Criteria for Prioritizing and Selecting Core International Crimes Cases Morten Bergsmo (editor) Criteria for Prioritizing and Selecting Core International Crimes Cases Morten Bergsmo (editor) 2010 Second Edition Torkel Opsahl Academic EPublisher Oslo This and other books in the FICHL Publication Series may be openly accessed and downloaded through the Forum website (www.fichl.org). Printed copies may be ordered at www.amazon.co.uk. This book was first published on 26 March 2009. The Second Edition was published on 23 July 2010. © Torkel Opsahl Academic EPublisher and Peace Research Institute Oslo (PRIO), 2010 All rights are reserved. You may read, print or download this book or any part of it from www.fichl.org for personal use, but you may not in any way charge for its use by others, directly or by reproducing it, storing it in a retrieval system, transmitting it, or utilizing it in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, without the prior permission in writing of the copyright holder. Enquiries concerning reproduction outside the scope of the above should be sent to the copyright holder. You must not circulate this book in any other cover and you must impose the same condition on any acquirer. ISBN 978-82-93081-06-7 PREFACE TO THE SECOND EDITION Since the Forum held the first international expert discussion on selec- tion and prioritization of core international crimes cases in September 2008, work has commenced on several academic theses and some ten- tative articles have appeared on the subject. The Forum has succeeded to frame an important topic and to place it on the agenda for academic and institutional discussion. Such innovative incubation is one of the fundamental objectives of the Forum. Only minor editorial changes have been made to this Second Edition, such as the inclusion of an Index prepared by FICHL Fellow Annika Jones. The book has been reformatted, so the page numbering differs from that of the First Edition. Identical versions of this Second Edition are available online and as a printed book. Although the Torkel Opsahl Academic EPublisher does not itself charge for either version, the printed version is modestly priced to cover the costs of the printer and the distributor. The online version is freely accessible through the website of the Forum for Inter- national Criminal and Humanitarian Law (see www.fichl.org). By pub- lishing both online and in print, the Forum seeks to reinforce its open access programme. Morten Bergsmo Publication Series Co-Editor Alf Butenschøn Skre Senior Editorial Assistant i PREFACE BY THE SERIES CO-EDITOR This volume contains papers presented at a seminar of the Forum for International Criminal and Humanitarian Law in Oslo on 26 Septem- ber 2008 with the same title as the publication. The Forum seeks to contribute to scholarship and practice. Through this Publication Series we aspire to place high quality products on an Internet-based platform that is open and freely accessible to all, including those in less re- sourceful countries. The seminar was co-organized by several organizations: the Norwegian Ministry of Foreign Affairs; the High Judicial and Prosecu- torial Council of Bosnia and Herzegovina; the OSCE Mission to Bos- nia and Herzegovina; the Procuración General de la Nación, Unidad de Asistencia para causas por violaciones a los Derechos Humanos du- rante el terrorismo de Estado; Amnesty International; Belgrade Centre for Human Rights; Center for Legal and Social Studies (CELS); Center for the Study of Law, Justice and Society (DeJuSticia); Chr. Michelsen Institute; Documenta; Human Rights Watch; Humanitarian Law Cen- tre; Research and Documentation Center Sarajevo; the Norwegian Centre for Human Rights (University of Oslo); the Norwegian Helsinki Committee; the Norwegian Red Cross; and the Peace Research Insti- tute Oslo (PRIO). The broad institutional backing of the seminar is an indication of the importance of the topic. Criminal justice as a response to atrocities in armed conflict has enjoyed growing support in the international community of states. Several international and hybrid criminal juris- dictions have been created since 1993. All of them have faced more cases than they can process. Take the example of crimes committed during the conflicts in Bosnia and Herzegovina during the 1990s. The International Criminal Tribunal for the Former Yugoslavia will deal with less than 200 cases in its lifetime, most of them pertaining to Bosnia and Herzegovina. With an annual capacity of less than 30 cases, the national war crimes mechanism established within the iii criminal justice system of Bosnia and Herzegovina has maybe as many as 12,500 suspects in the existing backlog of open case files. Armed conflicts