126 000 internally displaced persons, 224 killed, about 2,300 wounded or injured: this is the human cost of the 2008 Russian invasion. These statistics tell the story of human tragedies of tens of thousands of our citizens. They offer the proportions of mass atrocities that left dozens of villages burnt to the ground, took hundreds of lives and left tens of thousands of our citizens homeless. All of these acts served the single aim of ethnic cleansing of Georgians. The timeline of the conflict carries little actual significance as the so-called Five-Day War is in fact a consequence of the impunity for war crimes committed back in the 1990s and the 20 years of injustice that followed.
In the post-World War II order, for countries like Georgia – small and with little international clout – international legal mechanisms offer the only recourse for finding justice. The two Hague-based courts serve a shared goal of preventing war crimes and making sure that these crimes don’t go unpunished. The International Court of Justice (ICJ) settles legal disputes between states, while the International Criminal Court (ICC) investigates and tries grave crimes. The legal implications of the two courts’ judgements are therefore very different. Both of these courts heard Georgian-Russian war cases at different points in time.
To appreciate the significance of The Hague’s role in Georgia’s quest for justice, we need to look at the substance of these two cases, then identify key challenges and formulate a vision for the future.
Case in International Court of Justice (ICJ)
The first interstate application against Russia was submitted to ICJ when Russian tanks were still moving freely on the Georgian highways. In its application, Georgia thoroughly described Russia’s role in the conflicts from 1990 to August 2008. Georgia claimed that Russia was pursuing a deliberate policy of ethnic cleansing against Georgians through its agents and separatist forces operating under Russia’s effective control. Consequently, Georgia was requesting from ICJ to put an end to these injustices. Unfortunately, Russia managed to effectively divert the court’s attention from the material part of the dispute to its technical-legal part and the court was unable to deliberate on ethnic cleansing of Georgians by Russia. As a result, our movement on the path towards justice has been temporarily suspended.
Georgia in the Focus of International Criminal Court (ICC)
Georgia appeared in the focus of the Hague again through the International Criminal Court (ICC). In 2015, the ICC Prosecutor Fatou Bensouda filed a request asking judges to authorize opening of an investigation into alleged crimes committed in Georgia.
The request was preceded by the preliminary examination of Georgia’s own investigation of the 2008 war and communications with the Georgian government. Finally, in response to the letter received from the Ministry of Justice, the ICC prosecutor concluded that the Georgian investigation had run into a dead end.
In 2016, Pre-Trial Chamber of the ICC authorized the prosecutor to launch an investigation into the crimes committed in Georgia. The investigation was to cover the period from July 1 to October 10, 2008. Three parties involved in the armed conflict were also identified: the Georgian armed forces, the South Ossetian forces and the Russian armed forces. The investigation and, later, the court had to answer three main questions:
- Have South Ossetian and/or Russian troops committed war crimes against ethnic Georgians, including attacks on peaceful population, killings, destruction and looting of civilian property?
- How legitimate was the attack of South Ossetian militias on Georgian peacekeeping forces and, also, how justified was the attack of the Georgian troops on Russian peacekeeping forces?
- Have South Ossetian militias committed crimes against humanity, including killings, forcible displacements and persecution of ethnic Georgians?
Challenges and Future Vision
At a glance, it might not seem complicated to answer these questions. Indeed, tICC prosecutor notes in her request for authorization that a coordinated policy aimed at forcible expulsion of ethnic Georgians from the territory of South Ossetia was pursued. However, the ICC has no authority to judge either Russia’s actions or the legitimacy ofthe use of force.. The court can rule on violations of international rules of warfare and hold accountable perpetrators of attacks civilians, mass killings, looting and persecution. Hence, the key challenge of the Hague investigation is to establish individual responsibility.
The situation is further complicated by the position of the key actor in the conflict, Russia. At the time of the start of Georgia investigation, Russia was a party to the Rome Statute – the founding treaty of the ICC– and was actively cooperating with the investigation. But several months into the probe, Russia withdrew its signature from the Statute. From a legal perspective,, this decision changed little, but it sent a clear message to the Court and the international community that rules of The Hague will not have a restraining effect on the Russian Federation.
The Georgian government’s approach poses an additional challenge. Georgian authorities do not have a permanent representative in The Hague. While ICC investigation remains to be hope for the thousands of our citizens in their quest for justice, the government limits itself to the role of passive observer. At this stage, civil society is the only force driving the process. After the end of active hostilities, a special report “August Ruins” was prepared with the support of the Open Society Foundation. The report affords the opportunity to tell the world the human stories, facts and documents that chronicle the atrocities of the 2008 war. The ICC prosecutor frequently cites the evidence compiled in this report when talking about alleged crimes committed against ethnic Georgians.
With the support of the Foundation, a coalition of Georgian non-governmental organizations keeps a close eye on the progress of court case. The coalition stands for the interests of the victims of the war and regularly attends the deliberations in The Hague. Owing to the coalition’s diligent efforts, the Office of the ICC Representative was opened in Georgia with a goal of raising awareness about the court proceedings.
Due to our involvement, the Trust Fund for Victims decided to assist the war-affected population. It means that regardless of the outcome of the investigation, the Fund will allocate financial resources to render medical, psychological, social and economic aid to the victims.
However, challenges are multilayered and only the the civil society will not able to cope with legal or political challenges ahead. As a result of this passiveness, we may see a top Georgian military or former official stand accused in The Hague. Any temptation of political reprisal will never justify the price that Georgia will have to pay in case of such tragic development of events. For one, it will tarnish Georgia’s international image and inhibit the policy of non-recognition of the occupied regions.
These risks are hypothetical for now, but irresponsible remarks made by Georgian politicians about build-up to the war or about “shelling of Tskhinvali,” paired with the government’s inconsistent policy, are alarming.
To make sure that the 2008 war does not remain only statistics, it is imperative to mobilize not only the government, but also academic and professional communities. It is essential that the universities include international criminal law in their curricula and that journalists cover developments in The Hague. This issue should be moved from the realm of political talking points to actual actions. Georgian defense lawyers should be proactive and seek accreditation in The Hague to be in position to protect our citizens.
A combination of carefully planned and implemented steps will enable us to protect Georgia’s national interests and, at the same time, make sure that the war victims’ quest for justice reaches its rightful conclusion.
Sopho Asatiani , Human Rights Program Coordinator , Open Society Georgia Foundation