In 1902, the English activist Emily Hobhouse published a scathing account of the conduct of British and Boer forces in the South African War.1 Hobhouse’s book, The Brunt of the War and Where It Fell, used photographs, eyewitness testimony, and firsthand reporting to recount hardships imposed on Boer women and children by fighters on both sides of this late Victorian conflict.2 Two tactics struck Hobhouse as especially egregious: the burning of farms belonging to suspected guerrilla fighters and the confinement of families displaced from rural areas in concentration camps.3
Hobhouse opened her exposé by reciting several articles from the recent Hague Convention on the Laws and Customs of War on Land.4 These included Article 47 (prohibiting pillage), Article 45 (prohibiting demands that occupied populations swear oaths of loyalty), and Article 50 (stating that “no general penalty … can be inflicted on the population, on account of the acts of individuals for which it cannot be regarded as collectively responsible”).5 The implication of the hundreds of pages of documentary and testimonial evidence that followed was that these articles had been violated, not just incidentally, but systematically, during the South African conflict.
The 1899 Hague Convention, along with its 1907 sequel, forms one part of a larger body of law created with the express aim of curbing war’s worst excesses. Referred to collectively as international humanitarian law (IHL), this system of customary and treaty-based legal norms grounds prohibitions on torture, maiming, indiscriminate killing, and other illicit tactics during war. During the past six decades, IHL has been supplemented by norms belonging to two other legal traditions: international human rights law (IHRL), originating in the 1948 Universal Declaration of Human Rights, and subsequently extended by various Covenants and court rulings; and international criminal law (ICL), originating in the International Military Tribunal at Nuremberg and subsequently extended by the creation of the International Criminal Court. Taken together, these three bodies of law establish extensive protections for combatants and noncombatants in contexts of war. At the same time, they set limits on the forms of coercion states may legitimately employ within their domestic spheres.
It remains to ask whether the various prescriptions, prohibitions, and permissions set out in these bodies of law succeed in protecting individuals and groups from mass atrocities. Building on the account of legal norms developed in chapter 4, I argue that the distinguishing features of legal norms underpin both their advantages and their disadvantages as instruments for preventing large-scale crimes. My account focuses, once again, on the power of legal norms to guide the decisions and actions of institutional actors. Ultimately, I argue, efforts to render legal protections against atrocities more obligatory and more precise hold promise when it comes to preventing large-scale crimes from occurring in the first place, but such efforts may prove counterproductive in transitional societies, where a key aim is to avoid recurrences of mass atrocities.
The chapter proceeds as follows. Section 5.1 briefly reviews the development of laws and legal institutions in response to twentieth-century mass atrocities. Here I consider such distinct laws and institutions as the Convention on Genocide, the pre–World War II effort to establish prohibitions on aerial bombardment, and the doctrine of individual criminal accountability for mass atrocities set out by the Nuremberg Charter and the Rome Statute of the International Criminal Court. Section 5.2 focuses in on the specific arguments by which scholars and practitioners defend the preventive power of these laws and legal institutions, distinguishing deterrent from expressive arguments. Section 5.3 takes up the idea that legal norms with certain formal features, namely, precision, obligation, and delegation, are best suited for constraining mass atrocities. Drawing on the work of Kenneth Abbott, Tuba Inal, and others, I argue that the technical concept of “legalization,” defined as the refinement of existing laws so that they exhibit these three features, sharpens our understanding of the strengths and weaknesses of legal norms as resources for constraining large-scale crimes. At the same time, I suggest that the strategy of legalization runs into difficulties in societies that have recently experienced mass atrocities. Section 5.4 focuses directly on these transitional societies, discussing the special problems that dominate their politics. Because of breakdowns in obligation, precision, and delegation in law that coincide with political transitions, legalization must often be put on hold in such contexts. Nevertheless, I conclude the chapter by arguing that the international community should continue developing precise and obligatory laws, along with institutions for enforcing them, in response to the challenge of mass atrocity.
Three trends define domestic and international legal responses to twentieth-century mass atrocities. First is the proliferation of laws prescribing or prohibiting particular modes of conduct by state and nonstate actors. Second is the development of institutions tasked with codifying, interpreting, and enforcing these laws. Third is the entrenchment of the doctrine of individual criminal liability for violations of these laws. Taken together, these developments have helped generate a legal framework that places the security of persons and peoples, rather than the security of states, at the center of international affairs.6
During the early 1900s, new technologies like the submarine, the airplane, and poisonous and asphyxiating gases became widely available for military use. The laws of land warfare proposed in the 1899 and 1907 Hague Conventions did not effectively address these developing technologies; consequently, those laws failed to limit the deployment of gas, submarines, and aerial bombers during World War I.7 In the interwar period, fresh efforts were made to place legal constraints on these novel technologies. A treaty drawn up at the 1930 London Naval Conference required submarines to follow the customary laws of war applied to surface vessels.8 Earlier international conferences in Washington and Geneva resulted in the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare.9 And in 1923, jurists from six nations met at the Hague to draft comprehensive Rules of Aerial Warfare, intended for acceptance by all Great Powers.10
Legal restrictions on the use of specific tactics or technologies in war aim to reduce harms suffered by soldiers or civilians once fighting is underway. A different legal approach to atrocity prevention consists of curtailing policies that marginalize particular populations in peacetime. This tactic is represented at the domestic level by laws passed in Rwanda following the genocide in that country, whereby racial identities rooted in colonial administration cannot legally be evoked in political discourse.11 At the international level, many of the prescriptions laid out in the UN’s 1966 Covenant on Civil and Political Rights aim to prevent the marginalization of groups within particular countries, for example, by ensuring freedom of religion and conscience for citizens.12 Finally, in Europe, many nations prohibit public espousal of specific prejudicial views, such as views historically tied to National Socialism.13
When efforts to prevent states from pursuing genocide, mass killing, or forced removal fail, a final legal safeguard lies in the protections offered to individuals and groups fleeing such attacks. The major development in this area over the past century is the creation of binding legal norms meant to safeguard refugees from persecution in their countries of asylum, as well as from removal (refoulement) to countries where they face serious risks.14 Even in the nineteenth century, bilateral treaties between specific states created legal protections for some asylum seekers, but in the twentieth century, multilateral agreements were negotiated, first at the League of Nations and later, after the failure of those agreements during World War II, at the United Nations.15 These agreements universalized the rule of nonrefoulement, along with other legal norms relating to refugees.16 Although serious controversy surrounds current treatment of asylum seekers by countries as widely dispersed as Hungary, Israel, the United States, and Australia, all of these states maintain laws requiring some form of legal process for asylum claims.
