A/HRC/27/56
importance of the process of uncovering, preserving, organizing, clustering and archiving
pieces of evidence.
68.
“Symbolic” or “paradigmatic” cases. Even in contexts in which the universe of
violations is large and varied, there are some cases which “shake the conscience” either of
humanity at large, or of a specific group. If faced with the impossibility of prosecuting all
cases simultaneously or over a given period of time, there are good reasons to ponder
whether prosecutorial efforts can be concentrated on this type of case.39
69.
The difficulty in using this prioritizing criterion lies, precisely, in the definition of
the terms. If they are reduced to meaning “being the object of popular concern”, the
strategy would then automatically reproduce all sorts of biases contained in public opinion.
For instance, it may be that violations against the marginalized (e.g. ethnic minorities) will
not rise in popular opinion to the level of a “symbolic” case. By contrast, it may be that
cases involving elites, some respected figures or those that for various reasons manage to
attract international attention, will do so.
70.
In theory, it is possible to come up with a list of “symbolic” cases organized around
criteria including gravity, types of violation, geographical dispersion, the demographics of
both victims and perpetrators, so as to show a defensible even-handedness in the
distribution of prosecutorial efforts. But then, these criteria, and not popular opinion, are the
core of the prioritization strategy.
71.
Prioritizing the linkages in “structure crimes”. A criticism that may be levelled
against all the above-argued elements is their insufficient attention to the contribution that
all transitional justice measures should make to disabling the structures that made the initial
violations possible. International crimes, notably crimes against humanity, genocide and
war crimes, are not the crimes of lone individuals, but require networks in which the
individual authors of those acts are embedded.40 Thus, a strategy for prosecution should be
particularly concerned with the systemic or structural dimensions of massive violations.
72.
Mass violations usually require not just complex organization of the “armed”
operations that immediately cause the violations, but the coordination of those operations
with supportive political and economic actors, and even with social and cultural
entrepreneurs, capable of mobilizing large groups and resources. A prosecutorial strategy at
the domestic level which seeks to have long-term impact should therefore target the
“nodes” in this web of actors. Clearly, this requires a particular prosecutorial focus that
emphasizes patterns of violations, helps discover chains of command, links between armed
actors and other groups, as well as financial and other support, including arms trade and
smuggling. The challenge here is not only to establish individual criminal accountability for
isolated violations, but to zero in on the structures or networks that enabled the various
actors to jointly make the horrific violations happen. To target those enabling connections
could contribute to the dismantlement of the whole criminal set-up.
73.
Unquestionably, this is a particularly demanding strategy: (a) politically, because it
targets powerful groups, in the political as well as in the economic sense; and
(b) technically, as this strategy requires investigatory and prosecutorial skills which
prosecutors (used to thinking about isolated cases) will not have had many incentives or
opportunities to develop.41 It also requires a high degree of international cooperation and
39
40
41
14
See recent prosecutions in Argentina, Attorney General’s Office, instruction 13/08
(www.mpf.gov.ar//resoluciones/PGN/2008/PGN-0013-2008-001.pdf).
Nollkaemper and van der Wilt, System Criminality.
Experience from the prosecution of organized crime will be relevant in this respect.
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