Prioritization Criteria, I-DOC and the Quality of Atrocity Fact-Work

The complementary nature of the International Criminal Court (‘ICC’), growing knowledge about international criminal law and how it relates to violent conflict, and a more realistic understanding of what the Court can currently achieve gradually shift attention to national criminal justice for core international crimes. Ably chaired by Dr. David Donat Cattin (NYU Center for Global Affairs), this event considered three ways that ICC experience and services, in synergy with CILRAP and partners, can support work on fact-rich cases in national jurisdictions.

This side-event to the 23rd Session of the ICC Assembly of States Parties was convened by CILRAP, sponsored by the Republic of Korea and Norway, co-sponsored by the Coalition for International Criminal Justice (CICJ), Commission for International Justice and Accountability (CIJA), Fondacija Fond za humanitarno pravo (Foundation Humanitarian Law Center), Global Rights Compliance, Human Rights Law Centre (University of Nottingham), International Federation for Human Rights (FIDH), Norwegian Helsinki Committee, and Truth Hounds.

In his opening remarks, Norwegian Ambassador Erling Rimestad underlined the importance of finding “ways to enhance synergies between investments made in international criminal justice over many years, on the one hand, and national accountability efforts, on the other”. Dr. Donat Cattin confirmed that this was the purpose of the event.

Using Prioritization Criteria to Bring the Best-Suited Cases to Justice First (film)

Selection and prioritization criteria can be made and applied by prosecutors, as a professional response to backlogs or surges of cases, reducing the risk of politicization of prosecutorial discretion. Prioritization helps to bring the best-suited cases to trial first. It does not entail de-selection of cases.

With 26 chapters (8 new) by 29 authors, the Third Edition of Criteria for Prioritizing and Selecting Core International Crimes Cases (549 pp., edited by Morten Bergsmo), launched at this event, offers a wealth of information and in-depth analyses of key documents and practical challenges in case selection and prioritization. This TOAEP book is useful for those who seek to develop, fine-tune, apply or critique selection or prioritization criteria and would like to learn from the insights of others or from practice.

Ambassador Rimestad reminded us that “helping national criminal justice officials to prioritize cases well […] may significantly impact the overall cost and efficacy of war crimes accountability processes”. In the context of the ICC, Director Miyoung Song (Treaties Division, Korean Ministry of Foreign Affairs) stressed that, as “the Court faces an expanding workload amid limited resources, the imperative to strategically organize and prioritize cases has never been more pressing”.

Justice Erik Møse (former Judge of the Norwegian Supreme Court, the International Criminal Tribunal for Rwanda (also its President), and the European Court of Human Rights) observed that the book being launched “addresses important questions of principle which are of interest to everyone participating in or observing accountability proceedings”. “[E]xperience shows that it is useful to reflect on criteria, since the prosecution’s decision-making process is based on discretion”, Møse remarked, noting that early “decisions may have far-reaching practical and other consequences; years may pass before it is possible to adjust the direction. Investigating core crimes is complicated, time-consuming and expensive. Criteria may assist in ensuring the optimal use of resources”. He concluded by saying that he “would not be surprised if a fourth edition will be forthcoming in a not-too-distant future and include further legal developments in this field”.  

Professor and Head of School Olympia Bekou (University of Nottingham) provided an overview of the discourse on selection and prioritization criteria since the ICC preparatory team (2002-2003), highlighting the 2008 CILRAP seminar on the topic as well as the CILRAP-CMN Guidelines. She noted that “the efforts CILRAP has made in developing prioritization criteria, have laid the foundation for more strategic and effective case selection. We are proud of the role we have played in advancing this conversation”, having “been at the forefront of developing the concept and practical framework for prioritization criteria. Subsequent development and discussions of these criteria in several jurisdictions and contexts, including Bosnia and Herzegovina, Colombia, and the Democratic Republic of Congo, have further refined and tested this approach, adapting it to diverse legal and socio-political landscapes”.

Peter McCloskey (lead Senior Trial Attorney in the ICTY’s Srebrenica cases) eloquently explained, as you can see in the film on the segment, why fiercely independent prosecutors do not like additional constraints on their challenging work, and that additional criteria may be perceived by some in a similar light. He elaborated on this, and explained why he nevertheless supports the use of prioritization criteria and condoned the approach taken by the new book’s editor Morten Bergsmo.

