On 8 August, the Prime Minister of Georgia, Irakli Gharibashvili, spoke at the Mukhadgverdi mass grave about the August 2008 war’s investigation:  “There exists a direct request from The Hague to Georgia to investigate the August war; otherwise, The Hague itself will investigate all of the war’s details and nuances. It is the duty of our country for this topic to be investigated.”

With this statement, Irakli Gharibashvili responded to Tea Tsulukiani’s statement made on 7 August. Tsulukiani said:  “Our government, just like the previous one, meets objective difficulties because this is a really complex, multi-volume, multi-episode and multi-valued case. We should assert more importance to this investigation, it should advance faster and the country’s problem should be resolved within it. No one would like the 2008 August war case to be investigated by The Hague’s Prosecutor. This threat is real but we are doing everything in order to fulfill our international obligations within the country so that nobody from abroad holds us accountable later.”

A member of the United National Movement, Givi Targamadze, also commented upon this issue:  “Tsulukiani’s statements and especially acts, if she has meetings with prosecutors in The Hague, are most likely, a betrayal of this country…”

It is important to take into account the contexts of the statements made by the Prime Minister and the Minister of Justice. Whilst speaking about the investigation of the August war, Irakli Gharibashvili also speaks about the responsibility of the previous government for not being able to avoid the hostilities. On 24 March 2014, during an interview with Kviris Palitra, the Prime Minister stated:

 “I think that the investigations of the circumstances of the August 2008 war should begin. How the war advanced, who was responsible and who commanded what. We ‘opened’ this topic last year. Many crimes and violations have been revealed and all of the questions must be answered. We have to know who made the mistake and where.”

FactCheck

took interest in whether or not it is Georgia’s duty to investigate the August war and what is implied by this duty.

Both the International Court of Justice (ICJ) and the International Criminal Court (

ICC) are located in The Hague. Intra-state disputes are heard by the ICJ whilst the ICC is an international criminal tribunal which was launched as a permanent body by the Rome Statute in 1998. The ICC is authorised to prosecute for those crimes listed in Article 5 of the Rome Statute; namely:  genocide, crime against humanity, war crimes and aggression. Georgia joined the Rome Statute in 2003 and is considered as one of its member states. Russia, on the other side, has not signed the treaty.

The jurisdiction of the ICC covers crimes committed on the territory of either a Statute’s member country or the states that recognise the ICC’s jurisdiction regardless of who committed the crime. The Court’s jurisdiction also covers crimes committed by the citizens of member countries regardless of the scene of the crime. In this way, according to the Rome Statute, the ICC has the jurisdiction to hear crimes committed in Georgia against a citizen of any country. Article 13 of the Rome Statute defines when the ICC is able to implement its jurisdiction. First of all, a member state itself or the UN Security Council can notify the court prosecutor about the circumstance of an alleged crime. Second, the prosecutor with his/her own initiative can start an investigation based upon the existing information about possible crimes within the ICC’s jurisdiction.

In the case of the August 2008 war with Russia, the ICC took interest in the ongoing events in Georgia on its own initiative. After the visit of the Minister of Justice of Georgia to The Hague on 14 August 2008, the  Office of The Prosecutor (OTP) in The Hague stated that it would carry out a preliminary examination of war crimes. As the former Deputy Minister of Justice, Tina Burjaliani, has stated, the Georgian side provided the Prosecutor’s Office of The Hague with information about the ethnic cleansing of Georgians. On 27 August 2008, OTP requested further information connected to the progress of the investigation from both the Prosecutor’s Offices of Georgia and Russia.

