INTERNATIONAL CRIMINAL LAW BY OTHER MEANS: THE QUASI-CRIMINAL JURISDICTION OF THE HUMAN RIGHTS COURTS

摘要

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. 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.