Referring to the book as a “thoughtfully composed collection of numerous thorough and insightful chapters running up to many hundreds of pages”, Professor Claus Kreß (University of Cologne; ICJ Judge Ad Hoc) stated that its “substance […] should captivate everybody who cares for the future of accountability for crimes under international law”. He drew our attention to several passages in Chapter 1 of the book, including: “The ‘representativity’ criterion is not about what we may describe as ‘positive even-handedness’ between different groups of victims and perpetrators – that if charges have been brought against, for example, Bosnian Serbs and Bosnian Croats, then they must also be brought against Bosnian Muslims – which is not equal treatment of equal cases” (p. 24); “A view that charges must at all cost be brought against every side in a conflict, risks affording the same priority to grave and less grave crimes” (ibid.); and “Regrettably, some foreign ministries and civil society actors who in a conflict strongly advocate for one group – or against another – can end up lobbying for such ‘positive even-handedness’, sometimes inadvertently” (p. 25). Justice Møse had also highlighted the warnings against ‘positive even-handedness’ in his earlier remarks. Professor Kreß concluded by saying that the passages he cited are at the core of “the ambition that underlies this important publication. The ambition is not to please, but to challenge, it is to make the reader pause and reflect deeply about the foundational principles that underly the still juvenile – and fragile – international criminal justice system and how to best serve its long-term viability”.   

Further Improved Access to International Criminal Law Sources (film)

To aid national jurisdictions in performing their role under complementarity, the International Criminal Court maintains the award-winning ICC Legal Tools Database (‘LTD’) and digests of case law. At the outset of the event, Ambassador Rimestad remarked about both digital public goods: “The ICC has had the foresight to develop services such as the ICC Legal Tools Database, which – with more than 50 million annual hits – has made a significant contribution towards better access to and increased knowledge of international criminal law. Another ICC-owned tool, the two Digests of case-law on international crimes – now available through the Lexsitus platform – has also contributed very positively to the use of judgments of international criminal tribunals”.

This segment of the event provided concise information on the latest developments, including the significant increase in LTD documents (338,000+), the CAR model of a national case-law database built on the LTD platform, updates of the Elements and Means of Proof Digests, and the new Russian Lexsitus. You find the segment film with statements by Devasheesh Bais (Deputy Co-ordinator, ICC Legal Tools Database), Dr. Volker Nerlich (Head of Chambers’ Staff, ICC Chambers), and Antonio Angotti (Co-ordinator, Lexsitus) here. Bais described how the LTD receives “63 million annual online hits”; was granted last year’s Jus Gentium Research Award by the American Society of International Law; that the “National Criminal Jurisdictions Collection of the LTD hosts more than 20,000 documents, including several thousand Court documents from national core international crimes cases”; that a “share-icon on the top of the LTD search results, allows users to share LTD search results and LTD collections with others through a sleek link”; that on “top of the LTD menu, you find a button for LTD tutorials leading users to the tutorials page where you find tutorial videos on the use of the LTD”; that the CLD has “almost 11,000 legal findings, linked tens of thousands of times to key words that facilitate efficient research of ICC jurisprudence”; and that the LTD is “assisted by more than 40 CMN Fellows” – but that the LTD Team does “not rest on these achievements, we are continually expanding our content and improving the LTD interface”.

Saying that the topic of the LTD “is really dear to my heart”, Dr. Nerlich underlined “how important it is to have the Legal Tools Database as a freely available legal resource for everyone and anyone with internet access”, as he had experienced in particular when serving at the ECCC in Cambodia and the Special Criminal Court (‘SCC’) of the Central African Republic. He explained how the SCC decided to “partner up with CILRAP and with the Legal Tools Database”, developing a “Special Criminal Court-specific interface which, if you want, sits on top of the Legal Tools Database, uses its technology, and is kept running and maintained by the Legal Tools Database project”. He expressed that this “is actually a very good example, potentially also for other similar institutions that we may see in the future, which could partner up in this way or in a similar way with the Legal Tools Database”, for several reasons, including (i) it is a cost-effective solution for domestic jurisdictions; (ii) the LTD will possess the relevant documents anyways as they pertain to international criminal law; and (iii) the LTD will outlive ad hoc jurisdictions or time-limited domestic war crimes prosecutions.

