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Criminalizing Atrocity: The Global Spread of Criminal Laws against International Crimes, Mark S. Berlin

Reviewed by Kyle Rapp

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Why, when political leaders can have little to gain and much to lose, do states include atrocity crimes in their domestic legal codes? International atrocity law—prohibitions of genocide, crimes against humanity, and war crimes—depends on domestic implementation. But why do states, especially authoritarian ones, choose to include these prohibitions in their domestic legal codes, especially when there has been little international pressure to do so?

These are the questions that Mark Berlin sets out to answer in Criminalizing Atrocity by exploring two ways that states may introduce atrocity laws: through targeted legislation or as part of a wholesale reform of their legal codes. While targeted legislation, passing a stand-alone law covering atrocity crimes, may explain cases in which preferences are reform-friendly—namely, democracies with strong human rights practices—it can still result in false negatives, cases in which we may expect to see criminalization but do not, and it does not address cases in which leaders may be opposed to the legislation.

While Berlin addresses targeted legislation in Chapter 4, he primarily focuses on the second pathway, arguing that legal code reform creates unique conditions conducive to codifying atrocity crimes into law. In particular, Berlin advances a “technocratic legal borrowing thesis” (p. 33) to explain this second pathway, arguing that reforming a legal code is a complex task that is often delegated to experts. These experts are important for two reasons: they may emulate legal codes that they are familiar with, particularly from neighboring states, and they may be professionalized in networks that include norms about including atrocity crimes in domestic law. He focuses particularly on the Association Internationale de Droit Pénal (International Association of Penal Law), a network of lawyers and legal scholars who promoted legal reforms of shared global standards which included codifying atrocity crimes.

When states see legal reform as part of modernization, experts can benefit from working in a depoliticized environment in which they can reform legal codes with minimal pressure. Berlin shows how, in Guatemala, depoliticized legal reform led to changes that criminalized international atrocities since experts were able to draw on regional examples and their professional networks that included such laws. When presented as part of broad legal code reforms, atrocity laws are less likely to catch the attention of the elites and more likely to be accepted.

Berlin subjects his theory to robust multi-methods testing. Archival study shows that atrocity laws came to be seen as an important part of a modern legal code, at least in some professional networks. A statistical analysis of atrocity criminalization shows that states are more likely to pass atrocity legislation when their regional peers have and when the drafting process involved technocratic experts. A case study of Guatemala's legal reforms in the 1970s shows how legal reforms in authoritarian states depend on technocratic experts working in depoliticized contexts.

Criminalizing Atrocity addresses important questions about atrocity prevention, the growth of human rights, and the intersection of international law and domestic politics. Chapter 6, which explores cases in which the theory falls short, helps further clarify and situate the argument—ultimately crafting a persuasive case for the importance of legal reform and the role of technocratic experts. Finally, Berlin raises important questions for scholars to consider about the conditions under which states may domesticate international legal standards and of the role norms, elite networks, and institutional arrangements—important questions to which his book makes an equally important contribution.

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