2008 August War and investigation by the International Criminal Court

“There is a reasonable basis to proceed with an investigation into the Situation of Georgia in relation to alleged crimes committed in the context of the August 2008 armed conflict,” Fatou Bensuda, the International Criminal Court prosecutor, stated in The Hague on October 13, 2015.[1] The Prosecutor officially requested authorization to the Pre-Trial Chamber I of the Court to open an investigation into the August war. The Justices of the Court satisfied her solicitation on January 27, 2016 and the investigation was commenced.

2008 Russian-Georgian war first attracted attention of the International Criminal Court on August 14, 2008, when the ICC prosecutor started preliminary examination of the situation in Georgia. It was first precedent when the ICC opened an investigation in Europe.

International Criminal Court (ICC) is permanent body, which has jurisdiction to investigate and prosecute genocide, war crimes, crimes against humanity and crimes of aggression across the world. The Court has authority to impose punishment over the perpetrators. The ICC jurisdiction covers only those crimes, which were committed in the territories of the Rome Statute member states. Georgia joined the Rome Statute in 2003.

It should be mentioned that the ICC investigates crimes committed by individuals and not by the states. The Rome Statute member states are obliged to participate in the detention process of the individuals once it is ordered by the Court; if the state is not member of the Rome Statute, it can make individual decision. If a prosecutor collects enough evidence to start criminal prosecution against a perpetrator, he/she addresses the judges to issue the detention order. The order is valid until the death of the accused person; and as a rule, the perpetrator is sentenced to the life-term imprisonment.

“In the end of January 2016, the Prosecutor’s Office received authorization from the pre-trial chamber of the court to commence the investigation into the crimes allegedly committed in South Ossetia and surrounding territories in the period from July 11 to October 10, 2008. Supposedly, the crimes were committed by the Russian Armed Forces, Georgian Armed Forces and South Ossetian army. Now, the Prosecutor’s Office is conducting relevant investigation. It should be noted that the ICC prosecutes and judges individuals and not states. Thus, our goal is not to hold somebody politically responsible or judge only one party of the conflict. We aim to conduct investigation against those individuals and judge them, who ordered, planned or encouraged the crimes against humanity and war crimes. In the process of investigation, the activities, including their location is confidential; it is essential to ensure success of the investigation but it is not always necessary to conduct investigative activities on the sites of crime; we can use witness testimonies, audio-video materials and documents as evidences. So, there are diverse methods of investigation,” Spokesperson of the ICC Fadi El Abdala told to Georgian media.[2]

The ICC got interested in the Russian-Georgian August war and the prosecutor started to study the case materials in Georgia. The following developments preceded the 2008 War: it should be noted that before the war, people did not live in peace on the ABL. Armed hostilities, kidnapping and conflicting situations were permanently observed on the site. At the same time, Russia supported escalation of tension. By distributing Russian passports in Abkhazia and South Ossetia, Russia created situation when Russian citizens happened to live in those territories. On March 21, 2008, the Russian Duma adopted the resolution, which recommended the executive government of the Russian Federation to recognize independence of Abkhazia and Tskhinvali regions. On April 16, 2008, that time, the Prime minister Putin signed decree on direct legal links and cooperation with Abkhazia and South Ossetia. In accordance to the same decree, representation of the Foreign Ministry of Russia opened missions in Tskhinvali and Sokhumi. The de-facto government of South Ossetia accepted the April 16 decree as indirect confirmation of their independence. The international community condemned the decision of the Government of Russia.[3] These facts further escalated the situation in the conflict regions and reached its culmination in August 2008. As a result of counter-shooting, several persons were killed and wounded. As it was reported by the de-facto authority of South Ossetia, large-scaled military operation started on August 7. However, the Government of Georgia denied information about introduction of additional forces in the region. In the evening of August 7, the President of Georgia Mikheil Saakashvili ordered to cease fire but the shootings resumed at night and the Georgian side disseminated statement about the “restoration of the so-called constitutional order” in the territory of South Ossetia. The Russian military planes responded to the statement by bombing the Georgian military strategic bases and civil settlements. On August 9, the Georgian armed forces started to retreat. On August 12, with the mediation of the President of France Nikola Sarkozi, the parties signed cease-agreement and the war formally ended.

These facts attracted the attention of the ICC. On December 4, 2015, the Chamber received applications of 6335 victims. Having studied the solicitation and enclosed materials, the Chamber concluded there was reasonable grounds to suspect that crimes under the jurisdiction of the ICC were committed in Georgia.

