Georgia and the ICC: a strong beginning, an uncertain outcome

Georgia signed the Rome Statute on 18 July 1998 and ratified it on 5 September 2003, becoming the 92nd State Party of the International Criminal Court. In August 2008, shortly after the conclusion of the armed conflict between Russia and Georgia, Prosecutor Luis Moreno Ocampo announced the start of a preliminary examination. Based on the information obtained during the examination, the current prosecutor, Fatou Bensouda, concluded that the crimes committed in Georgia during the armed conflict of 2008 fall under the jurisdiction of the Court. Pursuant to Article 15 (3) of the Rome Statute, she submitted a request to open an investigation into this situation. In October 2015, the presidency assigned the situation in Georgia to Pre-Trial Chamber I which in January 2016 concluded that “there is a reasonable basis to believe that crimes within the Court’s jurisdiction were committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008”.  

 

So, what is the strategy of the Court behind the opening of the investigation, if any? Some might argue that the ICC and its prosecutor are searching for a way out of the African continent, but as Alex Whiting, the former prosecution coordinator at the International Criminal Court writes, “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”. Others argue that the prosecutor wants to be proactive in shaping the “international narrative condemning Russian aggression”,  yet the prosecutor has meticulously avoided getting involved in political, power-play games. Whereas I agree that the Court is “showing a readiness to tackle politically sensitive conflicts involving powerful actors”,  I believe that, more reasonably, the opening of investigations is a result of the development of the preliminary examinations. Started almost a decade ago, the preliminary examinations proved there is a reasonable basis to believe:

 

To date all interested parties – Georgia, Russia and South Ossetia – have cooperated with the Court, either by sending documents to The Hague or by committing to support the legal proceedings before the Court.  Nevertheless, the outcome of this investigation is neither predictable, nor will it necessarily be successful. To begin with, it is interesting that Georgia – a State Party to the ICC from 2003 – has not requested the opening of investigations earlier. Could it be that the allegations that Georgian forces illegally attacked Russian peacekeepers on the night of 7 August 2008 makes the Georgian government nervous? Additionally, it will be particularly interesting to see how the Court will frame the status of South Ossetia, which has long been a disputed territory, and what crimes will be investigated. Most probably the ICC will trigger its jurisdiction on war crimes and crimes against humanity, but I deem unrealistic that the crime of aggression – as suggested by Mark Kersten – will be one of them. 

 

What is next? Probably not much and not soon. Investigations will be lengthy and burdensome, despite the cooperation of the interested parties. Yet, the situation in Georgia illustrates a possible pattern for other situations under preliminary examination at the ICC. For example,  preliminary examinations were opened in 2007 into the situation of Afghanistan. It could therefore be that following the same rationale as for Georgia, the OTP will request the opening of an investigation in a couple of years. As challenging as it might be, the investigation into the situation in Georgia sets a two precedents for the Court: the first investigation outside Africa and the involvement of non-State Parties in the investigations (Russia and South Ossetia).