Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

http://opiniojuris.org/2015/10/27/32150/

3 Responses

  1. Though mortars are quite accurate weapons, a mortar bombardment is, purely as a technical measure, meant to strike an area that is about a hectare. Thus, if the Red Cross installations are within that distance from a legitimate target, like an HQ, the question of the legality of a mortar strike is a weighing of interests. Is the militrary target so significant that the Red Cross installation loses its protection?

    Otherwise, simply placing a military target within a short distance from the medical installation would shield the military target from legitimate strikes.

    In this case, if the target is a battalion HQ, and the medical installatiin is the battalion medical poost, the strike seems legitimate. The interest in destroying the HQ, which is arguably the most important target within the battalion, means that collateral damage to a battalion-level hospital is allowable. (It might be different if this were, e.g. a company command post and the medical installation were a major hospital.)

  2. Lurker,

    The paragraph quite clearly says that Georgian armed forces “targeted” the medical facility and the ambulances. To be sure, the OTP could be wrong. But it is not alleging that this is a situation in which a potentially legitimate attack caused collateral damage.

    As an aside, it’s not accurate to say that the strike would be legitimate if the target was a battalion HQ. It might be — but we would still have to compare anticipated military advantage to expected civilian damage.

  3. For the sake of discussion, if the medical facility and ambulances were the battalion medical post, the medical facility would not be ‘civilian’, it would be military. Of course, military medical facilities enjoy protection from attack, but not because of their civilian status, but because of their ‘military medical’ status. Indeed, GC1 and API clearly distinguish between civilian medical facilities and military medical facilities and, in some cases, different rules apply to each.

    Just what that means from a collateral damage perspective is a debated point.

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