Our Position
International Criminal Court and Georgia: achievements and missed opportunities

June 30, 2024 will mark 2 years since the International Criminal Court (ICC) issued arrest warrants in the context of its investigation into the August 2008 Russia-Georgia war.[1] Since none of the three arrest warrants were directed against Russian political leaders or military commanders, and the accused persons have not yet been brought to The Hague, it is important to critically evaluate the legal significance of the decision of the Pre-trial Chamber of the International Criminal Court and the results of the Prosecutor's investigation.

An in-depth study of the issue is necessary not only for the interests of the state of Georgia, but also for the analysis of the development of international criminal law, as this is the first case for the first permanent international criminal court in many ways: this is the first investigation outside the African continent; the first case involving Russia, a permanent member of the United Nations Security Council; the first case, which has an extraterritorial aspect and concerns an armed conflict of an international nature; and finally, the first case where the Prosecutor decided to terminate the investigation.[2]

For general information, on March 10, 2022, the Prosecutor issued arrest warrants against three middle and high-ranking officials of the de facto authorities of South Ossetia: Mikhail Mindzaev (the so-called minister of internal affairs of the Tskhinvali region from July 1 to October 10, 2008); Hamlet Guchmazov (head of the pre-trial detention center of the so-called ministry of internal affairs of the Tskhinvali region during the mentioned period); and Davit Sanakoev (the so-called ombudsman during the mentioned period). The mentioned representatives of the separatist regime of the Tskhinvali region were accused of "illegal detention, inhuman treatment, hostage-taking and subsequent illegal transfer of Georgian civilians, in the context of the occupation carried out by the Russian Federation, " during the 2008 Russia-Georgia war.[3]

Despite the deterrent effect of the ICC arrest warrants[4] and its great legal and political influence,[5] Georgian legal circles have a feeling of "insufficiency" towards the results of the investigation, as the content of the arrest warrant mainly concerns the context of the arrest of civilians, which cannot cover the full extent of the crimes committed during the active phase of hostilities,[6] for example, the use of warfare tactics and weapons prohibited by international humanitarian law.[7] Legally, the latter would be especially important if we recall the judgement of the European Court of Human Rights in the case of Georgia v. Russia (II), where, in the absence of effective control, it was not possible to establish the state responsibility of the Russian Federation for gross violations of human rights during the active combat phase of the armed conflict.[8]

Even during the occupation stage, there is sufficient evidence that arrest warrants were issued for the looting and burning[9] of more than 5,000 houses[10] of the civilian population, during the conflict, in all ethnic Georgian villages located on the administrative territory of South Ossetia, the severity and scale of which, according to the fact-finding mission, could be considered the characteristics of the conflict.[11] If we take into account the fact that these and other crimes served the general purpose of expelling ethnic Georgians[12] from South Ossetia and preventing their return,[13] the persecution against humanity should also have become the subject of an arrest warrant.

It should be noted that the ICC investigation serves not only to punish those responsible for committing international crimes, but also to restore social justice.[14] In the given case, against the background of evidence of ethnic cleansing of Georgians, it is hard to say that the issuance of arrest warrants against three persons representing the so-called puppet authorities of South Ossetia served this purpose. It is believed that the Prosecutor avoided openly accusing high-ranking Russian political and military commanders,[15] which is also confirmed by the fact that the only person of Russian origin whom the investigation suspects, based on the available evidence, of contributing to the above-mentioned crimes, is Vyacheslav Borisov (Major General of the Armed Forces of the Russian Federation and Deputy Commander of the Air Force in the indicated period), who is believed to have already died.[16] Unfortunately, we should not expect an increase in the number of accused persons in the future either, as according to the Prosecutor, apart from the pending cases, his office will not continue an investigation in a new direction regarding the alleged criminal liability of other persons within the framework of the situation in Georgia.[17]

Despite the fact that the ICC only establishes individual responsibility and does not consider state responsibility, it is favorable for the state policy and legal position on interstate disputes that the Court has not issued arrest orders against the Georgian military,[18] and this against the background that the Russian Federation was selectively sending "evidence" to the Court, at least until 2016, that was directed against the Georgian side.[19]

