Prosecutors at the International Criminal Court have identified Georgian military units trained by the United States as being suspected of war crimes, possibly jeopardizing future American aid to those units.
Last month, the ICC prosecutor's office formally requested the authority to start investigations into war crimes in the 2008 war between Georgia and Russia over the disputed territory of South Ossetia. According to the prosecutor's initial report, Georgian and Russian military forces, as well as units of the de facto South Ossetian security forces, all were implicated in war crimes.
In the Georgian case, the crimes involved attacks on Russian units of the Joint Peacekeeping Forces under the Sochi agreement between Georgia and Russia, which formally ended the conflict. Intentionally attacking peacekeepers is a war crime under the Rome Statute, under which the ICC operates. From the ICC report:
During the night from 7 to 8 August 2008 the Georgian armed forces conducted a military operation against JPKF HQ and the base of the Russian Peacekeeping Forces Battalion (RUPKFB) claiming that it had lost its protected status. According to the Russian authorities, 10 peacekeepers belonging to the Russian peacekeeping contingent were killed and a further 30 were wounded as a result.
The ICC identified several Georgian units involved in those attacks. "Reportedly, the [Georgian] Central Front Command resorted to the Separate Light Infantry Battalion, the Tank Company of the Separate Armoured Battalion, the Independent Ballistic Tank Battalion, the 1st and 2nd Artillery Brigade supported by the special forces of the Ministry of Interior to carry out an attack against Russian peacekeepers."
Several of those units have received U.S. assistance. A Washington-based advocacy group, Security Assistance Monitor, combed through reports of U.S. training in Georgia over the last several years and found that between fiscal years 2012 and 2015 soldiers from those units took part in 35 American training classes, which cost the U.S. approximately $695,655.
That would appear to trigger the U.S.'s so-called "Leahy Law," which prohibits aid "to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights." There are exceptions, for example if "the government of such country is taking effective steps to bring responsible members to justice."
So does that apply in this case? "To receive U.S.-funded training, Georgian units are vetted using information available at the time," a State Department official, speaking on background, told The Bug Pit. "If it is determined that there is credible information that a unit committed gross violations of human rights, then U.S.-funded assistance would not move forward, and did not move forward in the past." The State Department and Department of Defense declined to answer further inquiries to clarify U.S. policy with respect to assisting these particular units.
Georgian officials have played down the allegations against their units, while pushing for a broader ICC inquiry into Russia's actions during the war. And the case against Georgia is much weaker than that against the South Ossetian units, writes Alex Whiting, a professor at the Harvard Law School and a former senior official in the ICC prosecutor's office:
[W]hile the allegations that Georgian forces illegally attacked Russian peacekeepers on the night of August 7, 2008, resulting in 10 deaths and 30 injuries, may be making the Georgian government nervous, those allegations will be very hard to prove. The evidence about who fired first is highly contested, and proving criminal intent on the basis of a single episode is extremely difficult. There are also allegations of attacks on Georgian peacekeepers by South Ossetians in the weeks preceding the conflict, but the evidence is also disputed. The best case for the ICC, the ethnic cleansing of Georgians from South Ossetia, is much stronger evidentially but the probable targets of the investigation — South Ossetians — are almost certainly out of the Court’s reach since South Ossetia is now occupied by Russia.
Nevertheless, this is forcing the U.S. to answer some awkward questions about their training of the Georgian military, at a time when it's trying to shore up its allies' defenses on Russia's borders and at the same time take the moral high ground.