After three months of deliberations, judges at the International Criminal Court (ICC) have finally approved the opening of an official investigation into the 2008 war in Georgia. Prosecutors will focus on the ethnic cleansing of Georgians from the breakaway region of South Ossetia, as well as an attack by Georgian forces on a Russian peacekeeping base. The ICC’s intervention into the conflict between Georgia, Russia and Moscow-backed belligerents in South Ossetia represents the court’s first investigation into a situation outside the African continent. It also marks the first time that the alleged crimes of a major power, Russia, will be placed under official investigation by the court’s prosecutors.
This raises a number of questions: Why did the court decide to open an investigation outside Africa now? Who will be targeted for prosecution? And what could be the fallout for the states involved in the 2008 war?
The ICC continues to suffer from the widespread perception that it is biased against African states. Prior to its intervention in Georgia, every official investigation launched by the court was in Africa. Despite the fact that African states themselves have requested the majority of these interventions, African leaders have labeled the ICC a “race hunting” institution and a “tool of Western imperialism.” African states and the African Union have consistently — and increasingly — threatened to withdraw from the court. Even its most traditionally staunch supporters, like South Africa, are reconsidering their relationship with the ICC. It may be tempting to conclude that the ICC opened an official investigation in Georgia to combat perceptions that it is biased against Africa. That, however, would be wrong.
Only the most cynical observer would suggest that the ICC identified Georgia as its road out of Africa. Not only would such a strategy be too risky and brazen for a generally cautious court and a prosecutor, but it would also make very little sense given the timeline of decisions made at the court. As Alex Whiting, a former member of the ICC’s Office of the Prosecutor and currently a professor of practice at Harvard Law School, writes: “If the Prosecutor simply wanted to use the Georgia case to get out of Africa or to take on a major power, she could have done so years ago. … A prosecution strategy that simply tried to respond to criticisms from the outside, many of which are politically motivated, would be doomed to fail.” So why Georgia — and why now?
The decision to intervene in Georgia is likely due to a confluence of factors. First, the court had the 2008 war under preliminary examination for nearly half a decade. Had Georgia demonstrated that it was willing to investigate, and potentially prosecute, the crimes itself, it could have foreclosed any ICC intervention. However, when Tbilisi ended its investigations into the alleged crimes perpetrated in 2008, it became untenable for the ICC to simply keep those crimes under examination indefinitely. Second, for an institution that seeks to command relevancy in international politics, it certainly does not hurt that there is a broader narrative vilifying Moscow and its role in the region. Whether or not the court targets Russian officials, investigating Russian conduct captures that broader, if not always helpful, international narrative condemning Russian aggression. Continue reading