Renewed Hopes for Justice in Georgia

April 28, 2022April 28, 2022 / B. Aloka Wanigasuriya / Leave a comment

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

In early March 2022, the Prosecutor announced that pursuant to Article 58 of the Rome Statute, he had filed an application seeking arrest warrants with regard to the Situation for:

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.

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Georgia’s very own Öcalan? Mukhtarli’s Cross border-abduction in light of Georgia’s obligations under IHRL

August 11, 2017 / Natia Kalandarishvili-Mueller / 1 Comment

This post concerns the case of Afgan Mukhtarli, an Azerbaijani investigative journalist (reporting on the possible corruption of Azerbaijani Authorities) who was allegedly abducted from Tbilisi, Georgia. He is now facing trial in Azerbaijan. Notably, Georgia’s International Human Rights Law (IHRL) obligations vis-à-vis Mr. Mukhtarli are brought to the forefront.

The Facts

On 29 May 2017, Afgan Mukhtarli, who had been in exile in Georgia with his wife since 2015, supposedly vanished near his home in Tbilisi. As stated by Mukhtarli’s lawyer, Mr. Sadigov, Mukhtarli was snatched by men who are believed to be agents of the Georgian Security Forces. They were dressed in plain clothing. According to Mukhtarli, his captors changed vehicles at least twice (see here and here). In the second vehicle, the kidnappers spoke Azeri and eventually brought Mukhtarli to an Azerbaijani border checkpoint in the Balaken district (border shared by Georgia and Azerbaijan), at about 11 p.m. on 29 May . He is now in detention in Baku and, according to the HRW, faces bogus, politically motivated charges of illegal border crossing and smuggling. On 31 May, additional charges against Mukhtarli were pressed by the Azerbaijani authorities, blaming him of violent resistance against law enforcement officials. Baku’s Sabail district court sent him into pre-trial detention for three months. According to Amnesty International, Mr. Mukhtarli is at risk of torture.

On 30 May 2017, a statement by the Public Defender of Georgia called on Georgia’s Law Enforcement agencies to urgently and effectively respond to Mukhtarli’s case. On 31 May 2017, the Ministry of Internal Affairs of Georgia stated an investigation of illegal restriction of freedom had been launched.

Unwilling or unable to protect human rights?

The way this case comes across, is that the Georgian Government failed either willingly or unwillingly to protect Mr. Mukhtarli on its soil under IHRL. If Georgia failed unwillingly to protect Mr. Mukhtarli, then this conveys Georgia’s border forces are not fully able to discharge their duties, and anyone can either freely enter Georgian territory or leave unchecked. This would also suggest, the Georgian government and its organs are not in full control of Georgian territory’s ins and outs. On 1 June 2017, Georgia denied to be the part of the kidnapping. A follow-up question, however, to such a denial is whose state agents were then involved in the kidnapping and transport of the journalist to the Georgian-Azeri border? On the other hand, if Georgia failed willingly, this would signify, Georgia’s security forces were all along aware of the operation taking place and were in fact even part of what seems a carefully orchestrated move. Georgia would subsequently be in breach of the ECHR, CAT and the ICCPR to name just a few instruments.

What does IHRL have to say?

To begin with, the main aim of IHRL is to protect individuals from their rights being violated. It was “devised to protect the individual against the arbitrary exercise of power by the authorities of the territorial state.” (F. Coomans and M. T. Kaminga, ‘Comparative Introductory Comments on the Extraterritorial Application of Human Rights Treaties’, in F. Coomans and M. T. Kamminga (eds), Extraterritorial Application of Human Rights Treatise (Antwerp- Oxford: Intersentia, 2004), 1-7, at 1). When states ratify IHRL instruments, they pledge upholding the rights enshrined by the latter. IHRL is applicable to “everyone everywhere” (M. Sassòli et al, How Does Law Protect in War? Vol. I (ICRC, 2006) at 341), including situations of state extraterritorial activities (see K. Da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff Publishers 2013)). In other words, a state is under the obligation to respect and protect human rights as guaranteed by applicable treaties wherever it exercises jurisdiction, i.e. control.

Consequently, IHRL binds states with both negative and positive obligations, the former obliging a state to respect human rights, that is not to commit human rights violations; the latter requiring a state to ensure or secure the human rights of persons within its jurisdiction and prevent human rights violations by foreign states or private individuals (M. Milanovic, ‘From Compromise to Principle: Clarifying the concept of State Jurisdiction in Human Rights Treatise’, 8 Human Rights Law Review (2008), 411-448, at 441-442).

To be even more precise, the negative and positive obligations can be then divided into three levels of obligations (W. Kälin and J. Kunzli, The Law of International Human Rights Protection (Oxford University Press, 2010) at 96-97):

Obligation to respect: states do not interfere in the enjoyment of persons’ rights, i.e. negative obligations; (ibid., 96)
Obligation to protect: states have positive human rights law obligations to protect the interests of those concerned and protect their human rights against threats emanating from breaches by third parties, natural or human made risks. In practice, this involves ensuring the concerned human rights guarantees, not only between private actors, but also “vis-à-vis state agents acting ultra vires or agents of third states.” (ibid.)
Obligations to fulfil, a third level, show that states are required to fulfil human rights, i.e. to ensure that they are realised in practice as comprehensively as possible, in the form of the adoption of legislative or administrative measures to establish the legal, institutional and procedural basis for the full realisation of the concerned right (ibid., 97).

