The International Criminal Court (ICC) last week authorized the Office of the Prosecutor to investigate alleged war crimes and crimes against humanity committed in South Ossetia from July 1 to October 10, 2008 during the armed conflict between Georgia and Russia. [ICC Press Release] According to the ICC Prosecutor, between 13,400 and 18,500 ethnic Georgians were forcibly displaced and the ethnic Georgian population in South Ossetia was reduced by at least 75 percent. [The Guardian] The forthcoming investigation will seek to gather additional evidence of international crimes committed in or around South Ossetia by Georgian, Russian, or South Ossetian forces and identify the individuals most responsible for the most serious abuses. See ICC Office of the Prosecutor, Corrected Version of “Request for Authorisation of an Investigation Pursuant to Article 15”, ICC-01/15-4-Corr., 16 October 2015.
In authorizing an investigation into the situation in Georgia on January 27, 2015, Pre-Trial Chamber I determined that all of the requirements set forth in Article 53(1) of the Rome Statute had been satisfied. See ICC, Situation in Georgia, ICC-01/15, Decision on the Prosecutor’s Request for Authorization of an Investigation(27 January 2016). Importantly, the Pre-Trial Chamber agreed with the Prosecutor that South Ossetia should be considered part of Georgia and not an independent State, and that alleged acts of sexual and gender-based violence appropriately fall within the scope of the investigation. See id. at paras. 6, 34, 35. This is the first time the ICC will examine alleged crimes committed by Russian authorities, and it is the first situation the ICC is formally investigating outside of Africa.
The Situation in Georgia
Georgia ratified the Rome Statute on September 5, 2003. In August 2008, conflict broke out between South Ossetian separatists, supported by the Russian military, and Georgian forces. Over a five-day period, several hundred people were killed and more than 120,000 people were displaced from their homes. Parties to the conflict are also alleged to have engaged in torture, unlawful killing of peacekeepers, destruction of property, pillaging, and sexual violence. [IJRC]
On August 14, 2008, the ICC Prosecutor began a preliminary examination, at her own initiative, into the situation in Georgia and found a reasonable basis to conclude that crimes within the ICC’s jurisdiction had been committed during the armed conflict. See ICC, Situations. Moreover, her office found that legal proceedings in Georgia had not meaningfully progressed. [IJRC] An investigation initiated by the Office of the Prosecutor, without a referral from the United Nations Security Council or a State Party to the Rome Statute, is subject to approval by a Pre-Trial Chamber. See ICC, Situation in Georgia, ICC-01/15, Decision on the Prosecutor’s Request for Authorization of an Investigation (27 January 2016), paras. 3-5.
On October 13, 2015, ICC Prosecutor Fatou Bensouda submitted her request to proceed with an investigation into the alleged crimes in South Ossetia under Article 15 of the Rome Statute. Late last year, as the Pre-Trial Chamber was evaluating her request, it received information from 6,335 victims of the conflict. [ICC Press Release]
Decision to Authorize an Investigation
In deciding whether to grant Ms. Bensouda’s request, the Pre-Trial Chamber examined whether the alleged crimes in and around South Ossetia satisfied the requirements set forth in Article 53(1) of the Rome Statute, namely, whether: there is a reasonable basis to believe that a crime within the jurisdiction of the court has been committed,the case meets the admissibility requirements of Article 17, and an investigation serves the interests of justice the gravity of the crime, the interests of the victims, and whether an investigation would not serve the interests of justice. See ICC, Situation in Georgia, ICC-01/15, Decision on the Prosecutor’s Request for Authorization of an Investigation (27 January 2016), 5. Article 17 requires the ICC to find a case inadmissible if it is being, or has been, diligently investigated or prosecuted by a State with jurisdiction or if it is not sufficiently serious to be taken up by the ICC.
The Prosecutor alleged that a number of crimes had been committed in and around South Ossetia in 2008, including murder, attacks against peacekeepers, persecution, forcible transfer of individuals, and destruction of property. After reviewing the information concerning the international armed conflict between Georgia and Russia, the Chamber concluded that the elements of the alleged war crimes and crimes against humanity had been satisfied. See id. at 5-16.
The Chamber emphasized that admissibility under Article 17 refers to “potential cases” that may result from the Prosecutor’s investigation based on currently available information, and that the scope of the investigation could be amended depending upon the results of the Prosecutor’s activities. See id. at 16-18, 22.
On March 17, 2015 Georgian authorities wrote a letter to the Prosecutor noting that national proceedings concerning the alleged crimes had been stalled as a result of the security situation in Georgia, particularly due to the ongoing violence against civilians. Therefore, the Chamber concluded that the proceedings in Georgia do not affect the admissibility of any potential cases before the ICC. See id. at 18-19.
With respect to the displacement campaign to expel ethnic Georgians from South Ossetia and the “buffer zone,” the Chamber concluded that the Russian proceedings were also inadequate, noting its doubts regarding the ability of the Russian authorities to interview Georgian witnesses. See id. at 19-20.
Regarding the attack on Russian peacekeepers, the Russian authorities are continuing their investigation until February 8, 2016, including by conducting forensic analysis and re-interviewing eyewitnesses and victims. Given Russia’s willingness to investigate, the Chamber concluded that potential cases arising out the attack on Russian peacekeepers may be inadmissible depending on the steps Russia takes after outcome of the investigation. See id. at 21-22.
The Chamber concluded that the crimes committed against ethnic Georgians and Russian peacekeepers satisfied the gravity requirement. For example, the alleged crimes likely decreased the ethnic Georgian population in South Ossetia by 75 percent. Additionally, the attacks on Russian peacekeepers would have thwarted their ability to carry out their mission. See id. at 22-23.
Finally, the Chamber found no substantial reasons to conclude that an investigation into the alleged crimes would not serve the interests of justice. See id. at 23-24.
The Chamber found that all of the requirements under Article 53(1) were satisfied and authorized an investigation into the conflict in and around South Ossetia between July 1 and October 10, 2008. See id. at 24-25.
Implications for ICC Jurisdiction
The ICC’s decision to investigation the situation in Georgia, which may result in the prosecution of Georgian and Russian nationals, constitutes the first international criminal investigation into actions by these governments. [The Guardian] The ICC’s jurisdiction is limited to crimes committed in the territory of a State party or by a State party’s citizen, and that are referred to it by a State party or the United Nations Security Council, or taken up by the Prosecutor. See Rome Statute, art. 12. While Georgia is a party to the Rome Statute, Russia is not. Thus, the prosecutor cannot initiate an investigation of violations committed within Russian territory or by Russian nationals, unless it has another basis for jurisdiction. Here, the Court may investigate Russian nationals because it has jurisdiction over crimes committed in the territory of Georgia.
The investigation of the situation in Georgia also constitutes the first full investigation that the ICC has authorized outside of Africa. [The Guardian] The Prosecutor is also considering whether to request investigations regarding situations in Afghanistan, Nigeria, Palestine, and Ukraine. See ICC Office of the Prosecutor, Report on Preliminary Examination Activities (2015).
For more information on international criminal law, the International Criminal Court, and international humanitarian law, as well as the Prosecutor’s request to investigate the conflict in South Ossetia, visit IJRC’s Online Resource Hub.