The commission of mass atrocities — genocide, crimes against humanity, and war crimes — inevitably generates clarion calls for accountability from a range of international actors, including civil society organizations, governments, and United Nations bodies. These demands often center on an appeal that the situation be taken up by the International Criminal Court (ICC) via a Security Council referral or action by the Prosecutor herself. Although the ICC is now fully operational, its jurisdiction remains incomplete and its resources limited. Furthermore, the ICC is plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, and enable, additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC.
This contribution analyzes the accumulated experience with international, hybrid, and internationalized judicial institutions prior to and since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. This paper assumes the continuing utility of such mechanisms as tools to provide accountability for mass violence amounting to international crimes, particularly in situations requiring an alternative or supplement to the ICC. It thus focuses on practical elements of institutional design, with particular attention to the origins, structure, jurisdictional limitations, financing, and procedures of the hybrid courts, dedicated chambers, specialized prosecutorial cells, and other accountability innovations established to prosecute atrocity crimes at the domestic level with some measure of international support, expertise, and/or personnel. From this historical and comparative analysis, the paper develops a taxonomy of models and a “menu” of elements that can be mixed and matched as new accountability mechanisms are under consideration for historical, current, and emerging atrocity situations, such as Syria, the Central African Republic, the Democratic Republic of Congo, Colombia, North Korea, South Sudan, Sri Lanka, Libya, Burundi, and even the July 2014 downing of Malaysian Air Flight 17 (MH-17) over rebel-controlled Ukraine.
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