On 27 January 2016, the ICC Pre-Trial Chamber I (PTC) authorized the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to open an investigation into the situation in Georgia, specifically focusing on allegations of war crimes and crimes against humanity during and in the immediate aftermath of the August 2008 armed conflict. In the absence of a state party or the Security Council referral, the OTP filed the request for authorization in October 2015, seven years after initiating its preliminary examination. The investigation can cover alleged crimes by three groups: South Ossetian forces, armed forces of Georgia and armed forces of the Russian Federation. Georgia is a party to the Rome Statute, while the Russian Federation is not.
This post focuses only on the aspects of the PTC decision and the OTP’s request that raise the most questions, namely selection of crimes and of potential cases and admissibility of those cases, with specific emphasis on complementarity.
Crimes within the Jurisdiction of the ICC
The primary targets for the OTP’s investigation appear to be alleged crimes against ethnic Georgians, including forcible displacement and destruction of property, between 8 August and 10 October 2008 in the Russian occupied South Ossetia and adjacent areas. Cautious wording of the request as regards the involvement of the Russian military servicemen (alongside South Ossetian forces) (paras. 137-140) gives rise to doubts regarding the actual prospects of having Russian military servicemen prosecuted by the ICC in connection with these alleged crimes.
In its request, the OTP distinguishes between the ‘overall control’ that Russian authorities had even prior to its direct military intervention, due to organization, planning and coordination of South Ossetian forces (rendering the armed conflict international, both according to the OTP and the PTC) and ‘the effective control’ over specific military operations for the purpose of attributing individual criminal responsibility (para. 71 of the Request). In principle, the OTP did not exclude the attribution of individual criminal responsibility to members of the Russian armed forces for attacks against ethnic Georgians, but only asked to follow thorough with investigation and examination of a full range of forms of liability (para. 141 of the Request). However, its preliminary conclusions seem unnecessarily cautious. There is arguably sufficient evidence to qualify the acts of Russian military servicemen, if not as joint commission through rendering essential contribution (which permitted the emptying of ethnically Georgian enclaves of South Ossetia and the consolidation if control over the territory), then at the very least as assistance (Article 25 (3) (a),(c) of the Rome Statute). Since widespread destruction persisted after cessation of hostilities despite the establishment of checkpoints by Russian forces, their claims about prevention of attacks lose credibility.
Another aspect of the Prosecutor’s request focuses on the alleged attacks against peacekeepers. This aspect has been discussed previously here and here. The OTP’s preliminary conclusion about the Russian peacekeepers’ entitlement to the protected status (para 160) will be difficult to defend, mainly due to their lack of impartiality. There are ample reasons not to treat this peacekeeping force on an equal footing with peacekeeping forces in other contexts. If one accepts the above conclusion about their protected status, a further question is whether Russian peacekeepers can be considered to have lost that status at the time of attack, by virtue of their direct participation in the hostilities or making their infrastructure available to South Ossetian forces. The Chamber’s assessment on this issue was limited and deferential to the OTP, only pointing out that ‘a number of questions remain open’ (para. 29). The superficiality of the assessment, especially as regards the possibility of the loss of protected status, was pointed out also by Judge Kovács, who characterized this issue as ‘highly contested’ (para 18).
In order to initiate the investigation, the PTC needs to find that at least some of the potential cases are not investigated or prosecuted by national authorities (Arts. 17 and 53 (1) (b) of the Rome Statute).
None of the potential cases related to the campaign of forcible displacement of ethnic Georgian from South Ossetia and adjacent areas appear to be currently investigated at the national level. Last year, Georgian authorities indefinitely suspended the investigation. By that time, no charges had been brought as a consequence of that investigation, either against members of South Ossetian armed groups or against Russian military servicemen. The PTC characterized this as ‘a situation of inactivity’, sufficient to render potential cases admissible (para 41 of the decision). As for the Russian Federation, it appears that the Russian Investigative Committee investigated/verified the allegations, but decided not to prosecute Russian military servicemen for these alleged crimes (para 306 of the OTP request). This does not preclude the OTP from taking up these cases, assuming that ‘unwillingness’ or ‘inability’ to genuinely prosecute can be demonstrated (Article 17 (1)(b)). The conclusions of the PTC as regards the adequacy of Russian national proceedings are ambiguous. Judge Kovács suggests that the Majority decision should have been more conclusive, as Russia’s alleged investigation in the actions of its own forces was ‘limited and contradictory’ and ‘lacked the required degree of seriousness and completeness’ for the purposes of satisfying the test under Article 17 (paras 60-61 of the Separate Opinion). The OTP also uses strong language, concluding that ‘no concrete and progressive steps have been taken in Russia’ (para. 312).
The Russian investigative team did not address the allegations against South Ossetian armed groups (para 311 of the OTP request), hence no impediment exists for admissibility in that regard. As regards the alleged attacks against Russian peacekeepers, the PTC concluded that ongoing proceedings in the Russian Federation ‘reveal neither unwillingness nor inability’ on the part of Russia and therefore, these cases ‘could be inadmissible’ (para 50).
The remaining question is whether investigations/prosecutions by South Ossetian de facto authorities could make cases inadmissible before the ICC. The Chamber joins the OTP in concluding that proceedings undertaken by South Ossetian authorities are not capable of meeting the requirements of Article 17 of the Rome Statute, due to ‘South Ossetia not being a recognized state.’ (para. 40) Judge Kovács suggests the proceedings by this entity could be relevant ‘for the limited purpose of exercising criminal jurisdiction’ and enable challenging admissibility (para 65). However, he fails to explain how this could be reconciled with the wording of Article 17 that refers to investigations or prosecutions by states. In any case, Kovács admits that even if investigations by South Ossetian de facto authorities were relevant for admissibility, there is no evidence of genuine investigation of any of the crimes falling under ICC jurisdiction by the mentioned entity.
Leaving aside ambiguities in the conclusions of the OTP and PTC and a range of questions that remain open, the very fact of authorizing the initiation of investigation (the first one outside Africa) is of importance. The ICC faces a difficult task, taking into account conflicting factual accounts presented by the two states. One may expect the expansion of the reach of investigation into the alleged crimes that fall under ICC jurisdiction, but have not been sufficiently examined at this stage.
The request of the OTP and the decision of the Chamber are cautiously worded, perhaps not to undermine the prospects of cooperation with the two states. While Georgia, as a state party, has an obligation to cooperate, with its Minister of Justice welcoming the initiation of investigation the day after the decision was announced, prospects of cooperation with Russia, a non-party to the Rome Statute, are not all that clear. According to the statement of the Russian Ministry of Foreign Affairs of 29 January 2016, Russia is ‘disappointed’ that the ICC intends to prosecute Ossetians and even Russian military servicemen; while emphasizing Russia’s previous cooperation with the Court, the Ministry affirms that it now intends to reconsider its relationship with the ICC.