Angotti shared that the e-learning platform Lexsitus – with comprehensive resources in English, French and Arabic, and partially in Persian and Spanish – now enjoys more than 5 million annual hits, which exceeds project expectations. He explained the main developments in the Lexsitus work since ICC-ASP 22: (i) the Elements Digest, Means of Proof Digest and Case Law resource have all been updated, also with a considerable number of national war crimes judgments (including from the Democratic Republic of the Congo and Germany), a process which continues; (ii) the commentary in Lexsitus (CLICC) is continuously updated by a team of approximately 50 lawyers; (iii) a Russian version of Lexsitus is under preparation, with the first features to be released within weeks following the event; and (iv) a new technical back-end of Lexsitus will offer users the possibility from 2025 onwards to hyperlink directly to specific paragraphs in judgments (as the Digests will have so-called nodes all the way down to the quotation level). “With this coming technical development, each quotation of each decision gets a unique identifier”, he remarked.   

Enhancing Atrocity Fact-Work: Experiences With I-DOC in Iraq and Ukraine (film)

To help maintain a legally-structured overview of factual information and support case-preparation in multiple ways, the CMN-department has developed the I-DOC system drawing on the ICC Case Matrix. I-DOC is used in several fact-finding projects by, inter alia, the Norwegian Helsinki Committee. This segment discussed experiences with its use in Iraq and Ukraine and its potential. Ambassador Rimestad observed that “providing fact-finders and investigators with free software such as I-DOC to preserve overview and manageability of vast amounts of factual information and potential evidence can enhance the quality of domestic war crimes justice”.

While agreeing with guidelines on civil society documentation by the ICC Office of the Prosecutor and the Eurojust Genocide Network, Gunnar Ekeløve-Slydal (Director, Coalition for International Criminal Justice; Deputy Secretary-General, Norwegian Helsinki Committee) observed that this should “not discourage CSOs from engaging in documentation work. The ICC Statute recognises their essential role in Article 15(2), and in many situations our knowledge would be minimal without CSO documentation”. He described the comprehensive approach developed by the Norwegian Helsinki Committee – including “equipping local civil society organisations to participate in documentation projects”, applying “a fact-based approach informed by legal criteria rather than political concerns” – which “depends on IT tools, such as the Investigation Documentation System (I-DOC) by CILRAP-CMN”. Based on “vast amounts of information collected from local partners and other sources, such as social media, military journals, and private collections”, and “reports from international organisations, indictments, judgments, and other legal documents”, “I-DOC helps us create timelines and linkages between incidents, locations, military units, individual commanders and victims”. In a pointed conclusion, he remarked: “We do not destroy the prosecutor’s evidence. We make it richer”.

Ilia Utmelidze (Director, CILRAP-CMN), the creator of I-DOC, explained that it is a “tool for practitioners to carry out their daily tasks. It has all essential functions that enable users to work on documentation, investigation, analyses, case preparation, trial and later proceedings”. He remarked that a “key advantage” of I-DOC is that it has been developed “by lawyers with primary focus on international criminal law – it has a built-in international criminal law framework, taxonomy and work-logic”. It offers capabilities to “systematize large quantities of documentation and evidence, map criminal incidents and contextual facts, develop linkages for suspects and institutions involved, catalogue victims and witnesses, protected property and objects, and other relevant factual circumstances. The structure of the database provides an effective overview of these information-categories as well as the possibility to map, search and analyse different patterns and linkages”. Looking to the future, he noted that “[w]e have successfully tested AI models and are looking forward to opportunities to deploy this solution for practitioners”.   

