International Criminal Court Prosecutor Fatou Bensouda arrived in Georgia on October 16 to test the ground for a pending investigation into what she “reasonably believes” are war crimes committed during the 2008 war between Georgia and Russia. The list includes the mass expulsion of ethnic Georgians from the war’s main battleground, separatist South Ossetia.
“The goal of this examination is to carefully assess whether or not as a prosecutor of the International Criminal Court I should proceed with an investigation of alleged crimes committed during the  conflict,” Bensouda told a briefing in Tbilisi.
Her office’s preliminary probe already has “identified war crimes and crimes against humanity that the court has the powers to prosecute; in particular, the killing, displacement and prosecution of ethnic Georgian civilians and and destruction and pillaging of their property by South Ossetian forces, with possible participation of Russian forces.”
The expulsion of an estimated 15,000 ethnic Georgians from South Ossetia, roughly 75 percent of the separatist region’s ethnic Georgian population before the war, “constitutes a crime against humanity and is undoubtedly very grave,” said Bensouda in an earlier video statement.
Georgian officials welcomed the prosecutor’s mission, even though Georgia is also likely to be investigated for war crimes if the ICC’s judges authorize a full investigation of the conduct of all three sides to the conflict — Russia, Tbilisi and South Ossetia.
Among the possible trouble areas — Georgian forces’ attacks against Russian peacekeepers, and South Ossetian fighters’ attacks against Georgian peacekeepers, Bensouda added.
Both Russia and Georgia are pressing the Court to look into additional alleged crimes, as well. Georgian Justice Minister Tea Tsulukiani said that her office will push for including the torture and killing of Georgian servicemen in the investigation.
Russia’s foreign ministry said that it would cast a pall on the reputation of the ICC if the investigation fails to look into what Moscow alleges was the mass murder of South Ossetians. An European-Union sponsored investigation found these Russian claims wildly exaggerated, but it did fault Georgia for an artillery attack on the South Ossetian capital, Tskhinvali.
After years of blaming and counter-blaming, the ICC, as a court of last resort, argues that it stepped in because neither Georgia, nor Russia conducted an effective investigation of their own. Russia is not a party to the ICC, but Georgia is. Bensouda claims that since all crimes were committed on Georgian territory, actions during the war fall under the ICC’s jurisdiction.
Georgia dropped its investigation in 2010. Justice Minister Tsulukiani said that Tbilisi’s investigative options are limited by its lack of access to South Ossetia, which is guarded by Russian troops. Government critics in Georgia argue that the investigation actually was suspended as part of a policy to reconcile and resume trade with Moscow.
It may take a couple of months before the ICC judges decide on Bensouda’s request.