Kaupo Kand 'ICC is not investigating who started the 2008 August war'

The International Criminal Court established its country office in Georgia at the end of 2017. Humanrights.ge spoke with the chief of the office, Kaupo Kand regarding the role of the Country Office in relation to the ongoing ICC investigation in Georgia, activities implemented and future plans, as well as the situation of victims of 2008 August War, their expectations and public perception towards ICC related processes. 

1)   What kind of activities does ICC Country office in Georgia implement? What are its functions? What experience do ICC country offices have in other countries - what kind of work did they perform and results achieved?

- All ICC Country Offices are under the Registry, which is the neutral organ of the Court, and thus doesn’t carry out any investigative activities. They are essential for the Court to carry out its mandate in the countries where the crimes under its jurisdiction have occurred. They make the Court accessible in countries further away from the seat of the Court, in The Hague.

The ICC is a “Court of last resort” – this means that States have the primary responsibility to investigate and prosecute crimes on their territories or by their citizens, and the Court can only investigate and, where warranted, prosecute individuals if the State concerned does not, cannot or is unwilling genuinely to do so. The ICC therefore does not substitute the national court system but complements it. The Court seeks to bring justice for victims on all sides of the conflict, and aims to ensure that the most serious crimes allegedly committed during the 2008 August war do not go unpunished.

In January 2016, the Pre-Trial Chamber authorised the Prosecutor to proceed with an investigation of the crimes within the ICC jurisdiction, in particular war crimes and crimes against humanity, allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. The Court opened its Country Office in Georgia at the end of 2017. Initially it was just one person – the Chief of Office, but subsequently a few more local staff have been hired. ICC Country Office in Georgia is a relatively small country office, but people who work here are all well familiar with local political and security situation and various challenges, including related to conflicts.

One of the very first task of the Chief of the Office was to set up the Country Office. From the very beginning the Country Office, as a neutral part of the Court, was providing administrative, diplomatic, and operational support to various organs and clients of the Court, who were on missions to Georgia. All ICC Country Offices are tasked to maintain good working relations with the host government and diplomatic community. The other important area of work for all ICC Country Offices is outreach vis-à-vis the affected communities, including victims, NGOs and civil society, academia, legal professionals, and media. Every year the ICC Country Office in Georgia, in close coordination with relevant sections in the HQ in Hague and input from our NGO partners on the ground, drafts a comprehensive Outreach/Communication Strategy for Georgia, including its Action Plan. This strategy is the basis for ICC’s outreach activities in Georgia for that year.

ICC Country Offices in other situation, e.g. in Africa, have additional tasks because there are judicial activities and the Trust Fund for Victims’ projects going on, whereas in Georgia we are in an investigative phase. During the judicial phase the ICC usually increases its country presence and expands as appropriate and depending on the proceedings stages its activities on the ground related to the on-going pre-trial, trial, or appeal chamber hearings. The Country Offices provide support to all organs and clients of the court, e.g. the Office of the Prosecutor, the Trust Fund for Victims, counsel teams (defence and legal representatives of victims). Offices also support the protection of witnesses and victims’ participation and representation.

 

2) Since it was founded, what kind of activities has ICC country office implemented in Georgia? What kind of activities are planned in future?

 

- Over the last two years, the main focus of the ICC Country Office has been on outreach activities to affected communities, including victims living in IDP settlements and villages near the Administrative Boundary Line (ABL) area. As the Chief of Office, I have visited nearly all bigger IDP settlements and compact settlements, and met with hundreds of people, in order to explain to them the ICC, its mandate and organs, as well as aspects of the victims’ participation and representation in the judicial process.

 

It is clear that a small country office with limited financial and human resources is not able to reach all conflict affected persons directly. For this reason the ICC Country Office, from the outset, started to carry out regular Information Sharing Meetings (ISM) with Georgian NGOs and civil society representatives who are working in the area relevant to the mandate of the ICC. During these regular meetings the Country Office continues to provide Georgian NGOs with all relevant information related to the work and activities of the ICC in Georgia. The Country Office also continues to carry out outreach activities vis-à-vis the media and the general public. The Country Office provides background briefs to journalists and organises interviews to various media outlets, when deemed appropriate and necessary, in order to raise awareness for and explain the mandate of the Court and its various organs to as broad an audience as possible.

