FICHL Publication Series Criteria for Prioritizing and Selecting Core International Crimes Cases Morten Bergsmo (editor) Criteria for Prioritizing and Selecting Core International Crimes Cases Criteria for Prioritizing and Selecting Core International Crimes Cases Morten Bergsmo (editor) 2009 Forum for International Criminal and Humanitarian Law (FICHL) International Peace Research Institute, Oslo (PRIO) FICHL Publication Series No. 4 (2009) – page 1 Criteria for Prioritizing and Selecting Core International Crimes Cases FICHL PUBLICATION SERIES Series Co-Editors Morten Bergsmo, PRIO Nobuo Hayashi, PRIO Editorial Board Dr. Gro Nystuen, University of Oslo/Norwegian Defence Command and Staff College Ms. Torunn Salomonsen, Ministry of Justice, Norway Dr. Jo Stigen, Department of Public and International Law, University of Oslo Advisory Board Prof. Kai Ambos, Georg-August-Universität Göttingen/State Court Göttingen Prof. Emeritus M. Cherif Bassiouni, DePaul University Mr. Gilbert Bitti, International Criminal Court Judge Advocate General Arne Willy Dahl, Norway Prof. Jon Elster, Columbia University/Collège de France Judge Hanne Sophie Greve, Gulating Court of Appeal Mr. Christopher Keith Hall, Amnesty International Prof. Emeritus Frits Kalshoven, Leiden University Judge Erkki Kourula, International Criminal Court Judge Erik Møse, International Criminal Tribunal for Rwanda Ms. Jelena Pejić, International Committee of the Red Cross Maj-Gen (ret’d) Anthony P.V. Rogers, Cambridge University Prof. James Silk, Yale Law School This paper may be downloaded from http://www.prio.no/ficjc. © International Peace Research Institute, Oslo (PRIO), 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or utilized in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without permission in writ- ing from the copyright holder. ISBN 978-82-7288-305-7 FICHL Publication Series No. 4 (2009) – page 2 Criteria for Prioritizing and Selecting Core International Crimes Cases 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 September 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 ac- cessible to all, including those in less resourceful countries. The seminar was co-organized by several organizations: the Norwegian Ministry of Foreign Affairs; the High Judicial and Prosecutorial Council of Bosnia and Herzegovina; the OSCE Mission to Bosnia and Herzegovina; the Procuración General de la Nación, Unidad de Asistencia para causas por violaciones a los Derechos Humanos durante el terrorismo de Estado; Amnesty International; Belgrade Centre for Human Rights; Center for Legal and So- cial Studies (CELS); Center for the Study of Law, Justice and Society (DeJuSticia); Chr. Michelsen Institute; Documenta; Human Rights Watch; Humanitarian Law Centre; Research and Documentation Center Sarajevo; the Norwegian Centre for Human Rights (University of Oslo); the Norwegian Helsinki Committee; the Norwegian Red Cross; and the International Peace Research Institute, 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 sup- port 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 proc- ess. 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 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 respon- sible to be held criminally accountable. This volume 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 separate Forum seminar on abbreviated criminal procedures. Rather, the volume concerns the best way to select and prioritize cases to be investigated and prosecuted first. This is a ques- tion of the quality of discretion 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 Embassy in Sarajevo and Mr. Sven Marius Urke of the High Judi- cial and Prosecutorial Council of Bosnia and Herzegovina made important contributions 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 seminar 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 semi- nar 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. FICHL Publication Series No. 4 (2009) – page 3 Criteria for Prioritizing and Selecting Core International Crimes Cases FICHL Publication Series No. 4 (2009) – page 4 Criteria for Prioritizing and Selecting Core International Crimes Cases 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 leadership – all values which are central to PRIO’s culture and aspirations. For us it is particularly valuable that Morten and Nobuo are investing considerable mental energy on the framing of the issues which they put on the agenda of the Forum. We know from discourse analysis more broadly that framing the issue can in itself be a decisive intellectual 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 selecting core international crimes cases – is specific and technical. It would appear to be home ground for lawyers. Nevertheless, Aften- posten – an important daily newspaper in Norway – ran a long article on the seminar 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 prosecu- tions is that the best suited cases are selected for trials first. This is a common sense considera- tion 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 shoul- der 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 criminal justice for atrocities is not paid by the legal community. I therefore think that the topic of this publication has general importance. 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 2 PRIO Director 2 Dr. Stein Tønnesson is Director of the International Peace Research Institute, Oslo (PRIO). He was trained as a historian, and has in particular worked on East Asia. His doctoral thesis, defended at the University of Oslo in 1991, was on the in- ternational history of the Vietnamese revolution in 1945, and he is currently working on a manuscript for the University of California Press on Vietnam 1946: How the War Began. As Director of PRIO he is engaged in dialogue work in Cy- prus, studies of energy dependence and Middle East policies, of global counter-terrorist strategies, and of the causes be- hind global and regional trends towards less and less murderous warfare. He currently intends to set up a research project on how to explain the relative peace in East Asia since 1979. FICHL Publication Series No. 4 (2009) – page 5 Criteria for Prioritizing and Selecting Core International Crimes Cases FICHL Publication Series No. 4 (2009) – page 6 Criteria for Prioritizing and Selecting Core International Crimes Cases TABLE OF CONTENTS 1. Siri Frigaard, Some introductory remarks ............................................................