Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict:

[71] In particular, with respect to the time period preceding Russia’s direct military intervention in Georgia on 8 August, the information available suggests that the Russian authorities were already involved in organising, planning and coordinating South Ossetian forces with a sufficient level of overall control to render the armed conflict between Georgia and the South Ossetian de facto authorities international.

I can see why Russia would be perturbed by this allegation — but that’s all it is at this point, an allegation. And I think the OTP will struggle to prove it, unless the OTP significantly improves the argument it makes in its Request. In my view, the Request falls far short of establishing Russia’s overall control of South Ossetia’s forces; at best it suggests that Russia and South Ossetia worked together to achieve their common military goals. These paragraphs are a good example:

[97] The available information indicates numerous instances, mostly occurring between August and October 2008, demonstrating military coordination or operational links between Russian armed forces and South Ossetian forces, especially in the context of the attacks reportedly perpetrated by the latter against villages inhabited by ethnic Georgians. Notably, the Russian armed forces appear to have provided operational and logistical support to South Ossetian forces, including by means of aerial bombardment in advance of South Ossetian military operations, as well as transportation.

[98] Nonetheless, the information available does not indicate that Russian forces were involved on a routine basis in the tactical and operational planning and/or the conduct of the specific military operations by South Ossetian forces operating village by village.

I won’t rehearse my critique here; interested readers can download the notes and slides of the talk I gave to various audiences in Georgia, in which I discuss the “overall control” issue at length.

To be sure, the OTP’s investigation may well reveal additional evidence of Russia’s overall control of South Ossettia’s forces. That might be embarrassing for Russia, and perhaps even establish its state responsibility for some of the crimes committed by South Ossetia. But it would not put Russian military officers at risk of prosecution, because the OTP does not allege the kind of “effective control” that could establish those officers’ command responsibility. Indeed, the OTP explicitly acknowledges as much in the Request:

[89] The “overall control” test serves a distinct purpose and has been developed by international courts for the purpose of determining of State control over another entity, and is subject to a lower threshold than the “effective control” test. It is applied here solely for the purpose of assisting the classification of the armed conflict, and is without any prejudice to any attribution of individual criminal liability.

Moreover, the Request generally goes quite easy on Russia in terms of individual criminal responsibility. The following paragraph is typical:

[140] With respect to the present case, the Prosecution notes that there are consistent and repeated accounts of the presence of Russian troops at, or in the vicinity of, a particular location where alleged crimes were reportedly committed by the South Ossetian forces. The information available indicates that at least some members of the Russian armed forces participated in the commission of the alleged crimes while other members acted passively, and still others acted to prevent and punish such crimes.

Not exactly damning stuff. Indeed, beyond half-hearted and vague suggestions that Russian forces might have participated in certain crimes and that Russian officers might have occasionally exercised effective control over South Ossetian forces, the OTP rarely singles out Russia for condemnation in the Request. That soft touch is most evident in the Request’s discussion of allegations — made by numerous human-rights groups, the OSCE, and Georgia itself — that Russian forces launched intentional, disproportionate, and indiscriminate attacks on Georgian civilians and civilian objects (paras. 198-211). Although the Request recites some of the allegations (particularly attacks in Gori) and notes that its investigation may uncover additional evidence, the OTP makes clear that the evidence it currently possesses does not indicate that Russian forces committed war crimes:

[208] As such, the information available at his stage remains insufficient to enable a determination whether there is a reasonable basis to believe that the attacks by Russian armed forces amounted to the war crimes of intentionally directing attacks against civilians and civilian objects under articles 8(2)(b)(i) and 8(2)(b)(ii), or the war crime of intentionally launching an attack in the knowledge that such attack would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated under article 8(2)(b)(iv), or the intentionally directing attacks against hospitals under article 8(2)(b)(ix).

Indeed, the Request specifically notes (para. 207) that “[t]he information available… indicates that most of the Russian air attacks appeared to have targeted Georgian military positions outside built up areas.”

Given all this, I simply cannot understand why Russia would announce that it has no intention of cooperating with the ICC’s investigation. If the Request is any indication, Russia has very little to fear. So why not milk a little goodwill by at least pretending to cooperate with the ICC? Russia could use some good press right now, between its cynical intervention in Syria and ongoing eradication of Russian civil society. After all, it’s not like Russia couldn’t stop cooperating with the ICC down the road if the OTP ever did manage to dig up incriminating evidence. At least then Russia’s insistence that the OTP has taken Georgia’s side in the conflict might not seem so absurd. At this point, nothing seems further from the truth.

http://opiniojuris.org/2016/02/13/russias-short-sighted-approach-to-the-icc/

4 Responses

  1. The post raises an issue , but here some suggestions :

    1.And first , what guarantee do we have , that the Russians , understand what is mentioned in this post ?? One can’t always follow , the mysteries and chaos of biased minds , like Russians have , and as follows :

    2.One can assume, that they were cooperating at the time, but, that was before their invasion to Crimea island , and eastern Ukraine. After that, sanctions being imposed on them, by Europe and the US, and now, they have become more suspicious ,concerning , biased western court .

    3.Beyond that : they are now seriously implicated and engaged in Syria , in their fight against Daesh ( IS ) . Here, we deal with strict and direct involvement, huge devastation, huge amount of refugees, and much more brutal war (without any accusations right now). Now :

    4.One may wonder , what jurisdiction has the ICC on Syria ? yet , Fatou Bensouda, already declared in the past , that she may seek jurisdiction , on national basis ( of individuals , from French , or Britain for example ) . And then :

    5.She may or must look for the whole situation and actors , then it would implicate the Russians , much much more .

    Thanks

  2. One may read that statement of the Russian PM , about returning to cold war , and wonder about the connection with the ICC mentioned in the post , here :

    http://www.aljazeera.com/news/2016/02/world-slipped-cold-war-russian-pm-160213093701601.html

    Thanks

  3. Many thanks for this interesting post. I’d just like to add one comment in relation to this passage:

    “… I simply cannot understand why Russia would announce that it has no intention of cooperating with the ICC’s investigation. If the Request is any indication, Russia has very little to fear. So why not milk a little goodwill by at least pretending to cooperate with the ICC? Russia could use some good press right now, between its cynical intervention in Syria and ongoing eradication of Russian civil society. After all, it’s not like Russia couldn’t stop cooperating with the ICC down the road if the OTP ever did manage to dig up incriminating evidence.”

    This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and it might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that ‘pretending to cooperate’ or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.

    (http://www.pjk.online/blog/russia-refuses-to-cooperate-with-the-icc)

  4. Patricia,

    On paper, you’re surely correct. But in practice Russia has nothing to fear legally. I rather doubt it’s trembling at the thought that the Court might find it in violation of any cooperation obligation it might accept. Kenya thumbed its nose at the Court and the Court did precisely nothing about it. Besides, isn’t Art. 87(5) counterproductive? Why would a non-member state like Russia voluntarily cooperate with the Court if doing so commits it to continue cooperating? Better just to avoid the Court in the first place.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.