In ICC Investigation of 2008 Russia-Georgia War Crimes: Don’t Let Justice Delayed Become Justice Denied

The U.S. and European governments should seize the opportunity of the ICC's new arrest warrants in the 2008 Russia-Georgia war to show that their support for justice, while reinvigorated by Russia’s brutality in Ukraine, is not limited to that war; and that when calls for accountability finally bear fruit, their assistance will be more than rhetorical.

By Adam Keith and Nika Jeiranashvili

On June 30, the International Criminal Court (ICC) issued arrest warrants charging three men with war crimes in connection with Russia’s invasion of a neighboring country. Working with Russian forces, the three indictees – who were mid- to high-ranking officials of a Russian-backed separatist region in that country – allegedly held hostage dozens of local civilians until the national authorities agreed to release separatist convicts in exchange. Having used the civilians as leverage for extortion, the indicted men then expelled them from the region as part of a campaign to ethnically cleanse it.

These abuses may sound like they are drawn from Russia’s playbook to brutalize and depopulate parts of Ukraine. In fact, they come from the 2008 war in Georgia, which involved Russian, Georgian, and Russian-allied separatist South Ossetian forces. The ICC began to formally investigate crimes associated with that war in 2016, with the strong support of many of the victims. But this slow-moving effort at accountability has attracted none of the enthusiasm for justice that the U.S. government and its European peers have rightly shown in response to the ongoing atrocities in Ukraine.

Sadly, such an outpouring of support for accountability is not the norm. Even regarding Ukraine, there is little evidence so far that the U.S. government has provided real assistance to the ICC’s investigation – perhaps because the United States has not yet fully set aside its longstanding objection to the court’s jurisdiction over perpetrators from states that have not joined the ICC treaty (in this case, Russia).

But regarding Georgia, even a broader set of governments that typically present themselves as champions of justice have, until recently, remained quiet and done little to offer their backing for the ICC’s work. Those governments should seize the opportunity of the new Georgia arrest warrants to show two things: that their support for justice, while reinvigorated by Russia’s brutality in Ukraine, is not limited to that war; and that when abstract calls for accountability finally bear fruit, their support will be more than rhetorical.

The 2008 war in Georgia was short but replete with reports of violations of the laws of war by all parties. Among other abuses, the ICC prosecutor has found that South Ossetian forces led a “forcible displacement campaign” that destroyed 5,000 dwellings, drove out at least 75 percent of the region’s ethnic Georgian population, and amounted to a crime against humanity. The role of international bodies in providing accountability for such abuses became vital after national authorities (i.e., Georgia and Russia) conducted only fitful and unproductive investigations of their own, prompting the ICC prosecutor in 2016 to step in after several years and investigate as the “court of last resort.”

The ICC’s Georgia investigation attracted scant support from key governments over the next six years, despite the clear need for such support in the face of steep challenges. No states referred Georgia to the ICC to help launch the investigation in the first place, as dozens of European states did for Ukraine this March. Until this spring, neither the European Union nor the United States made more than a passing reference to the Georgia investigation in public, even when speaking about human rights in Georgia or expressing support for other ICC investigations. Even the U.N.’s Human Rights Council, which has asked states to cooperate with the ICC in situations ranging from Venezuela to Palestine to Mali, made no mention of the court in its annual resolutions on Georgia until this April, just after the prosecutor announced he was seeking the three arrest warrants.

To be sure, some of the factors that spurred a vocal international call for justice in Ukraine have been missing in Georgia, as they have been in some other ICC situations that have attracted only tepid international support. The brief 2008 war in Georgia produced a less shocking tally of atrocities than the Ukraine war has; rather than inviting outside scrutiny, Georgian authorities for years undertook just enough investigative activity to ward off the ICC’s intervention; and Russia’s international standing was less compromised in 2008 than by the time of the 2022 invasion. But whatever accounts for the posture of the U.S. and European governments, they missed opportunities to shore up the tenuous prospects for justice.

Once the ICC prosecution began the Georgia investigation in 2016, it took an extraordinarily slow approach, waiting six years before finally making its first move in the courtroom this spring. No government forced that approach on the court, but many of the European states that are among its members kept the ICC’s budget largely static at a time when it needed resources to conduct new investigations such as this one. And none of these states seem to have signaled the court they would give it diplomatic backing if it took an unprecedented step like prosecuting officials from a major world power or a close Western partner.

