A/HRC/27/56
laudable aim of attempting to end violence imminently, amnesties for such violations11 have
not only been shown to further entrench a culture of impunity,12 but also to be
counterproductive as they fail in the long run to prevent the recurrence of new violations
and vicious circles of violence.
32.
Reasons for the tendency to opt against accountability are complex and manifold:
one of them is the perception that prosecutions may threaten incipient, transitional
institutions and that, in any case, results are too difficult to attain. One of the main
objectives of the present report is to demonstrate that there are strategies that can be
followed to contain the risks that have proved to be effective and that have led to defensible
results.
V.
Strengthening accountability through prosecutorial
prioritization strategies
33.
Countries in transition, whether post-authoritarian, post-conflict or which combine
features of both, are characterized by a large number of crimes committed with the
involvement of possibly several thousands of individuals, leaving behind a massive number
of victims. Prosecuting and judging all of those responsible at the outset of a transition
might be simply impossible, especially considering the credibility, capability and resource
constraints faced almost inevitably by judiciaries in the aftermath of repression and/or
conflict, particularly in weakly institutionalized contexts.13
34.
The standard approach to prosecutions in most domestic jurisdictions is to take cases
as they are received and, usually, to treat them individually. Thus, most jurisdictions do not
develop explicit prioritization strategies.
35.
A prosecutorial strategy is part of a system of laws, political measures and funding
priorities, involving the adoption of concrete courses of action. At the broadest general
level, a prosecutorial strategy consists of a framework for giving direction to investigations,
concentrating prosecutorial efforts and guiding the deployment of necessary resources. It is
a “focalizing” tool.
36.
In transitional situations, where compliance with legal norms is often low, violations
are frequently the result of complex systems organized with criminal intent or enabled by
severe, systemic failure, and judicial systems show themselves unable to deal with their
caseloads while offering all required due process and fair trial guarantees, not adopting a
prioritization strategy may be particularly detrimental. The main risks include:
(a)
Institutions severely weakened by repression and/or conflict, with low levels
of credibility, capacity and resources, may end up dispersing and duplicating investigations
and multiplying caseloads;
(b)
Acting on the implicit promise of addressing cases in the order received may
lead to large numbers of poor investigations, weak indictments and, as a result, acquittals
11
12
13
S/2004/616, S/2011/634 and Guidance Note of the Secretary-General: United Nations Approach to
Transitional Justice (March 2010); see also International Committee of the Red Cross, Report of the
Third Universal Meeting of National Committees for the Implementation of International
Humanitarian Law, p. 32, stressing the prohibition of amnesties for international crimes.
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14824&LangID=E.
Siri Frigaard, “Some introductory remarks”, in Morten Bergsmo, ed., Criteria for Prioritizing and
Selecting Core International Crimes Cases, FICHL Publication Series No. 4 (2010), pp. 1–3.
7
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