 

The Country Office is also involved in missions of high-ranking ICC Officials to Georgia. For example, the Vice-President of the Court Judge Mr. Robert Fremr, Registrar Mr. Peter Lewis, and Member of the Board of Directors of the Trust Fund for Victims (TFV) Ms. Alma Taso-Deljković visited Georgia at the end of 2018 within the context of the 20-year anniversary of the Rome Statute. The Country Office, together with the HQ, organised a high-level regional seminar on universality and cooperation in Tbilisi in October 2018, including a training session for Georgian and regional legal professionals. Around 50 different State parties participated in this event. At the margins of this high-level seminar the Country Office also organised a NGO roundtable where local NGOs could meet and ask questions directly from the new Registrar Mr. Lewis, Office of the Prosecutor Director Mr. Phakiso Mochochoko, and the TFV representatives. The ICC Registrar and other ICC representatives gave several interviews to various Georgian media outlets on topical issues during that visit.

 

This year the joint outreach mission of the Registry/OTP/TFV staff to Georgia took place in May. The delegation joined the Country Office in its outreach activities in IDP settlements. Meetings with NGOs and journalists were also organised. Within the UN Goal 16 framework the Country Office is also carrying out outreach activities vis-à-vis academia.

 

In 2020 the ICC, including its Country Office in Georgia, intends to continue with its outreach activities in IDP settlements and villages with affected population. The Country Office will also continue with outreach activities vis-a-vis local NGOs, media, and legal professionals in 2020 in order to attract qualified legal professionals, including from Georgia, to the ICC’s legal counsel list. As part of outreach, we believe it is crucial to raise awareness for and strengthen the understanding about the ICC among media and the general public. We seek to describe the mandate of the Court and its organs; how we work as a legal institution in general and during the different stages of the judicial process – including the investigative phase, prosecution and trials; and to explain what the Court is mandated and equipped to do – what it “can do” – and what falls outside of the Court’s remits and powers – what it “cannot do”.

3) After meeting with the victims and informational activities that the ICC Country office has implemented, what feedback have you received from the victims? In what kind of situation/conditions do they live currently, 11 years since the war? What are their expectations from the Court? What kind of understanding do they have about the Court and ongoing investigation?

 

- Based on our meetings and outreach activities, I would say that some affected communities, including victims, are relatively well informed about the ICC, and others less. Quite often we explain to local communities that the ICC is not investigating who started the 2008 August war, as it has no mandate to do so. We also clarify that the ICC is not investigating and prosecuting countries or groups of people. The Court investigates individuals and sets a focus on those who are deemed most responsible for the gravest crimes, irrespective of their nationality, and strictly following the evidence gathered. We also point out that the ICC neither has the mandate, nor the capacity, to investigate every single crime allegedly committed during the 2008 August conflict. As mentioned earlier, as a “Court of last resort”, the ICC complements the national jurisdiction and aims to focus on those alleged crimes that are considered the gravest ones. And linked with this, the Court will not be in a position to hold to account  every person suspected of having committing crimes during the 2008 August conflict, but will focus on those who are deemed to bear the greatest responsibility for these gravest crimes under ICC jurisdiction.

 

The ICC and its Country Office is trying to manage the expectations of affected communities, including victims, through explaining what can and can’t be done by the Court, as well as being clear on the mandate and limitations of the Court. The ICC, including its Country Office, has no mandate to assess the living conditions of affected communities, including victims. I would say that people’s expectations are different. Some people want all alleged war criminals to be brought to justice as soon as possible. Some people would like to have more socio-economic support from the government and international actors. The victims of the 1990s conflicts often ask why the ICC is not investigating alleged crimes committed during that period. Nearly all IDPs, both new and old, we meet during our outreach sessions would like to get back their property and return to their homes. However, as you know, the Court has a specific mandate and jurisdiction and not all of these expectations fall within its powers.

 

We also sometimes receive questions about details regarding the ongoing investigation and time-frames involved. In our interaction with the various stakeholders, we often explain that the investigative activities of the Office of the Prosecutor are strictly confidential and must remain so in order to safeguard the integrity of the entire judicial process and the safety and security of all involved. Independence, impartiality and objectivity are vital principles that underpin all of our efforts to bring justice to victims on all sides. There can be no compromise on these vital principles, and the Office of the Prosecutor therefore does not share details about any ongoing investigations in the media and does not speculate about results.