“The decision to commence the investigation is the first and very important step for the recognition of the damage of the victims and for the fight against impunity syndrome with regard to the 2008 August war in Georgia. The prosecutor’s office is investigating alleged crimes committed in Georgia. After the investigation is over, the ICC will launch criminal prosecution(s) against the most responsible persons for the crimes. Over 6 000 victims and their representatives sent applications to the Hague Court; 6 Georgian nongovernmental organizations were involved in this process; among them are: Article 42 of the Constitution, Georgian Young Lawyers’ Association, Human Rights Center, GCRT, Empathy and Open Society Georgia Foundation. It is noteworthy that as a result of the Article 15 process, where both victims and their representatives participated, the investigation scope was widened and now it includes not only murder/purposeful killing, forced displacement, destroy of property/looting and robbery and attack on military forces, but it may potentially include: sexual violence, purposeful detention of civilians and torture of military hostages. Consequently, the investigation of the prosecutor will not be restricted only with murders, destroy of property or attack on peacekeeping forces. The investigation scope may also cover all other crimes under jurisdiction of the ICC,” human rights program manager at the Open Society Georgia Foundation Nika Jeiranashvili said.

As noted above, the first stage of the investigation has already started. The further stages of the investigation are: initially the investigators of the prosecutor’s office collect evidence and the duration of the investigation process is not preliminarily estimated. After the investigation is over, the Prosecutor’s Office will request the Court to issue detention orders on the individuals who are identified to be responsible for the war crimes.

It is interesting whether the alleged perpetrators will be arrested in the countries beyond the Rome Statute. Board Chairman of the Article 42 of the Constitution Dimitry Khachidze answered this question.

“First, it should be underlined that it will be very difficult to collect evidence against the perpetrators because the victims do not know who they are. Maybe, the victims will be able to identify only several ethnic Ossetian soldiers. At the same time, if the prosecutors obtain these evidences and estimate concrete perpetrators, it will be very difficult to enforce the judgment. Because if the perpetrator is member of the Russian military forces or is citizen of Russia, it will be difficult to impose punishment on them. On the one hand Russia is not member of the Rome Statute and on the other hand Russia is not willing to cooperate with the investigation – they will not assign their citizens to the Court. Consequently, the perpetrators will remain unpunished. It will once again cause disappointment of the victims. It is very important to conduct active awareness raising campaigns because the victims and entire Georgian population did not expect that Russia and its governor will be declared guilty and he [Putin] will be arrested. It is not true and the society shall know clearly what the investigation means, what we can receive from it and what the Court itself is. While we expect that the perpetrator shall be punished in front of the international society, of course it will cause frustration in the population and again support the goals of the Russian Federation. The process will last years and I do not expect we will have expected results.”

Engagement of the organizations, which actively worked on the preparation and submission of the applications of victims, in the investigation process is extremely important. Executive Director of the Article 42 Nikoloz Legashvili spoke about it.

“Our organization actively cooperates with the ICC. It should be noted that when deadline for the submission of applications was set, we managed to send all applications within two-weeks time frame. After the deadline expired, the investigation was commenced based on the January 18, 2016 decision of the Court. Currently, so-called introductory works are going on and the crimes are identified. The actual investigation process has not started yet but supposedly when the second phase of the activities start, the prosecutor’s office will open field offices, where they personally meet victims. It is too early to say anything.”

“Human Rights Center was member and one of the founders of the Georgian Coalition for the International Criminal Court. We were actively involved in the field works in relation with the 2008 August War and documented war crimes. In 2009, Human Rights Center sent applications of the war victims to the European Court of Human Rights. The ECtHR has not yet started communication about these applications. Since the investigation of the alleged war crimes was delayed on the domestic level and was not effective, within framework of the Georgian Coalition for the ICC, we had active communication with The Hague prosecutor. We requested the Court to investigate the 2008 August war. In parallel to that, we called on the Chief Prosecutor’s Office of Georgia for impartial investigation but despite 7 years have passed since the war, the Georgian prosecutors have only questioned the victims. In 2015, the Prosecutor requested the pre-trial chamber of the Court authorization to open investigation. We, together with other NGOs, supported the request to launch the investigation. We wanted to widen the scope of the investigation to include the Kodori Gorge in it but the geographical area was limited and the court did not endorse our request. Afterwards, we started communication with the Court and applications of the victims were sent. In November 2016, we attended the Assembly of the Rome Statute Member States, where we met representatives of all structures of the Court; we received information about the ongoing investigation and what role the domestic NGOs may play in the process. Russian factor is very important in the investigation; so we asked questions about it. Nowadays, cooperation with Russia is questionable because Russia started the process of cancelling the signature of the Rome Statute. Although Russia has never been member of the Rome Statute, nowadays, it finally declared its position of mistrust towards the Court and stopped cooperation. At the same time, The Hague prosecutors cannot visit South Ossetia and it is very interesting for us how they will investigate the alleged crimes committed on that territory. However, the ICC representatives answered they will use alternative methods during investigation; for example, they will act in the same way as in Sudan where they did not have access to the places of alleged war crimes but managed to conduct the investigation. Nowadays, we are waiting for further steps to be taken by the Court. Supposedly, in February they will open field office and start communication with the victims to manage the expectations,” lawyer of Human Rights Center Tamar Avaliani said.

After this comment, the position of the Chief Prosecutor’s Office of Georgia is very interesting, namely how they will be involved in this process but regardless many attempts it was impossible to get their comment about the issue. In the end, we could not reflect the position of the Georgian state in this publication.