Having deployed I-DOC in his mandate, Judge Ayman Mustafa (Head, Commission for Investigation and Gathering Evidence, Iraq) shared examples of how it has facilitated his Commission’s work: “CIGE is now able to process and analyse large evidence caches. Following the closure of UNITAD, CIGE's documentation and archiving team received the three separate components of evidence provided by KRI authorities and digitized earlier by UNITAD. These included raw and processed data containing information on almost 900 suspects presumed to be [redacted] members, which our team is processing within I-DOC. This information will be cross-referenced by CIGE against existing suspect information already catalogued in I-DOC, and will inform future investigative and analytical activities as well as request-for-assistance programme”. A second example “speaks to the analytical capacity that I-DOC has brought to the CIGE analytical team which is now capable of tagging and analysing evidence to identify patterns and develop factual structure and legal analysis”, supporting also “an ongoing repatriation task aimed at returning the remains of victims from multiple mass graves by cross-referencing existing missing-person records and other factual evidence already processed within I-DOC”. Furthermore, I-DOC “provides a solid support base for our request for assistance programme where we have developed relationships with critical law enforcement, agencies in the third states. In support of our mandate, the system not only facilitate the search and analysis tasks incumbent upon such request, but also allows careful records to be kept of each request for assistance process”.

Valentyna Soloviova and Yuriy Uhryn (Analytical Department Manager and Lawyer, Truth Hounds) spoke about their organisation’s experience with the use of I-DOC in its work in co-operation with the Norwegian Helsinki Committee. Soloviova stated: “Our work relies heavily on tools like I-DOC, which help structure factual information into legally actionable formats. With this technical solution, and the support of our partner Norwegian Helsinki Committee, assistance and inspiration of Ilia Utmelidze, I-DOC creator, we can confidently answer questions such as ‘Can the record be trusted?’ and ‘Can this evidence stand up in court?’”. She explained that gathered materials “are broken down into the smallest pieces of information, which are then organized, filtered, and adapted to meet the specific requirements of various formats”. Uhryn added that I-DOC has assisted the pattern-based investigation, including on “conflict-related sexual violence and torture cases”.  

Ilya Nuzov (Acting Head, Justice Desk, International Federation for Human Rights, one of the event co-sponsors) shared some insights from his “work accompanying FIDH members and partners in documentation efforts for the last seven years”. He observed that even if civil-society organisations have “expanded their documentation efforts to an unprecedented scale and level of professionalism, there are, of course, still many challenges impacting the quality of CSO documentation: What I would characterize as resource-related challenges, methodological challenges, co-ordination challenges, and security challenges. And some of those are compounded, unfortunately, by the international justice institutions themselves and the donor community”. He further remarked that, “when we speak about prioritization, it is good also for those who document and local NGOs to know what are the priorities of international institutions so they can gauge their methodology to target those particular institutions”.

Finally, Dr. William H. Wiley (Director, Commission for International Justice and Accountability) rounded off the event by recalling that he has “a great familiarity with the tools and indeed the principles of prioritization and case selection” discussed at the event. He referred to Lexsitus and the ICC Case Matrix as a “life-saving tool”, explaining how the Digests were used before the Iraqi High Tribunal in cases that did not see the death penalty. He highlighted the contributions of CILRAP, CILRAP-CMN and the Eurojust Genocide Network in helping to raise capacity at the domestic level, where he suggested the future of international criminal law lies. An important question is the interoperability between the various actors in the field. The tools are particularly important at the domestic level and in the relations between actors. He concluded by saying that the “tools and principles that have been presented today are extremely important for creating the reality of interoperability, maintenance of standards or, as Morten [Bergsmo] has called it for years, quality control”.

Linking the discussion on quality control and the notion of ‘impunity gap’, Dr. Donat Cattin, the Chair of the event, ended by underlining the importance of the tools discussed to reduce what is today “a very large, very large impunity gap”.

This page ends with a pertinent reminder by Ambassador Rimestad: “Yesterday, Norway hosted a dinner in honour of Mr. Alan Tieger, the recipient of the M.C. Bassiouni Justice Award. His achievements as an exceptionally hard-working, dedicated prosecutor of some of the most consequential war crimes cases since the 1990s serve as an inspiration to everyone in the field, and as a reminder of the importance of well-prepared and -presented cases for the continued success of international criminal justice.” (italics added). Criminal justice for core international crimes depends on cases and on high standards of work ethic, integrity and quality-control.