By Mark Kersten
The International Criminal Court (ICC) may have finally found its ‘road out of Africa’. Prosecutors at the ICC have asked the Court’s judges to grant them an official investigation into the allegations of war crimes committed during the August 2008 war between Georgia and Russia over the territory of South Ossetia. This marks the first time that the ICC’s prosecutor has sought to investigate a situation outside of the African continent. It also puts a number of states in the Court’s cross-hairs. So who is - and should be - afraid of the ICC in Georgia?
The most common answer is Russia. After all, many blame Russia for the war in South Ossetia. Moreover, and perhaps more pertinently, a dominant narrative in international relations today pits Russia as a belligerent Goliath against innocent regional Davids. Moscow is up to no good in Ukraine. Moscow is up to no good in Syria. And, in 2008, Moscow was up to no good in South Ossetia. This “Cold War 2.0” rhetoric leads easily to the assumption that if there's an investigation into a war Russia that is involved in, Russia must be at fault.
from the Russian foreign ministry suggest that Moscow is palpably concerned with what it sees as the ICC’s unfair focus on its role in the war:
'"Judging from conclusions made by the ICC prosecutor, intentional killings of the South Ossetians will not become an issue of international investigation. [ICC] Prosecutor’s office also has reservations about attacks carried out against the Russian members of the peacekeeping forces. But ICC investigators state their readiness to investigate actions of the South Ossetian militias against ethnic Georgians, as well as of the Russian forces, who, as the prosecutor supposes, ‘possibly participated’ in those actions.
"Such interpretation of the August 2008 events, which is far from reality and which actually shields [former President Mikheil] Saakashvili’s regime, will hardly contribute to confidence towards the ICC prosecutor’s office. We hope that while considering the prosecutor’s request, the [ICC] judges will take [a] decision, which meets principles of fairness."
But does Russia really have that much to worry about? Not really.
The ICC Prosecutor’s request to open an official investigation
into the war in South Ossetia seems primarily focused on two crimes: 1) the alleged ethnic cleansing of Georgians from South Ossetia, and 2) an alleged attack by Georgian forces on a Russian peacekeeping base (which included a medical facility). While the prosecutor’s written request to open the investigation does note that “the information available suggests that Russia continued to exercise overall control over South Ossetian forces during this period”, it also observed that Russian forces set up check-points and acted in such a way as to protect civilian populations from South Ossetian violence. Overall, the prosecutor’s request gave a mixed, rather weak and very much inconclusive assessment of the actions of Russian forces:
"The information available indicates that at least some members of the Russian armed forces participated in the commission of the alleged crimes while other members acted passively, and still others acted to prevent and punish such crimes. The issue of whether, additionally, individual criminal responsibility may be attached to members of the Russian armed forces for acts allegedly committed by South Ossetian forces will depend on the evidence collected during the course of any authorised investigation and an examination of the full range of forms of liability under the Statute. As described above, at least in some instances, the Russian armed forces appear to have been able to prevent and punish such acts consistent with the duties of an occupying power."
This isn’t exactly a strong condemnation of Russian forces or even a suggestion that they willfully and systematically perpetrated war crimes. Indeed, none of the above should have Moscow shaking its boots.
So why, then, has Russia’s response been so virulent?
The answer is that Russia's comrades in South Ossetia may be vulnerable to potential warrants of arrest. South Ossetian forces are allegedly responsible for the ethnic cleansing of Georgian citizens, perhaps the most high-profile charge the ICC is likely to levy. Russia, which annexed South Ossetia and which insists that the region is now part of the Russian Federation, will likely pursue a two-pronged strategy to protect its nominal enclave: 1) selectively cooperate with the ICC but deny the Court’s investigators access into South Ossetia and 2) continue to point the finger at Georgian forces and political figures.
Georgia, here, is a bit of a wild card. The country is an ICC member state and views itself as the victim of Russian aggression. It has also long allied itself staunchly with the West. As a result, it has generally welcomed the ICC’s intervention, at least insofar as it fits within that narrative of laying blame for the war - and the wider region’s instability - at Moscow’s feet. Despite the allegations that Georgian forces bombed a peacekeeping camp and targeted a medical facility, Georgian officials welcomed ICC Chief Fatou Bensouda in Tbilisi last week. At a press conference, Bensouda stated
that Georgian authorities “are cooperating on everything”. Notably, the country’s justice minister, Tea Tsulukiani, declared that she hoped the Court would proceed in opening an official investigation. But she also openly worried that it wouldn’t “properly” reflect Russia’s role in the war.
While the pressure on Georgia to cooperate is high, it is also important to recognise that Western states, in particular the United States, may be less than keen to have Georgia under the ICC’s microscope. As a trusted American ally, the Georgian military was trained by U.S. troops and the then government of Mikheil Saakashvili propped up by Washington. The fate of Saakashvili, who was roundly defeated in 2012 and subsequently left, perhaps even fled, Georgia for the U.S., may prove a potentially awkward point for Western powers. Fearing “guaranteed imprisonment” in Georgia for charges of “exceeding his authority” as president, the former leader renounced his Georgian citizenship and was subsequently appointed governor of the Odessa Oblast region of Eastern Ukraine, a front-line province in the Ukraine-Russia crisis. Dozens of officials, including one of Saakashvili’s own former prime ministers, have been arrested in Georgia. If the former president comes under the ICC’s scrutiny, will Western powers protect him? Or will Tbilisi’s new governors see their former leader as a useful scapegoat?
Of course, it may take years before we know the answers to these questions. Crucially, there have been suggestions that the ICC would have preferred to have never opened an official investigation in the first place. As Alex Whiting, a professor of practice at Harvard University and the former investigations coordinator in the ICC’s Office of the Prosecutor has observed:
“The Prosecutor is moving forward on Georgia not because she is necessarily eager to do so, but because after seven years the case demands it.”
It is almost certain that Court officials will continue to push both Russian and Georgian officials to conduct genuine and credible investigations into the alleged crimes themselves.
Every ICC intervention is complicated. But the potential investigation into war crimes committed during the conflict in South Ossetia seems particularly complex. Western states, an aggressive regional and former global superpower, an annexed territory, a Western-looking country and a cautious Court. All have their own stakes in the ICC’s investigation. All are potentially vulnerable. And all should fear the Court’s intervention going awry.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice.