Skip to main content Accessibility help

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

  • Alexandra Huneeus (a1)


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.



Hide All

1 Noncriminal mechanisms have also been used, such as civil lawsuits against violators of international law, immigration law to deny refuge, and truth commissions. See Ratner, Steven R., Abrams, Jason S. & Bischoff, James L., Accountability for Human Rights Atrocities in International Law: Beyond The Nuremberg legacy 259–87 (3d ed. 2009). The focus here, however, will be on mechanisms that seek individual criminal responsibility and punishment.

2 Unless otherwise stated, the data used in this article are drawn from original coding of the Inter-American Court’s rulings and compliance reports, available on the Court’s website, The research methods used in this study are explained in part I.

3 See infra note 86 and accompanying text. Note that the Court does not itself designate these crimes as international crimes. That designation was made by the author.

4 The comparison is included here to stimulate the reader into taking seriously the comparisons suggested in the article, while also acknowledging the incommensurability of the different types of courts and convictions. The work of these courts will be more systematically juxtaposed in part II. For information on the ICC’s convictions, see † and † Cases/. For information on the ICTY’s convictions, see The ICTY recently arrested its last indictee still at large. See Simons, Marlise, Serbia Arrests Its Last Fugitive Accused of War Crimes, N.Y. Times, July 20, 2011, at A8 .

5 The Inter-American Court’s budget for 2011 was U.S. $3.9 million. Inter-Am. Ct. H.R., Informe Anual de la Corte Interamericana de Derechos Humanos 2011, at 66–67 (2011), available at . The ICC’s approved budget for 2011 was U.S.$130 million. ICC, Registry Facts and Figures 2 (Apr. 8, 2011), at [hereinafter ICC Budget]. For the ICTY budget, see ICTY, The Cost of Justice (n.d.), at

6 The term mechanism for accountability is borrowed from Ratner Et Al., supra note 1.

7 Id. at 257. The authors note that the individual-petition mechanism before the regional courts “alleviates many of these difficulties and provides an important mechanism for the advancement of human rights, as seen in some of the Inter-American Court’s cases.” Id. at 258. But they do not further explore the matter.

8 Sonja C. Grover, The European Court of Human Rights as A Pathway to Impunity for International Crimes (2010).

9 Formally, Article 73 of the American Convention on Human Rights, Nov.22, 1969, 1144 UNTS 123, charges the OAS General Assembly with enforcing judgments.

10 As a result, the Commission in 2012 launched a reform process called Process for Strengthening the Inter-American System. See For a description of the Inter-American System for Human Rights, including the Inter-American Commission and the Inter-American Court of Human Rights, see infra notes 21–29 and accompanying text.

11 See Press Release, OAS General Secretary, OAS General Secretary Communicates Venezuela’s Decision to Denounce the American Convention on Human Rights (Sept. 10, 2012), at For the American Convention, see supra note 9.

12 See, e.g., 1 Sistema Interamericano De Protección De Los Derechos Humanos Y Derecho Penal Internacional (Ambos, Kai, Malarino, Ezequiel & Elsner, Gisela eds., 2010), at ; 2 Sistema Interamericano De Proteccioón De Los Derechos Humanos Y Derecho Penal Internacional (Ambos, Kai, Malarino, Ezequiel & Elsner, Gisela eds., 2011), at For arguments that the Inter-American Court overemphasizes penal responses, see also Pastor, Daniel R., La Deriva Neopunitivista de Organismos y Activistas como Causa del Desprestigio Actual de los Derechos Humanos, 1 Nueva Doctrina Penal 73 (2005); Basch, Fernando Felipe, The Doctrine of the Inter-American Court of Human Rights Regarding States’Duty to Punish Human Rights Violations and Its Dangers, 23 Am. U. Int’l L. Rev. 195 (2007); Malarino, Ezequiel, Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights, 12 Int’l Crim. L. Rev. 665 (2012); Roberto Gargarella, Justicia Penal Internacional y Violaciones Masivas de Derechos Humanos, in De La Injusticia Penal A La Justicia Social 105–47 (Roberto Gargarella ed., 2008). For a defense of the Court, see Oscar Parra Vera, La Jurisprudencia de la Corte Interamericana Respecto a la Lucha Contra la Impunidad: Algunos Avances y Debates, Revista Juríidica De La Universidad De Palermo (forthcoming); Victor Abramovich, “Transplante”y “Neopunitivismo”: Debates Sobre la Aplicacioón del Derecho Internacional de los Derechos Humanos en la Argentina, in Activismo De Los Derechos Humanos Y Burocracias Estatales: El Caso Walter Bulacio 249 (Sof´ıa Tiscornia ed., 2008); Filippini, Leonardo, El Prestigio de los Derechos Humanos: Respuesta a Daniel Pastor, 3 Jura Gentium 2007 , at

13 For the proposal to amend the jurisdiction of the African Court of Justice and Human Rights, see Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, OAU Doc. Exp/Min/IV/Rev.7 (May 17, 2012), at For a discussion of the proposal to add criminal jurisdiction to the East African Court of Justice, see EAC Press Release, Council of Ministers to Discuss Extended Jurisdiction for EACJ (June 26, 2012), at 48:eac-latest&Itemid= 69.

14 For an account of some of the challenges posed by the project of merging the jurisdictional types, see Max Du Plessis, A Case of Negative Regional Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes, EJIL: TALK! (Aug. 27, 2012), at See also Franz Viljoen, AU Assembly Should Consider Human Rights Implications Before Adopting the Amending Merged African Court Protocol, Afric Law (May 23, 2012), at; Gino J. Naldi & Kon stantinos D. Magliveras, Africa Contemplates Creating International Criminal Law Entity, ASIL Accountability (ASIL International Criminal Law Interest Group Newsletter, Summer 2012), at NAL%20LAW%20ENTITY.pdf.

15 See Inter-Am. Comm’n H.R., Report on the Work Accomplished During Its Fifteenth Session (Special), OAS Doc. OEA/Ser.L/V/II.16, Doc. 20 (July 26, 1967).

16 As one mother put it, “My son was not a cow, I don’t want money, what I want is justice.” Krsticevic, Viviana, Comment, in Conference, Reparations in the Inter-American System: A Comparative Approach, 56 Am. U. L. Rev. 1375, 1419 (2007) (quoting a mother of one of the victims in the case of El Amparo v. Venezuela, Merits, Inter-Am. Ct. H.R. (ser. C) No. 19 (Jan. 18, 1995)).

17 The first time that the Court included an order to prosecute in the operative part of its reparations decision was in El Amparo v. Venezuela, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 28, para. 64(4), (5) (Sept. 14, 1996).

18 See Inter-Am. Ct. H.R., Supervisio´n de Cumplimiento de Sentencias (Aplicabilidad del Art´ıculo 65 de la Con vencio´n Americana sobre Derechos Humanos [Monitoring Compliance with Judgment (Applicability of Article 65 of the American Convention on Human Rights)] (June 29, 2005), at iones/general_29_06_05.pdf. For a discussion of this evolution, see Baluarte, David C., Strategizing for Compliance: The Evolution of a Compliance Phase of Inter-American Court Litigation and the Strategic Imperative for Victims’Representatives, 27 AM. U. Int’l L. Rev. 263 (2012).

19 McGregor, Lorna, The Role of Supranational Human Rights Litigation in Strengthening Remedies for Torture Nationally, 16 INT’L J. HUM. RTS. 737, 740 (2012).

20 Id.; see also Abramovich, Victor, From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System, 6 SUR INT’L J. ON HUM. RTS. 7 (2009), available at 1706715.

