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

• DOI: http://doi.org/10.1111/lasr.12277
• Date: 01 September 2017
• Published date: 01 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

article.

Please direct all correspondence to Mark S. Berlin, Department of Political Science,

Marquette University, 540 N 15th St, Milwaukee, WI, 53233; email: mark.berlin@mar-

quette.edu.

Law & Society Review, Volume 51, Number 3 (2017)

V

C2017 Law and Society Association. All rights reserved.

533

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.”

1

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

1

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.

2

As depicted in Figure 1, a large majority (64.6

percent) occur following democratic transitions, like in Argen-

tina,

3

while roughly one-third (32.3 percent) occur in post-civil

2

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 www.transitionaljusticedata.com.

3

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