Laws are not likely to inhibit mass atrocities unless they are coupled with institutions capable of codifying, interpreting, and enforcing them. This reflects the practice-grounded nature of legal norms. Unlike moral norms, which retain a claim to guide the actions of individuals even under conditions of widespread noncompliance, legal norms lose their claim to guide action when they are not generally followed within relevant populations.17 Legal institutions are, accordingly, integral to what philosopher Christopher Kutz calls “the social reality of norms.” Such institutions are key sources of legal norms; at the same time, they furnish forums for the “labelling, (dis)approbation, and punishment” of violations.18
In the 1930s, Raphael Lemkin drafted his first proposal for an international legal prohibition on efforts by states to destroy specific groups.19 In the 1940s, living as a refugee in the United States, Lemkin published a book introducing the concept of genocide and called for the creation of an international agency capable of monitoring wartime occupation policies.20 In the last years of that decade, Lemkin lobbied steadily in favor of the UN Convention on the Prevention and Punishment of the Crime of Genocide, which finally came into force in 1951.21
The history of the Genocide Convention reveals contributions by several kinds of legal institutions. Lemkin’s earliest proposals for prohibitions on “barbarism” and “vandalism” were prepared for an academic symposium on the unification of penal law.22 His call for an international monitoring agency in his 1944 book was conceived as a continuation of the laws of occupation drawn up at the Hague Conferences.23 Since the adoption of the Genocide Convention by the UN General Assembly, three-fourths of the world’s states have acceded to this treaty, and genocide has been included in the charge sheets of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC). Finally, in 2004, the UN secretary general hired a special adviser on the prevention of genocide.
Other laws aimed at constraining mass atrocities exhibit similar institutional trajectories. During the 1920s and 1930s, the first major international organizations devoted to upholding legal protections for refugees were formed.24 After the clear failure of these institutions before and during World War II, an international Convention on Refugees was adopted at the United Nations, and an independent agency, the United Nations High Commission for Refugees, was created with the power to monitor and respond to crises.25 As in the case of the Genocide Convention, negotiations over the precise definition and prescribed treatment of refugees in international law remain contentious, and the application of swift and serious sanctions for violations is hardly guaranteed.
I have emphasized the development of international institutions as a major element of twentieth-century legal responses to mass atrocities. I do not wish to depict this project as a fait accompli. Genocides have occurred and refugee crises have developed even after the rise of the institutions I have discussed. International awareness of these events is partly a product of these institutions—especially those tasked with monitoring compliance with relevant legal norms. But legal institutions, like the laws they administer, provide no panacea against large-scale crimes. I consider some of the specific arguments for and against the preventive power of these laws and institutions in subsequent sections of this chapter. First, I discuss a third major legal innovation, which concerns individual accountability for large-scale crimes.
States have long asserted the right to prosecute their own citizens and soldiers for infractions of the laws of war. In Civil War–era America, political scientist Francis Lieber included in his “Instructions for the Government of Armies of the United States in the Field” a discussion of the procedures for trying soldiers charged with violating statutes or the customary laws of war.26 During the South African War, British military authorities used a special tribunal to try one soldier accused of unlawfully shooting a Boer civilian at the command of his superior officer.27 And in Cold War–era West Germany, trials of Holocaust perpetrators commonly relied on ordinary German penal law, their verdicts reflecting the basic elements and assumptions of that code.28
International criminal trials for individual participants in mass atrocities are of more recent vintage. They reflect a claim of authority by the international community at large, rather than by any single state, to bring criminal charges against men and women implicated in mass killings, mass rapes, or other large-scale crimes. This claim of authority was first decisively advanced at the military tribunals convened in Nuremberg and Tokyo after World War II. In the former trial, American prosecutor Robert Jackson went to considerable lengths to defend the legitimacy of the prosecutions of high Nazi officials while admitting the “novel and experimental” nature of the tribunal.29
Two key categories of actors appear as defendants in international criminal trials. In the first category are soldiers and junior officers, paramilitary fighters and commanders, and ordinary citizens who stand on the “shooting end” of atrocities. In the second category are heads of state, government ministers, and other high-level planners of large-scale crimes. Prosecuting individuals belonging to each of these categories has required overcoming certain traditional legal defenses, as I shall explain.