21 The other two main regional rights systems are the European Council system, based on the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 221, at, and the African system, based on the African (Banjul) Charter on Human and Peoples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982), at Other regional systems, such as the Economic Community of West African States, also take on human rights matters. See Court of Justice of the Economic Community of West Afican States, at

22 For a description of the petition process, see Inter-Am. Comm’n H.R., What Is the IACHR?, at

23 Inter-Am. Comm’n H.R., Rules of Procedure, Arts. 44–46 (rev. 2011), at

24 Id.

25 Of twenty-four American nations that have ratified the American Convention, twenty-two have also accepted the binding jurisdiction of the Court: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. However, Trinidad and Tobago denounced the Convention (and thus withdrew from the Court’s jurisdiction) in 1999, and Venezuela denounced the Convention on September 10, 2012. Its denunciation becomes effective in one year’s time. Organization of American States, Multilateral Treaties, at

26 Inter-Am. Comm’n H.R., Annual Report 2011, ch. III(b),at

27 The jurisdiction of the Court is set out in Articles 61–64 of the American Convention, supra note 9.

28 Id., Art. 61 (stating that individual petitions cannot be filed directly with the Court). Note that state parties, as well as the Commission, may submit cases to the Court.

29 Informe Anual de la Corte Interamericana de Derechos Humanos 2011, supra note 5 (the Court and Commission also issue provisional measures and preliminary measures, respectively).

30 See, e.g., Tittemore, Brian D., Ending Impunity in the Americas: The Role of the Inter-American Human Rights System in Advancing Accountability for Serious Crimes Under International Law, 12 SW. J. L. & TRADE AM. 429, 438 (2006); Gonza´lez, Juan Luis Modolell, The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights, 10 INT’L CRIM. L. REV. 475 (2010); see Inter-American Convention on the Forced Disappearance of Persons, June 9, 1994, OAS Doc. AG/RES. 1256 (XXIV-0/94), 33 ILM 1529 (1994).

31 See, e.g., Binder, Christina, The Prohibition of Amnesties by the Inter-American Court of Human Rights, 12 German L.J. 1203 (2011); Laplante, Lisa J., Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes, 49 VA. J. INT’L L. 915 (2009).

32 See, e.g., Open Society Founds.,Inter-American Court Issues Groundbreaking Ruling on Right to Truth and Information (Jan. 13, 2011), at; Antkowiak, Thomas M., Note, Truth as Right and Remedy in International Human Rights Experience, 23 MICH. J. INT’L L. 977 (2002).

33 See Basch, supra note 12.

34 See also Antkowiak, Thomas M., Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond, 46 Colum. J. Transnat’l L. 351, 355 (2008).

35 Vela´squez-Rodr´ıguez v. Honduras, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 7 (July 21, 1989); God´ınez-Cruz v. Honduras, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 8 (July 21, 1989).

36 Vela´squez-Rodr´ıguez v. Honduras, supra note 35; God´ınez-Cruz v. Honduras, supra note 35.

37 The state’s obligation to prosecute is nonetheless implicit in the Court’s merits rulings in these first two cases. See Vela´squez-Rodr´ıguez v. Honduras, Merits, Inter-Am. Ct. H.R. (ser. C) No. 4, para. 166 (July 29, 1988).

38 El Amparo v. Venezuela, supra note 17.

39 See Huneeus, Alexandra, Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights, 44 Cornell Int’l L.J. 493 (2011).

40 Vela´squez-Rodr´ıguezv.Honduras,supra note 37. For acritique ofthis claim, see Basch,supra note 12 (arguing that the Court has backtracked on this claim, which should be interpreted rather as a duty to prosecute any act that violates the Convention that is also a crime under national or international law).

41 Id.

42 This shift has been criticized by those who worry that the Court is expanding victims’ rights at the cost of due process rights for defendants. See supra note 12 and accompanying text.

43 Trujillo Oroza v. Bolivia, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C)No. 92, para. 100 (Feb. 27, 2002); Cantoral Benavidesv.Peru, Reparations & Costs, Inter-Am. Ct. H.R. (ser.C)No. 88, para.69(Dec.3,2001); Cesti Hurtado v.Peru, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C)No. 78, para.62 (May 31, 2001); Mack Chang v. Guatemala, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 101, para. 273 (Nov. 25, 2003).

44 Mack Chang v. Guatemala, supra note 43, para. 301.

45 Id., para. 275.

46 Id.

47 Id., para. 276.

48 Id., para. 277.

49 Id.

50 See, e.g., 19 Merchants v. Colombia, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser.C) No. 109, paras. 263 (“The next of kin of the victims must have full access and competence to act at all stages and in all bodies of these investigations, in accordance with domestic law and the provisions of the American Convention.”), 271 (“[T]he Court considers that it is fair and reasonable to order Colombia to conduct a genuine search, making every possible effort to determine with certainty what happened to the remains of the victims and, should it be possible, to return these to their next of kin.”) (July 5, 2004).

51 See, e.g., Cavallaro, James L. & Brewer, Stephanie Erin, Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court, 102 AJIL 768, 781 (2008); Hawkins, Darren & Jacoby, Wade, Partial Compliance: A Comparison of the European and Inter-American Courts of Human Rights, 6 J. Int’l L. & Int’l Rel. 35, 46 (2010).

52 For a critical discussion of this change, see Cavallaro & Brewer, supra note 51.

53 Article 65 of the American Convention,supra note 9, says only that the Court can refer a case of noncompliance to the OAS General Assembly. The Court quickly learned, however, that this option was not effective; the General Assembly consistently failed torespond with sufficient force. Since 1996, the Court has interpreted the Convention to allow it to monitor its own rulings. See Baena Ricardo v. Panama, Competence, Inter-Am. Ct. H.R. (ser. C) No. 104 (Nov. 28, 2003) (rejecting Panama’s challenge to its power to supervise compliance); Inter-Am. Ct. H.R., Rules of Procedure, Art. 69 (2009), at (specifying procedures for supervision).

54 Baluarte, supra note 18 (arguing that lawyers need to begin considering the supervision phase as an important part of the litigation before the Inter-American Court, with its own distinct dynamics and constraints).

55 By contrast, as of this writing it has issued only eighteen rulings in contentious cases. See Inter-Am. Ct. H.R., Jurisprudence Monitoring Compliance with Judgments, at

56 See Baluarte, supra note 18.

57 La Rochela Massacre v. Colombia, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 163 (May 11, 2007).

58 Id., para. 314.

59 La Rochela Massacre v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Aug. 26, 2010), at

60 Id., “Considering,” paras. 60–64 (footnotes omitted).

61 The Court itself has made the following distinction between the phases of adjudication and supervision: “during the monitoring of compliance with the Judgment, the Tribunal’s duty is nolonger the determination of the facts of the case and the State’s potential international responsibility, but instead only the verification of the compliance with the obligations stated in the judgment by the State responsible.” Pueblo Bello Massacre v. Colombia, Monitoring Compliance with Judgment, “Considering,” para. 10 (Inter-Am. Ct. H.R. July 9, 2009), at

62 See, e.g., Mark Tushnet, Weak Courts, Strong Rights (2008); Dixon, Rosalind, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 Int’l J. Const. L. 391 (2007).

63 Rodr´ıguez-Garavito, Ce´sar, Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America, 89 Tex. L. Rev. 1669 (2011).

64 Id. at 1696.

65 A group of scholars in Argentina have been especially vociferous in their criticism of the Court. See supra note 12 and accompanying text.

66 The Inter-American Court rejected Panama’s challenge to the Court’s supervision of compliance with its rulings, and states have since accepted the practice. See Baena Ricardo v. Panama, supra note 53.

67 Mapiripa´n Massacre v. Colombia, Monitoring Compliance with Judgment, “Considering,” para. 20 (Inter-Am. Ct. H.R. July 8, 2009), at ing.pdf.

68 Pueblo Bello Massacre v. Colombia, Monitoring Compliance with Judgment, “Considering,” para. 11 (Inter-Am. Ct. H.R. July 9, 2009) (footnote omitted), at 09_ing.pdf.

69 Malarino, supra note 12, at 691.

70 Ratner Et Al., supra note 1, at 257. But the authors also concede that the individual-petition mechanism before the regional courts is more effective. Id. at 258.

