A/HRC/27/56
B.
Impartiality of prosecutors and representativeness of the charges
80.
Measures seeking to protect the independence of prosecutors are means to enable the
exercise of impartial decision-making about which cases to investigate and prosecute.
81.
Nothing undermines the perception of impartiality of prosecutorial efforts more than
patterns of one-sided prosecutorial attention, such as the deliberate foregoing of the
possibility of investigating and prosecuting violations committed by one side of a conflict.
Even sequencing prosecutions in a way that decreases the possibility of the cases of one
party being investigated and prosecuted can raise serious questions about the legitimacy of
efforts, and threaten the contribution that criminal justice initiatives can make to
strengthening the rule of law.
82.
A defensible prosecutorial strategy cannot close itself off from the possibility of
pursuing cases on any side of a conflict, even with the rationale that the violations of one
party are less serious than those of others. Removing the bars leading to one-sided
prosecutorial activity does not mean that equal numbers of crimes or perpetrators from each
side to a conflict need to be prosecuted if the level of crimes committed by each side is
uneven. It does not entail precise arithmetical proportion either. However, criminal justice
must not become an instance of mere “turn-taking”. Prosecutorial investigations must
follow credible indicia, and decisions to prosecute must be based on evidence alone,
assessed in an even-handed manner. Recent prosecutions and trials in Bangladesh43 and
Egypt44 provide grounds for concern.
83.
The greater the departure — tied to factors relating to identity, politics, or affiliation
— from patterns of violation as corroborated by evidence, the more significant will be
concerns about the legitimacy of the efforts. False symmetries or the thesis that “mutual
guilt” should lead to reduced accountability result in such a problematic departure.
84.
The possibility of investigating and prosecuting any party regardless of partisan
considerations is only one of the consequences of adopting methodologies designed to
capture the magnitude and character of atrocity crimes. The other important consequence is
the broadening of the scope of investigations, going from an exclusive interest in direct and
intermediate perpetrators to other parties and structures that knowingly collaborated with or
intentionally profited from the perpetration of violations. In the long run, a prosecutorial
strategy cannot be effective if it leaves those structures in place.
85.
A prosecutorial strategy also has an impact on the charges eventually presented. A
deeper understanding of the systemic and complex nature of the pattern of violations allows
for charges that are more representative of actual crimes committed. Such patterns
identified during investigations should be reflected in the facts and the charges of the
indictment.
86.
Furthermore, the Special Rapporteur is concerned about the tendency observed in
recent (post-)conflict situations of focusing mainly on types of charges that make the State
appear as the ultimate victim of the majority of the violations (offences against national
security, terrorism, criminal conspiracy), while violations of human rights and humanitarian
law are either ignored or demoted to a secondary level. This, for example, has been the
focus of ongoing prosecutions in Mali, which have left out of consideration other grave and
43
44
16
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13204&LangID=E; and
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12972&LangID=E.
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14596&LangID=E; and
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14457&LangID=E.
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