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In Tbilisi ICC Prosecutor Speaks of Her Application to Probe into August War
Civil Georgia, Tbilisi / 16 Oct.'15 / 23:36

The prosecutor of the International Criminal Court (ICC), Fatou Bensouda, said after holding meetings in Tbilisi on Friday that she is “pleased” by the level of cooperation her office has been receiving so far from the Georgian authorities.

The prosecutor’s visit came few days after she requested ICC judges earlier this week to authorize investigation into war crimes and crimes against humanity allegedly committed during the August, 2008 war in Georgia.

Her 160-page application, filed before the three-judge panel, details alleged crimes attributed to the Georgian, Russian and South Ossetian sides.

It is not clear when judges decides on whether to grant the ICC Prosecutor authorization to open the investigation.

According to the Prosecutor, the previous experiences show that it usually takes from three to four months, but it does not mean that the same timeframe may also apply to this particular case.

“It could be shorter than that; it could be more than that,” Prosecutor Bensouda told journalists on October 16.
In Tbilisi the ICC Prosecutor 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.

The ICC Prosecutor also met victims’ representatives, who, she said “left no doubt about their profound wish to see justice done.”

Georgian Justice Minister, Tea Tsulukiani, welcomed ICC prosecutor’s move to step in with the request for the investigation.

“I hope the panel of judges will decide positively and the ICC Prosecutor will be able to open the investigation,” she said after the meeting with Prosecutor Bensouda.

Tsulukiani also said that the Georgian side will seek to broaden scope of the possible investigation so that to also cover cases of killing, torture and inhuman treatment of the Georgian servicemen, who were captured during the hostilities.

The Georgian Justice Minister complained that the ICC Prosecutor’s application, seeking for opening the investigation, does not “properly” reflect the role Russian forces played during the conflict. 

“We will show that it was the war between Georgia and Russia, not the Georgian-Ossetian conflict,” she said.

Meanwhile, the Russian side complained that in her application the ICC prosecutor focuses more on the alleged crimes committed by the South Ossetian forces with possible participation of the Russian troops, while showing, as the Russian Foreign Ministry put it, “reservations” about the attack which was carried out by the Georgian forces against Russian peacekeepers in Tskhinvali.

Speaking at the news conference in Tbilisi, ICC Prosecutor Bensouda said: “I do not think there was any attempt on our part to downplay any role or to emphasize any role [of any party involved].”

“Once the authorization is given we will be able to go deeper and get more information into the events,” she said.
In her request, the ICC Prosecutor 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.”

Asked about level of the Georgian authorities’ cooperation with her office, specifically in respect to the episode where the Georgian side itself may be investigated for alleged war crime, involving attack on the peacekeeping forces’ headquarters in Tskhinvali, the Prosecutor responded: “They [the Georgian authorities] are cooperating on everything.”

“There is no indication that because of this or any other alleged crime we are looking at they [the Georgian authorities] will not cooperate,” she said. 

“The quality of cooperation with the Georgian authorities is very good,” she said, adding that the Georgian Justice Minister assured her that this level of cooperation will continue. “I am pleased with the level of cooperation we have been receiving so far.”

Russia says that Georgian forces attacked peacekeepers’ headquarters in Tskhinvali just after the midnight on August 8, killing ten Russian members of the peacekeeping troops.

Georgia’s position was 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.

Before the war the Georgian authorities were considering ceasing Russian peacekeepers’ mandate both in Abkhazia and South Ossetia; Tbilisi had been questioning impartiality of the Russian peacekeepers for years. But no formal decision on revoking their status was made. After the war the Georgian officials were saying that the decision to revoke peacekeepers’ mandate was not taken because of advice from the western partners, who thought that such move would have been viewed as provocative vis-à-vis Russia.
In her application, the ICC Prosecutor says that despite of some “ambiguities that increased over time, the information available indicates that the JPKF [Joint Peacekeeping Forces] fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status.”
The investigation, if authorized, will also look into other alleged crimes, such as indiscriminate and disproportionate attacks against civilian targets by both Georgian and Russian armed forces. But the Prosecutor at this stage has not enough evidence to determine whether these allegations constitute to possible war crimes within the jurisdiction of the Hague-based International Criminal Court.
The ICC Prosecutor filed the request for opening the probe after her office was notified by the Georgian side that it was suspending its own investigation.

The Georgian side told the ICC Prosecutor’s office 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 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.
Prosecutor Bensouda said that after, and if, the judges authorize the investigation, the prosecutor’s office will be able to assess what kind of protection, if any, a particular witness may need. She also said that protection can be provided both within the country and outside through ICC’s victims and witnesses protection system.
“All these consideration will be made only if we are authorized to investigate,” she added.

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.

If the investigation is authorized, 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.

It is the first time when the ICC Prosecutor has requested opening of the investigation into the situation outside Africa.
“I think it sends a very important message, that as long as the jurisdictional requirements of the ICC are met, we will open investigations wherever it may be – whether it’s in Africa or outside of Africa,” the ICC Prosecutor said.

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