Unable or Unwilling? georgia's faulty investigation of crimes ...

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Unable or Unwilling? georgia's faulty investigation of crimes ...

Summary and ConclusionsAlmost three years have passed since the armed conflict between Georgia and Russiain August 2008. Evidence from a wide range of sources indicates that grave crimesoccurred during the conflict, including war crimes and crimes against humanity.The International Criminal Court (ICC) has decided that these crimes fall under itsmandate and is currently monitoring domestic investigations of crimes in Georgiaand Russia 1 . If the Court finds that the parties are unable or unwilling to effectivelyinvestigate, the Court may assume jurisdiction and open an investigation. Althoughthe parties claim that investigations are ongoing and effective, doubts persist aboutboth their ability and willingness to effectively investigate.As both parties are unable to investigate on the other’s territory, and as they are unableto cooperate meaningfully with regard to the investigation, there are from the outsetserious obstacles to an effective investigation. Another impediment is that at least oneof the parties denies having committed any crimes, and both attribute responsibilityfor various grave crimes mostly to the other party. While Georgia has openedinvestigations in at least seven cases where the alleged perpetrators are Georgianservicemen, the position of Georgia that “the Georgian response to the Russian armedattack was confined entirely to its own sovereign territory, was reluctantly undertaken,and was a proportionate, necessary and wholly justified exercise of its customary andCharter right to use force in self defense” is not conducive to an unbiased and effectiveinvestigation.In letters sent to GYLA from the Russian General Prosecutor’s Office, it is statedthat Russia only investigates crimes against Russian peacekeeping servicemen andRussian nationals. This approach would make the Russian investigation even morelopsided than the Georgian investigation, but is in line with Russian position on thewar expressed in the Tagliviani Report: “the Russian side never attacked the localpopulation or any civilian facilities.”Given these obstacles, domestic investigations can only proceed within very narrowparameters: Each on their own territory, each the other’s crimes. Even within theseparameters, however, there are grounds for concern that the authorities are notinvestigating effectively. Given the legacy of impunity in relation to armed conflict inthe Caucasus, this is unfortunate, but not very surprising.1 See for instance this press release from the Office of the Prosecutor in June 2010,http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/press%20releases%20(2010)/pr551(Unable or unwilling?) 1

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