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Effective Remedy for Prosecuting Crimes against Humanity and War Crimes with Regard to South Ossetian Conflict of August 2008 (with focus on the criminal responsibility of Russian citizens as perpetrators).

Japaridze, Tamar (2009)
Department of Law
Abstract
In August 2008, Georgia was engaged in an internal armed-conflict with its breakaway region of South Ossetia, which shortly after, grew into a large-scale war with Russian Federation. In the course of the war, hundreds of civilians became victims of the international crimes committed by belligerent sides. Hence, the central issue of my research is a post-conflict justice. In particular, if there exists any remedy at national or international levels which performs effective prosecution of the international crimes having occurred during an armed conflict in Georgia. To answer this question I examined effectiveness of Russian Federation's and Georgia's judicial systems as well as capacity of the third State to carry out prosecution of... (More)
In August 2008, Georgia was engaged in an internal armed-conflict with its breakaway region of South Ossetia, which shortly after, grew into a large-scale war with Russian Federation. In the course of the war, hundreds of civilians became victims of the international crimes committed by belligerent sides. Hence, the central issue of my research is a post-conflict justice. In particular, if there exists any remedy at national or international levels which performs effective prosecution of the international crimes having occurred during an armed conflict in Georgia. To answer this question I examined effectiveness of Russian Federation's and Georgia's judicial systems as well as capacity of the third State to carry out prosecution of international crimes and finally, effectiveness of the International Criminal Court (hereinafter the ICC). Also, for illustration of the gaps in legislation which hamper comprehensive investigation and prosecution, I explored the issue of criminal responsibility of Russian citizens as perpetrators. My research shows that, the Russian Federation does not have sufficient legislation to deal with international crimes, in particular, with crimes against humanity and war crimes. Also, owing to the fact that Russia is not a State Party to the ICC Statute, the possibility to co-operate with International Criminal Court and assist on legal matters is condemned to failure. Worthy to note, that legislation of Georgia is in compliance with International Humanitarian and Criminal Law norms which, theoretically, enables its judicial system to prosecute perpetrators of Russian nationality. Though, absence of diplomatic relations between Georgia and Russia makes impossible co-operation of the two States on criminal matters, such as request for extradition, obtaining evidences across borders, interrogation of witnesses, etc. Obviously, the discussed factor prevents Georgia from conducting effective prosecution of international crimes. In my research I touch upon the issue of universal jurisdiction over international crimes which provide the legal ground for a number of states to prosecute Russian citizens. Though, very often, the willingness to prosecute international crimes, on the basis of universality principle, is outweighed by the concepts of State sovereignty, non-extradition of its citizens, national interests of the State, etc. For example, according to the Constitution and Criminal Code of the Russian Federation extradition of its citizens is prohibited which means that any request of the forum State to extradite Russian citizens would be rejected. In addition, inability of the forum State to assess authenticity of the evidences or verify the genuineness of the testimonies might be a serious obstacle for effective prosecution&semic as well as, lack of capacity to provide protection of witnesses and victims across the borders. In my research I discuss the possibility to carry out prosecution of Russian citizens in the International Criminal Court. Due to the fact that its effectiveness entirely depends on State co-operation the Court is often regarded as a 'big giant without arms and legs'. Hence, those States not parties to the ICC Statute are simply beyond the obligation to co-operate and assist the Court in criminal matters. In this regard, it should be mentioned that Russia is not a party to the ICC Statute and therefore is not bound by any obligation to co-operate or otherwise assist to the Court in investigation and prosecution. Therefore, I view this factor as a main obstacle in performing effective prosecution by the ICC. Obviously, the above discussed factors are undermining capacity of the judicial system at both national and international levels to conduct effective prosecution of perpetrators of the most serious international crimes. (Less)
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author
Japaridze, Tamar
supervisor
organization
year
type
H2 - Master's Degree (Two Years)
subject
keywords
International Human Rights Law
language
English
id
1555412
date added to LUP
2010-03-08 15:23:41
date last changed
2010-03-08 15:23:41
@misc{1555412,
  abstract     = {In August 2008, Georgia was engaged in an internal armed-conflict with its breakaway region of South Ossetia, which shortly after, grew into a large-scale war with Russian Federation. In the course of the war, hundreds of civilians became victims of the international crimes committed by belligerent sides. Hence, the central issue of my research is a post-conflict justice. In particular, if there exists any remedy at national or international levels which performs effective prosecution of the international crimes having occurred during an armed conflict in Georgia. To answer this question I examined effectiveness of Russian Federation's and Georgia's judicial systems as well as capacity of the third State to carry out prosecution of international crimes and finally, effectiveness of the International Criminal Court (hereinafter the ICC). Also, for illustration of the gaps in legislation which hamper comprehensive investigation and prosecution, I explored the issue of criminal responsibility of Russian citizens as perpetrators. My research shows that, the Russian Federation does not have sufficient legislation to deal with international crimes, in particular, with crimes against humanity and war crimes. Also, owing to the fact that Russia is not a State Party to the ICC Statute, the possibility to co-operate with International Criminal Court and assist on legal matters is condemned to failure. Worthy to note, that legislation of Georgia is in compliance with International Humanitarian and Criminal Law norms which, theoretically, enables its judicial system to prosecute perpetrators of Russian nationality. Though, absence of diplomatic relations between Georgia and Russia makes impossible co-operation of the two States on criminal matters, such as request for extradition, obtaining evidences across borders, interrogation of witnesses, etc. Obviously, the discussed factor prevents Georgia from conducting effective prosecution of international crimes. In my research I touch upon the issue of universal jurisdiction over international crimes which provide the legal ground for a number of states to prosecute Russian citizens. Though, very often, the willingness to prosecute international crimes, on the basis of universality principle, is outweighed by the concepts of State sovereignty, non-extradition of its citizens, national interests of the State, etc. For example, according to the Constitution and Criminal Code of the Russian Federation extradition of its citizens is prohibited which means that any request of the forum State to extradite Russian citizens would be rejected. In addition, inability of the forum State to assess authenticity of the evidences or verify the genuineness of the testimonies might be a serious obstacle for effective prosecution&semic as well as, lack of capacity to provide protection of witnesses and victims across the borders. In my research I discuss the possibility to carry out prosecution of Russian citizens in the International Criminal Court. Due to the fact that its effectiveness entirely depends on State co-operation the Court is often regarded as a 'big giant without arms and legs'. Hence, those States not parties to the ICC Statute are simply beyond the obligation to co-operate and assist the Court in criminal matters. In this regard, it should be mentioned that Russia is not a party to the ICC Statute and therefore is not bound by any obligation to co-operate or otherwise assist to the Court in investigation and prosecution. Therefore, I view this factor as a main obstacle in performing effective prosecution by the ICC. Obviously, the above discussed factors are undermining capacity of the judicial system at both national and international levels to conduct effective prosecution of perpetrators of the most serious international crimes.},
  author       = {Japaridze, Tamar},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Effective Remedy for Prosecuting Crimes against Humanity and War Crimes with Regard to South Ossetian Conflict of August 2008 (with focus on the criminal responsibility of Russian citizens as perpetrators).},
  year         = {2009},
}