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Annex E.4.17 Public ICC-01/15-4-AnxE.4.17 13-10-2015 1/27 EK PT Annex E.4.17 Public ICC-01/15-4-AnxE.4.17 13-10-2015 2/27 EK PT ICC-01/15-4-AnxE.4.17 13-10-2015 3/27 EK PT The Norwegian Helsinki Committee (NHC) has worked closely with many Georgian and international human rights groups in documenting and reporting about crimes committed during and after the 2008 war. Three Georgian human rights groups have contributed with research for this report, namely Article 42, Georgian Young Lawyers' Association (GYLA) and Georgia's Human Rights Center (HRC). However, responsibility for analyses and conclusions rests with the NHC. Data for this report was collected in November and December 2010 by the following researchers: Nino Doliashvili, Dato Gioshvili, Neli Kareli, Nino Qurasbediani, Qeri Saraji (all from Article 42); Nino Jomaridze (from GYLA); Shorena Latatia, Nika Legashvili, Giorgi Margiani, Saba Tsitsikashvili (all from HRC); Aage Borchgrevink and Simon Papuashvili (both from the NHC). The report was written by Aage Borchgrevink and Simon Papuashvili, and edited by Aage Borchgrevink and Gunnar M. Ekeleve-Slydal (from NHC). \ GEO-OTP-0005-0739 111111111111111 m11 m111111 ICC-01/15-4-AnxE.4.17 13-10-2015 4/27 EK PT Summary and conctuslons Almost three years have passed since the armed conflict between Georgia and Russia in August 2008. Evidence from a wide range of sources indicates that grave crimes occurred during the conflict, including war crimes and crimes againsl humanity. The International Criminal Court (ICC) has decided that these crimes fall under its mandate and is currently monitoring domestic investigations of crimes in Georgia and Russia1• If the Court finds that the parties arc unable or unwilling to effectively investigate, the Court may assume jurisdiction and open an investigation. Although the parties claim that investigations are ongoing and effective, doubts persist about both their ability and willingness to effectively investigate. As both parties are unable to investigate on the other's territory, and as they are unable to cooperate meaningfully with regard to the investigation, there are from the outset serious obstacles to an effective investigation. Another impediment is that at least one of the parties denies having committed any crimes, and both attribute responsibility for various grave crimes mostly to the other party. While Georgia has opened investigations in at least seven cases where the alleged perpetrators arc Georgian servicemen, the position of Georgia that "the Georgian response to the Russian armed attack was confined entirely to its own sovereign territory, was reluctantly undertaken, and was a proportionate, necessary and wholly justified exercise of its customary and Charter right to use force in self defense" is not conducive to an unbiased and effective investigation. In letters sent lo GYLA from the Russian General Prosecutor's Office, it is stated that Russia only investigates crimes against Russian peacekeeping servicemen and Russian nationals. This approach would make the Russian investigation even more lopsided than the Georgian investigation, but is in line with Russian position on the war expressed in the Tagliviani Report: "the Russian side never attacked the local population or any civilian facilities." Given these obstacles, domestic investigations can only proceed within very narrow parameters: Each on their own territory, each the other's crimes. Even within these parameters, however, there are grounds for concern that the authorities are not investigating effectively. Given the legacy of impunity in relation to armed conflict in the Caucasus, this is unfortunate, but not very surprising. \ GEO-OTP-0005-07 40 \ 1111\\ lllt \II\\ l\lll ll\lll Ill llll 1 See for instance this press release from the Offic.e of the Prosecutor in June 2010, hup://www.icc-cpi.intlmPnus/it:c/press%20and%20media/press%20releases/press%20rclcases%20(2010)/pr551 [Unable or unw Hing?) 1 ICC-01/15-4-AnxE.4.17 13-10-2015 5/27 EK PT This report looks at the state of Georgia's investigation. One section of the report deals with Georgia's legal obligation to investigate grave crimes, which is stated clearly in both domestic and international law. The next section describes the role of the ICC in relation to the 2008 war, and the Court's dealings with the state parties concerned. The court is monitoring domestic investigations. However, at some point it will have to decide whether or not it wants to get directly involved. In addition to seeking out information from the authorities, in order to assess the Georgian investigation, research teams have conducted spot checks at some of the sites of alleged crimes in 2008, and interviewed 244 applicants to the European Court of Human Rights with complaints relating to the 2008 war. All of the applicants and other interviewees were alleged victims of Russian and South Ossetian perpetrators. Research was done in November and December 2010. The findings resulting from this