Georgia and the ICC: a strong beginning, an uncertain outcome

Like An elderly 	South Ossetian woman walks her cow near a destroyed building in 2008.
Thursday, February 11, 2016 - 09:46

By A. Elena Ursu

On 27 January, the International Criminal Court opened an investigation into the crimes committed during the armed conflict between Russia and Georgia in the summer of 2008. Despite being criticised for exclusively targeting the African continent during its initial years, the Court has never ceased to conduct fair and transparent investigations in the interest of justice. The investigation into the situation in Georgia comes as a surprise to many, but certainly not to those who followed the development of the preliminary examination. 

Georgia signed the Rome Statute on 18 July 1998 and ratified it on 5 September 2003, becoming the 92nd State Party of the International Criminal Court. In August 2008, shortly after the conclusion of the armed conflict between Russia and Georgia, Prosecutor Luis Moreno Ocampo announced the start of a preliminary examination. Based on the information obtained during the examination, the current prosecutor, Fatou Bensouda, concluded that the crimes committed in Georgia during the armed conflict of 2008 fall under the jurisdiction of the Court. Pursuant to Article 15 (3) of the Rome Statute, she submitted a request to open an investigation into this situation. In October 2015, the presidency assigned the situation in Georgia to Pre-Trial Chamber I which in January 2016 concluded 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”.  
 
What's the Court's strategy?
So, what is the strategy of the Court behind the opening of the investigation, if any? Some might argue that the ICC and its prosecutor are searching for a way out of the African continent, but as Alex Whiting, the former prosecution coordinator at the International Criminal Court writes, “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”. Others argue that the prosecutor wants to be proactive in shaping the “international narrative condemning Russian aggression”,  yet the prosecutor has meticulously avoided getting involved in political, power-play games. Whereas I agree that the Court is “showing a readiness to tackle politically sensitive conflicts involving powerful actors”,  I believe that, more reasonably, the opening of investigations is a result of the development of the preliminary examinations. Started almost a decade ago, the preliminary examinations proved there is a reasonable basis to believe:
 
  • that crimes were committed during the aforementioned armed conflict;
  • that these crimes fall within the jurisdiction of Court.

At this stage, the prosecutor is arguably obliged to open investigations into a situation that has been on the Court's plate for seven years now. 

All parties cooperating with the Court

To date all interested parties - Georgia, Russia and South Ossetia - have cooperated with the Court, either by sending documents to The Hague or by committing to support the legal proceedings before the Court.  Nevertheless, the outcome of this investigation is neither predictable, nor will it necessarily be successful. To begin with, it is interesting that Georgia - a State Party to the ICC from 2003 - has not requested the opening of investigations earlier. Could it be that the allegations that Georgian forces illegally attacked Russian peacekeepers on the night of 7 August 2008 makes the Georgian government nervous? Additionally, it will be particularly interesting to see how the Court will frame the status of South Ossetia, which has long been a disputed territory, and what crimes will be investigated. Most probably the ICC will trigger its jurisdiction on war crimes and crimes against humanity, but I deem unrealistic that the crime of aggression - as suggested by Mark Kersten - will be one of them. 
 
What is next? Probably not much and not soon. Investigations will be lengthy and burdensome, despite the cooperation of the interested parties. Yet, the situation in Georgia illustrates a possible pattern for other situations under preliminary examination at the ICC. For example,  preliminary examinations were opened in 2007 into the situation of Afghanistan. It could therefore be that following the same rationale as for Georgia, the OTP will request the opening of an investigation in a couple of years. As challenging as it might be, the investigation into the situation in Georgia sets a two precedents for the Court: the first investigation outside Africa and the involvement of non-State Parties in the investigations (Russia and South Ossetia).
 
A. Elena Ursu is a passionate international law graduate currently enrolled at the Yenching Academy of Peking University where she specialises in the Chinese justice system and its reform. 
 
Lead image: An elderly woman walks her cow passed a destroyed building in South Ossetia in 2008 (Photo: Viktor Drachev/AFP)
 
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