International law grants two types of immunity to heads of state and other high officials. The immunity that they enjoy from prosecution in the domestic courts of other states while they remain in office is called immunity ratione personae. The immunity that they enjoy from prosecution once out of office for actions previously taken amid their official functions is called immunity ratione materiae.30 Though differing in application, these two forms of immunity share similar rationales. Both reflect the idea of the sovereign equality of states, as well as the shared interest all states have in the orderly conduct of international relations.31
The traditional immunity of heads of state from prosecution for crimes committed while in office generated one of the great controversies surrounding the peace settlement that ended World War I. Article 227 of the Treaty of Versailles called for the creation of a special tribunal to try Germany’s Kaiser Wilhelm II—at this time abdicated and living in the Netherlands—for “a supreme offence against international morality and the sanctity of treaties.”32 This provision, never carried out, was controversial because the offenses it listed were not included in the contents of any specific international convention.33 It was even more controversial because it appeared to overturn the doctrine of sovereign immunity.34
Since Versailles, a significant shift has occurred in international jurisprudence with respect to this doctrine. Described variously as a “justice cascade” or as the “end of impunity,” this shift represents both a modification of laws and a change in institutions.35 The legal recognition of international crimes like genocide, combined with the creation of institutions like the ICC charged with investigating and prosecuting such crimes, has undermined the assumption that state leaders will not face legal justice for violating the rights of their citizens or of other groups within their control. At the same time, domestic courts and tribunals in countries afflicted by severe social upheaval have proven increasingly capable of holding past political leaders legally accountable. Though it is not yet clear how far this shift in laws and legal institutions may go, many scholars consider the real possibility of legal consequences for state leaders implicated in mass atrocities to supply an important constraint on large-scale crimes.36
An equally important development, and one slightly preceding the legal changes noted, is the decline of the “superior orders” defense for ordinary soldiers accused of atrocities. According to the strongest formulation of this defense, ordinary soldiers are not to be held legally responsible for committing crimes in war when ordered to do so by their commanders, save in cases where those orders are manifestly unjust. Importantly, the superior orders defense is distinct from the defense of duress, under which an individual claims a reasonable fear of injury or death consequent on refusal to follow orders.37 At Nuremberg, superior orders was formally rejected as an acceptable defense for soldiers accused of war crimes, though a defense of duress could in principle still be made.38 The undermining of this defense in cases of major international crimes such as crimes against humanity appears to offer a further constraint on mass atrocity.39
At this point, it might be objected that whereas I previously characterized legal norms as applying mainly to institutions, the rise of individual criminal responsibility for mass atrocities points in the opposite direction. This objection is misplaced. Both the end of impunity for heads of state and the decline of superior orders as a defense for ordinary soldiers represent substantial institutional changes. The laws of armed conflict circulating at the start of the twentieth century already contained provisions for the adjudication and punishment of individuals who were not members of any particular army but nevertheless took up weapons in defense of their nation or in revolt against an occupier. The shifts in laws, institutions, and forms of liability I have outlined are not aimed at such lone individuals, but at fighters embedded in armies or recognized rebel groups, in state ministries or civil service apparatuses, or at the very apex of states. Implicit in each of these changes in laws is the belief that mass atrocities are closely bound up with such institutions and not, as is sometimes argued, products of their weakness or absence.40
In this section, I have surveyed major changes in international laws, institutions, and forms of liability taken in response to twentieth-century mass atrocities. Although I have registered the hope prevailing among legal scholars, diplomats, and norm entrepreneurs that these changes will contribute to the prevention of mass atrocities, I have not yet stated explicitly how such preventive effects might work. The next section addresses this issue.
The laws and institutions I have surveyed are in many cases too novel to permit robust empirical investigation of their power to prevent large-scale crimes.41 In the case of specific international crimes, particularly genocide, this problem is exacerbated by the comparative rareness of acts of attempted group destruction, along with the basic logical difficulty of proving a negative.42 It remains important to identify the specific mechanisms by which these legal norms are supposed to constrain mass atrocities.
In a 2016 book, Reconstructing Atrocity Prevention, Sheri Rosenberg, Tibi Galis, Alex Zucker, and other contributors distinguish two particular pathways by which legal norms might discourage planners and perpetrators of large-scale crimes from carrying out assaults.43 One is that the risk of investigations, trials, and prison sentences handed down by legal institutions like the ICC might serve to deter these agents before, or even during, mass atrocities. The other is that the expressive effects of international laws and institutions—that is, their power to project and alter extralegal norms, values, and ideals—might defuse tensions in divided societies and in this way make large-scale crimes less likely.
The deterrent effects of laws and legal institutions may be either specific or general. In the first case, the prospect of civil or criminal penalties is communicated to specific individuals or groups—for example, through the announcement of an investigation by the ICC or the deployment of monitoring teams from the United Nations. In the second case, publicizing those potential penalties to broad audiences and actually imposing them on a few individuals or groups may serve to discourage a wider set of actors from pursuing comparable courses of action in the future.
For either specific or general deterrence to succeed, scholars generally agree that laws and legal institutions must possess certain qualitative features. In particular, civil or criminal penalties for violations of relevant legal norms must be swift, certain, and severe.44 These features should not be construed as sufficient conditions for successful legal deterrence, since empirical research on the deterrent effects of criminal laws remains inconclusive.45 Even considered merely as regulative ideals, however, it is clear that current international laws and institutions fall short. Punishments for planners or perpetrators of large-scale crimes remain far from certain and far from swift, even if they are sometimes severe.
