Domesticating Atrocity Law

Abstract

This chapter traces the history of efforts to domesticate international atrocity law, which provides initial plausibility for the book’s central argument. The chapter locates the origins of atrocity laws in the decades prior to World War II with a community of influential European criminal law scholars, most of whom were leaders of the International Association of Penal Law (AIDP). Following the war, some of these experts helped draft the first international atrocity law treaties, and the enforcement regimes they designed relied on national enforcement through domestic legislation. Four phases of atrocity law adoption then followed. In the first phase (1945–1957), the adoption of atrocity laws was driven mostly by principled norm entrepreneurs who were actively committed to the advancement of an international criminal law regime. In the second phase (1957–1985), professionalization and emulation became central drivers of domestic atrocity criminalization. As national governments all over the world drafted new criminal codes, transnational professional influences conditioned technocratic drafters to see atrocity criminalization as important for a modern criminal code. In the third phase (1985–1998), a new wave of domestic and international attempts to prosecute government officials for past atrocities, coupled with a resurgence of foreign technical legal assistance, helped foster the conditions that made atrocity criminalization salient beyond a specialized community of professional criminal law experts. Finally, in the current phase (1998–present), international civil society groups, inspired by the creation of the International Criminal Court, have undertaken concerted public advocacy efforts to promote the domestication of atrocity law.