Int’l Criminal Court Opens Field Office in Georgia, Led by Head of Office Dr Kaupo Kand

Exclusive interview

The Office of the Prosecutor (OTP) opened a preliminary examination on the situation in Georgia in August 2008. In January 2016, the Pre-Trial Chamber authorized the Prosecutor to proceed with an investigation into crimes within the ICC jurisdiction, in particular war crimes and crimes against humanity, that were allegedly committed in and around the Tskhinvali region 1 July – 10 October, 2008. The ICC seeks to bring justice for victims on all sides, and to ensure that the alleged most serious crimes committed in Georgia during the August 2008 war do not go unpunished. In the interest of victims on all sides it is important that the ICC has access to alleged crime scenes and victims on all sides. The ICC does not substitute national courts, but complements them. The Court has 18 independent international judges who are elected by the Assembly of States Parties (ASP) and led by the President of the Court. The Prosecutor, who is also elected by the ASP, carries out investigations in an independent, impartial and objective manner. Although the OTP and the Registry maintain close coordination within the remits of their respective mandates, the ICC Country Office, whose mandate it is to maintain contact with all parties to the conflict, falls under the auspices of the Registrar who is not involved in on-going investigative work: it is a neutral part of the Court providing diplomatic, administrative, and logistical support to various clients of the Court. In addition, there is an independent institution within the ICC framework called the Trust Fund for Victims that supports and assists victims and conflict affected population in situation countries.

In 2018, the ICC and its States Parties celebrate the 20th anniversary of the Rome Statute, its founding treaty, and Georgia, a state party, celebrates the 15th anniversary of its ratification of this treaty.

GEORGIA TODAY spoke to the ICC’s Representative in Georgia, Dr Kaupo Kand, to find out more.

What’s the main message and the significance of the ICC Country Office opening in Georgia?

The main message is that the 2008 conflict and victims of that conflict are important for the international community in general, and for the ICC in particular. This is our 1st field office outside Africa and hence concretely shows that the ICC is active and carrying out investigations not only in Africa. We opened our field office here in December. It’s important to carry out outreach activities, to talk to the victims of the conflict, talk to the general public, state institutions, academia, diplomatic community, international organizations, and so on. Regarding the ICC’s mandate, the ICC Country Office is under the Registry and thus is a neutral part of the Court which provides diplomatic, administrative and logistical support to various organs and clients of the Court. The on-going investigative activities, however, are carried out by the Office of the Prosecutor (OTP) in a confidential manner and thus is independent of public outreach and engagement. The ICC’s judgements are delivered by the judges in Chambers. An independent Trust Fund for Victims carries out reparations and provides assistance to victims and the conflict-affected population.

Seeing as Russia did its utmost to see the OSCE and UN ceasefire monitoring missions out of Georgia, don’t you fear the same fate?

The ICC is set up by more than 120 countries and its judges and prosecutors act in full independence and impartiality. The Russian Federation is not party to the Rome Statute. While the Russian Federation signed the Statute, it withdrew its signature in 2016. So, Russia is a non-state party. Russia is not funding the court and the ICC needs no authorization from Russia to operate outside Russia. Of course, if Russia becomes a state party, if it signs and ratifies the Rome Statute, that might change the situation from the administrative point of view. One should emphasize that the ICC is a judicial institution with an exclusively judicial mandate. It is not subject to political control or influence. The Country Office is the Court’s interface for outreach with all parties to the conflict. If you look at the ICC, we’re talking about more than 120 countries, it’s all around the world - African continent, Europe, Americas, Asia Pacific, it is really, truly, an international organization and independent Court.

What is your take on the brief but violent conflict that occurred in 2008? How much do you buy into the narrative that the conflict was provoked by Georgia?

The ICC solely investigates crimes that fall within its jurisdiction. Political issues, territorial disputes, and the question of who provoked or started the conflict, fall outside of the Court’s mandate. These are political and diplomatic questions for historians, academics and experts to study. The Court seeks to ensure, jointly with the relevant national jurisdictions, that the most serious crimes committed in each situation do not go unpunished. It primarily investigates and prosecutes those who bear the greatest responsibility for such crimes, regardless of his/her nationality.

In the situation in Georgia, the OTP is authorized to investigate war crimes and crimes against humanity, including murder, forcible transfer of population and persecution, attacks against civilian population and peacekeepers, willful killing, destruction of property and pillaging, which were allegedly committed between 1 July and 10 October 2008.

What’s the current progress of the investigation?

Just to clarify before answering this question that that the ICC field office and I represent the Registry of the Court. The Court has different organs. The investigation is carried out by the ICC Office of the Prosecutor (OTP) and not by the Registry. As you know, the preliminary examination started in mid-August 2008, and in January 2016, the Pre-Trial Chamber decided to authorize the Prosecutor to start an investigation into the situation in Georgia. As I mentioned earlier, this investigation is confidential, like any other criminal investigation, and the OTP does not share details of ongoing investigations and their possible results. That said, the investigation is progressing at full speed and OTP staff are deploying very often to the field in furtherance of the investigation. The most important part for the Prosecutor is to try to establish the truth about alleged crimes committed during the 2008 conflict, and, of course, to bring justice to the victims on all sides. If and when the OTP determines that it has sufficient evidence to prove that an individual is responsible for a crime in the Court's jurisdiction, the Office presents this information to a panel of judges who will independently and impartially assess whether the evidence meets the legal threshold of the Statute. The burden of proving that someone committed Rome Statute crimes is with the Prosecutor.

As Russia has opted not to cooperate with the investigation, what are the chances of it being considered legitimate and not being labeled as one-sided?

As this falls under the mandate of the Office of the Prosecutor, I can of course provide only a limited response. I represent the Registry’s office, which is responsible for the operational, administrative part of the court. Our main task is to carry out outreach activities and to support various organs of the court including here, in Georgia. Of course, all ICC organs encourage state parties, but also non-state parties to cooperate fully with the Court in the interest of the victims. So, in order to bring justice to the victims, cooperation is an important aspect. The ICC itself has no police force; it has no kind of enforcement powers. So, on many aspects of Court’s activities, it depends on cooperation by the state parties and also by non-state parties and international organizations. As regards the ongoing investigation, the OTP has repeatedly underscored that it attaches great importance to securing cooperation by all parties to the conflict and that it continues its proactive outreach efforts to all sides, including the Russian Federation and South Ossetian region de facto authorities. The OTP has also made it clear that the investigation will continue at full speed. Difficult relations regarding cooperation are not unique to the Georgia situation and such difficulties have been addressed successfully in other investigations the past.

And on the other hand, if it says at the end that, for example, what Georgians saw and experienced was not real, what do you think the reaction would be?

Based on preliminary examination and upon the decision of the Chamber to open an investigation in Georgia, the ICC prosecutor office and judges believed that there is enough evidence to start the investigation in Georgia. Otherwise it would not have started. It is an independent international criminal court and therefore one should not speculate about the final outcome. The key is to let the investigation run its course and allow the OTP to carry out its work in accordance with its mandate. If and when it is determined that sufficient evidence has been collected, the information is presented to the judges. At the ICC, international independent judges assess the collected and presented evidence, and then issue a judgment. At the end, the Chamber, i.e. the independent judges, makes the final decision on the guilt or innocence of individual perpetrators for alleged crimes. It will take as long as needed to gather the required evidence. There is no specific timeline for the investigative process in this sense in the ICC legal texts.

Vazha Tavberidze