The prosecutor of the International Criminal Court (ICC) requested to authorize investigation into war crimes and crimes against humanity allegedly committed during the August, 2008 war in Georgia.

Prosecutor Fatou Bensouda filed the 160-page request, detailing alleged crimes attributed to the Georgian, Russian and South Ossetian sides, before a three-judge panel on October 13.

The judges of pre-trial chamber of The Hague-based Court have to decide whether or not to authorize the Prosecutor to open the investigation.

If authorized, it would be the first investigation by the ICC outside Africa.

“If ICC judges grant authorisation to proceed, I will open an investigation… [which] will be conducted with full independence and impartiality,” ICC Prosecutor Fatou Bensouda said.

“Over time, based on the evidence collected by my investigators I will then request ICC judges to issue either summons to appear or arrest warrants against those my office believes to be most responsible for alleged atrocity crimes committed in Georgia, no matter who they are,” she added.

The Prosecutor wants her investigation to 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. 

Unlike Georgia, Russia is not a state party of the Rome Statute, which established the ICC in 2002.

In her request to open the investigation, Prosecutor Bensouda identifies following crimes, which the prosecution “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 is accompanied by a confidential annex, which includes 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.”

On the first set of alleged crimes, the Prosecutor says that there is “a reasonable basis to believe” that the South Ossetian forces forcibly displaced between 13,400 and 18,500 ethnic Georgians; deliberately killed between 51 and 113 ethnic Georgian civilians, and destroyed or heavily damaged over 5,000 dwellings of ethnic Georgians.

“The attack was systematic in nature since it was launched pursuant to the policy of South Ossetian leadership to forcibly displace ethnic Georgians from the territory of South Ossetia,” reads ICC Prosecutor’s request to open the investigation.

In this context, if the investigation is authorized, the prosecution will also be looking into possible role of the Russian forces.

The Prosecutor says that available information “indicates that South Ossetian forces would not have been able to carry out a campaign to forcibly expel the remaining ethnic Georgians civilian population... but for the occupation of Georgian territory by Russian armed forces.”

The Prosecutor, however, also says that it will depend on the evidence collected in the course of possible investigation whether individual criminal responsibility is attached to members of the Russian armed forces for acts allegedly committed by South Ossetian forces.

On the second set of alleged crimes, the Prosecutor seeks to look into Georgia’s claims that two of its peacekeepers were killed in an attack on a checkpoint at the village of Avnevi on August 7, 2008, and Russia’s allegations that Georgian forces attacked peacekeepers’ headquarters in Tskhinvali just after the midnight on August 8, killing ten Russian members of the peacekeeping troops. The Georgian authorities told the Prosecutor that the Russian peacekeepers had lost their protected status because they took direct part in hostilities by providing South Ossetian militias with the coordinates of Georgian troops and also by making infrastructure of the Russian peacekeepers’ headquarters available for South Ossetian military positions.

ICC prosecutor’s request for authorization of investigation comes after more than seven years of “preliminary examination” of the case.

“Preliminary examination”, which was launched on August 14, 2008, is the phase during which ICC Prosecutor’s Office assesses if its own investigation should be opened; at this phase it also assesses whether crimes falling under the ICC jurisdiction may have been committed in a given situation and whether genuine investigations and prosecutions are being carried out by the authorities of respective states.

The ICC Prosecutor said that despite challenges and delays, until recently the investigation by the Georgian authorities was advancing, but it stalled in March.

“The Government of Georgia officially conveyed in writing that national proceedings in relation to the alleged crimes occurring in the context of the August 2008 armed conflict had been indefinitely suspended,” reads the ICC Prosecutor’s request, filed before judges. 

During the preliminary examination by the ICC prosecutor, the Georgian authorities have been citing lack of access to alleged crime scenes in the breakaway region as one of the reasons behind the delays in the investigation.

In a letter sent to the ICC Prosecutor on March 17, 2015, the Georgian government said, that further progress in its investigation was prevented by “a fragile security situation in the occupied territories and in the areas adjacent thereto, where violence against civilians is still widespread”. It also argued that launch of prosecutions of crimes related to the 2008 war could trigger “aggressive and unlawful reactions by the occupying forces” and would “prompt certain backlash from the groups engaged in the violence across the conflict lines”. It also cited concerns over safety of witnesses of alleged crimes, since they reside close to South Ossetia and are at high risk of being subjected to threats and arbitrary detention by the South Ossetian de facto authorities.

Georgian Justice Minister, Tea Tsulukiani, said on October 8, after the ICC first announced about its prosecutor planning to request for the probe, that Tbilisi is interested in “full investigation0” of “ethnic cleansing” of ethnic Georgians.

She said the Georgian Chief Prosecutor’s Office was actively cooperating with ICC prosecutor.

“But the only thing that we could not do is that we have no access to the occupied territories and the involvement of Prosecutor Bensouda in the process, I hope, will help to address this issue,” said the Georgian Justice Minister, who visited The Hague in late September, where she met the ICC President, Judge Silvia Alejandra Fernández de Gurmendi.