If the investigation is authorized, Bensouda pledges to conduct an impartial investigation and after collecting sufficient evidence, request ICC judges to issue arrest warrants against those “most responsible for alleged atrocity crimes committed in Georgia, no matter who they are.”
Georgia is a signatory of the ICC’s founding document – the Rome statute – since 2003. This grants the court jurisdiction over the core crimes (genocide, crimes against humanity, war crimes and crimes of aggression) committed on the country’s territory from 2003 onward. Yet, the court can only investigate and prosecute the crimes if the involved parties are unable or unwilling to do so.
At the stage of “preliminary examination,” which started more than seven years ago, ICC’s prosecutor office (PO) studied the prudence of launching its own investigation, the suitability of committed crimes to the jurisdiction of the court and the efforts made by the respective states (Russia and Georgia) to conduct genuine investigations and prosecutions at national levels.
In Georgia, the initial probe took place during the United National Movement’s (UNM) government. Georgian authorities then claimed they had provided trustworthy evidence to the ICC, though it was impossible to submit additional materials because Georgia’s PO was denied access to the war scene in occupied South Ossetia and high Russian military officials could not be interrogated. The UNM saw the ICC’s involvement in the process as appropriate.
In 2013, however, after Georgian Dream assumed power, the government declared its intention to renew the investigation at a national level. Then-PM Bidzina Ivanishvili underscored the necessity of interrogating former President Mikheil Saakashvili and other former high ranking Georgian officials, blaming them for failing to steer clear of an obvious provocation plotted by Kremlin (see the 04/17/13 issue of the CACI Analyst).
Following these statements, an eight-member group, including investigators from the interior and defense ministries as well as military police and Georgia’s PO, commenced the probe. Nevertheless, the investigation stalled in March 2015. The Georgian government sent a letter to the ICC explaining that the instability and violence taking place against civilians in the occupied territories and adjacent areas impeded further progress in the investigation; prosecutions of war crimes could provoke destructive forces and result in counterattacks in the conflict zone. The letter also expressed concern over the safety of witnesses to alleged crimes. Residing close to the occupied territories, they are exposed to a high risk of capture by the South Ossetian de facto authorities.
In this context, ICC’s PO considered it reasonable to open its own investigation given the gravity of the crimes committed during the August war and the interests of the victims of these crimes.
According to Bensouda’s request, between 51 and 113 ethnic Georgian civilians were killed and 13,400-18,500 forcibly displaced during the war. In addition, more than 5,000 houses belonging to ethnic Georgians were destroyed. As a result, the ethnic Georgian population living in the conflict zone was reduced by at least 75 percent.
Based on some “credible reports,” however, the document postulates that members of the Russian armed forces were not among those most responsible for these crimes. The document includes a confidential annex with a list of persons or groups, who apparently conducted the most severe crimes, and indicates their specific role in these actions.
The document also posits cases of attacks on the peacekeeping mission as second category of alleged crimes. “There is also a reasonable basis to believe that both South Ossetian forces as well as Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission,” according to the request.
While the launch of an ICC investigation would be advantageous for Georgia, some analysts lament that the PO’s recently submitted request seriously reduces the potential role of Russian armed forces in committing the listed crimes. This approach may cause the impression that the conflict took place largely between South Ossetia and Georgia, while diminishing Russia’s aggression against Georgia. In turn, this could allow Moscow to evade its responsibilities for the disaster that the August war brought on Georgian citizens.