ICC Judges Authorize Prosecutor to Investigate 2008 War

Three-judge pre-trial chamber of The Hague-based International Criminal Court (ICC) has given the ICC’s prosecutor go-ahead to investigate war crimes and crimes against humanity allegedly committed in the lead up to, during, and after the August, 2008 war in Georgia.

The decision comes slightly over three months after ICC prosecutor Fatou Bensouda filed a 160-page request asking judges to authorize opening of the investigation and detailing alleged crimes attributed to the Georgian, Russian and South Ossetian sides.

The investigation will cover a period from July 1, 2008 – over one month prior to the war’s start – to October 10, 2008, when Russia withdrew troops from the areas it was occupying in Georgia beyond breakaway South Ossetia. 

“After examining the [prosecutor’s] request and the supporting material, the [Pre-Trial] Chamber concluded that there is a reasonable basis to believe that crimes within the ICC’s jurisdiction have been committed in the situation in Georgia,” The Hague-based court said on January 27.

“Such crimes include crimes against humanity, such as murder, forcible transfer of population and persecution, and war crimes, such as attacks against the civilian population, wilful killing, intentionally directing attacks against peacekeepers, destruction of property and pillaging allegedly committed in the context of an international armed conflict between 1 July and 10 October 2008,” it said.

The ICC Prosecutor said in a statement that “the investigation will take as long as needed to gather the required evidence.”

In her request to open the investigation made in October 2015, ICC Prosecutor Bensouda identified the following crimes, which she “reasonably believes” fall under the jurisdiction of the ICC:

• “Killings, forcible displacements and persecution of ethnic Georgian civilians, and destruction and pillaging of their property, by South Ossetian forces (with possible participation by Russian forces)”;

• “Intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces.”

ICC Prosecutor’s request to the judges was also accompanied by a confidential annex, which included a list of “persons or groups that appear to be the most responsible for the most serious crimes, with an indication of their specific role.”

Few days after requesting opening the investigation ICC Prosecutor Bensouda visited Tbilisi in mid-October 2015 and met the Georgian Justice Minister and Chief Prosecutor, as well as representatives of those Tbilisi-based human rights groups, which in 2009 compiled a report detailing violations of fundamental rights and international humanitarian law during the August war, and which have been cooperating with and providing information to the ICC prosecutor’s office throughout its preliminary examination of the case.  

It will be ICC’s first investigation into the situation outside Africa.

Although Russia is not a party to the Rome Statute, which established the ICC, the Hague-based Court’s has a jurisdiction to investigate Russian nationals as well because alleged crimes in question were committed on the territory of Georgia, which is a member of ICC.

Georgia, as a state party to the Rome Statute, will be obligated to fully cooperate with ICC – something that will not apply to Russia, because it is not an ICC member.

Human Rights Watch, which in early 2009 released a report on humanitarian law violations during the August 2008 war, welcomed ICC judges’ decision to authorize launch of investigation.

“An ICC investigation will restart justice efforts for victims,” said Elizabeth Evenson, senior international justice counsel at Human Rights Watch. “It’s been more than seven years since the war ended, but neither Georgia nor Russia has held to account those responsible for unlawful civilian killings, looting, and torching of homes.”

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