Following the international armed conflict (IAC) that erupted between Georgia and the Russian Federation (Russia) in 2008, the ICC (International Criminal Court) Prosecutor announced the initiation of a proprio motu (i.e. on the Prosecutor’s own initiative) preliminary examination into the Situation in Georgia on 14 August 2008. Subsequently, on 27 January 2016, Pre-Trial Chamber I (PTC) authorised the opening of an investigation into the Situation. In this regard, the Office of the Prosecutor (OTP) has been investigating alleged crimes against humanity and war crimes committed by all parties to the IAC in and around South Ossetia between 1 July and 10 October 2008.
The investigation marked many firsts for the Court: it was the first ICC investigation covering a situation outside the African continent, the first ICC investigation probing crimes allegedly committed in the context of an IAC, and the first ICC investigation into a situation arising from a post-Soviet country. Due to this last aspect in particular, the Situation in Georgia was initially seen as an important indicator for how the OTP might proceed with regard to other post-Soviet situations such as that of Ukraine.
The Prosecutor’s request for arrest warrants
- Lt.-Gen. Mikhail Mayramovich Mindzaev, Minister of Internal Affairs – de facto South Ossetian administration;
- Gamlet Guchmazov, Head of the Preliminary Detention facility – de facto Ministry of Internal Affairs of South Ossetia; and
- David Georgiyevich Sanakoev, de facto Presidential Representative for Human Rights of South Ossetia.
All three are alleged to have committed war crimes that fall under Article 8 of the Rome Statute (para. 3) in and around the territory of South Ossetia between the 8th and 27th of August 2008 in the context of the occupation of Georgian territory by the Russian armed forces.
The Georgian government has been cooperating with the ICC since the initiation of its preliminary examination and welcomed the Prosecutor’s recent move terming it “another victory for Georgia”. However, Russia’s attitude towards the ICC has been less than amiable. The initiation of the ICC investigation in 2016 drew the ire of Russia. Accusing the ICC Prosecutor of siding with the aggressor and initiating “an investigation aimed against the victims” where all blame was placed on South Ossetian and Russian soldiers, Russia stated that it was “forced to fundamentally review its attitude towards the ICC”. Subsequently, in November 2016, Russia withdrew its signature from the ICC’s constitutive instrument, the Rome Statute. This symbolic move however, does not alter the position of any Russian nationals who are alleged to have committed core international crimes on Georgian territory. As Georgia is an ICC state party, the ICC is still capable of prosecuting any Russian nationals who are alleged to have committed crimes falling within its jurisdiction.
Legal significance of the arrest warrants
As predicted by Dr. Iryna Marchuk and myself in 2021, the requested arrest warrants target senior members of the de facto South Ossetian administration. No requests for arrest warrants have been made targeting Russians or Georgians. Qualitative interviews carried out in relation to my PhD project, which explores the impact of the ICC’s interventions in Georgia and Ukraine revealed a sense of resistance in Georgia against any potential ICC prosecutions of Georgians. Simultaneously, some interviewees opined that Russian non-cooperation with the Court may result in the ICC solely issuing arrest warrants against and prosecuting pro-Russian South Ossetian separatists, to the exclusion of any Russian nationals.
While the ICC Prosecutor is required to investigate alleged crimes committed by all parties to the conflict, past practices indicate that prosecutions are not always initiated against individuals from all sides to a particular conflict. The common practice is for the OTP to pick a handful of prosecutions to focus on, targeting those bearing the highest responsibility for the commission of crimes falling within the Court’s jurisdiction. Given this and following earlier indications by the OTP in its annual reports on preliminary examination activities, it was always doubtful whether members of the Georgian armed forces would have made the cut. It is additionally important to note that the OTP assesses the operational viability in a relative manner in its case selection process, taking into consideration factors such as “the potential to secure the appearance of suspects before the Court, either by arrest and surrender or pursuant to a summons” (Policy Paper on Case Selection and Prioritisation, para. 51). Interestingly, the Prosecutor made reference to having uncovered the responsibility of Vyacheslav Borisov, a former Major General in the Russian armed forces and Deputy Commander of the Airborne Forces, in the commission of certain alleged international crimes in Georgia. However, as he is deceased, a posthumous trial would not have been permitted. Whether this indicates that the Prosecutor would have sought an arrest warrant against a Russian national such as Borisov had he still been alive, is unclear. Such action however would have been accompanied by a range of hurdles linked to Russia’s non-cooperation, including with regard to securing the individual into the Court’s custody. Regardless, it would have held powerful expressive value indicating that even nationals from geopolitically powerful states such as Russia are not beyond the reach of justice.
The sought arrest warrants have been a long time coming. Given the ICC’s usual practice of only prosecuting a handful of alleged perpetrators from a single situation, it is doubtful whether the Prosecutor will seek any further arrest warrants linked to the situation in Georgia. However, for Georgian victims who feared that the Situation in Georgia had been forgotten by the world and who were beginning to doubt the efficacy of the ICC, the recent events indicate that while the wheels of justice may turn slowly, the search for justice is not a lost cause.