Given the difficulty of assessing the deterrent effects of current legal responses to mass atrocity, some scholars of atrocity prevention have focused instead on the expressive functions of these laws and legal institutions. Sheri Rosenberg contends that contexts of mass atrocity are characterized by social norms that prescribe, rather than prohibit, killing, maiming, or displacing members of perceived “enemy” groups.46 In such contexts, she argues, “where social norms have been turned upside down,” the main value of laws and legal institutions may be to “shif[t] social norms and meanings” over the medium term rather than deterring atrocities contemplated or underway.47
Rosenberg’s analysis directs our attention to the relationship between the legal and social norms circulating within and across particular populations. It also highlights the idea of multiple timescales for atrocity prevention efforts. We need not accept, without further analysis, her claim that large-scale crimes are generally accompanied by inversions of social norms—a claim that implies quite particular shifts in the practical commitments and normative attitudes of perpetrators and witnesses of atrocities. But we should pause to note two different ways in which legal norms can influence social norms. In the first case, which Rosenberg emphasizes, legal norms at the international level can over time create new profiles of normative beliefs and attitudes within particular populations and may motivate practices, such as informal social sanctions, of the sort that ground social norms. In the second case, legal norms may actually cause the erosion of social norms by calling attention to relevant social relationships and thereby revealing that practices of mutual respect, fair and equal treatment, or peaceful resolution of conflicts do not actually exist.
Turning to the multiple timescales of prevention, we may distinguish between short-term, medium-term, and long-term prevention strategies. The specific deterrent effects of legal norms, so far as they exist, reflect a form of short-term prevention, as do other strategies (such as direct moral suasion, humanitarian intervention, or power-sharing negotiations) that seek to prevent particular individuals or groups from picking up their weapons and actually using them. Long-term prevention strategies, by contrast, seek to change the political and economic conditions that heighten the risk of atrocities, even where none are actually underway. Such strategies include efforts to reconcile rival religious ideologies within divided populations, as well as attempts to create diversified and thriving economies in order to stave off conflicts.48 Like James Waller’s distinction between upstream, midstream, and downstream prevention strategies, Rosenberg’s distinction between short-term, medium-term, and long-term prevention strategies enhances our understanding of the general notion of atrocity prevention while also providing insights into the contributions existing legal norms aim to make to this goal.
Whatever their deterrent, expressive, or other preventive effects, existing international laws and legal institutions clearly have not succeeded in eliminating large-scale crimes. This is evident from ongoing reports of mass killing, mass rape, and forced displacement of civilians in Syria, Iraq, Yemen, and elsewhere. Of course, we should not conclude that existing legal norms have exerted no influence on these mass atrocities. Planners and commanders of ground raids, bombing campaigns, and kidnappings often seem to be minimally guided by relevant legal norms, insofar as they disclaim responsibility for particularly well-publicized attacks or smear victims of those attacks as suspected fighters. It is even possible that laws like the Convention on Genocide and institutions like the UN Security Council have helped prevent attempts by state or nonstate actors to destroy groups in Libya, Sudan, and elsewhere. But the evidence for success in genocide prevention remains disputed, and the adequacy of existing laws and legal institutions remains in doubt.49
Rather than focusing on the mere existence of laws prohibiting or prescribing certain actions in armed conflict or domestic governance, an emerging scholarly literature draws attention to the formal properties of legal norms that enable them to constrain the actions of institutional actors in particular circumstances. This approach has been adopted by some scholars of legal means of atrocity prevention, who argue that the “legalization” of existing international laws and institutions represents a critical step toward making those laws and institutions effective in constraining large-scale crimes. In this section, I analyze this argument, first explaining the (rather counterintuitive) meaning of legalization and then assessing whether this process reliably enhances the power of laws to prevent large-scale crimes.
The technical term legalization should not be confused with the familiar notion of rendering some activity, behavior, or possession legal. The word refers instead, in this case, to the reform of existing laws or bodies of law so that they display three formal features: obligation, precision, and delegation.50 As examples of international laws and institutions characterized by high levels of obligation, precision, and delegation, the originators of this technical term point to the European Human Rights Convention and the International Criminal Court, each of which explicitly defines various forms of prohibited conduct by state actors and involves standing bodies for interpreting relevant laws and punishing violations.51 As examples of legal arrangements with high levels of delegation but low precision and low obligation, these scholars cite the World Bank and the International Monetary Fund.52
The technical notion of legalization was not originally conceived as a measure of the efficiency of domestic or international laws and legal institutions.53 Subsequent commentators have, however, argued that initiatives aimed at increasing the precision, obligation, and delegation of relevant international laws can play an important part in reducing institutional tolerance for large-scale crimes. Political scientist Tuba Inal makes a particularly forceful case for the value of legalization in solidifying legal constraints on the specific large-scale crime of wartime rape. Inal’s 2013 study, Looting and Rape in Wartime, traces the rise of international criminal prohibitions on this particular form of mass atrocity.54 It thus helps to illustrate my claims about the distinguishing features of legal norms and shows how those features give legal norms a clear part to play in the prevention of large-scale crimes.
