The quasi-criminal jurisdiction of the human rights courts.

Author:Huneeus, Alexandra
Position:NEW VOICES II: BRINGING INTERNATIONAL LAW HOME: CLARIFYING THE COMPLEX RELATIONSHIP BETWEEN INTERNATIONAL NORMS AND DOMESTIC CHANGE
 
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Justice systems often emerge from periods of mass atrocity structurally weakened, tainted by complicity, or otherwise compromised. Since the close of the Cold War, when criminal accountability for atrocities became a political priority, the international community has created and deployed a variety of legal institutions to take jurisdiction when state justice systems falter. The ad hoc criminal tribunals, the hybrid tribunals, the International Criminal Court, and the use of extraterritorial jurisdiction by national courts are among a new generation of transnational mechanisms designed to hold wrongdoers individually accountable, state justice systems notwithstanding. (1) My paper argues that there is an alternative mechanism of accountability that also takes shape through the intervention of an international court, but that has been overlooked by the scholarship. 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 Inter-American Court is not, technically speaking, a criminal court and cannot find individual responsibility. Nonetheless, it has forged the practice of regularly ordering states to investigate, try, and punish those responsible for gross human rights violations as a form of equitable relief. It then supervises states' implementation of its orders, holding mandatory hearings and issuing compliance reports that aspire to shape the progress of national criminal processes as they unfold. The Court has decreed and is actively monitoring prosecutions of international crimes in roughly 50 cases across 17 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 32 prosecutions launched pursuant to Inter-American Court orders have yielded convictions. To contextualize this number, it should be recalled that the International Criminal Court (ICC) ten years into its work has issued a single conviction, and that the International Criminal Tribunal for the Former Yugoslavia (ICTY) has reached 64 convictions. (3) The Inter-American...

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