After investigating the information, OTP decides to initiate a preliminary examination regarding the case. OTP, based upon the assessment of the available information during the inquiry stage decides whether or not to initiate an investigation concerning a certain fact or facts. Whilst making the decision, the Office reviews the following topics:

1. Is there a reasonable doubt for a crime to be accounted as committed or being in the process of committing?
2. Is there a basis to deny the admissibility of a case according to Article 17 of the Rome Statute? A case is inadmissible to the International Criminal Court, if:

• The case is being investigated or prosecuted by a state which has jurisdiction over it unless the state is unwilling or genuinely unable to carry out the investigation or prosecution.
• The case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute.
• The person concerned has already been tried for conduct which is the subject of the complaint.
• The case is not of sufficient gravity to justify further action by the International Criminal Court.

1. The prosecutor also considers whether or not an investigation serves justice.

OTP makes the decision of whether or not to start an investigation only after consideration of all of the aforementioned topics. The next step is OTP’s reference to the Pre-Trial Chamber to issue the authorisation for an investigation. If the Pre-Trial Chamber considers that there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the International Criminal Court, it authorises the commencement of the investigation. Various particular procedures are required for a case to be investigated by the ICC.

A look at the aforementioned procedure is necessary with regard to the investigation of the August 2008 war with Russia. The International Criminal Court in The Hague took interest in the conflict soon after its outbreak with the Office having begun a preliminary examination of the case already on 14 August 2008. Since 2008, OTP has visited Georgia and Russia many times in order to monitor the progress of the investigation in these countries. There were three investigation reports published by OTP in 2011, 2012 and 2013. In all three reports, there is the list of the crimes which are subject to investigation in Georgia and Russia. The Prosecutor’s Offices in Georgia and Russia are investigating the cases of six crimes in total. These are:

1. Forcible displacement of the Georgian population:  South Ossetian armed forces allegedly forced up to 30,000 ethnic Georgians to flee from villages within and outside South Ossetia by systematically destroying and pillaging their houses and other property. In some cases, ethnic Georgians were killed and/or subjected to abuses.
2. Attack against peacekeepers:  The Georgian armed forces allegedly carried out attacks on the Joint Peacekeeping Force Headquarters (JPKF HQ) and the base of the Russian Peacekeeping Forces Battalion (RUPKFB) during the nights of 7 and 8 August 2008. According to the Russian authorities, ten peacekeepers belonging to the Russian peacekeeping battalion were killed and 30 of them were wounded as a result of the alleged attack.
3. Unlawful attacks directed against the civilian population and civilian objects:  Both Georgian and Russian armed forces allegedly launched indiscriminate and disproportionate attacks against civilian targets and/or failed to take the required precautions to minimise civilian losses.
4. Destruction of property:  Extensive destruction of civilian property allegedly resulted from heavy shelling and bombing of towns and villages during the active hostilities phase and later as a result of acts of violence carried out by South Ossetian forces in ethnic Georgian villages in South Ossetia and to a lesser extent in the “buffer zone.”
5. Pillaging:  In the aftermath of the active hostilities, the ethnic Georgian villages in South Ossetia and in the “buffer zone” were allegedly systematically pillaged by South Ossetian armed forces.
6. Torture and other forms of ill-treatment:  Georgian prisoners of war, as well as ethnic Georgian and South Ossetian civilians, were reportedly victims of torture and other forms of ill-treatment.

As can be seen, only two of the aforementioned crimes – attack against peacekeepers and unlawful attacks – were allegedly committed by the Georgian military. Other crimes refer to acts committed by the Russian and de facto

Ossetian forces. These cases are still being investigated by the Prosecutor’s Office of Georgia although the completion of the investigation is hampered by the fact that Georgia does not have access to both witnesses and evidence located on the occupied territory.

It is necessary to review the reports, submitted by OTP in order to find out if the latter has any grounds for starting the investigation. As we have already mentioned, reasonable doubt should exist in the first place for a crime to be considered as committed. All three reports of OTP point out that the facts of the attack against peacekeepers and unlawful attacks (crimes that are allegedly committed by the Georgian military) are inconclusive although the existence of the crimes committed by the Russian and Ossetian military satisfy the standard of reasonable doubt. In the case if the investigation is forwarded to OTP, therefore, it is less likely that it will investigate alleged crimes of the Georgian military as there is no reasonable doubt of the existence of these crimes.

