The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

Date01 September 2017
Published date01 September 2017
The Difference Law Makes: Domestic Atrocity Laws
and Human Rights Prosecutions
Mark S. Berlin Geoff Dancy
This article offers the f‌irst systematic analysis of the effects of domestic atrocity
laws on human rights prosecutions. Scholars have identif‌ied various political
and sociological factors to explain the striking rise in human rights prosecu-
tions over the past 30 years, yet the role of domestic criminal law in enabling
such prosecutions has largely been unexamined. That is surprising given that
international legal prohibitions against human rights atrocities are designed
to be enforced by domestic courts applying domestic criminal law. We argue
that domestic criminal laws against genocide and crimes against humanity
facilitate human rights prosecutions in post-authoritarian states by helping to
overcome formal legal roadblocks to prosecution, such as retroactivity, amnes-
ties, immunities, and statutes of limitations. Using original data on domestic
atrocity laws and human rights prosecutions in new democracies, we f‌ind that
atrocity laws increase the speed with which new democracies pursue prosecu-
tions, as well as the overall numbers of trials they initiate and complete.
Over the past 30 years, an increasing number of societies
have opted to prosecute former regime off‌icials for human rights
violations in domestic criminal courts (Sikkink 2011). This trend
is puzzling given long-standing norms that traditionally shielded
government off‌icials from criminal accountability. Scholars have
sought to explain why prosecutions occur in some post-transition
societies but not others, and in doing so have identif‌ied a number
of factors—including political incentives and regional socializa-
tion—that increase their likelihood (e.g., Appel & Loyle 2012;
Dancy & Michel 2016; Kim 2012).
Parts of this article related to domestic atrocity laws are based on research supported by
the National Science Foundation (Grant no. 1423578) relating to the project titled
“Assessing the Conditions Under Which Nations Implement International Anti-Atrocity
Laws.” Parts of this article related to human rights prosecutions are based on research sup-
ported by the National Science Foundation (Grant no. 0961226) and the Arts and Humani-
ties Research Council (Grant no. 0AH/I500030/1) relating to the project titled “The
Impact of Transitional Justice on Human Rights and Democracy.” The authors would like
to thank the anonymous reviewers, whose comments and suggestions helped improve this
Please direct all correspondence to Mark S. Berlin, Department of Political Science,
Marquette University, 540 N 15th St, Milwaukee, WI, 53233; email:
Law & Society Review, Volume 51, Number 3 (2017)
C2017 Law and Society Association. All rights reserved.
Yet despite these f‌indings, one potentially crucial factor has
received little attention: domestic criminal law. The international
atrocity regime, which criminalizes serious human rights viola-
tions like genocide and crimes against humanity, is designed to
be enforced primarily through domestic courts. To make such
prosecutions possible, treaties obligate states to legislate interna-
tional crimes into domestic law. These domestic legal provisions,
which def‌ine and criminalize acts of genocide and crimes against
humanity, may be referred to as “atrocity laws.”
Many formerly
repressive states that since transitioned to democracy adopted
such atrocity laws while they were still ruled by abusive govern-
ments. Others did not (Berlin 2015). Does having atrocity laws
on the books make prosecutions for past abuses following a tran-
sition more likely? Or do societies determined to hold former
regime off‌icials accountable f‌ind ways to prosecute regardless of
whether their legal systems have the proper legal provisions? In
other words, is the international atrocity regime operating as it
was designed to?
In this article, we offer the f‌irst systematic analysis of the
potential effects of national criminal laws against atrocity crimes.
Using a new and comprehensive dataset on the existence of
domestic criminal laws against genocide and crimes against
humanity adopted since World War II, we f‌ind evidence that the
existence of atrocity laws, on average, correlates with greater
numbers of human rights prosecutions in newly democratic
states. States with standing atrocity laws are also quicker to initi-
ate trials and reach more verdicts following periods of regime
change than states without such laws. The reason, we argue, is
that these laws help relevant legal actors avoid or overcome for-
mal legal roadblocks that often thwart prosecutions.
With these f‌indings, we add to a body of new research argu-
ing that the mobilization of legal institutions has been crucial for
the push toward human rights enforcement worldwide (Hilbink
2012; Lake 2014; Michel & Sikkink 2013; Ocantos 2014). As we
explain in the next section, the return to legal institutions as an
explanatory factor serves as a counterweight to explanations that
focus on either rational political elites or transnational socializa-
tion. This article demonstrates that legal institutions, once
formed, can exert long-term impacts on societies, independent of
regional trends or short-term political circumstances. Existing
Throughout this article, we use the term “atrocity law” to refer to provisions in
domestic criminal law for international crimes relating to violations of physical integrity
rights. Our focus is specifically on genocide and crimes against humanity as instances of
atrocity laws, but the term would also include other international crimes, such as war crimes
and torture.
534 Domestic Atrocity Laws and Human Rights Prosecutions
research shows that human rights enforcement is often the prod-
uct of a conf‌luence of political and social conditions and the work
of a variety of different actors, like motivated prosecutors and
civil society activists. Yet attention to domestic criminal law high-
lights how contingent, formal legal resources available to these
actors can make the difference between successful and unsuccess-
ful efforts. In this sense, this article provides a more f‌ine-grained
view of the legal context and domestic actors that have contrib-
uted to the “justice cascade” (Sikkink 2011). Our f‌indings also
challenge recent studies f‌inding that formal legal provisions have
little effect on the protection of human rights (Chilton & Versteeg
2015; Keith et al. 2009).
Explaining Human Rights Prosecutions
Human rights prosecutions are “any prosecutorial event that
reaches a domestic court after an arrest warrant and/or an indict-
ment has been issued for cases related to human rights abuses
committed by state agents” (Dancy & Michel 2016: 174). These
prosecutions are of two basic types: (1) high-level trials that
involve military and state leaders responsible for campaigns of
repression or war crimes and (2) low-level trials that prosecute
regular police or security service members for administering
repressive violence, including torture, illegal imprisonment, dis-
appearances, or sexual violence. Human rights and humanitarian
law treaties, along with customary international law, establish pos-
itive duties for states to provide remedy to victims of human
rights violations or to punish those responsible. Therefore,
human rights trials can be understood as a form of compliance
with international legal obligations.
Data on human rights prosecutions collected by the Transi-
tional Justice Research Collaborative (TJRC) database—the most
complete source on mechanisms to address accountability for
human rights violations—show that prosecutions are initiated in
various contexts.
As depicted in Figure 1, a large majority (64.6
percent) occur following democratic transitions, like in Argen-
while roughly one-third (32.3 percent) occur in post-civil
This database is compiled from U.S. Department of State Country Reports on
Human Rights Practice and other secondary sources including Amnesty International
Reports (see Supporting Information Online Appendix Section 1). The data have been
used in a number of publications (Dancy & Michel 2016; Dancy & Sikkink 2011; Payne et al.
2015), and are available at
A democratic transition is defined as a significant change from autocratic to demo-
cratic formal institutions. See footnote 12 and Supporting Information Online Appendix
Section 1.
Berlin & Dancy 535

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