three-pronged method of gathering information give grounds for certain conclusions. The fact that the Georgian authorities mostly deny that war crimes may have been committed by their side, has blindsided the investigation from the outset. There are credible reports of war crimes committed by the Georgian side, especially during the attack on Tskhinvali in the period from 6 to 7 August 2008. Legal amendments to the General Administrative Code of Georgia introduced in July 2010 have curtailed public access to information about dealings with international tribunals, including the ICC, in a manner that seems to run against the idea of accountability for crimes and public scrutiny of the process of accountability. The amendments may have been the reason that Georgian justice authorities have not responded Lo our requests for information and meetings in the fall of 2010. The fact that Georgian investigators are unable to access South Ossetia, where the most serious crimes were committed, and investigate there and in Russia, where arguably the main perpetrators of crimes are located, makes Georgia unable, even if it was willing, to effectively investigate some of the most serious allegations stemming from the 2008 war. Moreover, the results from interviewing witnesses to and victims of grave crimes who had submitted complaints to the European Court of Human Rights, and who had in effect some of the most compelling and well-documented cases relating to international crimes, give grounds for serious doubts about the nature of the on-going Georgian investigation. • Lack of transparency/updated information about the investigation. None of the respondents reported receiving news about the progress of the investigation. • Lack of investigative measures, such as crime scene investigations, collecting forensic and medical evidence, etc. Even granted that steps may have been taken GEO-OTP-0005-07 41 2 IREPORT 2"20111 ll 111\\ \II~ llll\l\lll U\\ \IU ICC-01/15-4-AnxE.4.17 13-10-2015 6/27 EK PT without the interviewees being informed, only 3% reported that other steps than questioning had taken place, and no one knew about any crime scene investigation. • Low number of applicants (26%) had been contacted and questioned by the police. The group that contradicts this general scheme, are the hostages, who were held together in a prison in Tskhinvali, South Ossetia, for most of August 2008. The hostage situation was a high profile media case al the time, and most of these people (94%) were interviewed immediately upon their return to Georgia. If one excludes this group, only 13% of the other applicants report being contacted by police. • The crimes prioritized by the investigation are 1) hostage laking (with 94% of interviewees contacted and questioned}, 2) killings (37%, of the applicants with right to life complaints reported being contacted), J) torture/inhuman treatment (with 5°1<1 of applicants contacted), and lastly 4) forced eviction/property loss (3% contacted). Given that most of these 244 applicants probably are not only victims, but also witnesses to grave crimes, and that one would expect at least some of them to have useful information concerning perpetrators, both Russian military and South Ossetian paramilitary commanders, soldiers and command structures, the fact that only 13% of them (excluding the hostages, which is a somewhat different case) report being contacted, is revealing. Another aspect of the results is the temporal dimension. Only a few interviews have been added after the initial burst of investigative activity in August/September 2008 (when the hostages were questioned). While 69% of witness interviews were conducted in August/September 2008, only 6% and 16% respectively of the interviews were conducted in 2009 and 2010. It would seem that the slow pace of the investigation poses the question of whether the adequate resources have been allocated to this demanding and extraordinary task. Overall, it would seem that the information provided by the survey of the ECHR applicants indicates that the Georgian authorities are at least both partly unable and partly unwilling lo conduct an effective investigation into international crimes allegedly committed during and after the August 2008 war, in the sense described in Art 17 (3) of the Rome Statute: "The proceedings ... were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. " GEO-OTP-0005-07 42 1111~1 IUI lrnl 11111 ~1111111111 (U,abie or unwilling?) 3 ICC-01/15-4-AnxE.4.17 13-10-2015 7/27 EK PT Contents Summary and Conclusions .....................•..•...............................................•......... 1 Introduction 5 The August 2008 War 5 NHC and the Georgian Coalition for the International Criminal Court 5 The need for a proper investigation 6 Georgia's Obligation to Investigate Crimes of International Character 8 Georgian Legislation 8 Obligation to Investigate under International Law 9 Georgia and the International Criminal Court .............................................•....
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