71 See supra note 59 and accompanying text.

72 In 2011, for example, the Inter-American Commission referred twenty-two casesto the Court, up from fifteen the previous year. See Thus, the Court had fewer resources for supervision in 2012. I owe this point to Oscar Parra.

73 See Press Release No. 114/11, Organization of American States, With Regard to Recent Events Surrounding the Mapiripa´n Massacre in Colombia (Oct. 31, 2011), at

74 Mary Anastasia O’Grady, A ‘Human Rights’ Swindle in Colombia, WALL ST. J., Nov. 7, 2011, at A17.

75 Moiwana Community v. Suriname, Monitoring Compliance with Judgment, “Considering,” para.12(Inter-Am. Ct. H.R. Nov. 22, 2010) (footnotes omitted), at 22_11_10_ing1.pdf.

76 Malarino, supra note 12, at 692.

77 Barrios Altos v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Sept. 7, 2012), at

78 The debate came to a head in Bulacio v. Argentina, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 100 (Sept. 18, 2003), when the Inter-American Court ordered Argentina to reopen, investigate, and punish in a case of torture that the Supreme Court of Argentina had closed because the statute of limitations had run. The Supreme Court duly reopened the case, even as it declared that it disagreed with the Inter-American Court’s order. The ruling created controversy among the legal community. See Basch, supra note 12; see also Malarino, supra note 12.

79 For discussions of the Inter-American System and amnesty, see Laplante, supra note 31. See also Binder, supra note 31; Pastor, supra note 12; Gargarella, supra note 12. For a nuanced discussion of amnesty reflecting more broadly based empirical research, see Amnesty in The Age of Human Rights Accountability: Comparative and International Perspectives (Francesca Lessa & Leigh A. Payne eds., 2012).

80 See supra note 12 and accompanying text. The present article does not directly engage this debate. Its objective is not to justify the Inter-American Court’s practice of quasi-criminal review in light of its founding documents. The objective is rather to highlight one aspect of the Court’s engagement with state-sponsored crime—quasi-criminal review—and to assess that practice insofar as it presents a complement and possible alternative to existing institutions of criminal law.

81 Castillo Pa´ez v. Peru is the closest that a state has come to fulfilling such an order. While the Court agreed that the state had fulfilled its dutytoinvestigate and punish, itconsidered that compliance with other remedies was pending. See Castillo Pa´ez v. Peru, Monitoring Compliance with Judgment, “Declares,” paras. 1, 2 (Inter-Am. Ct. H.R. Apr. 3, 2009), at

82 As Hawkins and Jacoby, supra note 51, argue, partial compliance with court rulings is the most common modality of states in regional rights systems; little is gained by counting only cases of full compliance with a court ruling. Using the information provided in the compliance reports, Hawkins and Jacoby qualitatively evaluate partial compliance with a particular type of order.

83 The database was compiled and coded by the author and three research assistants using Nvivo qualitative analysis software and a shared coding protocol. The codes were devised to reveal both what the Court demanded in cases involving international crime and how, over time, states responded to the Court’s demands. The data analyzed are drawn from the Court’s own rulings and reports on compliance with its rulings. The Court issued remedies rulings in roughly 107 cases between 1988, its first such ruling, and September 2012. In 68 percent of those cases, it issued orders to launch or complete a criminal investigation. Starting in the 2000s, it also began regularly issuing reports on state compliance with its orders.

84 The group of cases consequently does not include the Court’s first contentious cases—in which the Court did not order a prosecutionaspartofits remedial orders—even if the violations underlying those cases are international crimes. See Vela´squez Rodr´ıguez v. Honduras, supra note 35; God´ınez Cruz v. Honduras, supra note 35.

85 Thus, the underlying acts be characterized as genocide, crimes against humanity, or war crimes. Only these three crimes are considered here, following the jurisdiction of the main international criminal law tribunals. Of course, only a criminal court could make the final determination of whether the elements of the crime are actually met. But all the cases included demand prosecution for acts that, prima facie, constitute international crimes. For a categorization and description of international crimes, see Antonio Cassese, International Criminal Law (2d ed. 2008).

86 Thus, each case included has generated at least one compliance report. Some cases have several. Bamaca Velasquez v. GuatemaL•, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 91 (Feb. 22, 2002), has received nine compliance reports. In recent years, the Court has used the compliance report format to call the parties to closed hearings. While these convocations are brief, many of them still provide at least some information about state compliance.

87 Id.

88 See, e.g., Almonacid Arellano v. Chile, Preliminary Objections, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006).

89 See, e.g., Goiburu´v. Paraguay, Merits, Reparations & Costs, Inter-Am. Ct. H.R (ser. C) No. 153 (Sept. 22, 2006).

90 See Pueblo Bello Massacre v. Colombia, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 140 (Jan. 31, 2006).

91 Each case was coded for its progress by the author and one of two research assistants. The codes used were “little advancement,” “some advancement,” and “substantial advancement.”

92 Ba´maca Velasquez v. Guatemala, Provisional Measures & Monitoring Compliance with Judgment, “Considering,” para. 15 (Inter-Am. Ct. H.R. Jan. 27, 2009) (footnote omitted), ¿#

93 See, e.g., Heliodoro Portugal v. Panama, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. May 28, 2010) (finding that Panamanian Supreme Court had declared that the underlying acts were of a character that did not allow them to be subject to statute of limitations, that a criminal case had been opened, and that the victim’s family was being kept informed as to the advance of the case, pursuant to its remedial order), at

94 Barrios Altos v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Dec. 7, 2009); Blake v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Jan. 22, 2009); Castillo Pa´ez v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. May 19, 2011); Mack Chang v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 16, 2009); Servello´n Garc´ıa v. Honduras, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Aug. 5, 2008); Escue´ Zapata v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Feb. 21, 2011); Goiburu´ v. Paraguay, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 19, 2009); La Cantuta v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 20, 2009); Las Palmeras v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Feb. 3, 2010).

95 See, e.g., Escue´ Zapata v. Colombia, Monitoring Compliance with Judgment, “Considering,” para. 16 (Inter-Am. Ct. H.R. May 18, 2010):

The Tribunal values the information furnished bythe State, inasmuch asit shows the intentionto comply with its international obligations to investigate and punish the [sic ] responsible for the human rights violations declared in the instant case. As a result, the Tribunal declares that the State has made significant progress in the compliance with this measure of reparation and waits for updated informationonthe proceedings pending resolution.

96 Note that the actual number may be higher, as some of the cases have not received compliance reports for sev eral years. It is also possible that states have failed to report convictions.

97 Barrios Altos v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Dec. 7, 2009), at

98 Blake v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 27, 2003), at

99 Castillo Pa´ez v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. April 3, 2009), at

100 Escue´ Zapata v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Feb 21, 2011), at In this case three persons were convicted in 2008. Since one of them was absolved afteran appeal, however, that person’s case is not counted here as a separate conviction).

101 Goiburu´ v. Paraguay, supra note 94. The Supreme Court of Paraguay finalized these sentences in 2008, though four had been initially issued by the time of the Inter-American Court order.

102 La Cantuta v. Peru, supra note 94. In this case, there is also a fifth conviction: that of President Fujimori, who was found guilty of ordering both the Barrios Altos and La Cantuta massacres. His conviction is counted only once, however—under the Barrios Altos case above.

103 Las Palmeras v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Aug. 4, 2008), at Two of the three convicted were not in state custody, however, and could not be found. Id.

104 Cepeda Vargas v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 30, 2011), at

105 Dos Erres Massacre v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. July 6, 2011), at

106 Mapiripa´n Massacre v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. July 8, 2009), at This order does not spec ify with what crime(s) the convicts were charged.

107 Pueblo Bello Massacre v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. July 9, 2009), at This order does not specify with what crime(s) the convicts were charged.).

