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. Continue reading →