International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts

Abstract

Scholarship on the international prosecution of genocide, war crimes and crimes against humanity has typically focused on two types of international courts, the criminal tribunals and the hybrid tribunals. This article proposes that there is an alternative international mechanism of accountability that has been overlooked: the jurisdiction exercised by international human rights bodies of ordering and supervising national prosecutions. Original empirical research reveals that the regional rights bodies have forged a quasi-criminal practice that strives towards the very same outcomes as the international and hybrid criminal tribunals: punishment and deterrence, restorative justice, processes of societal reconciliation, and justice system reform. Further, this form of jurisdiction has unique attributes: it promotes prosecutions that are local and paid for by the state (rather than the international community), even as its process is responsive to victims' needs. The Inter-American Court of Human Rights in particular has made national prosecution of gross state-sponsored crimes a center-piece of its regional agenda. And, like the international and hybrid tribunals, it has achieved some success. The article concludes that the quasi-criminal jurisdiction of the human rights courts should be considered as a complement and, in certain situations, an alternative to the work of the current international and hybrid criminal tribunals.

Keywords: Human Rights, International Criminal Law, International Criminal Court, Complementarity, Inter-American Court of Human Rights, Transitional Justice, State Atrocity, Justice Cascade

JEL Classification: K42