In turn, as the ICC’s seeming inactivity bred confusion and disappointment for victims and other Georgians, outside states did little to help build understanding and support for the court’s work. In at least one case, they actively worsened the problem: when the Trump administration in 2020 baselessly announced that the ICC was corrupt and threatened to dissolve it with financial sanctions, many Georgians accepted the U.S. accusations and began to call the ICC prosecutor corrupt and incompetent. More passively, these governments have said little to push back on claims by Georgian authorities or other critics that domestic advocates were disloyal for insisting that all parties to the 2008 war be investigated.

Finally, these governments missed an opportunity to signal to Russia that the ICC’s scrutiny would be a real factor in their policy. U.S. Secretary of State Antony Blinken is certainly right to warn now that “allowing grave abuses in Ukraine to go unpunished will not only embolden the Kremlin, but brutal regimes everywhere.” It would have been wise to make this point and send dissuasive signals years earlier, especially in a context like Georgia where Russia and its local allies had already deployed criminal methods within the ICC’s jurisdiction.

Perversely, Russia’s invasion of Ukraine has now created a new opening to do that. The current ICC prosecutor, Karim Khan, seemingly spurred by the need to show that his threats of accountability in Ukraine were not idle, finally gave the shapeless Georgia investigation some form by publicly requesting the three arrest warrants in early March. Prosecuting these three individuals would hardly represent a full accounting for the abuses of the 2008 war if, as the court’s budgeting documents suggest, the prosecutor has no near-term plans to pursue additional cases. Still, the new charges have created an opening to support justice that European governments and the United States should not miss.

The U.S. government appears to have acknowledged the Georgia investigation for the first time in a joint statement last month with several U.N. Security Council members that are members of the ICC. But they should all go further. To complement the ICC’s limited assistance work, which focuses primarily on providing medical treatment, trauma counseling, and other rehabilitation, they should help victims and communities who lost everything in the war develop income-generating activities as well. They should belatedly give the Georgia investigation attention and explicit support in the Human Rights Council and at this year’s meeting of the ICC Assembly of States Parties.

For its part, the United States has a unique ability to help encourage the arrest of the three new fugitives, as difficult as that may prove. Unlike the ICC’s own member states, the U.S. government has the legal authority to offer monetary rewards for information on the whereabouts of ICC fugitives, which in the case of the three South Ossetians do not appear to be widely known.

At least one of the three fugitives, South Ossetia’s then-interior minister Mikhail Mindzaev, appears to have Russian nationality and not Georgian. That could implicate the historical U.S. objection to the ICC investigating an individual from a country that is not an ICC member state for crimes committed in a country that is. But if the Biden administration has meant what it said about supporting the ICC’s Ukraine investigation – another effort that unavoidably presents the issue of Russian exposure to the court – then it should be able to support the cases against all three of the Georgia fugitives with a reward offerAdding the fugitives to one of the State Department’s entry-ban lists would be another way to show victims and perpetrators that Georgia’s partners are taking the ICC’s investigation seriously, even if the three are not likely to try visiting the United States.

As for the ICC, the prosecutor should not simply draw a line under the Georgia investigation, as if it served its purpose merely by signaling the court’s seriousness in Ukraine. The prosecutor should pursue state cooperation to carry out the three arrest warrants. He should continue the investigation, focusing on crimes against humanity as well as war crimes, regardless of which party was responsible. If he develops evidence that supports charges against other perpetrators – as some of his submissions to the court suggest he may have – he should bring those charges. Most of all, the prosecutor should visit Georgia, meet with victims and civil society, and communicate with them about recent developments and likely next steps, as he recently has done in several other situations under ICC investigation.

For better or worse, governments will have a major say in what impact the ICC’s Georgia prosecutions ultimately have. Their support can help show victims of the 2008 war that their humanity and their suffering are being recognized after years of neglect. And it can show present-day perpetrators in Ukraine that today’s talk of accountability stands a chance of turning into tangible consequences.

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  • Adam Keith

Published on October 6, 2022

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