The ICC Is Not Shying Away from the Georgian Challenge

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anca Iordache is an intern within the Rule of Law Program the Institute. With many thanks to Stephen Rapp, Danya Chaikel and Lyal S. Sunga for their helpful feedback on earlier drafts of this commentary. The views expressed here do not necessarily represent the views of the Hague Institute for Global Justice. ]

On Wednesday, 27 January 2016, the Pre-Trial Chamber I (PTCI) of the International Criminal Court (ICC) authorized the Office of the Prosecutor (OTP) to proceed with an investigation into the situation in Georgia. Specifically, the OTP will investigate crimes allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. Not only is this the first investigation outside of Africa, but it is also the first proprio motu case involving a non-State party, the Russian Federation. This is striking given the current geopolitical tensions between Russia and the West, and the PTCI decision raises many procedural issues and political challenges for the ICC, while at the same time providing the Court with a number of unprecedented opportunities.

After nearly two months of border clashes between Georgia and its breakaway region of South Ossetia, Georgia launched, in the early days of August 2008, a major military offensive against South Ossetia which prompted Russia to intervene against Georgia. Despite a 12 August cease-fire brokered by the French-led EU presidency, crimes reportedly continued to be committed. Russia completed most its withdrawal of troops on 8 October, and it later recognized South Ossetia, as well as Georgia’s  second breakaway region of Abkhazia, as independent states. It was in this context that the OTP opened a preliminary investigation on 14 August, only two days after the cease-fire was agreed upon. Then on 13 October 2015, the Prosecutor requested authorization from the Court’s judges to proceed with an investigation into the Georgia situation. To quote Harvard professor Alex Whiting, “the Prosecutor is moving forward on Georgia not because she is necessarily eager to do so, but because after seven years the case demands it.”

The PTCI decision touches upon a number of issues. First, it concludes that there are reasonable grounds to believe that war crimes and crimes against humanity were committed during the 2008 Georgian war (PCTI authorization, paras. 26–31). These include alleged forcible displacement of ethnic Georgians from South Ossetia, and alleged Georgian attacks on Russian peacekeepers. Second, it is worth noting the issue of rationae loci jurisdiction of the Court over crimes committed in the region of South Ossetia (Art. 12 of the Rome Statute). Although South Ossetia claims independence and is still supposedly under Russian effective control, the region continues to be internationally recognized as part of Georgia – a state party to the Rome Statute – and therefore the Court concluded, that it falls within the jurisdiction of the Court (para. 6). This will inevitably be of concern in future Georgia cases, particularly when it comes to judicial cooperation issues, such as gathering of evidence, arrest of suspects, or witness protection, since Russia currently holds de facto effective control over South Ossetian territory.

Another contentious point the PTCI addresses concerns the issue of admissibility of the case under Article 17 of the Rome Statute. With regard to complementarity (Art. 53(1)(b) of the Statute), both Georgia and Russia have had sufficient time to undertake national investigations of conflict related crimes – more than 7 years. On the one hand, while the Russian Federation authorities have shown to be willing and able to conduct national proceedings (para. 50), the Court could not conclusively decide on the question regarding their inability to access crucial evidence (para. 46). On the other hand, the Georgian authorities seemed to have been unable to conduct investigative activities in South Ossetia (paras. 40–41). The Court agreed with the Prosecution’s position in that any proceedings undertaken by the de facto authorities of South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a recognized State. In view of this, together with a lack of full cooperation between the parties involved, Georgia was considered to be unable, even if it seemed willing, to investigate effectively serious crimes committed during the 2008 war. PTCI ultimately found that potential cases arising from the situation were “largely admissible” as there was also sufficient gravity (Art. 17(1)(d) of the Statute) to warrant an OTP investigation (paras. 51–56).

The PTCI decision also addressed respective cooperation of Georgian and Russian authorities with the OTP’s investigation. Georgia, as a State Party to the Rome Statute since 2003, has an obligation to cooperate fully with the ICC (Art. 86, of the Statute) and it thus far declared its commitment to collaborating with the Court. After signing in 2000 but not ratifying the Rome Statute, the Russian Federation has not yet become a state party. However, the Court could investigate Russian nationals suspected of committing crimes on the territory of a State Party, as is the case of South Ossetia. The Russian Federation initially confirmed that it would cooperate with the ICC probe and thus far has done so, for example, by providing the Court with more than 30 volumes of material from its own criminal investigation. However, following the PCTI authorization to proceed with an investigation, Russia’s Ministry of Foreign Affairs criticized the Court for taking Georgia’s side, and also stated that “in the light of the latest decision, the Russian Federation will be forced to fundamentally review its attitude towards the ICC”. This criticism was followed by Alexander Bastrykin’s (Chair of Russia’s Investigative Committee) lengthy interview (in Russian) in the official newspaper Rossiyskaya Gazeta, during which he said that the Court “turned the circumstances of the case on its head” (‘с ног на голову’) by ignoring Georgian crimes. This would not be the first time the Russian Federation has criticized or has opposed an international court for seeming to display an ‘anti-Russian bias’. For example, Moscow has on several occasions criticized the European Court of Human Rights (ECtHR) as well as the Permanent Court of Arbitration, and more recently, it vetoed the establishment of a Tribunal to prosecute individuals in relation to the downing of the MH17 flight. Russia has gone as far as to adopt legislation that allows it, in certain cases, not to implement ECtHR rulings.