The basic question Inal addresses is why so many years elapsed between passage of the first binding legal prohibitions on wartime looting, on the one hand, and passage of comparably strict prohibitions on wartime rape, on the other. She locates the first binding international legal prohibitions on looting in the Hague Conventions of 1899 and 1907; she locates the first strict prohibition on wartime rape in the 1998 Rome Statute of the International Criminal Court.55 Inal’s explanation of this gap can be reduced to two related claims. First, she finds that the increased involvement of women in official rulemaking delegations and summits was strongly correlated with increasing precision, delegation, and obligation in domestic and international laws targeting wartime rape.56 Second, she suggests that military commanders and civilian leaders first had to shed a longstanding belief that acts of rape in wartime were inevitable, and therefore not susceptible to constraint by legal prohibitions or any other institutional interventions.57
Because Inal believes these changes occurred in stages, she frames her account of legalization around a few key moments of international lawmaking. At the Hague Conferences, themselves informed by earlier diplomatic meetings, rape was not explicitly discussed, though an imprecise, nonprohibitory call for states to respect “family honors and rights” was adopted.58 After the shocks of World Wars I and II, the 1949 Geneva Conventions stipulated in Article 27 that “women shall be specially protected against any attacks on their honor, in particular against rape, enforced prostitution and any form of indecent assault.”59 While this norm is more precise than its Hague predecessor, Inal claims it failed to establish a legally binding obligation on the part of states to prevent rape by members of their armed forces.60 Finally, in the 1998 Rome Statute, Inal finds that Article 8 precisely defined rape as a war crime, clearly obliged states to take responsibility for preventing acts of rape by their troops, and delegated prosecutorial authority to the ICC in cases of violations.61
Inal’s analysis of the processes producing greater legalization of international responses to wartime rape tracks the two key features of legal norms that I have identified. First, Inal’s analysis emphasizes the practice-grounded character of legal norms—that is, their dependence on real or perceived social practices. The long delay in the international adoption of strict legal prohibitions on wartime rape was driven by the received view that “rape in war was normal because it was a combination of two normal things: aggression (normal in war) and sexuality.”62 Although this perception by itself might not rule out efforts at legal regulation, Inal goes on to state that “the fact that rape was thought to be inevitable because of the biological nature of men and women made it virtually impossible, in the eyes of the states, to prevent it, especially in war.”63 This observation reinforces my claim that legal norms are practice grounded insofar as it suggests that lawmakers are not eager to pass prohibitions that they do not believe will actually influence the behaviors they wish to regulate.
Turning to the second distinguishing feature of legal norms—the presence of standing procedural rules governing their emergence, modification, or elimination—we also see the influence of this feature in Inal’s account. Her historical narrative consistently calls attention to the procedures for drafting new laws, updating or replacing old laws, and seeking formal ratification from states. What is interesting is that we also discover parallel changes in the moral and social norms accepted by relevant populations participating in those legal negotiations. As Inal reports, the relationship between changes in those extralegal norms and changes in legal norms is complex, with social or moral norms surrounding rape sometimes more, sometimes less strictly prohibitive than law. Finally, while we might wish that moral strictures against rape would suffice to turn soldiers against such conduct, Inal suggests there is an independent value to precise, obligatory legal norms in preventing episodes of mass rape. She writes, “Soldiers on the ground need additional incentives to comply with the laws of war to which their governments have committed.”64 The chief additional incentive she lists is the realistic chance of facing individual criminal prosecution for acts of rape in wartime. This reflects an overall perspective in which the preventive potential of legalization is attributed chiefly to the greater deterrent effects of laws that are precise, obligatory, and delegated.
The legalization of international laws and institutions holds great potential for strengthening their power to constrain large-scale crimes. Nevertheless, serious objections have been raised against efforts at legalization in this context. I consider three such objections here. The first reflects assumptions about the ways in which states seek to erode or undermine legal norms in order to pursue their perceived interests. The second starts from claims about the changed nature of warfare in the twenty-first century. The third objection centers on observations about the fragility of law in societies recovering from mass atrocities.
Skeptics of legalization sometimes claim that legal norms, however precise, obligatory, or delegated, cannot be expected to restrain the conduct of state actors and institutions where they run counter to substantial interests—and that making laws more precise or strictly obligatory will only call attention to this fact. The classic statement of this objection is the claim, made by German Chancellor Bethmann Hollweg in the early days of World War I, that an international treaty becomes nothing more than “a scrap of paper” under the pressure of military necessity.65 Modern states rarely express quite so explicit a contempt for the bedrock legal principle pacta sunt servanda (treaties are to be honored). But deliberate efforts to evade or erode legal norms are readily detected in the activity of modern states—for example, in efforts to avoid entering into binding treaties related to the use of particular tactics or technologies or in attempts to evade accepted restrictions through tortuous distinctions and tendentious arguments. These and other strategies of the sort discussed in chapter 4 are often cited as support for a realist approach to international relations—one that holds that it is not (or is not directly) legal or moral considerations, but rather leaders’ assessments of their own interests, that drive international relations and domestic conflicts.66
Advocates of legalization often respond to such arguments by claiming that maneuvers by state actors and institutions to evade or avoid acceptance of legal norms simply confirm the action-guiding power of those norms. Otherwise, they contend, these actors would not go out of their way to reject or deflect norm-based criticisms. This may be true with respect to legal norms generally, but is it true of processes of legalization specifically? Here I think we have reason to be more circumspect due to a potential contradiction arising from the two distinguishing features of legal norms. Briefly put, these two features create the possibility for situations in which particular laws or whole legal regimes remain officially in force (having never been eliminated in the manner prescribed by relevant procedural rules), but where the perception of their grounding in relevant practices cannot be sustained due to routine breaches or blatant violations by domestic or international institutions. This reflects a failure of congruence between laws and institutional conduct, to use Lon Fuller’s terminology.67 The worry is that, especially in cases of thoroughgoing legalization, where laws are spelled out precisely and made obligatory, discrepancies between institutional action and enacted laws will be harder to overlook, and the commitments and attitudes that support legal norms will erode more rapidly.68
In the final section of this chapter, I argue that there are good reasons to suspend some measures of legalization in societies that are trying to rebuild fragile institutions following mass atrocities. But in the case of most domestic and international legal institutions, I think that this objection to legalization fails. After all, the record of the twentieth century shows that state leaders are likely to seek creative interpretations of law, or to avoid being bound by restrictions, even when those laws are quite vague or simply advisory. This suggests that legalization by itself does not increase leaders’ incentives to evade legal norms. Furthermore, as political scientists Phil Orchard and Richard Price have argued, certain legal regimes, such as those relating to refugee protection or chemical weapons prohibitions, have proved of great value in protecting vulnerable populations despite efforts within some states to evade or avoid their strictures.69 For these reasons, I think the “realist” challenge to legalization fails.
