Public Defender Welcomes Investigation of Crimes Committed during and after August War

On 13 October 2015 the Prosecutor of the International Criminal Court, Fatou Bensouda, addressed the Court’s Judges and requested authorization to initiate an investigation into the alleged war crimes and crimes against humanity in relation to the August 2008 armed conflict in Georgia.

The investigation covers the period from 1 July to 10 October 2008.

The Judges of Pre-Trial Chamber will assess whether there are reasonable grounds to continue the investigation. Preliminary examination by the Office of the Prosecutor has been underway since August 2008.

The Prosecutor has providednotice to victims or their legal representatives of her intention to request authorisation and informed them that they have 30 days to send their comments to the Judges of Pre-Trial Chamber on whether an investigation should be opened. The notice also says that in case of the opening of the investigation, victims will have the opportunity to present their voices and concerns during the proceedings and, at a later stage, to request reparations.

In his parliamentary reports 2013-2014 the Public Defender wrote about the investigation of crimes committed during and after the August 2008 and provided a recommendation to the Chief Prosecutor of Georgia to conduct investigation "effectively and within the shortest possible time", including into the cases of disappeared persons.

The Public Defender welcomes the International Criminal Court's decision to investigate the crimes committed during and after the August 2008 armed conflict in Georgia and believes that this will help to establish the truth, to restore the rights of victims and to accelerate peace process between the parties to conflict and the affected population.

The International Criminal Court was established in 1998. According to its statute (the Rome Statute), which entered into force in 2002, the Court has jurisdiction in respect of the crimes that were committed in the territory of a member country or by a citizen of a member country. The Statute was ratified by Georgia on September 5, 2003. Even though it has not been ratified by the Russian Federation, Russian citizens can be held responsible for crimes committed in the territory of Georgia.

The Court has jurisdiction only in respect of the following types of crimes: genocide, crimes against humanity and war crimes. Cases go to the Court only if the state does or can not investigate the crimes.

The International Criminal Court, within the framework of the preliminary examination, has had constant communication with Prosecutor’s Offices of Georgia and the Russian Federation for the past 7 years and has been monitoring the investigation of the crimes committed in August 2008. Neither Georgia nor Russia has completed the investigation; no charges have been filed against anybody.

Should ICC Judges grant the Prosecutor authorisation to proceed, she will investigate the following alleged crimes of August 2008: murder, forced displacement and persecution of ethnic Georgian civilians, robbery and destruction of their property by South Ossetian forces and with alleged participation of Russian forces; also, the deliberate attack against the Georgian peacekeeping forces by the South Ossetian armed forces and the deliberate attack against the Russian peacekeepers carried out by Georgian armed forces; indiscriminate and disproportionate attacks on civilian objects carried out by the Georgian and Russian armed forces, and sexual and gender-based violence, including rape.

The purpose of the International Criminal Court is to judge not all perpetrators, but those believed to be most responsible. The Court may issue a warrant for the arrest in order to ensure arrival of the accused persons at the Court. The Court may send the defendant to custody if a guilty verdict is delivered. As the Court does not have its own police force, it depends on cooperation with the member states which are obliged to cooperate with the Court by law. Enforcement of the court decision will depend on the member states if a country refuses to extradite the accused or the convicted person to the Court.

The Court depends on the cooperation with the member states also in obtaining evidence. During the investigation of the events of 2008 it will be important for the Office of the Prosecutor to have access to the de facto South Ossetian territory, which might be a challenge for it.

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