International criminal law by other means: The quasi-criminal jurisdiction of the human rights courts.

Source: (2013) The American Journal of International Law. 107: 1-44.

The question of whether the quasi-criminal review of the rights bodies is effective, however,
is an empirical question, and empirical studies on the practice of ordering and monitoring
national trials are altogether lacking. Indeed, Ratner and colleagues’ criticisms seem to overlook
the practice. If the regional rights courts succeed in triggering local prosecutions, their
objection of the regional courts’ “physical distance from the victims” and “abstract” judgments
is muted. Further, while it is true that the regional courts will not adjudicate individual
accountability, the Inter-American Court has been quite willing to inquire into and review
national criminal procedures; in this sense, the Court is taking on a quasi-criminal jurisdiction.
Ratner and colleagues also object that there is “no guarantee that states will comply with decisions”
of the regional courts. The feature that makes the ICC’s complementarity jurisdiction
potentially effective in stimulating national prosecution is that the ICC carries a big stick: the
threat of opening its own prosecution. For its part the Inter-American Court can only threaten
to post on its website yet another compliance report, or to report state recalcitrance to an indifferent
Organization of American States (OAS) General Assembly.9 And yet, states do at times
comply with the orders of the regional courts. It is important, in other words, to delve into the
records of the rights bodies in order to understand what they do and to what avail. That is the
work of this article. (excerpt)