A second objection to legalization starts from a different direction. This objection holds that the kinds of interstate conflicts that international humanitarian law, in particular, was designed to restrain have been largely superseded by new forms of armed conflict, making many existing legal prescriptions and prohibitions obsolete. Legal scholar Sarah Sewall argues that the decreasing role of traditional state actors in armed conflicts, combined with decreased interest, among developing nations, in enforcing humanitarian norms, means that “increasing the standards of positive law may not be the most effective route toward enhancing civilian protections.”70 Instead of seeking to make international humanitarian law prescriptions and prohibitions more obligatory and more precise, Sewall suggests that atrocity prevention efforts should focus on extralegal norms, such as the informal norm of seeking to minimize civilian casualties in military operations, even where those casualties are legally permitted or excused.71
Sewall’s argument raises two distinct questions. The first is whether, under the pressure of changing empirical realities, states and international organizations should pull back from long-standing efforts to render humanitarian legal protections more precise, more obligatory, and more completely delegated. The second question is how far informal social norms are needed to support the power of laws and legal regimes to prevent mass atrocities. I will say more about the second question in the final two chapters of this book. With respect to the first question, I believe Sewall overstates the case for refraining from legalization as a strategy for atrocity prevention. Political scientist Hyeran Jo has shown that nonstate rebel groups often express considerable interest in complying with humanitarian prescriptions and prohibitions, seeing this as a key means of achieving legitimacy on the international stage.72 Furthermore, as I noted at the start of this chapter, a focus on international humanitarian law as the primary source of international legal efforts to prevent atrocities is too narrow, since international human rights law and international criminal law have also become substantially more precise, obligatory, and delegated in recent decades. Finally, while there was a clear shift from international armed conflicts (IACs) to noninternational armed conflicts (NIACs) over the second half of the twentieth century, state institutions and international organizations frequently do end up entangled in those conflicts—meaning that legal norms directed primarily at such institutions are far from obsolete. For these reasons, I do not think Sewall’s objections to legalization are decisive.
A third objection to the strategy of legalization as a means of atrocity prevention is narrower than the first two. It does not deny the value of legalization across domestic and international affairs generally, but argues that this strategy may backfire in countries emerging from episodes of severe political turmoil. In such situations, what I have called the practice-grounded character of legal norms is weak or absent, faith in existing legal institutions is low, and the application of existing legal norms is likely to spur strong resistance. Broadly, these are the conditions highlighted by scholars of transitional justice, who are just as concerned with preventing future atrocities as are advocates of legalization but argue that a temporary suspension of the precision, obligatoriness, and delegation of specific laws may be necessary to achieve that goal.
I am inclined to accept these claims about the distinctive character of transitional societies, and the need for transitional exceptions to legalization. But I believe it is important to spell out, as clearly as possible, the conditions under which such limits to legalization apply. In the next section, I analyze those conditions and show how far the demands of transitional justice cut against the strategy of legalization pursued by promoters of mass atrocity prevention.
Legal norms and institutions are not intrinsically hostile to mass atrocities. Legal norms may be employed, as we saw in chapter 4, to marginalize minorities, legitimate their persecution, and conceal evidence of atrocities after they have ended. Legal institutions—such as courts, prosecutors, and law enforcement agencies—may be implicated in each of these different phases of large-scale crimes. The aim of recent investigations of transitional justice is to explain what changes in laws and legal institutions best serve the needs of societies recovering from war and mass atrocities.
Two particular needs appear most urgent in such contexts. The first is the need to restore social and political stability, thereby discouraging recurrences of mass killings, assaults, or displacements. The second is the need to pursue accountability for individuals and groups implicated in such crimes. Scholars have introduced several conceptual distinctions in their efforts to assess the compatibility of these aims. They have contrasted the prospective goal of social stabilization with the retrospective focus of campaigns for accountability.73 They have suggested that an emphasis on punishment may run contrary to efforts at reconciliation.74 Above all, they have debated the extent to which principles of “transitional justice” overlap with principles of justice applicable in “ordinary” times.75
I have no wish to add a new dualism—between legalized and nonlegalized interventions in laws and legal institutions—to the transitional justice literature.76 Rather, I want to explain why each specific aspect of legalization—obligation, precision, and delegation—may need to be suspended in transitional contexts. In order to do so, it is necessary first to give an account of the general social and political features that characterize those contexts and then review specific changes to laws or legal institutions that have been undertaken in particular societies after mass atrocities.
What features define life in transitional societies? Legal scholar Mark Drumbl argues that these societies are characterized by recent experiences of widespread deviance, which strain ordinary legal mechanisms for accountability.77 Ruti Teitel and Christine Bell suggest that such societies are marked out by the delicate negotiations and compromises required for successful peace settlements.78 Other scholars insist that nothing distinguishes transitional societies from so-called stable or peaceful or ordinary societies—adding that no distinct principles of transitional justice exist either.79
In her 2017 book, Conceptual Foundations of Transitional Justice, philosopher Colleen Murphy provides a novel account of the core features of transitional societies, one that is more capacious than studies focused on mass deviance and more constructive than the views of transitional justice skeptics. Murphy identifies four “circumstances of transitional justice” that are “widely recognized as characteristic of paradigm transitional societies”:80
Each of these circumstances sets transitional societies apart from what Murphy calls “reasonably just, stable democracies.”81 Taken together, these four circumstances have important implications for what justice can demand, or legal institutions achieve, in societies recovering from mass atrocities.