The particularity of the obligation to protect is that it arises if the state is aware, or could have been aware; if sufficient caution had been exercised of the violation or threat thereof; and if it has practical and legal means to prevent it. The obligation to protect may either be immediate and operational, encompassing police intervention; amount to precautionary measures, e.g. by a court; or take the form of legislative enactments, such as statutory prohibitions and penalties (ibid., 96).

Conclusion

In this case, Georgia appears to have failed to protect Mr. Mukhtarli, in the segments of prevention and protection. It is improbable the border guards did not notice the situation Mr. Mukhtarli could have been in. The checkpoint guards – as agents of the state of Georgia – were under the obligation to impede the crossing of Mr. Mukhtarli and those accompanying him, to say the very least. This would have averted his forceful return to Baku.

Telling Places with Georgian IDPs

July 12, 2016July 18, 2016 / Rebecca Ruth Gould / 2 Comments

Photograph of Georgian IDP camp, copyright Hannah Mintek, 2010.

Telling Places with Georgian IDPs

Although it created new opportunities for many Soviet peoples, the end of Soviet rule also left many wounds unhealed, while creating new traumas. In the Caucasus, the post-Soviet decades were marked by frequent bloody conflict, from Chechnya to Nagorno-Karabakh to Abkhazia. Wars raged among Georgians, Russians, Ossetians, Chechens, Ingush, and Abkhazians over borders that had been contested since the advent of Soviet rule, if not earlier.

In the Republic of Georgia, one upshot of over two decades of violence is the nearly 300,000 internally displaced people (IDPs) who now reside a country with a total population of 4.6 million. How can these IDPs be integrated into Georgian society, and move on with their lives, given all the damage that has been inflicted by war and the fact that many of them still lack permanent homes? How, in short, do people build new lives after catastrophe?

A new project I am organizing with geographer Elizabeth Dunn of Indiana University, “Telling Places: Forced Migration and Spatial Memory in the Caucasus,” seeks a partial resolution to the emotional upheavals of the 2008 Georgian-Russian war. In partnership with Georgian NGOs and Georgian scholars, we will use digital mapping technologies (GIS) to create a resource that will be eventually managed by IDPs. This resource will provide a transferable technology usable by IDP communities around the world seeking to reconstruct their lives.

We are calling this resource a ‘convening point’ rather than a website, given the degree of interactivity we envision. The Telling Places convening point will interactively map the villages from which IDPs were ethnically cleansed, and keep the pasts these villages represent for IDPs alive in digital form. As a spatially-organized multi-media repository, Telling Places will gather interviews, video, and writings by IDPs with the family documents and maps that IDPs have preserved during their displacement. This resource will help IDPs rebuild their attachments to their home villages and preserve their memories for future generations.

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You go, ‘Grrl! Anna Dolidze nominated for Georgia Supreme Court

February 29, 2016 / Karen Hoffmann / Leave a comment

IntLawGrrl and Georgian Deputy Minister of Defence Anna Dolidze has been nominated by the President of Georgia as a candidate for that country’s Supreme Court. “This is a person who for years fought against injustice, she stood out for her professionalism [and] fearless position on one of the most high-profile case[s] of the previous government,” said President Giorgi Margvelashvili.

Prior to her role at the Ministry of Defence, Anna was Professor of Law at the University of Western Ontario. She has also served at a number of international and non-governmental organizations, including Human Rights Watch, the Russian Justice Initiative, and Save the Children. From 2004 to 2006, Anna was the President of the Georgian Young Lawyers’ Association, the largest legal advocacy organization in the Republic of Georgia. She also served at the National Constitutional Commission, Commission for the Human Rights in Prisons and the Expert Commission for Georgia’s European Integration.

Investigating Crimes against Peacekeepers in the Situation in Georgia

October 27, 2015 / Joanna Nicholson / 1 Comment

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 →

You go, ‘Grrl! Anna Dolidze appointed Georgia’s Deputy Minister of Defence

July 9, 2015July 9, 2015 / Karen Hoffmann / Leave a comment

IntLawGrrl Anna Dolidze has been appointed Georgia’s Deputy Minister of Defence. Defence Minister Tinatin Khidasheli said at Anna’s appointment on May 15, 2015, “The main criterion for my choice is high professionalism. Her main direction will be human rights: everything connected with the wounded soldiers, our soldiers who serve abroad, the families of the fallen heroes.”

As part of her new role, Anna will be taking a leave of absence from her role as Professor of Law at the University of Western Ontario. Prior to joining Western Law, Anna served at a number of international and non-governmental organizations, including Human Rights Watch, the Russian Justice Initiative, and Save the Children. From 2004 to 2006, Anna was the President of the Georgian Young Lawyers’ Association, the largest legal advocacy organization in the Republic of Georgia. She also served at the National Constitutional Commission, Commission for the Human Rights in Prisons and the Expert Commission for Georgia’s European Integration.

Anna has taught and lectured at Duke University, Helsinki España-Human Dimension in Madrid, Sorbonne University in Paris, and Elmira Maximum Security Correctional Facility in New York State. She has co-authored a series of policy reports including a UN-sponsored report on the privatization of the internally displaced persons’ collective settlements (2005) and a policy proposal for the establishment of a truth commission in Georgia published by the Carnegie Endowment for International Peace (2012). In 2012-2013 Anna was a Joachim Herz Fellow at the Transatlantic Academy of the German Marshall Fund, having contributed to the Academy’s annual report The Democratic Disconnect: Citizenship and Accountability in the Transatlantic Community. Heartfelt congratulations, Anna!

(All photos courtesy Anna Dolidze.)

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