The ICC’s Investigation into the Situation in Georgia: Legal and Evidentiary Issues Prof. Kevin Jon Heller Professor of Criminal Law, SOAS, University of London Principal Fellow, Melbourne Law School Academic Member, Doughty Street Chambers 1

Outline of Presentation 1.Current Procedural Situation 2.Key Legal and Evidentiary Issues 3.Principle of Complementarity 2

Rome Statute, Art. 15(4) If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 3

Phases of Conflict 1.August 7-8: hostilities between Georgia and South Ossetia. 2.August 8-10: hostilities between Georgia and South Ossetia and between Georgia and Russia. 3.August 12-October 10: no active hostilities; Russian forces in South Ossetia and parts of Georgia. Note: No armed conflict July 1-August 7. 4

Request, ¶¶ 71, 72 [71] In particular, with respect to the time period preceding Russia’s direct military intervention in Georgia on 8 August, the information available suggests that the Russian authorities were already involved in organising, planning and coordinating South Ossetian forces with a sufficient level of overall control to render the armed conflict between Georgia and the South Ossetian de facto authorities international. [72] In relation to the period after the cessation of hostilities, from 12 August until at least 10 October 2008, Russian armed forces continued to occupy portions of Georgian territory both inside South Ossetia and outside of it in the so-called “buffer zone” 20km beyond the administrative boundary of South Ossetia. 5

Request, ¶ 87 Under this criterion, ‘overall control’ by a foreign state must comprise more than the mere provision of financial assistance or military equipment or training. This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. It may be considered to be met “when a State... has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. 6

Request, ¶ 93 This level of control was reflected in the organisational links between the Russian armed forces and South Ossetian forces at the time. Already before the outbreak of the 2008 armed conflict, the core of the South Ossetian de facto military, security and intelligence apparatuses was composed of Russian representatives or ethnic Ossetians of Russian nationality who previously served in similar posts in Russia. The information available indicates that some of these individuals returned and/or were appointed to high-ranking posts in the Russian administration after the conflict. 7

Request, ¶ 88 In Tadic, the Appeals Chamber... emphasised the existence of a chain of command between the FRY/VJ and the VRS, encompassing, in the first place, shared leadership, structures and ranks as well as the same sources of payment of officers and commanders. 8

Request, ¶¶ 92, 100 [92] The IIFFMCG defined Russia’s indirect influence in the lead-up to the 2008 conflict as being “so decisive and exercised on systematic and permanent basis”, that the South Ossetian leadership was not “effective” on its own. [100] The IIFFMCG concluded that Russia supported South Ossetian forces in numerous ways, including by training, arming and equipping them. 9

Request, ¶ 97 The available information indicates numerous instances, mostly occurring between August and October 2008, demonstrating military coordination or operational links between Russian armed forces and South Ossetian forces, especially in the context of the attacks reportedly perpetrated by the latter against villages inhabited by ethnic Georgians. Notably, the Russian armed forces appear to have provided operational and logistical support to South Ossetian forces, including by means of aerial bombardment in advance of South Ossetian military operations, as well as transportation. 10

Rome Statute, Art. 8(2)(b)(ii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict. 11

Peacekeeper Requirements 1.They must operate with the consent of the parties. 2.They must act impartially. 3.They must not use force except in self-defence. 12

Rome Statute, Art. 8(2)(b)(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 13

Rome Statute, Art. 8(2)(b)(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives. 14

Elements of Art. 8(2)(b)(ii) 1.The perpetrator directed an attack. 2.The object of the attack was civilian objects, that is, objects which are not military objectives. 3.The perpetrator intended such civilian objects to be the object of the attack. 15

Pre-Trial Chamber, Gaddafi 85. The Chamber is of the view that the assessment of domestic proceedings should focus on the alleged conduct and not its legal characterisation. The question of whether domestic investigations are carried out with a view to prosecuting "international crimes" is not determinative of an admissibility challenge. 88. It follows that a domestic investigation or prosecution for "ordinary crimes", to the extent that the case covers the same conduct, shall be considered sufficient. 16

Appeals Chamber, al-Senussi 219. Indeed, the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights.... This would necessarily involve the Court passing judgment generally on the internal functioning of the domestic legal systems of States in relation to individual guarantees of due process. Had this been the intention behind article 17, the Appeals Chamber would have expected this to have been included expressly in the text of the provision. 17