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Mark Berlin has written a useful and interesting book. His research examines why states adopted national laws against genocide, war crimes, and crimes against humanity after World War II. He argues that the answer is found in how they did it. Combining quantitative and qualitative methods,1 he presents a large dataset covering countries that have passed atrocity laws in their home jurisdictions.2 This demanding work provides detailed results showing which crimes (genocide, war crimes, and crimes against humanity) have been included in national legal orders and when this happened.
Berlin, in his first chapter, introduces his research question, his arguments, and his method. In the second chapter he indicates two “pathways” for the incorporation of atrocity laws into a state’s national legal order. The first path is through targeted legislation which represents “the state’s commitments to human rights norms.”3 He calls this pathway “the rational expression thesis.”4 The second pathway is through large-scale criminal code reform. The aim here is modernization. For this pathway, he uses the phrase “technocratic legal borrowing thesis.”5 According to his argument, passing atrocity laws through targeted legislation requires governmental determination along with cost benefit calculations.6 Passing them through code reform happens through the law drafters’ suggestions, who are legal experts. The likelihood of this second pathway increases when “legal peers” have already done so, and/or the legal experts are strongly influenced or related to international professional associations like the Association Internationale de Droit Pénal (A.I.D.P.). In contrast to the rational expression thesis, the technocratic legal borrowing thesis does not usually attract policy makers’ scrutiny because modernization depoliticizes the reform.7 This explains why autocracies, through large-scale reforms, often incorporate atrocity laws.
