Explaining the Criminalization of Atrocities

Abstract

Abstract 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.