Statement of Nongovernmental Organizations about the August War Investigation

During recent days many statements were made with regard to the ongoing investigation of the International Criminal Court into the crimes committed during the 2008 August War and ongoing processes. The discussions in Georgia demonstrated that the society does not have full information about the process and related challenges. In this light, with the below statement, the signatory NGOs wish to make some clarifications over recent discussions. 

International Criminal Court and Investigation into Georgian Situation

International Criminal Court (ICC), which is located in The Hague, was founded in 2002 based on the Rome Statute. The Court investigates the gravest crimes worldwide, like: genocide, crimes against humanity, war and aggression crimes. Before commencement of the investigation, the Prosecutor’s Office of the Court (OTP) conducts preliminary examination and observes the process of the ongoing investigation into the war crimes on the national level and its results. 

OTP may commence investigation if: the Rome Statute member state, or UN Security Council address the prosecutor and request commencement of the investigation, or if the prosecutor concludes that the comprehensive investigation is not or cannot be carried out on the national level and with his/her own initiative petitions the Justices to give permission to start the investigation. 

The investigation cannot be commenced based on a complaint of one state against another or against a senior public official. OTP, in the course of investigation, determines the responsibility of a concrete senior official (like military commander, head of the HQ or other) and not of a state or/and ordinary military officer. 

As for the Georgian situation, OTP started the preliminary investigation into the alleged crimes committed during the August War on August 14, 2008.

In the beginning of 2009, Georgian nongovernmental organizations presented a special report “In the Ruins of August” to the OTP in The Hague. The report consolidated the information about all cruel and inhuman crimes committed in the territory of Georgia during the August War; it includes the statements of 1055 victims. Together with the final version of the report, the statistical analysis and all working materials were sent to the Court, based on which the report was prepared. 

In the frame of the preliminary investigation, OTP periodically requested information about the ongoing investigation on national levels in Georgia and Russia. Although the respective bodies of Russia and Georgia state that investigation into the crimes committed during the 2008 war were carried out on the national levels, the progress and results of the investigation were not available for the society and victims. 

Considering the passive activities of the Georgian investigative bodies and for the goals of the execution of justice for the victims, in 2012, the NGOs petitioned the OTP to commence the investigation based on the abovementioned report but the Court did not react because the OTP was observing the ongoing investigation on the national level and did not consider it was necessary to interfere. 

In 2013, Minister of Justice Tea Tsulukiani clarified that being a member of the Rome Statute, it was the obligation of the State to investigate the crimes committed during the August War but if the country could not investigate them, or the country would not have good professionals or would not have enough political will, the investigation would be carried out on the international level. 

2 years later, on March 17, 2015, the Prosecutor of The Hague Court received a letter from the Minister of Justice. According to the communication with the Court, the Ministry of Justice notified the OTP that the investigation carried out by the Georgian investigative bodies could not succeed due to security measures and consequently the investigation on the national level was suspended for unidentified time.

Consequently, in October 2015 the OTP petitioned to the pre-trial chamber of the Court with the initiative to commence investigation that was satisfied by the Court Justices in January 2016. The petition of the prosecutor and the decision of the pre-trial chamber determined the scope of the investigation which covers: the crimes committed from July 1 to October 10, 2008.  They are: crimes against humanity, like: murder, forced displacement of population and persecution, and war crimes: assault on civilians, intentional assault on peace-keepers, devastation of properties and robbery. 

In the frame of the ongoing investigation, the Hague Prosecutor determined three parties of the conflict: Georgian and Russian Armed Forces and Ossetian De-facto Armed Forces. Consequently, the Court may bring charges against the citizens of Georgia and Russia, who will be the guiltiest in the abovementioned crimes. 

The challenges in the investigation of the Georgian situation

There are many challenges in relation with the OTP investigation and ongoing developments on national and international levels that were highlighted by the nongovernmental organizations many times. We would like to underline those challenges:

The information about the ongoing investigation: The investigation carried out by the OTP is absolutely confidential that means the society – including the victims and their representatives, do not have information about the investigation process and progress. Regardless many requests of the NGOs, to provide information about current progress of the investigation or/and whether it is expected to issue arrest order on any concrete individual/s or not, the information is still unavailable. 

One of the key challenges for the OTP is the denial of the Russian Federation to cooperate with the Court. Consequently, there is high risk that the OTP will not be able to carry out comprehensive investigation. Besides that, Russia, not being the Rome Statute member state, is not obliged to cooperate with the ICC that includes provision the investigation with necessary information and materials, delivery of suspects to the court, unlike Georgia, which is the Rome Statute member state and is obliged to cooperate with the Court. Consequently, there is risk that if the OTP issues order on the arrest of citizens of Russia, de-facto South Ossetia or Georgia, only Georgian citizens will be brought in front of the Court as the State of Georgia will have obligation to deliver its citizen to the Court. In the contrary to that, supposedly, Russia will not deliver its citizen to the court whether the suspect is ethnic Russian or Ossetian. 