108 La Rochela Massacre v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Aug. 26, 2010), at This order does not specify with what crime the convicts were charged.

109 Mack Chang v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Sept. 12, 2005), at The convict was not under state custody, however; he escaped, and the Court is keeping the case open and under supervision, thereby prompting the state to find him.

110 Servello´nGarc´ıa v. Honduras, Monitoring Compliance with Judgment (Inter-Am. Ct.H.R.Nov. 22,2011), at

111 Valle Jaramillo v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Dec. 21, 2010), at

112 See Goiburu´ v. Paraguay, supra note 94.

113 As David Grann noted in A Murder Foretold, New Yorker, Apr. 4, 2011, at 42, 44:

Incredibly, the death rate in Guatemala is now higher than it was for much of the civil war. And there is almost absolute impunity: ninety-seven per cent of homicides remain unsolved, the killers free to kill again. In 2007, a U.N. official declared, “Guatemala is a good place to commit a murder, because you will almost certainly get away with it.”

114 On the Inter-American Court’s difficulty in securing national prosecution for such crimes, see Huneeus,supra note 39 (arguing that the Court needs to establish closer ties to national justice systems, even while acknowledging the difficulty of such prosecutions going forward).

115 For information on these tribunals’ records of convictions and their budgets, see supra notes 4 and 5, respectively, and accompanying text. See part II for a further, more detailed comparison of the Inter-American Court to other courts.

116 Indeed, a rich scholarly literature explores the factors that influence some states, but not others, to prosecute for the crimes of repressive governments. See, e.g., Snyder, Jack & Vinjamuri, Leslie, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, 28 Int’l Sec. 5 (2003); Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (2010); Tricia D. Olsen, Leigh A. Payne & Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (2010); Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (2011); Elin Skaar, Judicial Independence and Human Rights in Latin America: Violations, Politics, and Prosecution (2011).

117 We need both quantitative and qualitative studies that compare across cases. Note, however, that several case studies already highlight the role of the Inter-American System in fostering accountability. See, e.g., Nadine Borges, Damiaão Ximenes:Primeira Condenacçaão Do Brasil Na Corte Interamericana De Direitos Humanos(2009); Human Rights Regimes In The Americas(Moónica Serrano & Vessel in Popovski eds., 2010); Lisa J. Laplante, Entwined Paths to Justice: The Inter-American Human Rights System and the Peruvian Truth Commission, in Paths To International Justice: Social And Legal Perspectives 216 (Marie-Be´-ne´dicte Dembour & Tobias Kelly eds., 2007); Richard Price, Rainforest Warriors: Human Rights On Trial(2011); Victims Unsilenced: The Inter-American Human Rights System And Transitional Justice In Latin America (Catherine A. Sunshine ed. (English), 2007), available at

118 Rome Statute of the International Criminal Court, pmbl., July 17, 1998, 2187 UNTS 900 [hereinafter Rome Statute].

119 Luis Moreno-Ocampo, Prosecutor of the ICC, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (June 16, 2003), at

120 See, e.g., Dickinson, Laura A., The Promise of Hybrid Courts, 97 AJIL 295 (2003); see also McAuliffe, Padraig, Hybrid Tribunals at Ten: How International Criminal Justice’s Golden Child Became an Orphan, 7 J. Int’l Law & Int’l Rel. 1 (2011).

121 Prominent examples include the following: Lukenda v. Slovenia, App. No. 23032/02, Eur. Ct. H.R. (June 10, 2005); Bottazzi v. Italy, App. No. 34884/97, Eur. Ct. H.R. (July 28, 1999); Scordino v. Italy (No. 1), App. No. 36813/97, Eur. Ct. H.R.(July 29, 2004); and Kudla v. Poland, App. No. 30210/96, Eur. Ct. H.R. (Oct. 26, 2000). For discussion of these cases, see Freédeéric Edel, The Length of Civil and Criminal Proceedings in The Case-Law of The European Court of Human Rights (2007); Philip Leach, Helen Hardman, Svetlana Stephenson & Brad K. Blitz, Responding To Systemic Human Rights Violations: Ananalysis Of ‘Pilot Judgments’ of The European Convention of Human Rights and Their Impact at National Level (2010).

122 Radilla Pacheco v. Mexico, Preliminary Objections, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 209, para. 346 (Nov. 23, 2009). In a recent series of rulings, for example, the Court has ordered Mexico to restructure its military jurisdiction and to ensure that judges take courses in human rights. See id. ; Gonza´lez (“Cotton Field”) v. Mexico, Preliminary Objection, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 205 (Nov. 16, 2009).

123 See, e.g., Constitutional Court v. Peru, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser.C) No. 71 (Jan. 31, 2001) (declaring that Peru violated the American Convention by removing three constitutional court judges for political reasons); Apitz Barbera (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objection, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 182 (Aug. 5, 2008) (demanding that Venezuela reinstate three judges removed for ruling against the government).

124 Thus, in Radilla-Pacheco v. Mexico, in addition to ordering Mexico to investigate and punish for the forced disappearance of Radilla-Pacheco, the Court ordered Mexico to reform its federal penal code and military justice code through legislative action and to create permanent courses for justice-system personnel on the matter of forced disappearance. See supra note 122 and accompanying text.

125 See Baámaca Velaásquezv.Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 18, 2010), at (citing cases in Argentina, Bolivia, Colombia, Guatemala, and Peru in which high courts have deemed the Court’s orders to beself-executing); Almonacid Arellano v. Chile, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 18, 2010), at (citing a Chilean Supreme Court ruling in the same vein). Cf. Medelliín v. Texas, 552 U.S. 491 (2008) (ruling that the International Court of Justice’s rulings were not self-executing and that Texan courts did not have a duty to implement that court’s mandated rem edies).

126 For example, in a report on compliance with Baémaca Velaésquez v. Guatemala, the Court wrote that Guatemala created a roundtable on human rights (Mesa de derechos humanos) in which different state actors, including the judiciary, the public ministry, and the human rights institution, took part. The roundtable selected four cases, including Baémaca, in which there was evidence of structural impunity (impunidad procesal). Their objective was to analyze and identify how the justice system worked—or failed—through analysis of these paradigmatic cases. The state itself claimed that one direct outcome of this roundtable was that in December 2009, the Guatemalan Supreme Court declared the Inter-American Court’s orders to be self-executing. See Baémaca Velaésquez, supra note 125. In Mapiripaén Massacre v. Colombia, the Court asked the state to create a working group for implementing its orders. Colombia complied. It included actors from different branches of the state, as well as the victims and their representatives, in the working group, called the mecanismo oficial de seguimiento de las reparaciones (“official mechanism to monitor reparations”), or M.O.S. Mapiripaán. The M.O.S. went on to hold twenty-four meetings and advanced the implementation of the Court’s remedies. Mapiripaán Massacre v. Colombia, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. July 8, 2009), at; see also Molina-Theissen v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 16, 2009) (asking Guatemala to designate specific actors to coordinate the implemen tation of the remedies), at

127 In Trujillo-Oroza v. Bolivia, for example, the Court ordered the state to “define the forced disappearance of persons as an offense in its domestic legislation.” Trujillo Orozav. Bolivia, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 92, para. 98 (Feb. 27, 2002). In a subsequent compliance report, the Court deemed the state to have complied. Trujillo Oroza v. Bolivia, Monitoring Compliance with Judgment, “Considering,” para. 33 (Inter-Am. Ct. H.R. Nov. 16, 2009), at For the Convention, see supra note 30.

128 Meégret, Freédeéric, Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice, 16 BUFF. HUM. RTS. L. Rev. 1, 5 (2010).

129 Roche, Declan, Truth Commission Amnesties and the International Criminal Court, 45 BR. J. CRIMINOLOGY 565 (2005); Totten, Christopher D., The International Criminal Court and Truth Commissions: A Framework for Cross-interaction in the Sudan and Beyond, 7 NW. U. J. Int’l HUM. RTS. 1 (2009).

