Russian officials have attacked the International Criminal Court for an anti-Russian bias in its prosecution of alleged war crimes in the 2008 war with Georgia over South Ossetia.
At the end of January the ICC gave its prosecutor the go-ahead to investigate the war. The court's prosecutor has said she is looking at crimes allegedly committed by Georgian, South Ossetian, and Russian forces during the conflict. But all sides seem to have ignored the potential charges against Georgia, with Georgia welcoming the ICC's involvement and Russia and South Ossetia criticizing it.
After the ICC's announcement that it would proceed with the investigation, Russia's Ministry of Foreign Affairs complained that the court was taking Georgia's side.
"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. Such actions hardly reflect the ideals of justice," said MFA spokeswoman Maria Zakharova in a January 29 briefing. "In the light of the latest decision, the Russian Federation will be forced to fundamentally review its attitude towards the ICC."
That criticism was followed by a lengthy February 2 interview in the official newspaper Rossiyskaya Gazeta with the chair of Russia's Investigative Committee, Alexander Bastrykin, who also argued that the court was ignoring Georgian crimes. He took particular issue with the court's statements that the South Ossetian authorities were "under control" of Russia at the time of the war.
By that standard, Bastrykin argued, the United States could be implicated for the fact that it "controlled" Georgia's leadership: "As a result of the so-called 'Rose Revolution' Mikhael Saakashvili, controlled by the U.S., came to power. He didn't even hide that fact. Besides, the U.S. had funded shipments of weapons used in the South Ossetia conflict and trained Georgian soldiers. And so if you want to apply the doctrine of actual control, it should be done not with respect to Russia, but to the U.S." (It should be noted that, like Russia, the U.S. has signed but not ratified the Rome Statute of the International Criminal Court.)
Russian lawyer Yanis Yuksha, quoted in an analysis carried by the Russian agency RIA Novosti, said the ICC was generally biased in favor of the West. "Today the trend in the West is that everything that comes out of Russia is at minimum bad, and moreover, criminal. But the Western world lives according to the mechanisms that they themselves created," he said.
The notion that the ICC is biased in favor of Western states is not a new one. But until now that criticism has been leveled mainly by African states, as until now every case officially investigated by the court has been from that continent. That has even led to speculation that the ICC is pursuing the South Ossetia case in order to dispel that perception of bias against Africa. While that speculation is likely wrong, it is nevertheless likely that there is some political consideration behind the ICC's decision to take this case, wrote Mark Kersten, a Canadian expert on the ICC, in a piece in the Washington Post, "Why is the International Criminal Court stepping out of Africa and into Georgia?"
"[F]or 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," Kersten wrote. "Whether or not the court targets Russian officials, investigating Russian conduct captures that broader, if not always helpful, international narrative condemning Russian aggression."
Whatever its motives, the ICC is in unfamiliar territory with this case, wrote Kersten in another blog post.
"Every ICC intervention is complicated," he wrote. "But the potential investigation into war crimes committed during the conflict in South Ossetia seems particularly complex. Western states, an aggressive regional and former global superpower, an annexed territory, a Western-looking country, and a cautious Court — these aren’t the ingredients of a cut-and-dry investigation. All have their own stakes in the ICC’s investigation. All are potentially vulnerable. And all should fear the Court’s intervention going awry."