A/HRC/27/56
violations or serious violations of international humanitarian law should be prosecuted and
tried.21
45.
The present report is not intended to suggest a specific prescription or the adoption
of a particular prioritization strategy constructed around one of the elements elaborated
below. The articulation and adoption of a strategy must not constitute a straightjacket. No
strategic plan can eliminate all contingencies. Judicial processes are dynamic and the
horizon of prosecutorial possibilities shifts at different stages of a transitional process, and
thus, there is no single strategy likely to be good at all times. Similarly, a sufficiently
complex strategy will involve various factors which can hardly be ranked in order without
sacrificing some of the advantages of complexity.
46.
The report does not specify the precise weight or the place order of the different
elements. It rather intends to outline the variety of the elements, together with their main
advantages and drawbacks, so as to equip those developing a prosecutorial strategy with an
understanding of the consequences and implications of certain choices.
47.
The easiest cases. Some jurisdictions have decided to prioritize the prosecution of
“easy cases” (“low-hanging fruits”), where the focus is placed on the likelihood of
advancing a case, obtaining an arrest warrant, a hearing, an extradition, a trial or a
conviction. This has the advantage of allowing prosecutors to achieve some quick wins and
show results in addressing a potential backlog of cases. It may also contribute to the
gathering of valuable evidence, at minimum expense. Prosecuting and trying easier or small
cases against low-level perpetrators could also be deemed necessary to prepare more
complex proceedings against those most responsible.22
48.
The initial criteria for Bosnia and Herzegovina, for example, state that it may be
necessary to prioritize cases considering the “stage of investigations” and “if individual
cases are ready to be tried”.23 A similar strategy was followed in Argentina after the
annulment of amnesty laws, when prosecutors were pressured to advance cases in which
formal indictments had already been presented, rather than initiating new investigations —
enacting a sort of a “do not give up on what you have already started” principle.
49.
However, focusing only on readiness to proceed has obvious drawbacks. First, it
makes the strategy entirely dependent on previous (often not entirely justified) decisions
about which cases to move (it is always worth asking why certain fruits “hang lower” than
others). Second, readiness to move is not necessarily related to the identification of overall
patterns of violations, any judgement about their gravity or seriousness, or any effort to
determine who is most responsible for them. Third, if evidence against one group happens
to be more readily available, this strategy may generate perceptions of bias.
50.
“Readiness to proceed” may be an attractive option temporarily, but can hardly be
considered as the nucleus of a sufficiently comprehensive strategy. In Bosnia and
Herzegovina, for example, the initial strategy was changed and additional criteria such as
prioritizing the most serious violations and the most responsible were introduced.24 Indeed,
as the very term “proceed” suggests, this is a procedural and not a substantive, strategic
criterion.
21
22
23
24
10
Among the States which have adopted explicit prosecutorial strategies are Bosnia and Herzegovina
and Colombia. Efforts in Argentina — while not having a written strategy — in this domain are
exemplary, as are those of Chile.
Bergsmo and Saffon, “Enfrentando una fila”, p. 57.
Special Department for War Crimes, “Orientation criteria for sensitive rules of the road cases”.
Morten Bergsmo and others, The Backlog of Core International Crimes Case Files in Bosnia and
Herzegovina, FICHL Publication Series No. 3 (2009), pp. 57–86.
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