130 Meégret, supra note 128.

131 Id. ; see also Antkowiak, Thomas M., An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 STAN. J. Int’l L. 279 (2011) (arguing that the Inter-American Court’s experience with remedies provides a useful guide for other international courts).

132 Id.

133 Although individuals cannot petition the Court directly, they can petition the Inter-American Commission. Further, since 2001, victims participate as parties in the Inter-American Court’s hearings, alongside the Commission and defending state.

134 See supra note 50 and accompanying text.

135 Huneeus, supra note 39;see also Basch, Fernando, Filippini, Leonardo, Laya, Ana, Nino, Mariano, Rossi, Felicitas & Schreiber, Baárbara, The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to Its Functioning and Compliance with Its Decisions, 7 SUR Int’l J. ON HUM. RTS. 9 (2010).

136 Villagraán Morales v. Guatemala (The “Street Children” Case), Monitoring Compliance with Judgment, “Considering,” para. 4 (Inter-Am. Ct. H.R. Nov. 27, 2003), at

137 Saramaka People v. Surinam, Monitoring Compliance with Judgment, “Considering,” para. 35 (Inter-Am. Ct. H.R. Nov. 23, 2011), at

138 See Leach, Philip, The Chechen Conflict: Analysingthe Oversight of the European Court of Human Rights, 6 EUR. HUM. RTS. L. Rev. 732, 758–59 (2008), at (arguing that the ECHR should order such remedies in cases of forced disappearance, as “making an order for an investigation to be undertaken is arguably the only step which could get near to ‘remedying’ the violation”); see also Koroteev, Kirill, Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context, 1 Int’l Humanitarian Legal Stud. 275 (2010).

139 In other words, it finds a violation and then defers to states on how to bring their practices in line with the Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 21. This practice has begun to change in recent cases. See Colandrea, Valerio, On the Power of the European Court of Human Rights to Order Specific Non-monetary Measures: Some Remarks in Light of the Assanidze, Broniowski and Sejdovic Cases , 7 HUM. RTS. L. Rev. 396 (2007).

140 The Chechnya cases are not the only cases of international crimes to come before the ECHR. In the 1990s, the Court received hundreds of petitions against Turkey for cases arising out of the conflict between Turkish security forces and the Kurdish armed group the Kurdistan Workers Party. In these cases, the ECHR worked with the European Commission of Human Rights (no longer existing) to establish a record of the crimes committed. This approach, no longer available, was arguably a different form of quasi-criminal jurisdiction. See Çali, Baaşak, The Logics of Supranational Human Rights Litigation, Official Acknowledgement, and Human Rights Reform: The Southeast Turkey Cases Before the European Court of Human Rights, 1996–2006, 35 LAW & SOC. INQUIRY 311, 312–13 (2010); see also GROVER, supra note 8.

141 Committee of Ministers, Annotated Agenda and Decisions Adopted, 1115th meeting(DH),7 – 8 June 2011, at 43, CoE Doc. CM/Del/Dec (2011)1115 (June 10, 2011) (Khashiyev Group v. Russian Federation), at = CM.

142 Committee of Ministers, Department for the Execution of Judgments of the European Court of Human Rights, Action of the Security Forces in the Chechen Republic of the Russian Federation: General Measures to Comply with the Judgments of the European Court of Human Rights, CoE Doc. CM/Inf/DH(2010) 26 (May 27, 2010), at = CM.

143 Annotated Agenda and Decisions Adopted, supra note 141, at 44.

144 See Lapitskaya, Julia, ECHR, Russia, and Chechnya: Two Is Not Company and Three Is Definitely a Crowd 43 N.Y.U. J. Int’l L. & POL. 479 (2011); Leach, supra note 138.

145 Human Rights Watch, Who Will Tell Me What Happened to My Son? Russia Simplementation of European Court of Human Rights Judgments on Chechnya 1 (2009), available at

146 Annotated Agenda and Decisions Adopted, supra note 141, at 46.

147 Action of the Security Forces in the Chechen Republic of the Russian Federation: General Measures to Comply with the Judgments of the European Court of Human Rights, supra note 142, paras. 9–13.

148 Id., para. 20 (secretariat’s assessment).

149 In a 2008 article, Philip Leach characterized Russia’s stance in relation to the COM’s supervision as one of “obfuscation.” He did note, however, that “in response to the Court’s earliest judgments in the Chechen cases, domestic investigations were re-opened or re-instigated.” See Leach, supra note 138, at 759.

150 See, e.g., Grover, supra note 8; Koroteev, supra note 138; Leach, supra note 138; Pinzauti, Giulia, The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia, 6 J. Int’l Crim. Just. 1043 (2008); Rodriguez-Pinzoón, Díego, The Inter-American Human Rights System and Transitional Processes, in Transitional Jurisprudence And The Echr: Justice, Politics And Rights 239 (Buyse, Antoine & Hamilton, Michael eds., 2011).

151 See, e.g., Koroteev, supra note 138; Réparer Les Violations Graves Et Massives Des Droits De L’homme: La Cour InterameéRicaine, PionniéRe Et ModéLe? [Repair of Serious and Massive Human Rights Violations: The Inter-American Court, Pioneer and Model?] (Elisabeth Lambert Abdelgawad & Kathia Martin-Chenut eds., 2010).

152 Manoel Leal de Oliveira v. Brazil, Case 12.308, Inter-Am. Comm’n H.R., Report No. 37/10, OAS Doc. OEA/Ser.L/V/II.Doc. 5, Rev. 1 (2010).

153 Inter-Am. Comm’n H.R.,Annual Report 2010, ch. III(D), OAS Doc.OEA/Ser.L/V/II, Doc.5, rev.1(2011) (status of compliance with the Commission recommendations), at

154 The Inter-American Court’s process thus begins withanonjudicial body that has the power to conduct on-site visits and to dismiss cases in which states cooperate through friendly settlement—something that the European human rights system lacks. I owe this point to one of the three anonymous reviewers.

155 These bodies are Committee on the Elimination of Discrimination Against Women, Committee on the Elimination of Racial Discrimination, Committee on the Rights of Persons with Disabilities, Committee Against Torture, and Human Rights Committee.

156 I Report of the Human Rights Committee at iii, UN GAOR, 66th Sess., Supp. No. 40, UN Doc. A/66/40 (2011). The Committee noted that one hundredof these cases were “from the Republicof Koreaon the same issue.”

157 See, e.g., Committee Against Torture, Communication No. 327/2007, UN Doc. CAT/C/47/D/327/2007 (Jan. 13, 2012) (decision on Canada); Committee Against Torture, Communication No. 353/2008, UN Doc. CAT/C/47/D/353/2008 (Jan. 16, 2011) (decision on Ukraine). These documents are available at http://www2.

158 The Committee Against Torture does not publish the results of its supervision, and the Human Rights Committee doesnot report on what the state has done or not done, but rather reiterates the state’s obligation to investigate and punish.

159 See Tushnet, supra note 62 (defining the difference between weak-form and strong-form judicial review).

160 See McGregor, supra note 19.

161 The preamble to the Security Council resolution establishing the International Criminal Tribunal for the Former Yugoslavia reads as follows: “Convinced that in the particular circumstances of the former Yugoslavia the establishment as an adhoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would... contribute to the restoration and maintenance of peace[.]” SC Res. 827 (May 25, 1993).

162 See, e.g., Thierry Cruvellier, Court Of Remorse: Inside The International Criminal Tribunal for Rwanda 169 (Chari Voss trans., 2010) (arguing that the International Criminal Tribunal for Rwanda (ICTR) was a way for the international community to express its remorse at having allowed the 1994 genocide to unfold without intervention).

163 See, e.g., Rome Statute, supra note 118, pmbl.

164 See, e.g., Antkowiak, supra note 131.

165 See, e.g., Shany, Yuval, The Role of National Courts in Advancing the Goals of International Criminal Tribunals, 103 Asil Proc. 210, 212 (2009) (listing as a goal of international criminal tribunals the development of “international criminal law and other branches of international law”).

