OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.

http://opiniojuris.org/2015/10/13/otp-formally-requests-first-non-african-investigation/

6 Responses

  1. A few initial observations:

    Reaffirms “overall control” test from Tadic

    Heavy reliance on the IIFFMCG report for fact-finding.

    South Ossetian de facto government qualifies as organization for purposes of CAH.

    Prosecutor sort of admits it is unclear whether the entire period includes an international or non-international armed conflict (or both), and more or less says that it needs the investigation to figure that out.

  2. Seven years after the upheavals in the Caucasus. It seems that somebody has finally woken up to the fact that you can’t carry on pretending to be an ‘international’ criminal court (and not a good one at that), while focusing on a single continent. I wonder when, if ever, Tony Blair Esq. will find himself under investigation for Iraq.

  3. Wait, the conflict in South Ossetia involved:
    – Georgian soldiers;
    – South Ossetian soldiers;
    – Russian soldiers that were figments of everyone’s imagination;
    – Georgian peacekeepers;
    – Russian peacekeepers that really were there?

    And now the objection is that the Georgian army attacked Russian peacekeepers instead of the Russian soldiers that weren’t really there?

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  2. […] an investigation into the August 2008 armed conflict between Russia and Georgia. This would be the first formal non-African investigation for the court. This request has not stalled South Africa’s plans to withdraw from […]

  3. […] reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these […]