A major issue that could make its way to the ICC in this situation is what the European Parliament has termed Russia’s effective misinformation campaign during the Ukrainian conflict. This concern coupled with the apparent “lack of transparency” of the Russian Prokuratura, which “remains vulnerable to presidential and other political power” (see Council of Europe’s Venice Commission Opinion, para 75), could prove to be a major challenge to the Court. This criticism also applies to Georgia in the sense that proposed domestic reforms of the General Prosecutors Office “does not yet fully achieve the stated goal of depoliticizing the office of the Chief Prosecutor” (see Venice Commission opinion no. 811/2015 para 10). In addition, the OTP will have to remain vigilant about not relying on information that may be heavily biased from either side. It will not be the first time the Court has to show its ability to discern genuine evidence from biased reports. In the end, a positive result of the ICC’s involvement could be that the OTP’s investigation focuses on all sides to the conflict equally which has been a challenge for the Court in other cases such as the collapsed Kenyatta case and the recent blow to the Prosecution in the Ruto case.

It is also useful to compare the Georgian and Ukrainian circumstances as they deal with some similar issues. First, a UN Security Council referral was not an option for Ukraine or Georgia, due to the potential use of the veto power by Russia. Unlike Ukraine however, Georgia is a State Party to the Rome Statute. While Kiev’s only choice was to submit a declaration to the Court accepting jurisdiction under Article 12(3) of the Rome Statute, this was not the same for Tbilisi, which could have but did not refer its own situation to the Court. Unlike Ukraine, where the conflict was still ongoing, there were fears of Russian retaliation if Georgia had chosen to ‘poke the bear’ further after the conflict had ceased. Therefore, the proprio motu investigation could be seen as a blessing in disguise for the Georgians, in spite of the fact that it will target Georgians as well.

Another important point to consider with regard to the issue of Crimea and South Ossetia, is whether the Prosecutor has jurisdiction to lay charges for the crime of aggression. In view of this, the jurisdiction of the ICC may begin one year after the 30^th ratification of the 2010 Kampala Amendments to the Rome Statute, but not before the Assembly of State Parties has approved the commencement of jurisdiction after 1 January 2017.  So far, only 26 states, including Georgia, have ratified the amendments and notably the Court’s jurisdiction will be limited only to those States Parties once jurisdiction over aggression kicks in. Even so, the Prosecutor could not lay charges for the crime of aggression with regard to the issue of South Ossetia due to the non-retroactive nature of the Court’s jurisdiction.

The ICC´s decision to open an investigation in Georgia is significant because it is the first investigation into a situation outside the African continent. The ICC focus on Africa has led to accusations that the Court has been biased. However, a majority of ICC investigations have been opened at the request of African governments, even if these investigations can be criticized as ‘low-hanging fruit’ the OTP can easily pluck for prosecutions. Ultimately, regional balance should not be a factor in deciding the direction of the Court’s prosecutions. Nonetheless, such a development is a small but positive step towards a truly global Court. The fact that the ICC is now focusing also outside Africa will certainly help diminish the alleged anti-African bias, particularly at a time when some African Union States have threatened to leave the ICC. However, a plausible scenario, judging from official reactions cited above, is Russia embracing anti-ICC rhetoric. In that event the main challenge will be to tackle the broader criticism of the Court as “a tool of Western Imperialism” not exclusively aimed at Africa.

In the end, the authorization on Georgia shows that the Court has not shied away from challenges even if they involve a non-state party or more importantly a UN Security Council permanent member. However, the potential cases emanating from the Georgian situation will no doubt prove to be particularly challenging if Russia’s shows less cooperation with the Court. Hopefully the Court will show itself to be up to the challenge and the next steps will set a positive tone for future potential and similarly challenging situations such as Afghanistan or Palestine.