166 For a discussion of the role of trials in constructing a historical narrative, see, for example, Richard Ashby Wilson, Writing History in International Criminal Trials (2011); Lawrence Douglas, The Memory of Judgment: Making Law and History in The Trials of The Holocaust (2005).

167 Cassese, Antonio, The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality, in Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia 3, 3 (Romano, Cesare P. R., Nollkaemper, Andreé & Kleffner, Jann K. eds., 2004).

168 One could also categorize the mechanisms by whether they were created pursuant to a Security Council resolution, UN treaty, or interstate treaty. Others have focused on the more technical terms of their jurisdiction (primacy versus complementarity). The relation with national systems seems more relevant here and more suited to bringing out the contrasts between the rights bodies and the other systems. For a categorization scheme based on jurisdictional rules, see Burke-White, William W., The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’l L. 279 (2008).

169 Note that direct criminal jurisdiction also describes the work of the International Military Tribunal at Nuremberg, forebearof the post–Cold War international criminal law institutions. The difference, of course, is that the Allies had occupied Germany and consequently had actual, as opposed to only formal, control of the justice system. See Lamont, Christopher K., International Criminal Justice and The Politics of Compliance 1 (2010); Sadat, Leila Nadya, Judgment at Nuremberg: Foreword to the Symposium, 6 Wash. U. Glob. Stud. L. Rev. 491, 495 (2007).

170 See, e.g., Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 9 (Sept. 2009), at

171 See, e.g., id., Art. 29; SC Res. 827, supra note 161, op. para. 4.

172 As Frederik Harhoff wrote of the ICTY:

To clarify the Tribunal’s supremacy over national authorities, Rule 59 establishes that failure to execute an arrest warrant within a reasonable time period may result in a prompt report of the matter to the U.N. Security Council. These provisions appear dramatically interventionist, making it more appropriate to characterize this part of the Tribunal’s jurisdiction not as concurrent with, but superior to, the national jurisdiction of states.

Harhoff, Frederik, Consonance or Rivalry? Calibrating the Efforts to Prosecute War Crimes in National and International Tribunals, 7 Duke J. Comp. & Int’l L. 571, 580 (1997).

173 Cassese, supra note 85, at 349 (arguing that states crafted a regime that left them more discretion).

174 Rome Statute, supra note 118, Art. 17.

175 But the ICC’s regime of cooperation is more deferential than that of the ad hoc tribunals. See Cassese, supra note 85, at 346–51. Further, some argue that the doctrine of complementarity opens the doortoa more cooperative relation with national justice systems. The ICC could use the threat of prosecution to spur national justice systems to action, monitoring their progress over time. See, e.g., Burke-White, William W., Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008).

176 One might still object that if the state began actively to prosecute, the ICC could change its assessment and suspend its own direct prosecutorial work. But this is only to say that the ICC can opt back into the complementarity mode.

177 The most famous examples are the prosecution of Adolf Eichmann by Israel and the prosecution of General Augusto Pinochet opened by Spanish investigating magistrate Garzo´n in 1996. When Garzo´n opened the case, he did so under passive personality jurisdiction, investigating the forced disappearance and killing of Spanish citizens by the Pinochet regime. He later broadened the investigation, relying on universal jurisdiction. See Sugarman, David, From Unimaginable to Possible: Spain, Pinochet and the Judicialization of Power, 3 J. Spanish Cultural Stud. 107, 110 (2002).

178 For a comparison of this system to that eventually adopted by the criminal tribunals, see Cassese, supra note 85, at 346–51.

179 Id.

180 Dickinson, supra note 120, at 295.

181 The hybrid tribunals are the Extraordinary Chambers in the Courts of Cambodia, Regulation 64 Panels in the Courts of Kosovo, Special Court for Sierra Leone, Special Panels for Serious Crimes in East Timor, and War Crimes Chamber in Sarajeveo. With Lebanon, the international community has also created the Special Tribunal for Lebanon, but this court does not have jurisdiction over international crimes and thus will not be discussed here. See Raub, Lindsey, Positioning Hybrid Tribunals in International Criminal Justice, 41 N.Y.U. J. Int’l L. & Pol. 1013, 1016 (2009), though the Bosnia War Crimes Chamber is not mentioned. One might also include in this category the International Commission Against Impunity in Guatemala.See Hudson, Andrew & Taylor, Alexandra W., The International Commission Against Impunity in Guatemala: A New Model for International Criminal Justice Mechanisms, 8 J. Int’l Crim. Just. 53 (2010); infra note 221 and accompanying text. Also, some argue that the Rome Statute allows the ICC to hold trials locally and that the ICC should do so. However, that is different from arguing that the ICC should incorporate local actors and institutions into its local trials. See Burke-White, William W., Regionalization of International Criminal Law Enforcement: A Preliminary Exploration, 38 Tex. Int’l L. J. 729 (2003); Ford, Stuart, The International Criminal Court and Proximity to the Scene of the Crime: Does the Rome Statute Permit All of the ICC’s Trials to Take Place at Local or Regional Chambers? 43 J. Marshall L. Rev. 715 (2010).

182 See generally Glaspy, Padraic J., Justice Delayed? Recent Developments at the Extraordinary Chambers in the Courts of Cambodia, 21 Harv. Hum. Rts. J. 143 (2008).

183 See, e.g., Dickinson, supra note 120; Raub, supra note 181; Ford, Stuart, The Promise of Local or Regional ICC Trial Chambers: Incorporating the Benefits of the Hybrid Tribunals into the ICC, J. Marshalll. Rev. (forthcoming), available at ; Cohen, David, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future, 43 Stan. J. Int’l L. 1 (2007); Higonnet, Etelle R., Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform, 23 Ariz. J. Int’l & Comp. L. 347 (2005–06).

184 It also encompasses the work of the ICTR under the Completion Strategy. See infra note 235.

185 See Cassese, supra note 85, at 342–43.

186 Burke-White,supra note 175, at 91. Sucha view of the ICC’s work is consonant with the definition of positive complementarity provided by the Bureau of Assembly of States Parties Hague Working Group, which defines it as “all activities/actions whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statue, without involving the Court in capacity building, financial support and technical assistance.” Assembly of States Parties to the Int’l Crim. Ct., Report of the Bureau on Stocktaking: Complementarity, para. 16, UNDoc. ICC-ASP/8/51(Mar. 18, 2010), at The focus is on review and deliberation, rather than active on-the-ground engagement. Id., para. 2.

187 See, e.g., Hum. Rts. Ctr. & Int’l Hum. Rts. L. Clinic, Univ. of Cal., Berkeley, & Centre for Hum. Rts., Univ. of Sarajevo, Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors, 18 Berkeley J. Int’l L. 102 (2000); Elizabeth Neuffer, The Key To My Neighbor’s House: Seeking Justice In Bosnia And Rwanda 371–88 (2002) (account of Rwandan and Bosnian villagers and their experiences with the ad hoc tribunals).

188 See Dickinson, supra note 120.

189 Olga Martin-Ortega & Johanna Herman, Hybrid Tribunals & the Rule of Law: Notes from Bosnia & Herze govina & Cambodia 16 (Just and Durable Peace by Piece, Working Paper No. 7, 2010), at

190 Id. at 15; see also David A.Kaye, , Justice Beyond The Hague: Supporting The Prosecution Of International Crimes In National Courts 9 (2011), available at (arguing that the hybrid tribunals “have uneven records integrating into domestic systems, typically not triggering broader reconstruction of law enforcement and judicial institutions”)

191 Distance is a persistent hindrance to the workof off-shore criminal courts. The evidence and witnesses mostly reside where the crimes took place, which makes prosecution more expensive.

