August War: Who is tried by the ICC?

Do political battles influence the investigation ongoing in the ICC, at what stage is the process and who may be punished?
What is the process based on and how is it conducted?

The investigation process which concerns the alleged gravest crimes committed since July 1, 2008 till October 10 is completely confidential. The process is conducted by the Office of Prosecutor of ICC.

The investigation targets: genocide, crimes against humanity, war crimes and crime of aggression, for instance:

• Complete or partial destruction of ethnic, racial and religiou group, with preliminary intention;
• Large scale and systematic attack on peaceful population, rape, restriction of liberty, slavery, deportation and etc;

• Willful killing of civilians or military captives, intentional attack on hospitals, historic monuments and religious buildings;
• Invesion into the territory of another state by use of force, military occupation and annexation – blockade of port and coastline.

As a result of investigation by the International Criminal Court, anybody who was a decision-maker during the war and bears special responsibility for certain actions may be punished.

As the head of the non-governmental organization, Justice International tells radio Liberty, “Nobody has immunity in front of ICC” and Presidents, Ministers, members of Parliament, military personnel and journalists may be tried by the Court. However, nobody knows when this may happen.

• The head of Justice International which operates in the Hague and closely cooperations with International Criminal Court, talks about several possible scenarios in relation to ongoing investigation:
• The Court reveals concrete individuals and issues arrest warrants in order to arrest them;
• The Court already completed investigation, but does not reveal the results yet as it does not want to preliminarily inform the possible offenders (in order to detain them in convenient situation);

The Court ceases the case due to lack of evidence.
Considering the fact that Russia is not the signatory of the Rome Statute and therefore does not acknowledge the jurisdiction of the ICC, Nika Jeiranashvili talks about the danger that ultimately only Georgians and Ossetians or only Georgians may be punished, if the crimes are revealed.

“If we allow that only citizens of Georgia may be punished as a result of investigation, closing of case may not be totally bad option for us” – Nika Jeiranashvili tells radio Liberty.
However, despite Russia’s isolation from the Rome Statute, the ICC retains leverages for punishing individuals:

• “It is obvious that Russia will not transfer the offenders to ICC”;
• “In such case, it would be possible to detain the offender in the territory of any member state of the Rome Statute”;
• The signatories of the Rome Statute have obligation to pass the possible offenders detained in their territory to the ICC”.

Nika Jeiranashvili states that the ICC is not interested in “who started the War” and it concerns the alleged crimes committed during the war.

According to Jeiranashvili, the Court pays significant attention to the political processes ongoing in Georgia and the “accusations” made by the politicians in relation to the August War, although this does not belong to the legal framework of the Court directly.

ICC and August War in the internal politics of Georgia

On August 7, the opponents recalled the facebook status of Salome Zurabishvili published in 2014. The current President of Georgia wrote in 2014 that the former President provoked Russia:

“Saakashvili fired at Tskhinvali – on its own citizens and launched rockets… that caused predictable (and preliminarily announced) military reaction of Russia”. 

Accusing Georgia for starting the war became one of the main burdens for Salome Zurabishvili, the candidate supported by the Georgian Dream during the 2018 Presidential Elections.

The statements made by her at different times and the content of the book written by her regarding the August War played against her. The media constantly asked her questions regardin the war. As a result of the alarm raised by the part of the voters, Zurabishvili said one day that “obviously Russia started the war”.

There was controversy regarding the content of the book written by Salome Zurabishvili. However, this book concerns International Court of Justice and not the International Criminal Court where the investigation is currently ongoing.

The high officials of the Georgian Dream, including the head of the party Bidzina Ivanishvili often blame the opponents regarding the August War.

Such accents were made on July 17, in Batumi, in the initial statements made after the so-called “Gavrilov Night”:

• “The National Movement brought in the Russian Army”;
• “If not the negligence of the National Movement, the Russian Army would not be able to come in Georgia in 2008”;
• “They did everything in order to make the occupation happen”;
• “We all from the Georgian Dreams use the term that 20% of Georgia is occupied…”
• “…But we must try our own”

- The Prime Minister Mamuka Bakhtadze dedicated his statements to accusing National Movement for the August War.

- The leader of the Parliamentary majority, Gia Volski dedicated facebook status to the same issue.

- In a text including 9 paragraphs published on August 6, Volski writes that “the regime of Saakashvili managed to intentionally disrupt the peace plan adopted by the partner countries”.

 -The opposition critically responded to the statements made by the representatives of the government of Georgian Dream on August 7. Alongside the status of Gia Volski, special statement was made by the European Georgia. At a special briefing, the representative of this party, Giga Bokeria noted that Georgian government showed another shameful example in order to revenage against the political opponents.

- “They used this day not not to respect this memory and send unified message against our common enemy, but for immoral campaign of salnder against their political opponents inside the country, by directly using Russian propaganda with obvious lies and disgusting speculation” – stated Giga Bokeria. 

The ex-President of Georgia, Mikheil Saakashvili considers the August War to be unprecedented heroism in the video address disseminated on August 7. He states that “Putin brought Ivanishvili in Georgia in 2012” in Georgia which was saved by the heroes in 2008 and this is “continuation of Putin’s War” against Georgia.

Saakashvili recalls the ICC in its address. He states that the government of Georgia is active in order to punish the representatives of Georgia within the frameworks of the investigation. 

• “Ivanishvili and his Minister, Tsulukiani and their allies for years have been lobbying in the International Criminal Court to try Georgian military persons for the defensive war, for resisting the aggression”;
• “In these minutes, when I am talking about this, they are continuing their efforts using their lobbyists and internal investigation organs”.
• As the head of the Justice International told radio Liberty, the accusations made by the representatives of the Georgian Dream caused big confusion in the recent years in the ICC and in certain way it hampered the process of investigation.

“It became necessary to explain to the OTP regarding the Georgian political processes and what these accusations mean… We also explained to the public… When the investigators came from Hague and conducted interviews, this process was hampered in certain way – the interviewed individuals did not know which process they were participating in and whether their testimonies would have caused arrest of Georgian military personnel” – Nika Jeiranashvili stated to the radio Liberty.