The Significant Firsts of an ICC Investigation in Georgia

Yesterday the Prosecutor of the International Criminal Court filed a request seeking authority from its Pre-Trial Chamber to begin an investigation into possible war crimes and/or crimes against humanity during the armed conflict between Georgia and Russia in August 2008. If the Prosecutor gets the green light from the judges (which she certainly will), then two potentially important precedents will be set: It will be the first ICC investigation outside of Africa and the first involving (in any significant way) a non-State Party (aside from Sudan and Libya, both of which were referred to the ICC by the UN Security Council). Is the ICC “showing a readiness to tackle politically sensitive conflicts involving powerful actors after a decade in which it was criticized for being involved only in crimes committed in Africa,” as one commentator suggested?

The development is indeed significant, but for different reasons. While the ICC Prosecutor can and should be strategic in her decision-making, the Georgia case in fact shows the limits of strategy. 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 Georgia case also tells us something about what is likely to happen in some of the other sensitive cases that are still in the preliminary examination phase at the ICC (Afghanistan, Palestine, Ukraine), all of which also involve non-State Parties. Now that the Prosecutor has moved on Georgia, it is not likely that she will open any of these other situations anytime soon. But, while the Court may not rush to start investigations in those cases, the day will come when the Court will likely feel compelled to move forward in each of these situations, unless domestic authorities are able to find a path to achieving accountability on their own (admittedly an unlikely prospect). American policymakers will be particularly interested in the ICC’s Georgia case because of close ties between the US and Georgia and because of what this case indicates about other cases in which the US has an even more direct interest (such as Afghanistan).

Georgia joined the ICC in 2003 and therefore the Court has jurisdiction over any war crimes or crimes against humanity subsequently occurring on its territory. The ICC quickly opened a preliminary examination into the Georgia-Russia conflict in South Ossetia on August 14, 2008, just days after a cease-fire agreement was reached. In 2011, the Prosecutor determined that there was a reasonable basis to conclude that war crimes and crimes against humanity were committed during the brief but intense conflict. But for at least the past four years, the Prosecutor has held off on opening an investigation because both Russia and Georgia claimed to be investigating the allegations themselves. Predictably, these “investigations” have produced no results, and finally the Prosecutor reached a point where she had to say, enough is enough and proceed with her own investigation.

If the Prosecutor simply wanted to use the Georgia case to get out of Africa or to take on a major power, she could have done so years ago. Instead, she sat on the case for nearly half a decade. Why? Part of the answer is that the Prosecutor’s office does not think about cases in these terms. A prosecution strategy that simply tried to respond to criticisms from the outside, many of which are politically motivated, would be doomed to fail. The other part of the answer is that neither Russia nor Georgia has shown any particular interest in seeing the ICC take up the investigation, which is why the Prosecutor must rely on her proprio motu power to commence the investigation, the only avenue for starting an investigation that requires judicial authorization. It is no surprise that Russia, a non-State Party to the Rome Statute, has not asked the ICC to intervene. But why hasn’t Georgia? No doubt because an ICC investigation would include a look at alleged crimes by Georgian forces, in particular attacks on Russian peacekeepers at the beginning of the conflict, and also perhaps because the government has concluded that investigations are not now in its political interest.

Therefore, it is not because the Prosecutor sees a sure success in Georgia that she has moved forward. As the ICC has few independent investigative powers, it depends on state cooperation to conduct its investigations. Where there is little support in the situation country and no pressure to cooperate from influential outside actors, the prospects of success for the ICC are greatly diminished. Moreover, while the allegations that Georgian forces illegally attacked Russian peacekeepers on the night of August 7, 2008, resulting in 10 deaths and 30 injuries, may be making the Georgian government nervous, those allegations will be very hard to prove. The evidence about who fired first is highly contested, and proving criminal intent on the basis of a single episode is extremely difficult. There are also allegations of attacks on Georgian peacekeepers by South Ossetians in the weeks preceding the conflict, but the evidence is also disputed. The best case for the ICC, the ethnic cleansing of Georgians from South Ossetia, is much stronger evidentially but the probable targets of the investigation — South Ossetians — are almost certainly out of the Court’s reach since South Ossetia is now occupied by Russia. The history of international criminal justice is full of unexpected twists and turns (who ever thought that Slobodan Milošević or Charles Taylor would face justice?), but I certainly would not count on an accused in a Georgia case appearing at The Hague anytime soon. Nonetheless, even though the Georgia case will be challenging, to say the least, the Prosecutor has moved forward because at the end of the day, the law requires it. Strategic considerations may shape the timing of investigations and the Prosecutor’s priorities, but not their ultimate outcomes. Cases have their own internal momentum and logic that drive them forward.

What does the Georgia case signal about the other sensitive cases on the Prosecutor’s docket? First, it likely means that the Prosecutor will not move on these other cases until next year at the earliest. Over the summer, the Prosecutor issued The Report of the Court on the Basic Size of the Office of the Prosecutor in which she outlined her vision of the ordinary workload of her office. According to the report, she expects to open one new investigation a year. Because the Afghanistan preliminary examination has been open since 2007, it is likely at the top of the list as the next investigation to be started. Second, since Palestine and Ukraine also involve non-State Party actors and pose other significant investigative challenges, the Prosecutor will not likely rush into either investigation and may keep both in the preliminary examination phase for a number of years. Third, while the Prosecutor will not jump into these cases, neither will she avoid them forever. The day will come when, as with Georgia, she will feel compelled to move forward on investigations in these cases unless domestic authorities step up with their own investigations.

Finally, a point worth noting about the preliminary examination. Although Russia is not a State Party to the ICC, it has apparently cooperated with the Court’s inquiry to date. According to the OTP’s request to the judges, Russia provided information to the OTP, responded to requests for assistance, and welcomed three missions by ICC officials. Presumably, Russia calculated that it was in its interest to engage. Will Russia continue to cooperate, now that the Prosecutor has moved forward with an investigation? And will other non-State Parties cooperate with ICC inquiries that potentially implicate their nationals? 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).