192 Although the hybrid tribunals were meant to be more cost-effective, they have not necessarily been so. See Ford, supra note 183, at 15 (footnote omitted):

[C]omparing the ICTY to the SCSL indicates that the ICTY will cost eight times as much as the SCSL, but will try ten times as many suspects and do it in only twice as much time. A similar comparison to the [Extraordinary Chambers in the Court of Cambodia] indicates that the ICTY will cost a little more than six times as muchasthe ECCC but will try more than 15 times as many people and do it in only twice as much time. These numbers indicate that the hybrid tribunals may be cheaper than the ad hoc tribunals but they are also less efficient.

193 See Romano, Cesare P. R., The Price of International Justice, 4 Law & Prac. Int’l CTS. & Tribunals 281 (2005); Ford, supra note 183 (arguing that the hybrid tribunals are not that much cheaper than international tribunals);see also Cohen, supra note 183 (arguing that hybrid tribunals were a response to the ad hoc tribunals “expensive justice”). But see Wippman, David, The Costs of International Justice, 100 AJIL 861 (2006) (comparing the costs of international and U.S. criminal courts); see also Ford, Stuart, How Leadership in International Criminal Law Is Shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts, 55 St. Louis U. L. J. 953 (2011).

194 Information on costs was drawn from the ICTY website. See supra note 5 and accompanying text.

195 “Security Council Resolution 1315 (2000) stated that the operations of the Special Court would be financed through voluntary contributions of funds, equipment, and services from states, and intergovernmental and non governmental organizations.” First Annual Report of the President of the Special Court for Sierra Leone, at 29. In order to calculate the costs to the international community, I have subtracted from the costs of the Special Court for Sierra Leone the $24 million contribution by Sierra Leone. The data on costs are drawn from the annual reports of the Court’s president: first report at 29 (2002– 03), second report at 41 (2004–05), third report at 46 (2005– 06), fourth report at 41, 63 (2006–07), fifth report at 43 (2007– 08), sixth report at 35 (2008–09), and seventh report at 36 (2009–10). The annual reports are available at

196 The data for the Inter-American Court do not include donations. Also, note that the Court’s budget was very small in the first years: it cost roughly $3 million overall the first decade, compared to $13 million its third decade. The data on costs for the Inter-American Court are drawn from its annual reports (for 1980, at 6 (for 1979–80); 1981, at 7–8 (for 1981– 82); 1984, at 7(for 1983–85); 1987, at 7 (for 1986–87); 1988, at 7 (for 1988–89); 1990, at 10 (for 1990 –91); 1996, at 14 (for 1997); 1999, at 48 (for 1999–2000); and 2010, at 20 (for 2001–10)) and from the following additional documents: 1991 INter-Am. Y.B. On Hum. Rts. 7 (for 1992–93); 1994 Inter-Am. Y.B. On Hum. Rts. 96 (for 1994 –95) (“The Assembly approved the Court’s budget for 1995 and increased it by 15.86%.”); 1995 Inter-Am. Y.B. On Hum. Rts. 80 (for 1996) (“The Assembly approved the budget of the Court for the year 1996 and increased it by 16% in relation to the previous year.”); and Organization of American States, Program-Budget of the Organization for 1998, 1998 Quotas and Pledges to the Voluntary Fund, at 3, OAS AG/RES. 1531 (XXVII-O/97) (June 5, 1997) (for 1998), available at The Court’s annual reports are available at

197 See Ford, supra note 183, at 15 n.62 (noting that “[o]ne would expect that ordinary cases would be simpler, quicker and less complex than leadership cases”).

198 Id. (noting the economies of scale of a larger case load and over time).

199 See supra note 5 and accompanying text.

200 One might object that the comparison should not be of convictions but of the number of completed prosecutions. A finding of innocence or an acquittal is also an important outcome. However, if the point of the courts is accountability for crimes committed by many, the conviction rate is also an important measure.

201 As Peru learned the hard way. See Karen C. Sokol, Case Report: Ivcher Bronstein; Constitutional Tribunal, 95 AJIL 178 (2001) (on Peru’s attempt to withdraw from the Court’s jurisdiction in a particular case, and the Court’s denial of this possibility).

202 In terms of actually completing a prosecution, the international criminal tribunals have more autonomy than the rights bodies using quasi-criminal review. Indeed, some view the ICC as an instrument of specific deterrence with the potential to deter crimes of heads of state in the midst of armed conflict. Whether the ICC has this deterrent effect, however, is still uncertain. See, e.g., Ku, Julian & Nzelibe, Jide, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006).

203 It is important not to overstate this difference. All of the international mechanisms of accountability depend on state cooperation to conduct investigations and prosecute. That remains the case even when the UN Security Council imposes a court on an unwilling state by creating an ad hoc tribunal or through an ICC referral. See Lamont, supra note 169; Victor Peskin, International Justice In Rwanda And The Balkans:Virtual Trials And The Struggle For State Cooperation (2009) (discussing the politics of getting state compliance).

204 See, e.g., James A. Goldston, No Justice in the Killing Fields, Int’l Herald Trib., Apr. 27, 2011, at 6 (arguing that the ECCC has caved to government pressure).

205 See, e.g., Markus Benzing & Morten Bergsmo, Some Tentative Remarks on the Relationship Between Internationalized Criminal Jurisdictions and the International Criminal Court, in Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, And Cambodia, supra note 167, at 407, 410 (“There is a danger that the governing instruments of other internationalized courts will be diverging from or even be incon sistent with the Rome Statute....); see also Raub, supra note 181, at 1048.

206 See, e.g., Ratner Et Al., supra note 1.

207 For a discussion of the criticism that international justice, including the ad hoc tribunals moves too slowly, see Whiting, Alex, In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L. J. 323, 323–24 (2009) (footnote omitted):

The conventional wisdom among policymakers, practitioners, and commentators (both academic and popular) is that war crimes prosecutions, particularly those at the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and its counterpart for Rwanda (“ICTR”), have frequently been too slow, and that it is essential for the future success of the ICC (and other ad hoc tribunals) that accused war criminals be charged, arrested, and tried more expeditiously.

208 See Basch et al., supra note 135, at 26:

The average duration of proceedings, from when the petitions enter into the [IAS] until their resolution is approximately 7 years and 4 months. The median is 6.7 years (approx. 6 years and 8 months), which means that half of the cases are resolved in 6.7 years or less, while the other half takes 6.7 years or more before they are resolved.

209 American Convention, supra note 9, Art. 46.

210 See Basch et al., supra note 135, at 26 (“42% of the cases that ended with an IACHR final report lasted from 5 to 8 years. 33% of them lasted from 7 to 11 years and 17% lasted more than 11 years.”)

211 Id. (“The proceedings in more than 56% of the cases finalized by a Court ruling lasted from 5 to 8 years, and 14% of them lasted from 2 to 5 years, another 15% went on for 7 to 11 years, and another 15% lasted for more than 11 years.”)

212 See Human Rights Clinic, Univ. Of Tex. School Of Law, Maximizing Justice, Minimizing Delay: Streamlining Procedures of the Inter-American Commission On Human Rights (2011), available at _the_IACHR.pdf.

213 Alain Pellet, Internationalized Courts: Better Than Nothing..., in Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, And Cambodia, supra note 167, at 437, 438; see also Han Naharendt, Eichmann in Jerusalem: A Report on the Banality Of evil 269–71 (1963) (considering whether it is proper for a national court to claim jurisdiction over an offense against humanity).

214 Cruvellier, supra note 162, at 169.

215 One might also note that it requires an individual to petition the IAS. While the Inter-American Convention, supra note 9, Art. 61, allows states to denounce other states’ violations of the Convention, no state has ever invoked this option.

216 This issue has come up for both the Inter-American Court (see supra note 101) and also for the ICC. See, e.g., Heller, Kevin Jon, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L. J. 85 (2012) (arguing that complementarity under the Rome Statute allows states to configure the crimes under ordinary criminal law). But see Arendt, supra note 213, at 272 (“[T]hese modern, state-employed mass murderers must be prosecuted because they violated the order of mankind, and not because they killed millions of people. Nothing is more pernicious to an understanding of these new crimes, or stands more in the way of the emergence of an international penal code that could take care of them, than the common illusion that the crime of murder and the crime of genocide are essentially the same....).

