A/HRC/27/56 61. The main virtue of this criterion is that it sends the crucial message of equality before the law. Particularly in cases in which parts of the State apparatus were abused for the promotion of particular interests and in which some individuals clearly stood beyond the reach of the law, the idea that in the end no one is above the law is a crucial one.33 Indeed, the very image of former leaders having to submit themselves to the discipline of the courtroom is pedagogically important; it is a concrete instantiation of the rule of law in action. 62. Prioritizing the most responsible also sends the key message that the greatest responsibility does not necessarily require direct involvement in a criminal act. 63. However, a strategy that concentrates on the senior leadership will always face the risk of being seen as excessively narrow or mistargeted, since “most responsible”, if understood primarily in terms of seniority or rank, need not focus on the worst violations or the most notorious criminals. 64. Furthermore, this strategy is a demanding one, particularly in places where the former regime and allied elites retain significant power. In this connection, the Special Rapporteur stresses that providing prosecutors with the appropriate framework and enabling conditions, including through the protection of their physical safety, and also guarantees of independence and impartiality, is a State’s duty under international law.34 65. If this prioritizing criterion puts a premium on the State’s willingness to fulfil its duties towards independent and impartial prosecutors, by the same token it puts a premium on prosecutors’ willingness to proceed only on the basis of meticulously careful and objective evaluation of the evidence, respecting due process guarantees, so as to avoid the strategy’s inherent risk, namely, creating the perception that it constitutes a form of “victor’s justice”. 66. The Guidelines on the Role of Prosecutors emphasize the duty of prosecutors to protect the public interest, which is not to be confused with the protection of the interest of the sitting government, a political party or any other State institution.35 Hence, their duty vis-à-vis the public is to give due attention to the prosecution of crimes committed by public officials,36 former and/or incumbent. 67. The prosecution of those formerly or currently in senior leadership posts with influence to plan, order or incite serious crimes is a complex undertaking, in particular if domestic criminal law lacks provisions regarding command responsibility. International tribunals and a few domestic jurisdictions have attempted to use constructions such as “joint criminal enterprises”37 or Organisationsherrschaft,38 which relate to “functional perpetration”. In this connection, the Special Rapporteur would like to highlight the crucial 33 34 35 36 37 38 A/67/368, paras. 5–13 and 46–57; see also Ellen L. Lutz and Caitlin Reiger, eds., Prosecuting Heads of State (Cambridge University Press, 2009). The same court that overturned Ríos Montt’s conviction cut short the term of the Attorney General, Claudia Paz y Paz, in a decision that was widely seen as retribution for her efforts in that case. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 1990; see Venice Commission, Report on European Standards as regards the Independence of the Judicial System (CDL-AD(2010)040), para. 71. Guidelines on the Role of Prosecutors, para. 15. Tadić, case No. IT-94-1-A, paras. 196-201, confirmed, inter alia, by Krajišnik, case No. IT-00-39-T, para. 655, and Popović et al., case No. IT-05-88-T, para. 1021. Kai Ambos, “Command responsibility and organisationsherrschaft: ways of attributing international crimes to those ‘most responsible’”, in A. Nollkaemper and H. van der Wilt, eds., System Criminality in International Law (2009). 13