The Norwegian Helsinki Committee (NHC) has worked closely with Georgian and international human rights groups in order to document crimes committed during and after the 2008 war between the Russian Federation and Georgia, and monitor domestic investigations of these crimes. Three Georgian human rights groups have contributed with information to this report, namely Article 42 of the Constitution, the Georgian Young Lawyers’ Association (GYLA) and The Georgian Human Rights centre (HRC). However, responsibility for the analyses and conclusions rests with the NHC.

Background

In September and October of 2008 the NHC, together with Georgian civil society organizations, interviewed over 200 victims and witnesses in temporary internally displaced persons (IDPs) camps and conflict-affected villages and collected photo material suggesting a pattern of purposeful property destruction in Georgian villages. Since the NHC was unable to obtain permission to access the Russian controlled territories the work was mostly done in Georgian controlled areas. An exception was the village of Disevi located close to the administrative boundary, which NHC researchers were able to visit in October 2008. The evidence collected clearly indicated that two categories of crimes falling within the jurisdiction of the International Criminal Court (ICC) – war crimes and crimes against humanity – were committed during and in the aftermath of the August 2008 armed conflict. Initial findings, based on witness and victim statements and photo materials, were handed over to the Office of the Prosecutor (OTP) of the ICC in November 2008 during the 7th session of the Assembly of States Parties of the ICC (ASP).

Follow up story

In November-December of 2010 the NHC carried out new research, the aim of which was to evaluate if the investigation initiated by the Georgian Government in relation to the August 2008 events met the criteria laid out in the Rome Statute. The NHC conducted another visit in October 2011 to clarify if there had been changes in the status of the national investigative process, and to assess the expectations of the local civil society in relation to the outcome of domestic proceedings as well as the possible impact of ICC investigation on the local socio-political environment.

The NHC has held a meeting with representatives of the Georgian Justice Ministry and the Office of the Chief Prosecutor together with the Coalition for the International Criminal Court (CICC) and the Georgian Young Lawyers’ Association (GYLA) at the end of October. The meeting was followed by a written communication through which the NHC asked Georgian authorities to provide clarifications on some of the key issues that were also raised in previous communications. All in all, it seems from the contents of the communication that referral of the situation to the ICC is not being considered, at least not by the Office of the Chief Prosecutor. Nonetheless, the Office stresses that Georgian authorities will not bar ICC prosecutions by proceeding with their own indictments if the ICC decides to intervene.

Serving the interests of justice?

Based on the criteria defined by a Policy Paper on the Interests of Justice by the Prosecutor of the ICC, it can be argued convincingly that opening an investigation by the ICC would not be incompatible with the interests of justice in case of the August 2008 situation. The ICC prosecutor has not yet made a decision not to investigate or not to proceed with a rosecution because it would not serve the interests of justice. It is clear from the Policy Paper that “only in exceptional circumstances will the Prosecutor of the ICC conclude that an investigation or a prosecution may not serve the interests of justice”. Under the explicit criteria to be considered the Policy Paper lists the following three factors:

The gravity of crimes;

The interest of victims and;

The particular circumstances of accused.

In determining whether the situation is of sufficient gravity, the Prosecutor of the ICC considers the scale of the crimes, the nature of the crimes, the manner of their commission and their impact. Considering these factors there is no question that the events of the August 2008 war are sufficiently grave to be examined by the ICC. The conflict has led to the deaths of hundreds of civilians; thousands have lost their property and have been permanently or temporarily displaced. In addition, both parties to the conflict have resorted to means of warfare which are incompatible with the requirements of international humanitarian law, including use of torture, purposeful persecution of civilians, indiscriminate use of force and use of prohibited weapons.

Conclusion

The Caucasus region is one of the most fragile and complex regions in Europe. The line between war and peace is not stable, but dependent on composite local and global geopolitical factors. The region has experienced a number of armed conflicts since the early 1990s in which justice was neither sought nor found. The armed conflict of August 2008 between the Russian Federation and Georgia is no exception to this trend. It is a case of crimes without punishment. While both Russian and Georgian authorities have formally opened investigations in relation to the August 2008 war, three years after the cessation of large scalehostilities, no prosecutions have been announced. Considering the practice of mutual recrimination and the overall atmosphere of politization of the investigations, it seems unlikely that that they will result in identification and punishment of key perpetrators in the years to come. 

At this stage, it is in the general interest of justice, as well as in the interest of the victims, and, potentially, in the interest of regional stability, that a real and effective investigation is launched. In light of this, the ICC has an important role to play. While the principle of complementarity must be respected, the Prosecutor of the ICC should at the very least require proof of progress in domestic investigations within a defined timespan.

The full report by Norwegian Helsinki Committee can be found here

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