217 While the trial of ex-president of Peru Alberto Fujimori generated much media coverage, most national trials that take place following an order to prosecute by the Inter-American Court do not rise to the level of international awareness. One explanation may be that they tend to be less high-level offenders than those who appear before the international and hybrid tribunals. But it is also the case that the involvement of the international community generates interest, as it reflects a more direct state investment. That the ICC has been using complementarity to push for trials in Colombia has arguably gone less noted than any of its direct investigations in Africa.

218 Schoenfeld, Heather, Levi, Ron & Hagan, John, Extreme Crises and the Institutionalization of International Criminal Law, 33 Critique Internationale 37, 37 (2007) (exploring how innovations within the ICTY have led to the development of such a class).

219 See Huneeus, supra note 39 (arguing that this sort of resistance occurs in the inter-American setting).

220 As the focus of this article is on quasi-criminal review, collaboration between direct jurisdiction and hybrid jurisdiction is not explored. Note, however, that the work of the ICTY and the Bosnia tribunal may be an example of such collaboration. See Burke-White, supra note 168.

221 See Blake v. Guatemala, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. Nov. 27, 2007), at The International Commission Against Impunity in Guatemala is unique within the UN system. See Hudson & Taylor, supra note 181. While its aim is to support Guatemalan institutions indismantling illegal domestic security apparatus and clandestine security organizations, ithas, within its mandate, the power to investigate any person, official, orprivate entity, topresent charges to the public prosecutor, and to join criminal proceedings as a private prosecutor. Its head and many of its staff are not Guatemalan but are international actors brought in by the United Nations. It represents, then, a new kind of hybrid jurisdiction. Id. at 54 (categorizing the International Commission Against Impunity in Guatemala as a “hybrid” mechanism like the hybrid criminal tribunals).

222 See, e.g., Meégret, supra note 128; Antkowiak, supra note 131. Yet others argue that the ICC should (and does) look to the IAS in matters such as access and victim participation. See Olaásolo, Heéctor & Galain, Pablo, La Influencia en la Corte Penal Internacional de la Jurisprudencia de la Corte Interamericana de Derechos Humanos en Materia de Acceso, Participacioón y Reparacioón de Víctimas, in 1 Sistema Interamericano De ProteccióN De Los Derechos Humanos Y Derecho Penal Internacional, supra note 12, at 379 .

223 See Cecilia Cristina Naddeo, Praising the Region: What Might a Complementary Criminal Justice System Learn from the Inter-American Court of Human Rights? in The Diversification And Fragmentation Of Inter National Criminal Law (Larissa van den Herik & Carsten Stahn eds., 2012) (providing a rigorous analysis of how the ICC could incorporate inter-American jurisprudence into its application of the principle of complemen tarity as an admissibility test); see also Dino Carlos Caro Coria, La Garantéa del Tribunal Imparcial en el Derecho Internacional de los Derechos Humanos: Anaálisis Desde el Principio de Complementariedad de la Corte Penal Interna cional, in 1 Sistema Interamericano De ProteccióNdelos Derechos Humanos Y Derecho Penal Internacional, supra note 12, at 295.

224 See, e.g., Burke-White, supra note 175; Courtney, Jocelyn, Enforced Disappearances in Colombia: A Plea for Synergy Between the Courts, 10 Int’l Crim. L. Rev. 679 (2010).

225 For a similar suggestion, see Easterday, Jennifer S., Deciding the Fate of Complementarity: A Colombian Case Study, 26 Ariz. J. Int’l & Comp. L. 49 (2009).

226 See Charles Jalloh, The African Union and the International Criminal Court: The Summer of Our Discontent(s), Jurist (Aug. 6, 2010), at court-the-summer-of-our-discontents.php; Charles Chernor Jalloh, Regionalizing International Criminal Law? 9 Int’l Crim. L. Rev. 445 (2009).

227 Burke-White, supra note 181, at 730.

228 See supra note 13 and accompanying text. For a discussion of the African Union’s steps in this direction, see Analysis: How Close Is an African Criminal Court? Irinnews (June 13, 2012),

229 See Helen M. Stacy, Human Rights for The 21St century: Sovereignty, Civil Society, Culture 141–69 (2009). This greater local legitimacy should not be taken to imply, however, that regional rights systems are uncontroversial. As this article was being written, the Inter-American Commission and arguably the IAS itself came under attack from a broad spectrum of Latin American states. See Jim Wyss, OAS Rights Body Slammed at Annual Meeting, Miami Herald, June 5, 2012, at Moreover, one of the main criticisms of the OAS is that the United States controls the system even as it does not abide by Commission rulings or submit to the Court’s jurisdiction. The proper point to make, then, might be a narrower one: the status of regional institutions as more local can be a source of legitimacy. Thus, Hugo Chavez has proposed creating a rights system within Unasar (Unio´n de Naciones Suramericanas) or ALBA (Alternativa Bolivariana para las Americas), which do not include the United States and are thus more “local.” Id.

230 An African regional court would be harder to characterize in that way.

231 Roche, supra note 129; Totten, supra note 129.

232 See Meégret, supra note 128.

233 Id. at 4.

234 Id. ; see also Antkowiak, supra note 131.

235 The ICTR provides an example. In 2002, the UN Security Council, concerned that the ad hoc tribunals were moving too slowly, imposed a Completion Strategy, creating “a jurisdictional relationship under which the... [ad hoc tribunal] could send cases back to national jurisdictions, monitor domestic proceedings, and remove cases back to the international forum only if key targets were not met.” Burke-White, supra note 168, at 320; see also SC Res. 1534 (Mar. 26, 2004). On June 28, 2011, the ICTR referred its first case to the Rwandan national court system. Most notably for our purposes, it decided that the African Commissionon Human and Peoples’ Rights will monitor the trial in Rwanda and bring any potential concerns to the attention of the ICTR. See Prosecutor v. Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, para. 35 (June 28, 2011), at (“The Tribunal shall rely on African Commission on Human and Peoples’ Rights (‘ACHPR’) monitors to identify and report promptly on any violations which would be an impediment to the fair trial rights of the Accused if tried in Rwanda.”). Should the commission find that the Rwandan judiciary is not meeting adequate standards, the ICTR can reclaim jurisdiction. The ICTR, in other words, is using the African Commission to conduct a quasi-criminal review of cases that it has decided not to prosecute itself.

236 The inter-American experience with quasi-criminal review may also be relevant to courts in subregional legal orders, such as the Economic Community of West African States’ Community Court of Justice, which has jurisdiction over human rights.

* For their comments on earlier drafts, I thank Diane Marie Amann, Anuj Desai, Ariel Dulitzky, Mayra Fedderson, Nienke Grossman, Heinz Klug, Mark Osiel, Oscar Parra, Victor Peskin, Judith Schönsteiner, Greg Shaffer, Anne-Marie Slaughter, and Beth Van Schaack. This paper was presented at the annual meetings of the American Society of International Law, Junior International Law Scholars Association, and Law and Society Association, at a meeting of the ASIL’s International Criminal Law Interest Group, and at the Wisconsin Junior Faculty Seminar. I thank participants in those settings for their thoughtful feedback. I gratefully acknowledge the support of the University of Wisconsin Graduate and Law Schools, and the excellent research support provided by Tatiana Alfonso, María José Azocar, and Pamela Ritger. All views and, of course, any errors are my own. A précis of this article's main argument will appear in the Proceedings of the American Society of International Law's 2012 annual meeting. The article won the 2013 American Association of Law Schools Scholarly Papers Award and was presented at the association’s 2013 annual meeting.

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

  • Alexandra Huneeus (a1)


Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed