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Challenges of ICC Investigation Process in the Alleged War Crimes of 2008 August War

04.04.2017

Natia Gogolashvili

The International Criminal Court (ICC) plans to open a field office in Georgia. Based on the January 27, 2016 decision of the ICC Pre-Trial Chamber, the investigation into the alleged war crimes committed in the territory of Georgia during 2008 August War, has been underway for more than one year. Representatives of Georgian NGOs and human rights defenders see several challenges in the process of investigation.

Russian factor is one of the major challenges for the ICC investigation. Russia officially withdrew its signature from the Rome Statute and by doing that, it finally rejected the cooperation with the ICC. Co-director of Human Rights Center Nino Tsagareishvili said, it is essential that the investigation team had access to the sites of alleged crimes – occupied territories, to make the investigation comprehensive and accomplished.

“ICC investigation into the August war has many challenges. Among them is the refusal of the Russian Federation on cooperation – several months ago, Russia officially cancelled its signature on the Rome Statute. Representatives of the Russian Authority publicly declared their negative attitude towards the possible cooperation with the investigation of the August war. Of course, it is a challenge for comprehensive and participatory investigation as the investigators should have access to the sites of possible crimes, in the occupied territories. Consequently, the refusal of Russia to cooperate with the investigation, of course, creates many concerns,” Nino Tsagareishvili said. 

Executive director of the Article 42 of the Constitution Nika Legashvili said in its practice the ICC has investigated the war crimes, when its investigators did not have access to concrete territories but the investigation was carried out. He said ICC OTP has not yet lost hope to cooperate with Russia.

“The Hague Court has similar experience, when the court did not have access to the territory of actual war crimes but they carried out investigation. Of course, in terms of collection of evidence it will create additional problems for them. The decision of Russia to withdraw its signature last year, was sort of signal that they do not plan to cooperate with the ICC but the Prosecutor’s Office (OTP) still hopes they will manage cooperation with the Russian Federation. However, if Russia will not cooperate, it will not hinder the investigation at all, regardless many challenges.”

Human Rights Program Manager at the Open Society Georgia Foundation Giorgi Burjanadze said non-participation of the Russian Federation in the process creates necessity of looking for alternative evidences that requires additional time and resources.

“On the one hand we have a territory, which is site of crimes and on the other hand an investigator cannot enter there. For that reason, the OTP will have to rescue the risks considering the fact they will have to look for alternative evidences, alternative documents and reconstruct the possible picture of the committed crimes based on them.  It requires huge time and resources. For example, the OTP will have to collect evidence based on the information provided by the intelligence forces of different countries and then make conclusions from it, that is quite difficult,” Giorgi Burjanadze said.

Co-director at Human Rights Center Nino Tsagareishvili said it is important to observe how the field office of the OTP will function in Georgia, which will open in near future. She said several miscarriages were already identified in this direction.

“There are some questions about the work of the OTP field office, which we identified during our activities and cooperation with the victims. One of the main challenges is that there is no clearly prescribed investigation procedure at this stage; they do not have instructions for the victims, how they should apply to the OTP field office and provide them with the information about alleged crimes. There are no similar procedures either for the human rights lawyers representing the victims or for the victims themselves. It is significant obstacle as the representations were sent to the ICC during the preliminary investigation and consequently not all victims had possibility to participate in that process. The initial representations were sent only on behalf of 6 000 persons though much more people were victimized during the war. Consequently it is important to clearly outline the instructions how the victims shall appeal the field office and provide them with important evidence and information about possible war crimes,” Nino Tsagareishvili said.

“By now, as it was officially announced, it will not be local office of the investigation team; most probably it will be field office of the outreach office,” chairwoman of the Georgian Young Lawyers’ Association Ana Natsvlishvili said.

Public Defender of Georgia Ucha Nanuashvili said the problem is late investigation too. He recommends the Government of Georgia to effectively cooperate with the investigation team. “The Government of Georgia shall effectively cooperate with the ICC to ensure real outcome from it. The problem is that the investigation was commenced late while timely documenting of the facts is particularly essential for the investigation of similar crimes. Thus, long time since the war is another challenge for the investigation. It is important that the Government of Georgia actively cooperated with the investigation. It is also essential that the investigation finished soon and did not drag out for years. It is the issue which should be of particular interest for us to achieve concrete results. In order to prevent future war crimes in our region, it is important that concrete individuals were punished for concrete crimes.”

Humanrights.ge wanted to find out how the Government of Georgia cooperates with Prosecutor’s Office of the ICC and contacted the Ministry of Justice to get comments from their representatives. However, the Ministry representatives responded that they do not make comments about the ongoing investigation yet. Representative of the press-center at the Ministry said until the investigation stage is over, the Ministry representatives refrain from making any comments. Considering that it is unknown how long the investigation of the ICC will last, it is unclear when the Ministry of Justice will give comments about the investigation. It is noteworthy that the Government of Georgia does not work on the awareness raising of the Georgian society about the investigation.

Chairwoman of the GYLA Ana Natsvlishvili said it is important that the society, particularly representatives of NGOs and the victims, received information about the ongoing investigation. She said without awareness raising the investigation will not be transparent that is already a problem.

“For years, very little was known how the investigation on the national level was carried out until The Hague Court commenced the investigation. Today, we still have sort of informational vacuum about ongoing investigation on the national level. Another concern is the Russian side, which is absolutely closed for communication. We get very little information about the ongoing investigation by the ICC. At some point it is caused by the peculiarities of the Court functioning. Naturally, not everything can become public but concrete groups, NGOs, who work on the defense of the victims’ rights, or the victims themselves, shall have access to more information than now. Enforcement of justice, among others, means transparency of the justice for the victims,” Ana Natsvlishvili said.

According to the evaluation of the human rights defenders, in the process of investigation, as well as in the process of evidence collection, engagement of the civil society organizations is very important.

“NGOs represent the interests of the victims; they document the violations. So, it is important that this process continued in a transparent manner. The society shall be informed about the ongoing investigation process. The Court shall be more open for the NGOs and endorse their more engagement in the process. I think, it is important for the increased public trust towards the investigation,” the Public Defender said.

Executive director of Human Rights Center Aleko Tskitishvili said the population does not have accurate information about the International Criminal Court that causes incorrect expectations among the victimized population. 

“The citizens mostly expect restitution of their lost properties and financial compensations. They do not know that the ICC is not authorized to pay compensations and return the victims to their lost properties. Consequently, the state is obliged to provide the citizens with the correct information. At the same time, the State shall continue defense of the victims’ rights, evaluate their lost properties and relevance of already paid compensations with their lost properties. These issues are still urgent though more than 10 years have passed as many victims still wait for the restoration of their rights, at least in the form of financial compensations or other. With the compensation they should be able to restore their burnt houses, which were destroyed during the August war,” Aleko Tskitishvili said.

“It is very important that the civil society organizations had good communication with the victims. Two significant steps may be taken: first of all their expectations shall be managed – we must explain them what they should expect from the ICC investigation, what is the maximum outcome from that process and it is also very important to ensure valuable representation of the victims before the ICC. Many good documents were already submitted to the Court and it is also important to work with the victims individually – say filling in representation forms, submitting them to the prosecutor’s office, and more,” the human rights program manager at the OSGF Giorgi Burjanadze said.

According to the evaluations of the NGO representatives, their engagement in the process is very important because their organizations have direct communication with the victims and possess significant information about the alleged crimes committed during the August war.


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