When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions

Abstract

The International Criminal Court (ICC) faces a crisis of credibility. Since 2002, it has indicted few perpetrators of mass atrocities, captured fewer, and acquitted four of the eight it has managed to try. Experts increasingly see the court as hapless and irrelevant. Fortunately, regional human rights institutions provide a better model for preventing mass atrocity and ensuring that perpetrators are prosecuted and punished.

This Article compares the effectiveness of the ICC and each regional institution in advancing prevention and accountability, comprehensively synthesizing and evaluating the available evidence. The ICC has followed a narrow, legalistic strategy that focuses almost exclusively on investigating and prosecuting individual defendants. By contrast, the regional institutions—especially the Inter-American Court and Commission and European Court of Human Rights—have taken a more sophisticated and effective approach that the ICC should emulate. Specifically, the ICC should strategically employ multiple tactics to reduce mass atrocity and increase prosecution of perpetrators, especially at the national level. It should recognize that it operates as one player in a complex system—complementing, stimulating, and supporting the efforts of other domestic and international actors, while paying careful attention to local context. (ICC prosecutors and judges also need to improve their work on individual cases.) This new strategy both is truer to the ICC’s founding vision of complementarity and offers the Court’s best chance for emerging from crisis to play a significant role in preventing atrocity and securing accountability for it.

New data on the costs of the ICC and each regional institution, reported here for the first time, also suggest that the latter are more efficient and merit additional investment.

Keywords: International Criminal Court, mass atrocities, European Court of Human Rights, Inter-American Court of Human Rights, Inter-American Commission on Human Rights, international criminal law, deterrence