ICC Prosecutor Says Full Inquiry into Russian War Crimes Might Come Soon, But Omits Some Crimes

The ICC’s Office of the Prosecutor recently released its annual report on preliminary examinations. The big news, analyzed by many commentators, is that the OTP is conducting a preliminary examination of alleged crimes of torture by U.S. forces in Afghanistan. In the highly unlikely eventuality that the OTP does not close the investigation on one of a variety of procedural grounds, it could be the Court’s first confrontation with a powerful Western state, and its first proceedings against nationals of a non-member state for actions on the territory of a member state.

But the U.S. is not the only major power and non-state party that the report throws down the gauntlet to. The 2014 report announced that a full investigation of potential Russian crimes committed in Georgia may be opened “in the near future.” Since 2008, the OTP has been investigating “the situation in Georgia,” that is, the 2008 Russo-Georgian war, that resulted in Russia cementing its control over occupied parts of Georgia while also conquering new territory. The investigation focuses on ethnic cleansing by Russian-backed forces of ethnic Georgians from Russian-occupied territory in Georgia (South Ossetia). The OTP has concluded that there is a reasonable basis to believe that these actions “amounted to the crime against humanity  of forcible transfer of ethnic Georgians under article 7(1)(d).”

For years the matter has been stuck in the preliminary examination phase, as the Russians invoked complementarity, and claimed they were conducting an investigation. Yet there is little evidence that even a sham investigation was put together, and even in its 2012 report the OTP expressed surprise that the process had “yielded no results” (i.e. not necessarily just prosecutions, but any kind of investigatory finding). As this year’s OTP report makes clear, Russia is not even purporting to investigate crimes attributable to its Ossetian proxies. Thus one interesting thing we learn is that even this flimsiest complementarity stall wins a seven-year grace period.

Finally, in this year’s Report, the prosecutor suggests that seven years may be too long:

Progress in these investigations appears limited, and more thansix years after the end of the armed conflict, no alleged perpetrator has been prosecuted, nor has there been any decision not to prosecute the persons concerned as a result of these investigations. The Office will therefore … reach a decision in the near future on whether to seek authorization from the Pre-Trial Chamber to open an investigation of the situation in Georgia pursuant to article  15(3) of the Statute.

Obviously an investigation that includes crimes involving Russia would be a major challenge for the Court. Moscow would surely not cooperate, leading to further potential embarrassment for the tribunal. The problems leading up to the ignominious collapse of the Kenyatta case would seem minor in comparison: witnesses would not simply recant, they would disappear.

Also noteworthy are the crimes that seem to be excluded even from the scope of the preliminary investigation. For one, reports by human rights groups, news agencies and international bodies have alleged unlawful attacks against civilians by both sides. While allegations of disproportionate force were originally within the scope of the OTP’s investigation, they have apparently dropped out for some reason.

Second, the investigation seems solely focussed on South Ossetia, the main theater of the 2008 Russo-Georgian war. However, fighting occurred in Abkhazia as well, and there have also been serious allegations of ethnic cleansing of Georgian there as well (though the numbers are much smaller than in South Ossetia, since most of the area’s Georgian inhabitants had already been expelled in conflicts with Russia in the 90s).

Finally, the investigation seems to have studiously avoided looking into the importation of settlers into Russian-occupied Abkhazia. The phenomenon is well-documented: local authorities have a “State Committee” and a special fund dedicated to bringing settlers into the territory, particularly those of Abkhazian or Slavic ethnicity. This further weakens the ethnic Georgian demographic connection to the territory. The activities of the fund include building and purchasing homes for the settlers, and providing them with various incentives.

The OTP’s investigation may not include this conduct for several reasons. First, it could be a byproduct of its exclusive focus on Ossetia instead of Abkhazia, which itself poses a question. Second, most but not all of the settlers are recruited from outside Russia. The OTP could understand this as clearly falling outside the scope of Art 8(2)(b)(viii) which only prohibits the occupying power from transferring “its civilian population” into the occupied territory. This clearly excludes “transferring” (whatever that means) third-country nationals, even if they are brought in on specific ethnic criteria. To be sure, in other contexts, no one has much cared whether settlers are third-country immigrants or not, and in this respect the OTP’s conduct of its investigation could be instructive.

It could be that the scale of activity, while systematic and widespread, is not high enough to meet the gravity requirement. While the absolute numbers of people moving into the occupied territory is indeed small, the demographic effect may be far from trivial given Abkhazia’s size. With a total population of perhaps 200,000 people (the matter is one of some dispute between Georgia and Abkhaz authorities), the settlers already constitute a few percent of the population. I would agree that may this still fail the gravity requirement, but this does not explain why the prosecutor does not address the issue in the Reports. After all, finding something inadmissible on account of gravity is not generally addressed sub silento. Still, the OTP’s failure to follow-up on communications about ongoing Turkish settlement activity in Cyprus, a state-party, further supports the view that just as the prosecutor sees some crimes as high priority (for example, those including sexual violence), other crimes it sees as less pressing. 

The least charitable conjecture would be that the “prevalent view within the international community” is that these actions do not matter, and the OTP has lately adopted the views of the international community as a guide for its action. The most charitable understanding is that third-country migration clearly does not constitute a transfer of the occupier’s civilian population. Perhaps when and if the OTP opens a 15(3) investigation, it could address why its scope does not include arguable Art. 8(2)(b)(viii) crimes committed in the territory of Georgia.