The Puzzle of Atrocity Criminalization

Why do governments take atrocity offenses, like genocide, war crimes, and crimes against humanity, from international law and legislate them into domestic criminal law, empowering national courts to prosecute their own, and sometimes other states’, government and military officials? The question is important, because the international community has constructed an international legal regime to prosecute the most serious human rights violations, but that regime is designed to rely primarily on domestic criminal courts to try offenders. To fulfill this role, domestic courts often require specific legislation that defines and criminalizes these offenses in national law. Yet, the adoption of national atrocity laws is puzzling, since in a number of ways, these laws appear to threaten states’ interests. This introductory chapter highlights the puzzle of atrocity criminalization and discusses its importance for the functioning of the international atrocity regime. It then situates this study in existing literatures and highlights the book’s contributions to research on atrocity justice, human rights, and international law. Next, it summarizes the book’s main arguments and details the study’s multi-method research design, which combines quantitative analyses of new, original datasets with in-depth qualitative case studies of Guatemala, Colombia, Poland, and the Maldives.

Conclusion

This chapter summarizes the book’s findings and discuses their implications for research on atrocity justice, human rights, and international law. It highlights the importance of technocratic criminal law specialists in the spread of human rights norms and contrasts these actors with the types of civil society groups that receive much attention in the human rights literature. The chapter also discusses how the book’s findings complicate the narrative of the Cold War period as a time of “hibernation” for the advancement of international atrocity justice. Finally, the chapter highlights the importance of the book’s findings for understanding the domestication of international law more generally. The chapter then discusses how the book’s findings may generalize to explaining the spread of other legal norms that have been shown to be associated with improvements in human rights outcomes. It suggests a number of conditions under which the spread of legal norms will benefit from forms of technocratic legal borrowing inherent in large-scale reform processes.

When Criminal Code Reform Does Not Lead to Atrocity Criminalization

This chapter examines three negative cases—cases in which new criminal codes did not include atrocity offenses—to explore why the legal borrowing thesis does not hold in some otherwise favorable cases. The first two cases—Colombia in 1980 and Poland in 1969—shared with Guatemala much that made them prime candidates for the legal borrowing thesis. These included diffusion of atrocity criminalization among regional legal peers and strong ties between criminal code drafters and professional networks linked to the continental European criminal law tradition. This chapter shows that atrocity laws in Colombia and Poland’s draft codes were discarded at the last minute because they became politicized, though for different reasons. The third case—the Maldives in 2014—did not possess characteristics that made it favorable for the legal borrowing thesis. Nevertheless, it was a strong candidate for alternative explanations connecting criminal code reform to atrocity criminalization. This case is revealing, because it illustrates why these otherwise favorable conditions were insufficient for atrocity criminalization. The chapter shows that the drafters of the Maldivian code never considered including atrocity offenses, because their particular professional orientation and the sources they used for guidance did not favor them. Taken together, these three cases underscore the importance of professional-level mechanisms for understanding variation in the inclusion of international norms in new domestic institutions. They also illustrate conditions under which some of the mechanisms in the legal borrowing thesis may fail to obtain.

Pathways and Determinants of Atrocity Criminalization

This chapter presents a new, comprehensive dataset on the global spread of atrocity laws. It uses time-series statistical analyses to systematically test the book’s theory of atrocity criminalization against alternative explanations on global patterns of cases. The results provide strong support for four expectations that follow from the book’s main arguments. First, more democratic governments are more likely than autocratic ones to criminalize atrocities through targeted legislation. Second, on its own, the adoption of a new criminal code in a given state of any regime type greatly increases the likelihood that the state criminalizes atrocity offenses. Third, when governments do adopt new criminal codes, they are more likely to include atrocity offenses if the types of sources from which drafters are likely to borrow favor atrocity criminalization. Specifically, higher rates of atrocity law diffusion among regional legal peers and greater levels of embeddedness in networks influenced by the International Association of Penal Law are associated with greater likelihoods of including atrocity offenses in new criminal codes. Finally, the determinants of criminalization through criminal code reform are different than those of criminalization through targeted legislation, supporting the claim that these two pathways are the products of distinct behavioral dynamics.

