Disputation: Sofie A. E. Høgestøl
Master of Laws Sofie A. E. Høgestøl will be defending the thesis Seniority as an Element of Case Selection - A Study of Five Legal Frameworks that Have Governed the Selection of Cases at International Criminal Courts for the degree of Ph.D.
Sofie A. E. Høgestøl
- Professor Jo Stigen, University of Oslo (leader)
- Professor Sarah Williams, UNSW Law, Australia (1. opponent)
- Professor Robert Cryer, University of Birmingham (2. opponent)
Chair of defence
Studying the legal frameworks for case selection
International criminal courts are tasked with prosecuting mass atrocity crimes, and these crimes tend to be of such a magnitude that it would be practically impossible for the courts in question to prosecute every single individual who participated in their commission. Rather, international criminal prosecutors have to be highly selective when determining which cases to bring to trial. Case selectivity is therefore an important institutional feature of the international criminal justice system. Yet there have been few academic studies dedicated to analyzing the applicable law and procedural rules that have governed the selection of cases at international criminal courts.
It is this gap in the literature that the present study seeks to fill, and it does so in two regards. Firstly, the study analyses and presents the legal frameworks for case selection of five international criminal tribunals: (i) the International Criminal Tribunal for the Former Yugoslavia, (ii) the International Criminal Tribunal for Rwanda, (iii) the Special Court for Sierra Leone, (iv) the Extraordinary Chambers in the Courts of Cambodia, and the (v) International Criminal Court.
International criminal courts have also had a long tradition of targeting their prosecutions towards senior-level perpetrators, and this study therefore wanted to explore the extent to which their mandates have been tailored around the selection of cases against high-ranking individuals.
Hence, the second contribution of the study is to analyze whether the frameworks have incorporated legal elements that direct the prosecutors towards selecting cases against only perpetrators of a high level of ‘seniority’.
The study therefore has three goals:
1. To identify the legal frameworks that have governed the selection of cases at five international criminal tribunals.
2. To determine whether these frameworks have contained seniority elements, and if they did, to examine the role played by the seniority element within the framework.
3. To reflect over seniority as an element of case selection at international criminal tribunals.
Through analyzing the legal and procedural rules of the courts being studied, the dissertation identifies five distinct legal frameworks for case selection, and from these frameworks extrapolates five different approaches to integrating seniority elements into the selection of cases at international criminal courts.
A key finding of the study has therefore been that the legal frameworks for case selection at the courts being reviewed, were significantly more complex and diverse than what was initially expected. This diversity in design and practice, underscores that when it comes to international criminal procedure, these courts have tended to produce their own distinct procedural ‘models’ for how an individual is to be charged.
This diversity was also reflected in the different approaches to seniority elements that have been adopted by the courts. For while the study showed that seniority elements have been important components of case selection, the study nevertheless revealed that the courts have differed over how they define which perpetrators are ‘senior’, the structural placement of seniority in the framework; and crucially over whether the determination of who is a senior-level perpetrator is to be subject to judicial review.
In light of these findings, the study concludes by putting forth a series of recommendations for how seniority elements could better be integrated into the frameworks of future international criminal tribunals.