ICC Investigation in Georgia: A Success Story?

The conclusion of the investigation phase in the Situation in Georgia by the Prosecutor of the International Criminal Court (ICC) has once again brought into the spotlight the often overlooked conflict between Georgia and Russia that took place in August 2008 over the occupied territory of South Ossetia. After months of internal escalation in the breakaway region, Russia invaded Georgian territory in August 2008, marking the beginning of an international armed conflict that involved an initial five-day period of active hostilities followed by the occupation of Georgian (including previously undisputed) territories for several weeks by Russian forces.

On 27 January 2016, the Pre-trial Chamber of the ICC authorised the Prosecutor’s proprio motu request to start an investigation into the Situation in Georgia. For the ICC and international criminal justice at large, it was a situation of many ‘firsts’: the first situation outside Africa; the first situation involving Russia and, thus, a permanent member of the UN Security Council; the first situation having an extraterritorial aspect and dealing with international (as opposed to non-international) armed conflict. Six years later, and for better or for worse, the Situation in Georgia once again ‘marks the first time’ the Office of the Prosecutor ‘decided to conclude the investigation phase of its work in relation to a Situation addressed by the Court’.

This calls for an analysis and reflection, on whether the investigation has been indeed a successful example of the ‘effective prosecutorial strategy’ or simply a convenient tool for the Court to respond to changing circumstances or even dissipate certain allegations.

The outcome of the investigation

In its Authorisation of Investigation in 2016, the Pre-Trial Chamber confirmed the existence of a reasonable doubt that the war crimes of wilful killing, destroying the enemy’s property and pillage, intentionally directing attacks against peacekeeping mission; and crimes against humanity of murder, deportation or forcible transfer of population and persecution against an identifiable group on ethnic grounds were committed in the context of the conflict.

After five years of what has been dubbed ‘the ICC’s most delayed investigation’, on 10 March 2022 the Prosecutor submitted the much-awaited Application for arrest warrants against three individuals of Ossetian decent (two of them nationals of Russia), which were subsequently granted by the Pre-Trial Chamber on 30 June 2022 (resp. Mikhail Mindzaev, Gamlet Guchmazov and David Sanakoev). At the relevant time, the suspects occupied mid and high-level positions in the de facto South Ossetian administration and all three of them are implicated in the arrest and detention of approx. 170 ethnic Georgian civilians, who were kept in inhuman conditions and later handed to Georgian authorities. Therefore, the charges revolve around the war crimes of unlawful confinement, torture, inhuman treatment, outrages upon personal dignity, hostage taking and unlawful transfer.

The issuing of arrest warrants was a significant development, considering that the identification of crimes is always a job half done, whereas meaningful accountability under Rome Statute requires attribution of those acts to specific perpetrators. The catalogue of the charged crimes is also an important recognition of the cost that the conflict had on civilian lives and to some extent also reflects the discriminatory undertones of the acts committed.

The paths not taken

Nevertheless, the outcome of three arrest warrants related to one episode hardly keeps up with the promise that this Situation held to international criminal justice in general, or the victims of the August conflict in particular. Despite the ratione temporis of arrest warrants spanning between 8 and 27 August and its material jurisdiction encompassing several offences, all charges are related to a series of events that can be combined into one protracted episode of arresting and detaining civilians. And even though the charges of unlawful confinement and torture are of utmost significance, they in no way account for the full scale of criminality reported throughout the conflict.

The war crimes of looting and destroying civilian property and the crime against humanity of persecution are two other examples of serious violations that transpired during the conflict. Being perhaps not crimes of the gravest nature, pillage and burning of civilian homes reached such a level and scale that it was said to have ‘characterised the violence of the conflict in South Ossetia’. Resulting in near total destruction of all (approx. 18) ethnic Georgian villages located in the South Ossetian administrative territory, the campaign of looting and torching occurred primarily amidst the occupation phase and could not have been justified with military considerations. For a short term conflict, the destruction of over 5,000 dwellings was thus extensive (compare to more than 35 000 objects destroyed in Ukraine thus far).

Another widely documented breach that the investigation failed to recognise constitutes the crime against humanity of persecution. All major reports related to the conflict acknowledge that the underlying acts, including but not limited to the destruction of houses, were directed against victims due to their belonging to the specific ethnic group (See also Prosecutor’s Request). Referring to the overwhelming evidence, including public statements of perpetrators confirming the overall objective to expel ethnic Georgians from South Ossetia and to prevent their return, many sources conclude that ethnic cleansing was exercised against the Georgian population residing in South Ossetia (also here and here). This straightforward case of persecution could have been, accordingly, a good opportunity for developing court practice in relation to this much debated crime against humanity.  

Considering above, and looking also at other violations left outside the scope of the situation, one cannot help but wonder whether the investigation in the Situation in Georgia was more about ‘justice being seen to have been done’ rather than justice actually being done.

A retrospective

From the perspective of an external observer, therefore, it seems that the full potential of the investigation was not explored, given that, despite putting effort and resources in investigating the list of crimes presented in the Authorisation Decision, the OTP stopped short of pursuing full accountability for most of these crimes. The reason behind this could have been the refusal by Russia to cooperate and the Court’s lack of access to the occupied South Ossetian territory, which has been impeding factors throughout the whole investigation. Yet, other factors, such as the prioritisation of new, ‘more pressing’ situations, or using the opportunity to promote and exemplify the OTP’s recent Policy on Situation Completion may have also contributed to the decision. In all fairness, however, such considerations are common to the inherently selective system of the Rome Statute and not uniquely applicable to Georgia, as also openly acknowledged in the Prosecutor’s statement.  

Could the investigation, then, have led to more substantial coverage of the criminality that permeated the August conflict? It certainly seems so. When considering all factors, however, the achieved outcomes do give reason for the cautious celebration of the investigation as a product of successful cooperation among stakeholders, under the direction of the OTP. For Georgia, the investigation had a remarkable positive effect of recognising the suffering endured by victims and of reminding the world of Russia’s past unaccounted crimes – a reminder that might not have been necessary if not for the ostensibly passive response of the international community to the abuses of the August war.