Explaining the Criminalization of Atrocities

This chapter presents a theory explaining why states criminalize atrocity offenses in national law. It identifies and theorizes two different pathways to criminalization: targeted legislation and wholesale criminal code reform. These two pathways result from the efforts of different actors with different motivations, and thus represent distinct behavioral logics. Drawing on research on commitment to human rights norms, this chapter argues that criminalization through targeted legislation reflects policymakers’ preferences over the use of violent abuse. Following Simmons, this explanation is referred to as the “rational expression thesis.” In contrast, criminalization though criminal code reform reflects the views of technocratic criminal code drafters over what features they deem to be important for a “modern” code. The book refers to this as the “technocratic legal borrowing thesis,” and it is the main focus of this chapter. The chapter draws on comparative law scholarship and research on professional communities in policymaking to argue that large-scale legal reform processes are a unique and potent opportunity for international legal norms to be incorporated into domestic institutions. It theorizes how these processes empower technocratic legal experts and motivate them to seek out emblematically “modern” norms. This pursuit leads experts to borrow legal ideas from their regional peers and leading transnational professional associations, and in the post-World War II era, such sources have often favored atrocity criminalization. In turn, the depoliticizing context of technocratic modernization helps paint atrocity provisions as merely technical features of a “modern” code, thus reducing government scrutiny of them and facilitating their ultimate approval.

Domesticating Atrocity Law

This chapter traces the history of efforts to domesticate international atrocity law, which provides initial plausibility for the book’s central argument. The chapter locates the origins of atrocity laws in the decades prior to World War II with a community of influential European criminal law scholars, most of whom were leaders of the International Association of Penal Law (AIDP). Following the war, some of these experts helped draft the first international atrocity law treaties, and the enforcement regimes they designed relied on national enforcement through domestic legislation. Four phases of atrocity law adoption then followed. In the first phase (1945–1957), the adoption of atrocity laws was driven mostly by principled norm entrepreneurs who were actively committed to the advancement of an international criminal law regime. In the second phase (1957–1985), professionalization and emulation became central drivers of domestic atrocity criminalization. As national governments all over the world drafted new criminal codes, transnational professional influences conditioned technocratic drafters to see atrocity criminalization as important for a modern criminal code. In the third phase (1985–1998), a new wave of domestic and international attempts to prosecute government officials for past atrocities, coupled with a resurgence of foreign technical legal assistance, helped foster the conditions that made atrocity criminalization salient beyond a specialized community of professional criminal law experts. Finally, in the current phase (1998–present), international civil society groups, inspired by the creation of the International Criminal Court, have undertaken concerted public advocacy efforts to promote the domestication of atrocity law.

The Criminalization of Atrocities in Guatemala

This chapter traces the process of a single case of atrocity criminalization—Guatemala in 1973—to further verify the causal mechanisms of the book’s technocratic legal borrowing thesis. It formulates and tests a set of empirical predictions that speak to the observable implications of the theory’s causal mechanisms. Using a combination of primary sources, secondary sources, and elite interviews, it finds strong support for these predictions. First, the idea to include atrocity laws in the 1973 Guatemalan criminal code likely originated with its technocratic author, Gonzalo Menéndez de la Riva, and not with international organizations, civil society organizations, or government policymakers, as alternative theories would predict. Second, two types of influence likely shaped Menéndez de la Riva’s choices to include atrocity laws: (1) the emulation of other codes from the region that were highly regarded among his professional community, and (2) professional ideas about the importance of adopting national atrocity laws that spread to the region through prominent Latin American scholars linked to the International Association of Penal Law. Finally, the Guatemalan government likely approved these laws because they perceived them as low-stakes, technical features of a modernization project, and not because they intended them to appeal to international actors or the political opposition, as alternative theories would predict.