Big Fish and Small Fish Debate-An Examination of the Prosecutorial Discretion

It is widely known that the earlier practices of the International Criminal Tribunal for the Former Yugoslavia have been criticized for having dealt with comparably minor war criminals. The implications behind such a criticism may be that an ad hoc international or hybrid criminal tribunal should concentrate on those who were most responsible for the crimes and serious violations of international humanitarian law. The first part of this paper will thus focus on the logic of targeting big fish. Then the recent practices of the ad hoc International Criminal Tribunals and the Special Panels for Serious Crimes of East Timor have been addressed in this light. Irrespective of the institutional and practical demands of targeting big fish, the concern remains whether there is a normative demand for targeting only senior leaders of mass atrocities. Therefore, the last part of this paper would like to discuss the big fish versus small fish debate by examining the possibilities of a leadership element in ratione materiae of international criminal tribunals.