Phakiso Mochochoko: No Cooperation from Moscow, Tskhinvali in ICC Investigation

In January 2016, the Hague-based International Criminal Court authorized its prosecutor to open investigation into war crimes and crimes against humanity allegedly committed in the lead up to, during, and after the August 2008 war in Georgia.

Civil.ge spoke about the case proceedings to Phakiso Mochochoko, Director of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor, who visited Georgia together with Herman Von Hebel, the Registrar of the Court.

The International Criminal Court has been investigating the August war crimes since January 2016. Could you brief us about the progress of the investigation so far?

As you are aware, the Office of the Prosecutor was authorized to undertake investigations of the conflict that went on in 2008. Our mandate and our jurisdiction is only in respect to the 2008 war, we cannot investigate anything that happened before that. After authorization from the Chamber, the process started with analyzing and reviewing all the information and materials that we had received during the premier examination process. There are a lot of materials that have been collected – from NGOs, from civil society, from variety of other sources, and that materials and information had to be analyzed for purposes of the investigation. That process took quite a long time, because the materials were rather bulky. Towards the end of last year, that process was finalized, and now is the process of identifying and contacting witnesses, and interviews. As of the beginning of this year, the process of identifying witnesses, as well as interviewing witnesses has now intensified. Our investigators are now coming in and out of Georgia, interacting with witnesses, taking statements, going back to The Hague, analyzing those statements and putting them into our databases, and identifying gaps. This is an ongoing process, and, as I have said, our investigations have now intensified. They will probably intensify even further, and this process will continue until we have collected enough evidence to satisfy ourselves that we meet the legal requirements, the legal standards that are required of us by the Rome Statute and the judges, to prove our case against any individual that evidence points to be responsible for committing the crimes during the 2008 violence.

What is the way forward – could you walk us through the next stages of the investigation and the court proceedings, up to their conclusion?

Now we are still in the process of investigation, and this investigation will continue until we have collected enough evidence that can point to the crimes by any party to the conflict. Once this process is finalized, if we are satisfied that we have got enough evidence, then we will present that evidence to the judges, and ask the judges to issue arrest warrants against anybody that evidence points to be responsible for those crimes. Once the judges have independently assessed that evidence, and if they agree that our evidence passes the threshold, then they will issue arrest warrants against individuals or an individual who the evidence points to be responsible for these crimes. The next stage then will be for that individual, or those individuals, to be arrested and brought to the ICC. Once they are before the ICC, the judicial process and the proceedings in court will start. They will start with the evidence of the prosecutor reading that evidence before the judges, and then that will be followed by the evidence of the defense. When the prosecution is reading its evidence, the defense will have the opportunity to challenge that evidence for a cross-examination, and to test the truthfulness or otherwise of that evidence. Once the prosecution is finished presenting its evidence, depending on how many witnesses it is going to present, then it will be the turn of the defense to present its own evidence to counteract whatever evidence of the prosecution has been. At the end of it all, when all evidence has been heard from both the prosecution and the defense, then there will be closing statements. The judges will then go into deliberations of their own, to assess the evidence and make the decision on the guilt or otherwise of the person that we allege has committed crimes.

The Office of the Prosecutor is investigating independently, it is investigating impartially, and it is relying on nothing but the law and the evidence to substantiate its case against anyone that it believes may have committed crimes during 2008 conflict.

Does the ICC investigation consider three sides of the armed conflict of 2008 – Russia, Georgia and the Tskhinvali authorities?

Yes, the ICC is investigating all sides to the conflict.

And there are three sides, correct?

Yes, there are three sides to the conflict. ICC is investigating crimes that were allegedly committed by any side of the conflict. We have not identified any suspect at the moment – that is not the process of the ICC – we do not start off by identifying suspects and trying to find the evidence to feed that. We start off by collecting the evidence, and it is on the basis of evidence that we come to the conclusion of who among the three sides, who individually, should bear the criminal responsibility for the crimes that were allegedly committed during that conflict.

Is it correct right now that only Georgian side is cooperating with the ICC investigation?

At the moment we are, indeed, receiving good cooperation from the Government of Georgia, and we are engaging with them in terms of them facilitating our coming in and out of Georgia; we are interacting with them in terms of accessing some of documents that may be in their possession; we are liaising with them in terms of streamlining the processes for our interacting with them, so cooperation is working well so far.

How about the other two sides – is it only the Georgian side that is cooperating so far?

So far yes, it is the Georgian side that is cooperating. We have not received any cooperation from either Russia or South Ossetia, and we continue to make every effort to try and persuade them to cooperate with us. We are trying to assure them that it is in the interest of the victims, and it is in the interest of justice, but, more importantly, it is in their own interest that we should be able to hear their own side of the story. If we do not hear their side of the story, naturally, we will not be able to take that into consideration in making our informed decision. So, we will only be able to come to an informed decision, an independent impartial decision – if the Russians and the South Ossetians do cooperate with us. This does not mean that if they do not, we are not going to proceed with the investigation. That is not going to deter us, we are going to proceed with this investigation to its final conclusion with or without the South Ossetian or the Russian cooperation.

We understand that the ICC is opening an office in Tbilisi in January. What exactly is the status and what are the functions of this office?

This office falls under the Registrar, but it is mostly a public office, it is an office that will be staffed by high-level representatives of the Office of the Registrar, but its main function will be to interact and facilitate communication in Georgia with the government, civil society, institutions, and to provide information about the Court – what the Court can do, what the Court cannot do, and also to be able to answer questions. But also to receive whatever input from Georgia, and then relay that information back to The Hague, where it can be dealt with. So now we can have this communication, this opening of the communication lines between Georgia and The Hague in the coming days and in the future. The office is going to be opened in January, as the Registrar has indicated.