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C H A P T E R F O U R From State Responsibility to Individual Criminal Accountability: A New Regulatory Model for Core Human Rights Violations Kathryn Sikkink ALTHOUGH THE TERM “regulation” is rarely used in the literature on human rights, the core issues in the human rights area involve “making, implementing, monitoring, and enforcing of rules” to organize and control activities, which is the definition of regulation used in this volume. The concept is thus a useful and not unfamiliar way to think about standard -setting and rule enforcement in the human rights realm. The area of human rights has experienced a dramatic increase in international regulation in the post–World War II period. In 1945, this area was virtually unregulated; by 2000, states had ratified many treaties involving diverse human rights, and those treaties had entered into effect. The human rights issue, however, is characterized by relatively weak enforcement mechanisms. Where accountability existed, it focused mainly on reputational accountability via moral stigmatization of state violators.1 In the few cases where stronger enforcement mechanisms existed , especially the regional human rights courts in Europe and the Americas, the model of regulation was one that focused on state legal accountability for human rights abuses. That is, for example, when the European Court of Human Rights finds violations of human rights, it says that a state is in violation of its obligations under the Convention, and the state is asked to provide some kind of remedy, usually in the way of changed policy. This regulatory model of state accountability with weak enforcement continues to be the main model for international human rights violations . But for a small set of core human rights and war crimes, states are 1 I use Grant and Keohane’s definition of accountability that implies that “some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities . . . and to impose sanctions if they determine that these responsibilities have not been met.” Legal and reputational accountability are two of the seven forms of accountability they discuss. Ruth Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99, no. 1 (February 2005), 29–43. 122 • Kathryn Sikkink increasingly using a new regulatory model of individual legal criminal accountability for human rights violations.2 In this model, for example, when the Ad Hoc Tribunal for the Former Yugoslavia (ICTY) finds violations of human rights, it convicts a particular individual of these violations , and sentences that individual to time in prison. This change in regulatory model has emerged gradually over the last twenty years in domestic, foreign, and international judicial processes.3 I will argue that these regulatory changes, from no regulation to a weak regime without enforcement, and the gradual increase in enforcement via individual criminal accountability represent a movement toward more effective public interest regulation. The bulk of enforcement is occurring in domestic courts applying a combination of domestic criminal law, international human rights law, and international humanitarian law. Because of this combination of forms of law, we could think of this as an example of “legal integration” of the type discussed by Burley and Mattli, in reference to the penetration of EC law into the domestic law of member states.4 In the human rights case, however, the individual criminal accountability model is the dominant model in domestic legal systems, and it has penetrated the international legal arena, rather than the other way around. Norms scholars have long recognized that powerful domestic norms may have a prominence that makes them likely candidates for international norms.5 In this chapter, I provide a description and initial explanation of this new regulatory development in the area of core political rights. 2 See Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (Oxford: Oxford University Press, 2001). 3 Jenny Martinez argues that nineteenth-century antislavery courts were the first international human rights courts. These courts indeed applied individual accountability for a human rights violation, in that slave ships were confiscated from owners and sold, but they did not apply individual criminal accountability, since neither crews nor owners were held criminally accountable in these international tribunals. We might call this a form of individual civil accountability, in which slave traders were forced to pay damages, not to their victims, the people they enslaved, but to the governments...

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