Mark Berlin’s Criminalizing Atrocity significantly advances existing understandings of the criminalization of genocide, war crimes, and crimes against humanity during the postwar era. Focusing not on international treaties or tribunals but on domestic legislation, Berlin distinguishes two pathways that states have followed in criminalizing atrocities and uses a novel dataset to test hypotheses about the motives and mechanisms involved in each. In this review, I will first briefly summarize Berlin’s argument and then raise some questions about his historical methodology and his theoretical conclusions.
To date, more than 130 states have adopted domestic criminal prohibitions against at least one type of atrocity crime (p. 10). Closer inspection of the circumstances in which these prohibitions were enacted reveals two distinct pathways to criminalization. In some cases, states pass targeted legislation specifically focusing on atrocities; in other cases, prohibitions are adopted in the context of broader criminal code reforms. The latter pathway has received little attention from scholars but is, as Berlin shows, crucial for understanding the diffusion of norms against atrocities, the relevant sets of actors involved, and the paradoxical fact that governments themselves implicated in atrocities sometimes choose to criminalize such conduct.
Regarding diffusion, Berlin contests the “hibernation thesis,” according to which the spread of norms establishing individual criminal liability for atrocities stalled between the major post–World War II trials and the establishment of the ICTY and ICTR in the early 1990s (pp. 13–14). Instead, as Berlin demonstrates via his “Atrocity Law Dataset,” domestic criminal prohibitions on atrocities spread widely between 1950 and 1990 (p. 82). In some cases, states used targeted legislation to implement commitments made under international treaties like the Convention on Genocide or the Geneva Conventions. In other cases, particularly in states scoring low on standard measures of democracy, atrocity laws passed as part of broader criminal code reforms.
After identifying this second, underappreciated pathway for norm diffusion, Berlin examines the motivations, qualifications, and professional connections of the actors involved in drafting new criminal codes. The resulting analysis forms the main theoretical contribution of the book. The actors involved in criminal code reform, Berlin argues, are chiefly technical legal experts, appointed for their expertise rather than for their political reliability, and driven by the aim of modernizing criminal codes according to standards established by regional peers or international exemplars. These claims, validated by statistical analysis and by case studies of reforms undertaken in Guatemala, Colombia, Poland, and the Maldives, ground Berlin’s overarching thesis that “technocratic legal borrowing,” rather than principled commitment to atrocity prevention, explains much of the diffusion of legal norms against atrocity during the postwar era (p. 19).
Berlin’s basic account of the importance of criminal code reforms for advancing domestic legal prohibitions on atrocity is persuasive. The novel dataset he constructs will be of value to scholars of international criminal law, and the regression analysis he conducts could serve as a model for future empirical work on norm diffusion. Nevertheless, there are questions about both his historical methodology and his theoretical findings that should be considered.
On the historical front, Berlin claims to contribute to an ongoing reevaluation of the role of civic and transnational activist networks in the development of contemporary humanitarian and human rights law. Previous scholars have shown that human rights norms did not gain wide traction until the early 1970s. Berlin’s dataset confirms that a considerable number of states criminalized one or more categories of atrocity prior to the rise of the modern human rights movement. But he tries to push this argument further by suggesting that the legal experts involved in criminal code reform during this period generally lacked principled commitments to prohibiting atrocities—and that this lack of commitment persists, in many cases, up to the present day (pp. 46, 68, 75).
The evidence Berlin provides on this motivational point is mostly negative: he focuses on what drafters did not say or what political officials did not do during the reform process (p. 112). In Berlin’s most detailed case study, that of Guatemala, he was not able to conduct interviews with any of the principals involved in the criminal code reform; the same is true for his discussion of noncriminalization in Poland and Colombia. This lack of direct interaction with drafters, though understandable given the passage of time, renders Berlin’s assessment of these actors’ motives and commitments rather schematic and prevents him from ruling out tacit commitments to atrocity prohibition. The problem is pointed up by Berlin’s concluding discussion of criminal code reform in the Maldives. Here, Berlin was able to interview one US drafter of that county’s 2014 reformed code; his subject’s deep skepticism toward international legal norms comes across clearly in his recorded responses to Berlin’s questions (pp. 171–72).