While Murphy’s focus falls on the “moral salience of these features” of transitional societies, my interest is different.82 I consider the implications of these circumstances for movements toward, or away from, precision, obligation, and delegation in the laws and legal institutions of societies that have experienced large-scale crimes. My basic argument is that these four circumstances create substantial pressure to suspend, or even reverse, processes of legalization within the domestic legal institutions of transitional societies. At the same time, the circumstances of transitional justice provide international institutions with good reasons to pursue greater legalization at the level of international law. In the long run, such developments may reduce the inequalities and uncertainties that currently define transitional societies.
The inequalities that constitute Murphy’s first circumstance of transitional societies include economic and social disadvantages, as well as formal and informal modes of exclusion. Inequalities are “pervasive,” according to Murphy’s view, when they exist both within particular institutions—such as courts, schools, or professions—and across all or most institutions integral to social life.83 When such inequalities are formally enshrined in law, as in the antebellum United States or in East and West Germany on the eve of reunification, transitional justice initiatives may require rejecting the precise terms of particular laws. Thus, in the early 1990s, several former East German border guards were tried for shooting attempted border crossers, despite the fact that their conduct was permitted under relevant East German laws and that the legal terms of reunification specified that only actions criminalized in the codes of both East and West Germany would be actionable in the newly united Germany.84
If the inequalities characterizing transitional societies put pressure on the precision of legal norms, the obligatory character of law faces still greater pressure from the circumstance of normalized collective and political wrongdoing. In describing this second circumstance of transitional societies, Murphy makes clear that she understands “normalized” in the statistical, rather than the normative, sense; that is, she means that wrongdoing is statistically widespread, whether or not relevant beliefs and attitudes about the permissibility of killing, torture, or other atrocities have changed.85 This statistical sense of normalized wrongdoing challenges the obligatory character of legal norms on two fronts. First, by undermining the perception of practice groundedness for laws against killing, maiming, rape, and theft, widespread violations erode the action-guiding power of these legal norms from within the practical point of view.86 Second, widespread violations create considerable logistical difficulties for courts and tribunals charged with holding lawbreakers accountable, producing pressure to either relax legal requirements of due process or pursue extralegal forms of accountability.
The pressure directed at the obligatory character of law and legal institutions is increased if we turn to the third circumstance of transitional justice: the fact of serious existential uncertainty. This is the characteristic of transitional societies that centers most directly on the threat of recurrences of large-scale crimes, reflecting “a real risk that peace will not stick and violence will return.”87 In the face of this risk, even highly credible reformers elected to high government positions after atrocities may be forced to endorse amnesties for planners or perpetrators of large-scale crimes, despite the obligations created in law to hold such individuals and groups accountable. A parallel retreat from obligation occurs when such policies depend on discretionary judgments from elected leaders rather than on formal processes governed by independent institutions.
Finally, the fourth circumstance of transitional justice, the fundamental uncertainty about authority prevailing in such contexts, disrupts the delegation of law-making, law-enforcing, and law-interpreting functions. Murphy describes two kinds of uncertainty here: uncertainty about whether existing leaders and institutions are too compromised to carry out their legal functions, and uncertainty about which among a range of new or temporary institutions has the authority to create, modify, or eliminate legal norms.88 Insofar as delegation implies the existence of clear hierarchies and coordination among legal institutions, transitional societies seem to be characterized by a drift away from, rather than toward, legalization.
We can perceive the threat to delegation in transitional societies most clearly if we consider the suspicions that courts and judges have historically come under for failing to apply laws and preserve the integrity of legal institutions during large-scale crimes. South African legal scholar David Dyzenhaus has eloquently described the failures of judges in that country to uphold legal protections for black South Africans during the apartheid era, and has criticized the refusal of judges to appear in the “Justice Session” of that country’s Truth and Reconciliation process.89 Hakeem Yusuf has assessed the appropriateness of truth commissions as vehicles for judicial accountability in transitional societies and condemned the exclusion of the Nigerian judiciary from the inquiries into human rights abuses conducted by that country’s Oputa Panel on human rights violations in the early 2000s.90 And Lisa Hilbink has argued that specific institutional features of the Chilean judiciary left judges in that country poorly equipped to resist antidemocratic actions and large-scale abuses carried out by the government of Augusto Pinochet.91
The departures from legalization demanded by the circumstances of transitional justice are paradoxical when we consider that international organizations and foreign governments typically focus their efforts on shoring up laws and strengthening legal institutions during transitional periods. International lawyers fly in to countries emerging from upheaval in order to write new constitutions that enshrine precise, obligatory protections for citizens.92 Members of the judiciary, whether newly appointed or renewed, are invited to attend training seminars on rules of evidence and requirements of due process.93 In a few cases, the United Nations has itself temporarily taken up the duties of administration in transitional societies (specifically, in Kosovo and East Timor in the late 1990s).94 In the course of such efforts at “promoting the rule of law abroad,” international agencies and activists committed to legalization often find that the inequalities, uncertainties, and inherent instability of transitional societies require relaxing the precision, obligation, and delegation of both preexisting and newly created legal norms.95
