Criteria for Prioritizing and Selecting Core International Crimes Cases

Criminal jurisdictions respond to large backlogs of core international crimes cases in different ways. Case selection may happen on a first come, first serve basis, not informed by a proper overview of all case-files in the backlog. Or one may choose those cases with the greatest ease of access to evidence. Weak prosecution services may even select cases in response to political pressure or expectations, the sword of Damocles of criminal justice for core international crimes. Other prosecutors may decide to proceed only with cases against the most senior leaders, sometimes with a suspicion that they may not be around to shoulder evidentiary challenges if the case ends up going to trial.

The chosen manner of case selection and prioritization can weigh substantially on the way the justice process is received by victims and others affected by the atrocities. It can also influence the perceived legitimacy of the process by states and the international community more widely.

Formal criteria can be a vital tool for a more rational and coherent prioritization of war crimes cases. They can assist prosecution services in mapping and ranking cases, so that those most suitable go to trial first. Criteria can serve the fundamental interest of equal treatment of all open case-files. Importantly, the practice of case prioritization does not per se require the de-selection of other case-files, hence the distinction between selection and prioritization. When made public, the criteria can also help to explain decisions on case prioritization to external stakeholders in the war crimes process, thus protecting the criminal justice actor in question against unfounded attacks.

Several war crimes jurisdictions have not succeeded in adopting prioritization and selection criteria. Others have, but they differ from each other in the manner in which they formulate their criteria. A common problem in practice has been to enforce such criteria effectively and consistently. Changes in the application of criteria and other forms of unequal treatment of cases can amount to human rights issues in criminal proceedings. One may also take the lofty position that case selection and prioritization both violate the equality of access to justice.

This project started with a seminar hosted in Oslo in September 2008 by the Forum for International Criminal and Humanitarian Law (then a programme at PRIO, later a department of CILRAP), in association with the Royal Norwegian Ministry of Foreign Affairs, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, the OSCE Mission to Bosnia and Herzegovina, Procuración General de la Nación (Unidad de Asistencia para causas por violaciones a los Derechos Humanos durante el terrorismo de Estado), Amnesty International, Belgrade Centre for Human Rights, Center for Legal and Social Studies (CELS), Center for the Study of Law, Justice and Society (DeJuSticia), Chr. Michelsen Institute, Documenta, Human Rights Watch, Humanitarian Law Centre, Research and Documentation Center Sarajevo, the Norwegian Centre for Human Rights (University of Oslo), the Norwegian Helsinki Committee, and the Norwegian Red Cross.