International criminal law by other means: the quasi-criminal jurisdiction of the human rights courts.

Author:Huneeus, Alexandra

Since the close of the Cold War, the international community has created a variety of legal institutions designed to step in when state justice systems fail to prosecute genocide, war crimes, and crimes against humanity. The ad hoc criminal tribunals, the hybrid tribunals (such as the Special Court for Sierra Leone), the International Criminal Court (ICC), and the use of universal jurisdiction by national courts are among a new generation of courtly mechanisms designed to hold wrongdoers criminally accountable, state justice systems notwithstanding. (1) These mechanisms represent an era of international judicial involvement in what used to be a more exclusively sovereign matter--the response to mass crimes against civilian populations. Accordingly, they have engendered a slew of scholarship devoted to analyzing their strengths and weaknesses, individually and as a group.

Almost entirely overlooked by the scholarship on these mechanisms for accountability, however, is an alternative form that also dates from the Cold War's end, also takes shape through the intervention of an international court, and also deserves our attention. The regional human rights systems have begun to order and supervise national prosecutions when states have been unable or unwilling to act. In particular, the Inter-American Court of Human Rights has made national prosecution of gross, state-sponsored crimes a centerpiece of its regional agenda. The Court is not, technically speaking, a criminal court and cannot find individual responsibility. But in a creative interpretation of its remedial powers, it regularly orders states to investigate, try, and punish those responsible for gross human rights violations as a form of equitable relief. Then, through another interpretive twist, it supervises states' implementation of its orders: it holds mandatory hearings and issues compliance reports that aspire to hasten and guide the progress of national criminal processes. The Court has decreed and is actively monitoring prosecutions of international crimes in roughly fifty-one cases across fifteen states. (2) Pursuant to its orders in these cases, states have launched new criminal investigations, exhumed mass graves, moved cases from military to civil jurisdiction, overturned amnesties, bypassed statutes of limitations, and created new institutions and working methods to facilitate prosecution of such crimes. Indeed, at least thirty-nine prosecutions launched pursuant to the Court's orders have yielded convictions. (3) To contextualize this number it should be recalled that the ICC, a decade into its work, has yielded only one conviction and that the International Criminal Tribunal for the Former Yugoslavia (ICTY) has yielded sixty-four. (4) The Inter-American Court currently runs on a yearly budget of under U.S.$4 million; the ICC and ICTY each run on yearly budgets of roughly U.S.$150 million. (5)

The Inter-American Court is not alone in its foray into prosecutorial matters. The Inter-American Commission for Human Rights (Commission), the Council of Europe's Committee of Ministers (COM), and the United Nations' Human Rights Committee also exhort states to prosecute international crimes, and monitor the ensuing national processes. In pushing for accountability, the human rights bodies exert a jurisdiction quite different from that traditionally exercised by the international and hybrid criminal courts. Whereas those courts directly conduct the prosecutorial work, the rights bodies entrust local justice systems with the corrective actions, monitoring their work from afar but at times in detail, and exerting pressure by publishing compliance reports and holding hearings. The rights bodies' methods are thus more deferential to states and, inevitably, slower to reach prosecutorial outcomes. But they have important virtues. They foster local processes of justice, memory, and judicial reform. They are able to pair restorative justice and victim-centered remedies with retributive justice. And significantly, it is the state rather than the international community that shoulders the cost of prosecution. This mechanism for accountability--the practice by an international body of ordering, monitoring, and guiding national prosecutions--will be referred to as quasi-criminal review, (6) an expression that I will use interchangeably with quasi-criminal jurisdiction.

Skeptics may object that human rights review is too weak a mechanism to matter: if an Inter-American Court order results in prosecution, it is because the state and justice system were already able and willing to prosecute. In their volume Accountability for Human Rights Violations in International Law, Ratner, Abrams, and Bischoff devote only three pages to the International Court of Justice and the regional human rights courts. They argue that

use of these courts presents key disadvantages for the goals of accountability. Their physical distance from the victims and the abstract nature of their judgments can render quite small the psychological impact of their rulings.... There can also be no guarantee that states will comply with decisions;... While it might conceivably be possible to fashion cases involving the adjudication of individual accountability, the courts appear unwilling to act as quasi-criminal tribunals, and their evidentiary practices and capabilities are ill-suited to the task. (7) They are not alone in their pessimism. In the title of a recent book, Sonja Grover called the European Court of Human Rights (ECHR) a "pathway to impunity for international crimes. (8)

The question of whether the quasi-criminal review of the rights bodies is effective, however, is an empirical question, and empirical studies on the practice of ordering and monitoring national trials are altogether lacking. Indeed, Ratner and colleagues' criticisms seem to overlook the practice. If the regional rights courts succeed in triggering local prosecutions, their objection of the regional courts' "physical distance from the victims and "abstract judgments is muted. Further, while it is true that the regional courts will not adjudicate individual accountability, the Inter-American Court has been quite willing to inquire into and review national criminal procedures; in this sense, the Court is taking on a quasi-criminal jurisdiction. Ratner and colleagues also object that there is "no guarantee that states will comply with decisions" of the regional courts. The feature that makes the ICC's complementarity jurisdiction potentially effective in stimulating national prosecution is that the ICC carries a big stick: the threat of opening its own prosecution. For its part the Inter-American Court can only threaten to post on its website yet another compliance report, or to report state recalcitrance to an indifferent Organization of American States (OAS) General Assembly. (9) And yet, states do at times comply with the orders of the regional courts. It is important, in other words, to delve into the records of the rights bodies in order to understand what they do and to what avail. That is the work of this article.

It is also sometimes objected that the quasi-criminal jurisdiction of human rights bodies illegitimately expands their mandates. The Inter-American Court and the ECHR monitor state compliance with their respective human rights conventions, which make no mention of international crimes. These courts lack the institutional capacity to adjudge individuals. Even less, it is argued, do they have the legitimate authority to do so. The charge of illegitimacy is particularly sensitive in the inter-American setting. Latin American states across the political spectrum have called on the OAS to curb the mandate of the Inter-American Commission, (10) and in September 2012, Venezuela removed itself from the jurisdiction of the Inter-American Court by denouncing the American Convention of Human Rights. (11) The incursion of the Inter-American System for Human Rights (IAS) into prosecutorial matters is among these states' complaints. Further, criminal scholars in the region are engaged in a lively debate on the legitimacy of the Inter-American Court's jurisprudence as it relates to criminal doctrine. (12) In so far as the development of quasi-criminal jurisdiction raises questions of legitimacy, however, it becomes all the more important to understand this practice in action and to assess its outcomes empirically. Further, it is relevant to evaluate the practice not only in the context of the Court's original mandate, as many scholars do, but also in light of the emerging family of international criminal jurisdictions. The argument here is not that international human rights bodies should (or, for that matter, should not) take on criminal jurisdiction. It is, rather, (1) that the regional human rights systems are developing quasi-criminal review, a practice that is accomplishing some of the goals of the international criminal justice system, including fostering prosecution of criminal acts that are international crimes, and (2) as practiced by the regional rights systems, quasi-criminal review presents a complement and, in certain situations, an alternative to the work of the current international and hybrid tribunals. It is precisely the differences between these mechanisms for accountability that make it interesting to view them together.

A study of the rights bodies' quasi-criminal jurisdiction is also made timely by recent events in Africa. The African Union and the East African Community have announced that they may add criminal jurisdiction to their respective courts. (13) The two courts could become the first international forums with the authority to adjudicate matters involving both state responsibility and individual criminal responsibility. Whether or not the project of merged jurisdictions advances, the American and European human rights systems' experience with quasi-criminal jurisdiction...

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