Academic journal article Law & Society Review

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

Academic journal article Law & Society Review

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

Article excerpt

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 socialization-that increase their likelihood (e.g., Appel & Loyle 2012; Dancy & Michel 2016; Kim 2012).

Yet despite these findings, one potentially crucial factor has received little attention: domestic criminal law. The international atrocity regime, which criminalizes serious human rights violations 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 international 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 governments. Others did not (Berlin 2015). Does having atrocity laws on the books make prosecutions for past abuses following a transition 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 initiate 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 formal legal roadblocks that often thwart prosecutions.

With these findings, we add to a body of new research arguing 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 socialization. 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 research shows that human rights enforcement is often the product 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 highlights how contingent, formal legal resources available to these actors can make the difference between successful and unsuccessful efforts. In this sense, this article provides a more fine-grained view of the legal context and domestic actors that have contributed 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 indictment has been issued for cases related to human rights abuses committed by state agents" (Dancy & Michel 2016: 174). …

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