A second, and related, problem with Berlin’s historical reconstruction centers on the strong contrast he draws between drafters of criminal codes and human rights activists. Activists, unlike drafters, are said to be “motivated primarily by moral beliefs” and to “exercise political influence … largely due to their claims to moral authority” (p. 40). But if the motivational contrast, as I have suggested, lacks compelling evidence, the functional contrast fares worse still. Transnational activist networks are in fact major sources of the kinds of technical legal knowledge Berlin ascribes to drafters of criminal codes. Some of their work is highlighted in Berlin’s own scholarship, as when he describes the efforts of human rights organizations to monitor and criticize draft criminal codes or when he draws on Amnesty International’s 2011 report on Universal Jurisdiction while constructing his Atrocity Law Dataset (pp. 75, 83). But examples of transnational activist networks using their “technical expertise” to influence legal institutions go far beyond this, extending to the work of such activists in developing indicators for mass atrocities, for example, and to their contributions to the UN’s definition of conflict-related sexual violence.
Failure to fully acknowledge the technical contributions that activists have made to the international atrocity regime casts doubt on some of the more provocative, if tentative, conclusions Berlin draws from his case studies. He suggests, for example, that “the lack of civil society influence in repressive states may actually benefit the cause of atrocity criminalization” (p. 141). Further doubts on this point follow from the great political complexity of each specific case of atrocity criminalization (or noncriminalization) that Berlin highlights. From the United States, with its decades-long resistance to criminalizing genocide due to objections from southern segregationists, to Poland, in which legal prohibitions on atrocity were withdrawn at the last minute from broader criminal code reforms to reduce the total number of capital offenses, Berlin’s qualitative discussion of cases suggests that the factors determining when and whether nations criminalize atrocities are extremely case specific. Study of the conditions that have stalled or smoothed criminalization via either pathway in the past may be of little value for predicting the results of comparable efforts in the future.
This point about complexity ties in with one final concern about Berlin’s explanatory model. The model assumes that processes of criminal code reform are not initiated for the purpose of criminalizing atrocities. As Berlin puts it, it is “highly unlikely” that atrocity criminalization ever “motivates criminal code reform” (p. 37). Later in the text, he repeatedly refers to states’ “incidental” decision to reform their criminal codes as part of the context for atrocity criminalization (pp. 107, 188). But Berlin does not provide a full-scale analysis of the circumstances in which nations have reformed their criminal codes, and many of the specific cases he does mention occur in contexts of political transitions where atrocity criminalization could well be (temporarily) salient. The principal motives that Berlin identifies for reform processes—increasing efficiency and increasing legitimacy—are plausible but hardly incompatible with a concern for atrocities perpetrated under previous governments.
In conclusion, and in the spirit of dialogue, I raise two issues on which it would be helpful to know Berlin’s views. First, there is a presumed tension within the book between the political posture of “law and order” and the decision to undertake criminal code reforms (pp. 124, 127). This presumption is understandable, given that most recent criminal code reforms have moved countries toward less retributive responses to lawbreaking. But I wonder whether, from the perspective of leaders claiming a commitment to law and order, the very fact of making fundamental changes to the criminal law might be regarded as advancing, rather than compromising, that commitment. This would illuminate recent events in the United States, where President Trump both asserted a commitment to law and order and endorsed criminal justice reform.
Second, although Berlin’s contribution to our understanding of norm diffusion is substantial, other emerging concepts might enrich his account of technocratic legal borrowing. I have in mind Lisbeth Zimmermann’s analysis of norm translation, in which local elites modify the terms of international norms in dynamic conversation with international counterparts (Global Norms with a Local Face: Rule-of-Law Promotion and Norm Translation, 2017). Zimmermann’s study, like Berlin’s, focuses on Guatemala, making further reflection on the concepts applicable to this “pathway case” of atrocity criminalization appropriate (p. 109).