Lack of information among conflict-affected population: lack of information and low awareness about the ongoing investigation in the conflict-affected population is another problem. Although, about one and half year ago, the ICC opened its field office in Georgia, the Office has limited financial and human resources for what it cannot properly function; consequently, the field office cannot conduct awareness raising campaign for the conflict-affected population. It negatively impacts the victims’ motivation, their effective engagement in the process and cooperation with the Court. At the same time, while the victims are less informed about the court mandate and role, the statements of politicians about imposing responsibility on ordinary soldiers, as well as statements about the commencement of the August war by the Georgian side, causes additional obscurity among the conflict-affected population and it may negatively impact their further cooperation with the ICC. 

State representation in The Hague: Government of Georgia does not have permanent representative in The Hague, who could participate in the work of the ICC Bureau and Committees, where significant decisions are made. Active engagement of the Georgian representative in the work of the ICC working groups is important to advocate those issues and address the challenges, which are caused by the denial of the Russian Federation on cooperation, and are related with the exercise of the assistance  mandate by the Trust Fund for Victims and other significant issues. 

Lack of interest: IDPs live in hard socio-economic conditions. The support of international organizations and foreign countries is very important for them. Georgia’s active cooperation with various countries will be very important in future to enforce the ICC arrest orders. However, foreign countries demonstrate low interest in the support of Georgia in this situation. At some point it is caused by the insufficient progress of the ongoing processes in relation with the Georgian situation. Also, contradictory statements of the Georgian politicians damage the situation and politicize the ongoing investigation. 

Other international disputes over the crimes committed during the August War

International Court of Justice (ICJ) is also located in The Hague, which was founded in 1945 based on the UN Statute. The ICJ studies the inter-state disputes, which refer to the violation of the international  law. Consequently, unlike the ICC, the ICJ determines the responsibility of the state. The State of Georgia sent application to the ICJ over the August War  on August 12, 2008, where Georgia claimed the violation of the UN Convention on the Elimination of Racial Discrimination (CERD) from the side of the Russian Federation. On April 1, 2011, the ICJ concluded that before applying to the Court, Georgia did not conduct any negotiation with Russia with regard to the enforcement of the obligations of Russia in accordance to the CERD. Consequently, the ICJ ruled that Georgia had not exhausted the mechanism regulated under the Article 22 of the Convention. In this light, the ICJ declared the complaint of Georgia inadmissible and left it without consideration. In the frame of 10 years, a party has right to re-apply to the ICJ based on the newly discovered circumstances. 

Besides the ICJ and ICC, the European Court on Human Rights (ECtHR), Strasbourg Court, also examines the violations committed by the Russian Federation during the 2008 August War. The ECtHR also determines the responsibility of the state, and the dispute over the issue commenced based on the application of the Government of Georgia vs Russia. Nowadays, the inter-state dispute between Georgia and the Russian Federation still continues in the Strasbourg Court. 

The abovementioned obscurities, challenges and questions in the society indicate at the need to intensify the work of the ICC, their field office and the Government of Georgia to ensure provision of the society with more information.

Considering the abovementioned cases, we call on: 

The respective bodies of the Government of Georgia:

• To intensify their cooperation with the international organizations and diplomatic corps of various countries with regard to the ongoing investigation;
• To appoint permanent representative of Georgia in The Hague and with his/her support to actively participate in the work of the Bureau and various committees of the ICC;
• Considering the high public interest in the crimes committed during the 2008 August War, to clarify why the Minister of Justice sent similar petition to the OTP in 2015; 

• In respect to the principle of complementarity, to conduct effective investigation on the domestic level and to inform society about the ongoing investigation into the war crimes. Considering the gravity and scope of the crimes committed by the Russian Federation, it is important to take all necessary and urgent measures to ensure investigation over and punishment for the offences committed by the Russian side.

Representatives of the government and opposition parties: 

• to refrain from making unverified and inaccurate statements about the investigation carried out by the OTP and ongoing processes as well as from the politicization of these issues as it may significantly damage the Georgian interests on the international level;
• Dissemination of the false information may cause incorrect expectations among the victims and in the society in general that may damage the process in future and have negative feedback that will cause mistrust towards the international institutions of justice;

To the OTP of the International Criminal Court and ICC field office in Georgia:

• to intensify awareness raising campaigns and to provide the society periodically with the information about the mandate of the Court, its activities and role;
• to inform the society, including the victims and their representatives, about the ongoing investigation;
• to clarify key aspects of the investigation, including the scope of the investigation, and clarify the crimes of which parties are investigated by the Court and what are the guarantees to avoid one-sided investigation process. 

To the international organizations and diplomatic corps of various countries:

• Considering the high public interest in the abovementioned issues, to ensure support for the activities aiming at the improvement of socio-economic conditions of the IDPs on the national level and as well as the support for the activities aiming at the monitoring of the ongoing process and awareness raising about them. 

Under-signatory organizations: 

• Human Rights Center
• Justice International 
• Georgian Young Lawyers’ Association
• Article 42 of the Constitution
• Georgian Center for the Psycho-Social Rehabilitation of Torture Victims
• Georgian Coalition for the International Criminal Court

The Georgian Coalition for the ICC was established in 2003 and aims to reinforce democracy and rule of law, to ensure determination of responsibilities for the genocide, aggression, war and crimes against humanity and to ensure legal aid for the victims of these crimes on the national and international levels. Since 2010, GCICC is the member of the global Coalition for the ICC.

Since 2008, the GCICC member organizations have been actively involved in the ongoing processes and represent the interests of the victims on the national level, in the European Court of Human Rights and International Criminal Court.