tend to generate too many international crimes for all persons responsible to be held criminally accountable. This vol- ume does not address what should be done with cases which probably can not go to trial due to limited capacity. That is the subject of a sepa- rate Forum seminar on abbreviated criminal procedures. Rather, the volume concerns the best way to select and prioritize cases to be inves- tigated and prosecuted first. This is a question of the quality of discre- tion in the management of criminal justice for atrocities. Both the Forum seminar on 26 September 2008 and this volume were made possible by financial support from the Norwegian Ministry of Foreign Affairs. Ambassador Jan Braathu at the Norwegian Em- bassy in Sarajevo and Mr. Sven Marius Urke of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina made important con- tributions to discussions on the purpose of the seminar during the first half of 2008. The Forum would like to thank the Norwegian Red Cross for providing the seminar venue for free and the Norwegian Centre for Human Rights for assisting with the travel arrangements for the semi- nar speakers.1 Morten Bergsmo 1 The Forum would also like to thank Linda Hafstad (FICHL Intern 2006-2008) for taking care of the registration of seminar participants; Aida Šušić for assisting with the preparation of the Table of Contents and for reminding some of the speakers of the deadline to submit written contributions; Erlend des Bouvrie for proof-reading the manuscript; and PRIO‟s Information Department for assistance with making the covers of this volume. iv PREFACE PRIO is the „mother‟ of the Forum for International Criminal and Humanitarian Law in the sense that our researchers Morten Bergsmo and Nobuo Hayashi are the driving forces behind this open, inclusive and innovative initiative. The rapid development of the Forum is a source of satisfaction and pride at PRIO. We see this as a positive process of incubation, network building and will to intellectual leader- ship – all values which are central to PRIO‟s culture and aspirations. For us it is particularly valuable that Morten and Nobuo are in- vesting considerable mental energy on the framing of the issues which they put on the agenda of the Forum. We know from discourse analy- sis more broadly that framing the issue can in itself be a decisive intel- lectual contribution. I hope Morten and Nobuo will continue this line, with creativity and courage. Discourse entails occasional controversy, disagreement and provocation – one should welcome all three. This publication is based on papers presented at a Forum seminar on 26 September 2008. The topic – Criteria for prioritizing and select- ing core international crimes cases – is specific and technical. It would appear to be home ground for lawyers. Nevertheless, Aftenposten – an important daily newspaper in Norway – ran a long article on the semi- nar on its page 6 the day before the event. The headline reads: „The war crimes code shall be broken‟ – suggesting that a key issue for the success of, and continued support for, war crimes prosecutions is that the best suited cases are selected for trials first. This is a common sense consideration of a political nature: it concerns everyone, not only lawyers. Whereas lawyers are uniquely placed to conduct discussion on selection and prioritization criteria, they also shoulder a distinct responsibility to ensure that effective and acceptable solutions are found. The circle of stakeholders in criminal justice for those who commit atrocities goes beyond the legal profession. The bill for crimi- nal justice for atrocities is not paid by the legal community. v I therefore think that the topic of this publication has general im- portance. It seeks to contribute to the improvement of the quality of criminal justice for atrocities. That is necessary to ensure broad public support for criminal justice in transitions also in the future. Stein Tønnesson PRIO Director_ vi TABLE OF CONTENTS Preface to the Second Edition ................................................................. i Preface by the Series Co-Editor........................................................... iii Preface ................................................................................................... v 1. Siri Frigaard: Some Introductory Remarks ............................................................ 1 PART I: THE RELEVANCY AND CONTEXT OF CRITERIA FOR THE SELECTION AND PRIORITIZATION OF CORE INTERNATIONAL CRIMES CASES 2. Morten Bergsmo: The Theme of Selection and Prioritization Criteria and Why it Is Relevant ................................................................................... 7 3. Rolf Einar Fife: Criteria for Prosecution