Experience from our outreach work shows that it really makes a difference to engage our target groups in conversations about these topics, as it helps strengthen their knowledge and understanding about how the Court works, what it can do and where some of its limitations are.

 

4) What is your impression regarding public knowledge about the ICC from your other informational activities and interacting with various sectors of society? What kind of understanding is about the ICC and ongoing investigation?

 

- An increasing number of people in Georgia, including affected communities, victims, civil society, academia, legal professionals, and media representatives are relatively well informed about the ICC and its activities in Georgia. Unfortunately there is also a lot of misinformation about the ICC and its activities in Georgia. In Georgia we have seen in the past and can anticipate in the future that there is heightened risk of politicization and instrumentalization of the Court  in the context of national political debates. I would like to reiterate again that the ICC is a judicial and not a political institution, and therefore the Court cannot and will not get involved in domestic political debates. This being said, our past and ongoing outreach activities make an important contribution to regularly provide factual information about the Court to as broad an audience as possible in Georgia and to continue to enhance the understanding about the judicial process including, increasingly, among the general public.

 

5) How do you see ICC Country Office's role in filling the informational vacuum and raising public awareness regarding ICC and ongoing investigation? 

 

- As I pointed out in my answer to the previous question based on our outreach meetings and contacts so far, many people in Georgia, including affected communities, victims, civil society, academia, legal professionals, and media representatives are relatively well informed about the ICC and its activities in Georgia. The ICC and its Country Office continue to carry out outreach activities targeting different audiences. Affected communities, including victims, remain one of the main target groups. Therefore the ICC Country Office continues to travel regularly to IDP settlements and villages in the ABL area in order to meet and talk to people, and answer to any questions they might have. I have seen that it is very important for the affected communities, including victims, to interact and talk directly to an ICC representative. As mentioned earlier, it is also crucial to continue to raise awareness about the ICC and its work among other target groups, including the general public. We will therefore continue to reach out proactively to journalists and media outlets in order to engage them in exchanges and to widely disseminate information about the Court.

 

The ICC Country Office has been cooperating with various partners, including NGOs, academia, civil society and media representatives. From the very beginning the ICC Country Office in Georgia established regular Information Sharing Meetings (ISM) with Georgian NGO and civil society representatives. For the same reason the ICC Country Office is also organising regular background briefings to Georgian journalists, so that they can also provide accurate information about the ICC to general public. ICC and its Country Office are also working with Georgian legal professionals in order to inform them about the ICC, and encourage them to apply to the List of Counsel before the ICC.

 

All ICC Country Offices are under the Registrar of the Court, and therefore I’m not able to tell too much about the ongoing investigation apart what was said above. I know what is in the public domain, that currently the investigation is on its active phase and OTP staff are deployed regularly to Georgia in order to further the investigation.

 

6) As it was announced recently, the Trust Fund for Victims is performing assessment of Georgia situation. Can you provide us more information regarding this process? What is the timeline of this process and what kind of activities it includes?

 

- Yes, indeed, the Trust Fund for Victims is in the midst of conducting an assistance assessment of the situation in Georgia. The Trust Fund assessment will examine the current level of support and activities directed towards victims and attempt to ascertain whether there are rehabilitation service gaps. The assessment report will be presented to the Trust Fund for Victims Board of Directors at their 2020 spring meeting, where they will deliberate and determine whether the Trust Fund will establish an Assistance programme in Georgia to rehabilitate victim injuries.

 

A Trust Fund Assistance mandate programme may benefit victims and their families in situations before the Court through the implementation of the following: 1) Physical Rehabilitation, 2) Psychological Rehabilitation, and 3) Material Support projects. The Trust Fund’s Assistance mandate is not linked to a particular case or trial, rather, victim assistance initiatives may benefit victims within the broader situation where crimes under ICC jurisdiction are alleged to have occurred and the Trust Fund may rehabilitate victim injuries outside the scope of judicial proceeding.

 

The Trust Fund’s assessment is being conducted through a twofold approach; the first is a desk review of relevant studies, reports, and evaluations. Secondly, the assessment will be informed by extensive stakeholder consultations with Government officials, victims and victim associations, IDP communities, non-governmental organizations, United Nation representatives, international organizations, and members of civil society. The Trust Fund is conducting meetings and consultations with a broad cross-section of stakeholders from the affected communities as well as those in the capital of Tbilisi and the conflict affected region.