Criteria for Prioritizing and Selecting Core International Crimes Cases
Oslo, 26 September 2008
Different approaches can be taken to large backlogs of core international crimes cases. A case selection may be made on a first come, first serve basis, without a proper overview of all case files in the backlog. Alternatively, one may choose those cases with the greatest ease of access to the evidence. Weak prosecution services may even select cases in response to political pressure. Other services may decide to proceed only with cases against the most senior leaders. The manner of case selection and prioritization can substantially affect the way in which the justice process is received by victims and others affected by the atrocities. It can also influence the perceived legitimacy of the process by states and the international community.
Formal criteria can be an essential tool for a more rational and coherent prioritization of war crimes cases. They can assist prosecution services in mapping and ranking cases so that those most suitable go to trial first. Criteria can serve the fundamental interest of equal treatment of all open case files. The practice of case prioritization does not per se require the de-selection of other case files, hence the distinction between selection and prioritization. When made public, the criteria can also help to explain decisions on case prioritization to external stakeholders in the war crimes process, thus protecting the criminal justice actor in question against unfounded attacks.
War crimes jurisdictions have dealt with the issue of prioritization criteria in different ways. Several of them have not succeeded in adopting such criteria. Others have, but they differ significantly from each other in the manner in which they formulate their criteria. A common problem in practice has been to enforce such criteria effectively and consistently. Changes in the application of criteria and other forms of unequal treatment of cases can amount to human rights problems in criminal proceedings. One may also take the principled position that case selection and prioritization both violate the equality of access to justice.