During discussions on this topic, politicians have often referred to a different context and stated that OTP would start investigating the case if the Georgian side cannot. Indeed, according to the Rome Statute, OTP investigates the case instead of the state holding the jurisdiction over it if the state is unwilling or genuinely unable to carry out the investigation or prosecution. In direct connection with this problem, the 2012 report mentions the lack of cooperation from the Prosecutor’s Offices of Russia and South Ossetia which serves as an obstacle for Georgia to investigate the case. The Georgian side also noted that the investigation is obstructed by the fact that the scene of the crime is occupied and the Prosecutor’s Office of Georgia does not have the possibility to carry out a full investigation. On its behalf, the Russian side has also referred to a lack of cooperation. It was also noted that Russia could not start the criminal persecution of certain people as they were being protected by diplomatic immunity. The 2012 report further mentioned that Georgian non-governmental organisations as well as international organisations made a request to OTP in which they doubted the ongoing investigations in Georgia and Russia and asked OTP to start its investigation on the 2008 war.

If OTP concludes that the Georgian and Russian sides are unwilling or unable to investigate 2008 war crimes, it may decide to start an investigation based upon the severity of the crimes committed as well as in the interests of justice. As we have already noted above, the armed conflict that took place in Georgia is currently in the preliminary examination process being carried out by OTP. Georgia, as a member country of the Rome Statute, is obliged to cooperate with the Court and its organs. The Ministry of Justice of Georgia is bound to provide OTP with information about the progress of the investigation. Therefore, the position (including Givi Targamadze’s statement) according to which meetings and cooperation with OTP is a betrayal of Georgia is incorrect and devoid of reason.

As we have noted, it is clear from the context of Prime Minister Irakli Gharibashvili’s statement that he connects the start of the August war’s investigation with clarifying the issue of the starting of the war. As a result of FactCheck’s

analysis, however, it becomes clear that OTP is not interested in knowing, who started the war or if it was possible to avoid the war in general. It is also important to note that Minister of Justice Tea Tsulukiani considers the inclusion of the International Criminal Court into the process as “dangerous.” To some extent, the investigation of war crimes by OTP may even be in Georgia’s interests as the Prosecutor’s Office of Georgia does not have an opportunity to carry out a full investigation owing to the occupation.

Conclusion

According to the Rome Statute, OTP would investigate August war crimes if there were a reasonable doubt for an assumption that certain crimes have been committed. At the same time, OTP would only receive permission to start the investigation in the case where there is proof that the Prosecutor’s Offices of Georgia and Russia are unwilling or unable to investigate the alleged crimes. Even if OTP indeed starts to investigate the aforementioned case, it is less likely that the proceedings concerning the culpability of the Georgian military will take place. The reports of 2011, 2012 and 2013 clearly show the fact that Georgian military attacks against peacekeepers and unlawful attacks directed against the civilian population do not satisfy the standard of reasonable doubt.

It is also important to take into account the context of the statements. The representatives of the government consider the inclusion of OTP into the case as dangerous. If, because of objective reasons (for example, the fact that the Prosecutor’s Office of Georgia cannot carry out the full investigation because of the occupation) the Prosecutor’s Office of Georgia would not be able to investigate the case and OTP intervenes, Georgia would not be the one breaching its duty. Information about the direction of the investigation of the case in the period following OTP’s report of 2013 is not available for us. Nevertheless, it is clear from the public reports available to date that OTP is not interested in investigating all of the details and nuances as well as knowing, who started the war or if it was possible to avoid it.

Therefore, taking the topic into account, the Prime Minister’s statement:  “There exists a direct request from The Hague to Georgia to investigate the August war; otherwise, The Hague itself will investigate all of the war’s details and nuances. It is the duty of our country for this topic to be investigated,” is MOSTLY FALSE.