A/HRC/27/56 questions on the definition of the term. The “most serious crimes” category at the international level remains underconceptualized and underspecified, and one that, for good reason, has changed over time, for instance with certain types of sexually-based violations. (b) There is no necessary relationship between “gravity” and other important considerations of a prosecutorial strategy, such as “prevalence”. In a good number of cases, the most prevalent types of violation fall outside the core of the internationally defined most serious crimes. Targeting only the latter would create a large “impunity gap”, whereby most violations would remain unaddressed. A prosecutorial strategy that pays no attention to the bulk of the violations will evidently face severe legitimacy questions, even if it focuses on violations that are especially egregious; (c) Organizing a prioritization strategy only around the “most serious crimes” risks providing weak incentives to pursue connected crimes that may not quite cross the threshold of gravity, but which with the application of a different strategy would be prosecutable (for example, sexual or gender-related offences and even some economic crimes), or other dimensions of atrocities, such as corporate or judicial complicity. 58. International tribunals have made use of this criterion as part of their prosecutorial strategies, the International Tribunal for the Former Yugoslavia having come to it over time, the International Criminal Court in a deliberate fashion.27 The latter has contributed to the discussion through the analysis of the criterion in terms of the scale, nature, manner of commission and impact of the crimes in question.28 Disturbingly, however, it seems that decisions made for the selection of cases by the Court have influenced prioritization decisions at the domestic level. The Special Rapporteur is concerned that the principle of complementarity is used as a “licence for minimalism” which increases, rather than closes the impunity gap. 59. “Most responsible perpetrators”. A prioritization strategy can concurrently (or alternatively) focus on pursuing those who were most responsible for serious violations. The term “most responsible” has been commonly defined as encompassing individuals who are in senior leadership positions or a position of influence to plan, order or incite serious crimes.29 60. Examples of the pursuit of the most responsible perpetrators at the domestic level are the trial in Guatemala of Efraín Ríos Montt (who in 2013 became the first president convicted for genocide by a national court, a judgement controversially overturned by a divided Constitutional Court on procedural grounds 10 days after the lower court ruling);30 the 1985 junta trials in Argentina; as well as the proceedings which could have led to the extradition of Augusto Pinochet of Chile. The trial in Peru against Alberto Fujimori in 2009 suggests the same rationale. In addition, prosecutorial strategies in Bosnia and Herzegovina and Colombia31 focus on this criterion. With some limitations, the recent cases of sexual violence in the Democratic Republic of the Congo also show some willingness to focus on high-level perpetrators.32 27 28 29 30 31 32 12 Bergsmo, Criteria for Prioritizing, pp. 25–78. International Criminal Court, Office of the Prosecutor, Prosecutorial Strategy 2009–2012 (2010), para. 20. Ibid., para. 19. See the 781 judgement of the Tribunal Primero, Sentencia 01076-2011-00015, and Expediente 1904– 2013 of the Constitutional Court. Resolución 01810 de la Fiscalía General (2012). Office of the United Nations High Commissioner for Human Rights, Progress and obstacles in the fight against impunity for sexual violence in the Democratic Republic of the Congo, 2014 (www.ohchr.org/Documents/Countries/CD/UNJHROApril2014_en.doc).