As the Prosecutor of the International Criminal Court (ICC) begins his investigation of possible war crimes in Ukraine, there is another conflict involving Russian forces that has already drawn the ICC’s attention. The Prosecutor recently asked an ICC pre-trial chamber for arrest warrants for individuals suspected of war crimes in the 2008 armed conflict between Russia and Georgia. The Georgia case involves a risk and an opportunity for the Court.

The question is whether the Court will properly follow the lead of the Prosecutor in finding that civilians were “protected persons” under the Geneva Conventions for all phases of the conflict. The alternative is a wayward view, expressed most prominently by the George W. Bush Justice Department in the context of the “war on terror,” that would prevent the Court from considering alleged war crimes committed during the invasion/pre-occupation phase of the conflict. The risk: An erroneous ruling by the Court would do severe damage to the Georgia and Ukraine investigations and international humanitarian law more generally. The opportunity: a proper ruling by the Court could help guide the United States and others away from the flawed alternative interpretation of the law.

The Georgia Cases

First, a bit of background. In the summer of 2008, tensions flared between Georgia, which had declared its independence in 1991 following the dissolution of the Soviet Union, and the semi-autonomous region of South Ossetia, which sought either independence from Georgia or incorporation into the Russian Federation. As hostilities escalated between Georgian and South Ossetia forces, Russian forces militarily intervened on the side of the latter. That intervention transformed a non-international armed conflict into an international one, triggering application of the entirety of the Geneva Conventions.

Within days of their entry into the armed conflict, Russian forces had pushed into undisputed Georgian territory, eventually occupying it in part. As Russian forces advanced, and before they established a zone of occupation, they detained well over one hundred civilians, mostly the sick and elderly who were unable to flee. The detention and mistreatment of these civilians, in violation of the Geneva Convention for the Protection of Civilians (GC IV), is the subject of the ICC prosecutor’s investigation and application for arrest warrants.

The Geneva Conventions Legal Regime

A few words about the Geneva Conventions. Each of the Geneva Conventions protects a different class of persons who do not participate, or who no longer participate, in the armed conflict, and are therefore distinguished from combatants and military objectives that may be targeted. Before WW II, the earlier Geneva Conventions covered three classes of protected individuals: wounded and sick armed forces in the field; wounded, sick, and shipwrecked armed forces at sea; and combatants taken as prisoners of war. After WW II, and in the shadow of the Holocaust, the international community saw fit to update those three Geneva Conventions with new treaties and create a fourth convention for the protection of civilians. The ICC exercises jurisdiction over war crimes committed against persons protected by all the Geneva Conventions.

Subject to exceptions not relevant here, GC IV defines “civilian” as anyone not falling within the protection of the other three Geneva Conventions. This “negative definition” is no accident. It implements the drafters’ intent to assure that all people caught up in armed conflict are protected by one or another of the four conventions. GC IV defines “protected persons” as civilians “who, at a given moment and in any manner whatsoever, find themselves … in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (art. 4).

The Bush Administration’s Version

This is where the U.S. “war on terror” comes in. Many readers of Just Security are aware of the efforts by the Bush administration to write detainees out of the Geneva Conventions. The attempt to render post-9/11 detainees into a legal black hole was instrumental to the establishment of offshore detention facilities, like Guantanamo, and to detainee abuse, including torture, that Americans committed against detainees. At the time, these Bush administration practices were given a patina of legitimacy, often post hoc, by several legal opinions drafted in the Justice Department’s Office of Legal Counsel (OLC). Fortunately, the Obama administration made quick work of dismantling any pretense of legality by rescinding the relevant OLC memos. But one of those OLC memos — relevant to the ICC’s jurisdiction for war crimes committed against civilians protected by GC IV — managed to avoid recission.

