions that were made by the court. Alex Whiting, a former member of the ICC’s Office of the Prosecutor and currently a professor of practice at Harvard Law School, commented on this matter: “If the Prosecutor simply wanted to use the Georgia case to get out of Africa or to take on a major power, she could have done so years ago. … A prosecution strategy that simply tried to respond to criticisms from the outside, many of which are politically motivated, would be doomed to fail.” As of now, we can only say that Georgia, Russia and South Ossetia have all cooperated with the Court, but it is impossible to predict the outcome of the current investigation. But the fact that this case is the first one outside of Africa as well as targeting all sides of the war, it is already looking like this investigation will be a unique and complex one.
Research Assistant at CIPADH
BBC (2016). ICC Authorises Russia-Georgia War Crimes Investigation. January 27th 2016. IN : BBC (Online). http://www.bbc.com/news/world-europe-35422437 Accessed on February 16th 2016.
HRW (2016). Q&A: Georgia and the International Criminal Court. October 14th 2015. IN: HRW (Online). https://www.hrw.org/news/2015/10/14/qa-georgia-and-international-criminal-court Accessed on February 16th 2016.
Justice Info (2016). La CPI sort de l'Afrique en passant par la Géorgie. February 15th 2016. IN : Justice Info (Online). http://www.justiceinfo.net/fr/component/k2/26036-la-cpi-sort-de-l-afrique-en-passant-par-la-g%C3%A9orgie.html Accessed on February 16th 2016.
Justicehub (2016). Georgia and the ICC : a Strong Beginning, a Uncertain Outcome. Febraury 11th 2016. IN: Justice hub (Online). https://justicehub.org/article/georgia-and-icc-strong-beginning-uncertain-outcome Accessed on February 16th 2016.
Washington Post (2016). Why is the International Criminal Court Stepping out of Africa and into Georgia ? February 5th 2016. IN: Washington Post (Online). https://www.washingtonpost.com/news/monkey-cage/wp/2016/02/05/why-is-the-international-criminal-court-stepping-out-of-africa-and-into-georgia/ Accessed on February 16th 2016.