The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

The ICC Prosecutor to investigate the situation in Georgia: An opportunity to revive the EU Fact-Finding Mission Report?

So last Wednesday the ICC Pre-Trial Chamber I authorised the Prosecutor to proceed with an investigation for the crimes within the ICC jurisdiction, allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008.

Among the many legal, policy and strategic implications of this first non African ICC investigation (see for example here, and here), a less prominent one is the extent to which the Report of the Independent International Fact-finding Mission on the Conflict in Georgia (IIFFMCG) could be revived and contribute to the next stages of the ICC proceedings. Indeed generally speaking, so far this Report has not been used much, despite providing an objective account of the facts against the numerous claims made by all parties to the conflict.

A notable exception might be for the ICC though. Given the low evidentiary threshold required for an authorization to be granted to the ICC Prosecutor, materials such as reports of fact-finding missions tend to have a useful probative value at that stage. In that regard the ICC Prosecutor relied heavily on the IIFFMCG Report in her Request for authorisation of an investigation pursuant to article 15 on the situation in Georgia to conclude that there was a “reasonable basis to believe crimes within the jurisdiction of the Court have been committed in relation to certain alleged offences, in particular those relating to the alleged forcible displacement of ethnic Georgians by South Ossetian forces, and the alleged intentional directing of attacks against peacekeepers and peacekeeping facilities” (para. 45). The request also noted that “the information available is insufficient to enable a determination in relation to other crimes allegedly committed by the parties to the conflict”.

More interestingly, the ICC Prosecutor’s request sheds some light on the use of fact-finding missions reports for ICC proceedings, even when such reports are unable to make a definitive factual finding on a given alleged violation. For example regarding the claim of deliberate targeting of Georgian and/or Russian peacekeepers (see this great post for an overview of the issue), the ICC Prosecutor noted that various reports, including that of the IIFFMCG (para. 171), could not corroborate whether the peacekeepers lost their entitlement to protection. She however concluded based on “the low threshold applicable at this stage of the procedure, and the presumption of civilian character that governs the application of the law in case of doubt” that “there is a reasonable basis, at this stage, to believe that the war crime of intentionally directing an attack against personnel and objects involved in a peacekeeping mission has been committed” (para 11).

On the contrary, with regard to some of the alleged intentional attacks against civilians and civilian objects or disproportionate attacks, the Prosecutor found that the available information was not sufficient at this stage to meet that low standard of proof (paras. 205-208), claims for which the IIFFMCG could not reach a definite conclusion either.

Now it is expected that as the investigation proceeds, the IIFFMCG report could still be useful for certain aspects, such as the Mission’s findings on the various patterns of violence, including torching and looting houses in Georgian ethnic villages, during and after the conflict, where the IIFFMCG noted that “patterns of violence differed depending on the area concerned” and that “[t]he most extensive destruction and brutal violence seem to have taken place in South Ossetia, with certain characteristics that appear to be different from what happened in the buffer zone” (pp. 353 and 369 of the IFFMCG Report).

Let me finish by an anecdotal but important point. You may wonder why I have not made reference to the official IIFFMCG webpage in this post. Unfortunately the website of the Mission has been down for a year or so, which may be in itself a key obstacle for the work of the IIFFMCG to contribute to an historical objective account of what happened in Georgia in 2008.

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