Finally, it can be said that the Court's arrest warrants, even unenforced, are an acknowledgment of the suffering of the civilian population caused by the conflict. Despite the scarcity of resources, lack of access to the crime scene,[20] freezing of the occupation situation and prioritization of "more significant" situations, the lack of identified crimes and perpetrators leaves a feeling of disappointment and raises questions as to whether the said investigation served the actual administration of justice.[21]

[1] International Criminal Court, Situation In Georgia: ICC Pre-Trial Chamber Delivers Three Arrest Warrants, Press Release, 30 June 2022, available at:  <https://www.icc-cpi.int/news/situation-georgia-icc-pre-trial-chamber-delivers-three-arrest-warrants> [last checked: June 30, 2024]

[2] International Criminal Court, ICC Prosecutor, Karim A.A. Khan QC, Announces Application For Arrest Warrants In The Situation In Georgia, Press Release, 10 June 2022, <https://www.ejiltalk.org/icc-investigation-in-georgia-a-success-story/> [last checked: June 30, 2024]

[3] Bezhanishvili M., ICC Investigation in Georgia: A Success Story?, Blog of the European Journal of International Law, 2023, available at: <https://www.icc-cpi.int/news/icc-prosecutor-karim-aa-khan-qc-announces-application-arrest-warrants-situation-georgia> [last checked: June 30, 2024]

[4] Trahan J., Why a “Hybrid” Ukrainian Tribunal on the Crime of Aggression is not the Answer, Just Security Articles, 2023, available at: <https://www.justsecurity.org/85019/why-hybrid-ukrainian-tribunal-on-crime-of-aggression-is-not-the-answer/> [last checked: June 30, 2024]

[5] Ram C., The Commission on Crime Prevention and Criminal Justice: A Search for Complementarity Between Politics and Criminology, in Blue Criminology: The Power of United Nations Ideas to Counter Crime Globally, 2003, p. 131.

[6] Bezhanishvili M., footnote No. 3.

[7] Bocchese M., Too Little, Too Late: The ICC and the Politics of Prosecutorial Procrastination in Georgia, in Genocide Studies and Prevention: An International Journal, Vol. 17, No. 3, 2024, p. 1.

[8] In more detail, Duffy H., Georgia v. Russia: Jurisdiction, Chaos and Conflict at the European Court of Human Rights, 2021, available at: <https://www.justsecurity.org/74465/georgia-v-russia-jurisdiction-chaos-and-conflict-at-the-european-court-of-human-rights/> [last checked: June 30, 2024]

[9] [9] International Criminal Court, Situation in Georgia: Request for Authorisation of an Investigation pursuant to Article 15, Pre-Trial Chamber, ICC-01/15, 13 October 2015, p. 67, available at: <https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2015_19375.PDF> [last checked: June 30, 2024]

[11] Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Vol. 2, 2009, p. 366, available at: <https://www.mpil.de/files/pdf4/IIFFMCG_Volume_II1.pdf#page=371> [last checked: June 30, 2024]

[12] International Criminal Court, footnote No. 10, p. 129.

[13] Ibid. p. 126.

[14] Song S-H., The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, available at: <https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law> [last checked: June 30, 2024]

[15] Bocchese M., footnote No. 7, p. 1.

[16] International Criminal Court, footnote No. 2.

[17] International Criminal Court, Karim A.A. Khan KC Announces Conclusion of the Investigation Phase in the Situation in Georgia, Press Release, 16 December 2022, available at: <https://www.icc-cpi.int/news/prosecutor-international-criminal-court-karim-aa-khan-kc-announces-conclusion-investigation>  [last checked: June 30, 2024]

[18] Cruvellier T., ICC/Georgia: “Because of Ukraine Everything Changed”, 2022, <https://www.justiceinfo.net/en/88833-icc-georgia-because-ukraine-everything-changed.html>[last checked: June 30, 2024]

[19] Bocchese M., footnote No. 7, p. 2.

[20] As the Russian Federation is not a member of the Statute of the International Criminal Court, the obligation to cooperate with the Court does not apply to it.

[21] Bocchese M., footnote No. 7, pp. 14, 21.