The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has officially requested authorisation from the court to initiate an investigation into alleged war crimes and crimes against humanity committed during the armed conflict in Georgia between the breakaway region of South Ossetia and Georgia (also involving the Russian Federation) in August 2008. A key strand of the investigation concerns alleged attacks against peacekeepers, in this case, the Joint Peacekeeping Forces Group or JPKF, created in 1992 to monitor the Sochi agreement between Georgia and Russia, and comprised of peacekeepers from Russia, Georgia and North Ossetia.
In its request, the OTP argues that there is reasonable basis to believe that both South Ossetian (potentially with Russian armed forces exercising overall control) and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission. Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more, while, in a separate incident, ten Russian peacekeepers were reportedly killed and thirty wounded as a result of an alleged attack by Georgian forces against their base, which was also, reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these allegations may be the most difficult to prove.
The ICC Statute gives the Court jurisdiction over the crime of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian or peacekeeping missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law (Articles 8(2)(b)(iii) and 8(2)(e)(iii)). Proving that an attack against peacekeepers has occurred is a two stage test. Firstly, it must be shown that the force in question was ‘a peacekeeping mission established in accordance with the UN Charter’, a concept that is open to different interpretations. The ICC has already considered this matter in some detail in its Abu Garda Decision on the Confirmation of Charges, where the Pre-Trial Chamber relied upon three basic principles when determining whether or not a peacekeeping mission was constituted, namely: (i) whether the consent of the parties to the mission has been obtained; (ii) that the mission is impartial; and (iii) that the mission did not use force other than in self-defence. If these principles are fulfilled, the mission constitutes a peacekeeping mission, and its personnel are entitled to civilian status and consequent protection under international humanitarian law (IHL).
The OTP acknowledges that there are difficulties surrounding whether the JPKF in fact fulfilled these criteria. This is particularly so regarding whether the mission was impartial (paras. 151-155). For example, the submission refers to sources cited by the Government of Georgia arguing that Russian peacekeeping sources were not impartial, but were supporting the South Ossetian de facto authorities (para. 152), there are also suggestions that infrastructure connected with Russian peacekeeping forces was being used to make an effective contribution to the military action of a party to the conflict (para. 172). Thus, the OTP’s conclusion that the ‘JPKF fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status’ (para. 160) is open to question.
Even if the OTP clears the first hurdle and succeeds in proving that the JPKF qualified as a peacekeeping mission and that its personnel therefore had civilian status, there remains perhaps an even bigger hurdle: proving that the conduct of the peacekeeping forces in this instance did not amount to direct participation in hostilities (DPH). If the peacekeepers were DPH at the time, they would have constituted legitimate military targets under IHL (Article 50 Additional Protocol I and Article 13(3), Additional Protocol II).
The submission refers to several alleged attacks against Georgian peacekeepers by South Ossetian forces, the most serious being on the 7 August, when a checkpoint was allegedly attacked by South Ossetian forces, killing two Georgian Peacekeepers and wounding several others. However, it also cites evidence from a JPKF Commander that it was impossible to determine who started the attack. The evidence is similarly limited and contradictory as regards the alleged attack against Russian peacekeepers. It is unclear as to whether the Russian peacekeeping contingent were DPH at the time; whether their infrastructure was being used to make an effective contribution to the military action of a party to the conflict, and, who started the attack (para. 172). The OTP has supporting material from the Russian authorities indicating that Georgian forces opened fire first, and Georgian material indicating that the contrary was the case.
The submission refers to the presumption in favour of civilian status in IHL (paras. 169 and 189), which provides that in case of doubt whether a person is a civilian that person shall be considered to be a civilian (Article 52(2), Additional Protocol I). However, in the context of international criminal law, in accordance with the principle of in dubio pro reo (that in cases of doubt as to the appraisal of evidence, uncertainties are to be interpreted in favour of the accused) it has been held that where doubt exists, the onus rests upon the prosecution to show that a reasonable person could not have believed that the individual he or she attacked was a combatant (Prosecutor v Galić, para. 55). Accordingly, despite the civilian presumption, any doubt as to whether or not the peacekeepers had been DPH at the time of these incidents is likely to be interpreted in favour of any future suspects.
Clearing these evidential hurdles, and proving that the JPKF was a peacekeeping mission and that the peacekeepers were not DPH at the time, will be a challenge. In the event that a case ever makes it to trial, and charges concerning these incidents are included, it will prove to be the most complex case of its kind to date.