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 Court runs on a yearly budget of roughly US$25 million; the ICC and ICTY each run on yearly budgets of roughly US$150 million (4) The Inter-American Court is not alone in its foray into prosecutorial matters The Inter-American Commission for Human Rights, the Council of Europe's Committee of Ministers, and the African Human Rights Commission also exhort states both to prosecute international crimes and to monitor the ensuing national processes In pushing for accountability, these human rights bodies exert a jurisdiction quite different from that of the international and hybrid criminal courts Whereas those courts directly conduct the prosecutorial work themselves, the rights bodies entrust local justice systems with the corrective actions, monitoring their work from afar but at times in detail, and exerting pressure by publishing compliance reports and holding hearings The rights bodies' methods are thus more deferential to states and, inevitably, slow to reach prosecutorial outcomes But they have important virtues They foster local processes of justice, memory, and judicial reform They are able to pair victim-centered remedies with retributive justice And, importantly, it is the state rather than the international community that shoulders the cost of prosecution---costs which, in any case, run substantially lower than those of the international criminal tribunals This form of jurisdiction--the practice by an international body of ordering, monitoring, and guiding national prosecutions--will be referred to as quasi-criminal review …

The Quasi-Criminal Jurisdiction of the Human Rights Courts

Although the regional human rights courts have no criminal jurisdiction and cannot find individual responsibility, the Inter-American Court of Human Rights regularly orders states to investigate and punish gross human rights violations,
and monitors the progress of the resulting prosecutions. Today, it is monitoring the progress of fifty-one prosecutions across fifteen states for acts that amount to international crimes. The article explores the evolution of such quasicriminal jurisdiction in the regional rights courts, and juxtaposes this development to the work of the international criminal tribunals.

https://www.jstor.org/stable/10.5305/amerjintelaw.107.1.0001

International Criminal Law by other means: the quasi-criminal Jurisdiction of the Human Rights Courts

Introduction Part I. Human Rights in Armed Conflict: History of an Idea: 1. From mediaeval sources to modernity 2. The science of warfare and the progress of civilization 3. 1945: whither war? 4. Human rights in armed conflict Part II. Human Rights and Humanitarian Law: Theory: 5. Exclusivity: the misconceived idea of lex specialis 6. Complementarity: maximizing protection 7. Integration: the transformative influence of human rights Part III. Human Rights and Humanitarian Law: Challenges and Commonalities: 8. The right to life: the limits of human rights in armed conflict? 9. The extraterritorial application of human rights: functional universality 10. War as emergency: derogation 11. Human rights and humanitarian obligations 12. Operationalising human rights in armed conflict Part IV. The Dynamics of War and Law: 13. The changing character of war 14. Governing internal armed violence 15. Human rights in situations of occupation 16. Context: the humanization of international law Part V. Enforcement: Practice and Potential: 17. United Nations Human Rights Council: monitoring armed conflicts 18. United Nations High Commissioner for Human Rights 19. United Nations human rights treaty bodies 20. The Inter-American human rights system 21. The European Court of Human Rights 22. The African Commission on Human and Peoples' Rights 23. Monitoring and litigating humanitarian rights: prospects Conclusion.

Human Rights in Armed Conflict: Law, Practice, Policy

The European Convention on Human Rights is being applied to military operations of every kind from internal operations in Russia and Turkey, to international armed conflicts in Iraq, Ukraine and elsewhere. This book exposes the challenge that this development presents to the integrity and universality of Convention rights. Can states realistically investigate all instances where life is lost during military operations? Can the Convention offer the same level of protection to soldiers in combat as it does to its citizens at home? How can we reconcile the application of the Convention with other international law applicable to military operations? This book offers detailed analysis of how the Convention applies to military operations of all kinds. It highlights the creeping relativism of the standards applied by the European Court of Human Rights to military operations and offers guidance on how to interpret and apply the Convention to military operations.

The Application of the European Convention on Human Rights to Military Operations

This article presents findings from an interview study of human rights practitioners who assist relatives of the disappeared from Chechnya with their complaints before the European Court of Human Rights (ECtHR). These practitioners work for nongovernmental organizations (NGOs). The study contributes to the scant literature on NGO litigation before the ECtHR and to the social scientific literature on how human rights are actively practiced. It investigates the NGOs’ intermediary position between the ECtHR and the relatives of the disappeared in Chechnya. Consequently, this article asserts that a significant aspect of this position lies in the practitioner’s capacity to mediate between an ambition to externalize local grievances to the ECtHR and the relatives’ hopes that the ECtHR can bring certainty to the uncertain loss of their disappeared relatives. From this position, several dilemmas emerge as to how international legal mechanisms can provide remedies following disappearances.

Seeking Life, Finding Justice: Russian NGO litigation and Chechen Disappearances before the European Court of Human Rights

The article discusses the efficacy of the remedies offered to successful applicants by the European Court of Human Rights in the cases coming from the armed conflict in the Chechen Republic of the Russian Federation. It submits, firstly, that proper establishment of facts constitutes a remedy in itself for victims of human rights violations in an armed conflict. It then analyses the establishment of facts by the Court in the Chechen cases and argues that the assessment of evidence under the Court's burden of proof 'beyond reasonable doubt' was applied unevenly in different cases. The paper suggests that the Court obtains evidence proprio motu , which it has never done in the Chechen cases. Secondly, this paper evaluates the European Court's practice to limit the just satisfaction by monetary awards and to consistently deny the applicants' requests for non-monetary awards. It then discusses the developments in the international law on reparations for human rights violations under the ECHR and in the Inter-American and UN systems, and argues for a need to enhance the European Court's awards of just satisfaction. Finally, the paper assesses the supervision of the execution of judgments in the Chechen cases, finds it ineffective, and suggests that more actions are required from the Court in order to deal effectively with alleged human rights violations arising from armed conflicts.

Kirill Koroteev

Papers

Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context