This 2005 OLC Memorandum concerns the legal status of civilians captured or detained in Afghanistan and the territorial reach of GC IV. It uses tortured logic and highly selective citation of questionable precedent to conclude that GC IV covers protected persons only when held on the territory of, or in an occupation by, the detaining authority, but not in the invasion phase prior to occupation. The flaws in the 2005 OLC Memorandum need not be extensively repeated here, since they were so expertly revealed in this 2016 Just Security article by Prof. Beth Van Schaack, who has recently been confirmed by the U.S. Senate as the U.S. Ambassador-at-Large for Global Criminal Justice . But one especially flawed, and essential element in the 2005 memo’s argument does merit a spotlight, per Prof. Van Schaack:

The memo goes on to pose what it identifies as an interpretive dilemma (p. 8): [t]o say that ‘protected person’ status is available to persons finding themselves ‘in the hands of a Party to the conflict’ in ‘the territory of a party to the conflict,’ however, does not fully resolve the status of persons captured by a party to the conflict in territory belonging to its enemy. (Emphasis added).

It then argues that the phrase “territory of the party to the conflict” might be read to mean only the home territory of the party to the conflict in whose hands a person finds him- or herself (p. 8).  Note the linguistic sleight of hand – “the territory of a party to the conflict” (the treaty language) suddenly becomes “the territory of the party to the conflict” (the memo language).  Note also the speculative reasoning without any grounding in the treaty’s commentary.

The International Committee of the Red Cross (ICRC) has also long-maintained that GC IV applies to the “invasion phase” of an international armed conflict, prior to “the inauguration of a stable regime of occupation” (ICRC Commentary of 1958; ICRC Commentary of 2016 to GCI (e.g., para. 300)).

Implications for Civilians in Armed Conflicts

According to the 2005 Memo’s spurious interpretation, as invading Russian forces advance on foreign soil, and before they establish an occupation, Georgian (and more recently, Ukrainian) civilians whom they encounter, and even those they detain, are not protected persons under the Geneva Conventions. This misguided assertion eviscerates the very purpose of the Geneva Conventions: to provide legal protection to civilians who are not protected by the laws of the powers that confront them because they are not being held on the territory of those powers.

What does this have to do with the ICC’s Georgia case? Recall that the civilians in question were detained on Georgian (not Russian) soil during the invasion phase of the conflict, before Russian forces established an occupation. When he applied for arrest warrants in the Georgia case, the ICC Prosecutor proceeded under the correct view of the law that the civilian detainees would, in fact, be protected persons under GC IV in both the invasion phase and occupation phase, and he stated so explicitly.  The Prosecutor’s brief explained that the international armed conflict “may broadly be divided into two phases:” (1) “an initial period of active hostilities” commencing at latest on Aug. 8, 2008 and ending on Aug. 12, 2008; and (2) “a subsequent period in which Russian forces and [South Ossetia] forces occupied Georgian territory.” He then correctly stated that civilians were protected persons under the Geneva Conventions during both phases:

“Between 7 and 27 August 2008, at least 171 actual or perceived Georgian civilian Detainees were held in unlawful confinement by the de facto [South Ossetia] administration in the [Preliminary Detention Center]. These Detainees were protected persons under the Geneva Conventions (‘GC’) of 1949” (para. 35).

Per the logic of the standing U.S. interpretation of GC IV’s scope of application, these civilians would be excluded from the rules that safeguard protected persons and therefore, the ICC could not proceed under a theory that their treatment was a war crime by virtue of GC IV violations set forth by the Prosecutor.

As the ICC judges evaluate the Prosecutor’s application for arrest warrants in the Georgia case, and as we look forward to the day that the ICC reaches the question of Russian war crimes in Ukraine, the Court must make clear that there can be no legal black holes in Geneva Convention protections. As such, it should fully articulate the application of GC IV to the invasion/pre-occupation stage of an international armed conflict and allow all charges to stand involving this set of civilian victims, for detention and mistreatment both before, and during, the Russian occupation of parts of Georgia.

While this article is primarily aimed at analysis of Geneva Conventions provisions relevant to the scope of application of ICC jurisdiction, it might also serve as a reminder that the United States has not fully reversed the misguided positions it took in the aftermath of the 9-11 attacks. Unless the 2005 OLC Memo is rescinded, efforts on the part of the United States to support some of the most important war crimes charges against Russian forces for conduct prior to, or in the absence of, occupation of either Georgia or Ukraine, will be met with claims of hypocrisy.


Image: Deputy Prosecutors Swearing-in Ceremony, March 7, 2022, Int’l Criminal Court, The Hague, Netherlands.