This raises a number of questions: Why did the court decide to open an investigation outside Africa now? Who will be targeted for prosecution? And what could be the fallout for the states involved in the 2008 war?
The ICC continues to suffer from the widespread perception that it is biased against African states. Prior to its intervention in Georgia, every official investigation launched by the court was in Africa. Despite the fact that African states themselves have requested the majority of these interventions, African leaders have labeled the ICC a “race hunting” institution and a “tool of Western imperialism.” African states and the African Union have consistently — and increasingly — threatened to withdraw from the court. Even its most traditionally staunch supporters, like South Africa, are reconsidering their relationship with the ICC. It may be tempting to conclude that the ICC opened an official investigation in Georgia to combat perceptions that it is biased against Africa. That, however, would be wrong.
Only the most cynical observer would suggest that the ICC identified Georgia as its road out of Africa. Not only would such a strategy be too risky and brazen for a generally cautious court and a prosecutor, but it would also make very little sense given the timeline of decisions made at the court. As Alex Whiting, a former member of the ICC’s Office of the Prosecutor and currently a professor of practice at Harvard Law School, writes: “If the Prosecutor simply wanted to use the Georgia case to get out of Africa or to take on a major power, she could have done so years ago. … A prosecution strategy that simply tried to respond to criticisms from the outside, many of which are politically motivated, would be doomed to fail.” So why Georgia — and why now?
The decision to intervene in Georgia is likely due to a confluence of factors. First, the court had the 2008 war under preliminary examination for nearly half a decade. Had Georgia demonstrated that it was willing to investigate, and potentially prosecute, the crimes itself, it could have foreclosed any ICC intervention. However, when Tbilisi ended its investigations into the alleged crimes perpetrated in 2008, it became untenable for the ICC to simply keep those crimes under examination indefinitely. Second, for an institution that seeks to command relevancy in international politics, it certainly does not hurt that there is a broader narrative vilifying Moscow and its role in the region. Whether or not the court targets Russian officials, investigating Russian conduct captures that broader, if not always helpful, international narrative condemning Russian aggression.
Even if it wasn’t the court’s intention, will the court’s decision have the effect of changing perceptions of the ICC as being overly focused on Africa? The short answer is no. It would be unwise for the court or its champions to insist that its investigation in Georgia proves it is not biased, as doing so would seem to imply that it previously was. At the same time, the anti-ICC zeal of certain African states is showing no signs of abating. In recent days, a number of African states, including Kenya and South Africa, have once again reiterated their disappointment in the institution. While anti-ICC African statesmen may no longer be able to say that the ICC is solely focused on Africa, only one country outside it won’t change their argument much. The crux of the relationship between Africa and the ICC isn’t one based solely on facts; it is as much a matter of spin and public relations as anything.
More generally, the court’s intervention in Georgia won’t change the view that the court works in the favor of Western states. Even if Georgia is an ostensible ally of the United States, the Caucasus region is rarely, if ever, considered Western. If Russia doesn’t approve of the direction of the court’s investigation, it will likely ally with African leaders deriding the ICC as a tool of the powerful West. Russia’s rhetoric is already hinting at such a position. According to a foreign ministry spokesperson, Moscow is convinced that “the ICC prosecutor has placed the blame with South Ossetians and Russian soldiers, taken the aggressor’s side, and started an investigation aimed against the victims of the attack.” Despite not being an active member of the court, the spokesperson added that Russia will consequently “be forced to fundamentally review its attitude towards the ICC.” But, as Russia revs its anti-ICC engines, it remains unclear whether Moscow and its clients in South Ossetia will be the primary targets of the court’s investigation.
Whom prosecutors target is largely determined by the cooperation of states. Put simply, states cooperate in order to implicate their adversaries while those actors that the court depends on for such cooperation tend to be shielded from prosecution. In Georgia all sides have nominally committed to cooperating with the court. Tea Tsulukiani, Georgia’s minister of justice, has confirmed that Tbilisi “will continue to actively cooperate [with the court] … in line with Georgia’s national interests.” Despite its reservations, Russia has also stated that it will cooperate with the ICC’s investigation and has already sent investigators 30 volumes of documents. Moscow’s allies in South Ossetia have taken a similar position, insisting that while they believe the investigation is “bound to be biased … the republic is ready to support impartial and professional investigation.” While it is unclear what evidence each of the belligerents to the 2008 war will provide, they are undoubtedly submitting evidence that incriminate each other. The result may be that the court does what it has rarely done before: target all sides of the war.
The ICC has only targeted all sides of a conflict once before in Kenya, where it looked at both sides of the 2007 to 2008 post-election violence. Since then, the ICC’s primary suspects, Uhuru Kenyatta and William Ruto, allied to become president and deputy president, respectively, and most of the court’s Kenya cases have collapsed. How the ICC navigates the political minefield of targeting all sides will go a long way to determining whether and how the institution manages to effectively mete impartial justice in the wake of violent political conflicts.
The ICC’s investigation in Georgia will also be telling for a host of other reasons. How will the institution treat the territory of South Ossetia — as a self-professed independent republic or as part of Georgia? How will Tbilisi’s Western allies, especially the United States, react to the court’s investigation? Will Mikheil Saakashvili, the former Georgian president and staunch ally of the United States, be implicated? Could Saakashvili — now a governor in Eastern Ukraine facing corruption and abuse of power charges in Georgia — become a scapegoat for his adversaries in Tbilisi? Only time will tell. But the drama, for all of the actors involved, has only just begun.