The distinctive circumstances of transitional societies, as we have seen, put pressure on the precision, obligation, and delegation of laws, leading to temporary suspensions of legalization. In light of this, it might seem that simultaneous efforts to legalize international laws and legal institutions must be misjudged. But this need not be the case, for there are forms of legalization that could, if adopted, mitigate one or more of Murphy’s circumstances of transitional justice. Consider the first circumstance, that of “pervasive structural inequalities.” The challenge of redressing such inequalities, and of securing both formal and informal protections for human rights and economic freedoms within transitional societies, is certainly serious in the immediate aftermath of large-scale crimes. Internal or external conflicts may have drained state coffers, while employers in the regions hit hardest by violence may have ceased operating. In many cases, wars and mass atrocities magnify existing social inequalities. Emily Hobhouse made just this point in the wake of the South African War, which overturned the agrarian economies of the two defeated Boer republics and left young Boer women, in particular, without good economic prospects. Such inequalities would likely be exacerbated, Hobhouse argued, by the failure of the British government to release sufficient funds for rebuilding the local economies—allocating 3 million pounds sterling for the purpose, where 50 million pounds sterling were required.96
But what if an international institution existed with the specific mission of distributing resources needed for rebuilding transitional societies? Philosopher Larry May has recently proposed such an institution, in the form of “a worldwide no-fault insurance scheme for paying the restitution and reparation costs of those who are the victims of war and mass atrocity.”97 Under this plan, all the world’s nations would contribute to a fund that would be used to “rectify” the harms imposed by war or mass atrocity, without requiring contentious determinations of fault for those harms.98 Such a pooling of responsibility for rebuilding reflects that fact that victorious nations or factions, as well as defeated ones, frequently face financial strains at the conclusion of international or noninternational armed conflicts. It also reflects that fact that in some immediate postconflict settings, local populations are more concerned with recovering the means of making a living than with ensuring that perpetrators of wrongdoing receive criminal penalties.99
May’s focus on restitution and reparation as the guiding aims of this proposed insurance scheme is not fully in line with the need to confront preexisting structural inequalities within transitional societies. It is also not clear how obligatory the contributions to (and disbursements from) such an institution could be, how precise the language of its establishing legislation should be, and how far states would be willing to delegate authority over its operation. Nevertheless, the very creation of such an institution would represent a step toward greater legalization, as compared with the charity schemes and strategic aid payments that are currently the main source of funding for rebuilding in transitional societies. If this institution made the rectification of underlying structural inequalities a mandatory part of the use of funds, it could go beyond restoring an (unequal) status quo ex ante and, in tandem with other long-term strategies, help reduce the risk of future occurrences of large-scale crimes.
1. Emily Hobhouse, The Brunt of the War and Where It Fell (London: Methuen, 1902).
2. The term “South African War” has for some time been preferred to the name previously given to this conflict: the Anglo-Boer War. See Michael Godby, “Confronting Horror: Emily Hobhouse and the Concentration Camp Photographs of the South African War,” Kronos, no. 32 (2006): 34. A recent biography of Hobhouse, which provides important details about her life and career, is Elsabé Brits, Emily Hobhouse: Feminist, Pacifist, Traitor? (London: Robinson, 2018).
3. Godby, “Confronting Horror.” For a discussion of the British use of concentration camps in the South African War, see Dan Stone, Concentration Camps (New York: Oxford University Press, 2017), 15–19. Stone reports that the “poor organization” of the camps “led to the deaths of some 45,000 people, about 25,000 Boers and 20,000 Africans” (19).
4. Hobhouse, Brunt of the War, xiii.
5. Hobhouse, Brunt of the War, xiii.
6. Ruti Teitel, Humanity’s Law (Oxford: Oxford University Press, 2013), 4.
7. Few Great Powers signed on to the Second Hague convention. The rules it set were designed to expire in five years, anticipating a Third Hague Conference that, in the event, never occurred.
8. This treaty sought specifically to rule out the submarine tactic of sinking merchant vessels carrying civilians when no safe place for offloading those civilians existed. See Nachman Ben-Yehuda, Atrocity, Deviance, and Submarine Warfare (Ann Arbor: University of Michigan Press, 2014), 85.
9. Richard Price, The Chemical Weapons Taboo (Ithaca, NY: Cornell University Press, 1997), 91.
10. Charles Garraway, “The Law Applies, But Which Law?” in The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones, ed. Matthew Evangelista and Henry Shue (Ithaca, NY: Cornell University Press, 2014), 91. The failure of these rules in their nonbinding, draft form to constrain surface bombing by both the Axis and the Allies during World War II is notorious. For a philosophically sensitive discussion of real-time debates about the morality of area bombing in that war, see Jonathan Glover, Humanity: A Moral History of the Twentieth Century (London: Jonathan Cape, 1999), 83–88.
11. Helen Hintjens, “Reconstructing Political Identities in Rwanda,” in After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond, ed. Phil Clark and Zachary Kaufman (London: Hurst, 2008), 89–90.
12. International Covenant on Civil and Political Rights, Art. 18(1–4), December 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171. Notably, the freedom of religion is held here to be nonderogable.
13. The effectiveness of such legal norms in preventing atrocities should not be taken for granted. Philosophically, laws prohibiting specific forms of hate speech are controversial; empirically, the causal connections between specific instances of hate speech and specific acts of violence against individuals or groups are not well established. For philosophical criticisms, see David Boonin, Should Race Matter? Unusual Answers to the Usual Questions (Cambridge: Cambridge University Press, 2012), chaps. 6 and 7. For the empirical connection between hate speech and violence, see Richard Ashby Wilson, Incitement on Trial: Prosecuting International Speech Crimes (Cambridge: Cambridge University Press, 2017), 235–236.
14. For the idea of a “regime” of related norms that jointly work to safeguard refugees, see Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014), 28–31.
15. For a convenient summary of national-level failures to take in refugees during the Holocaust, see Peter Hayes, Why? Explaining the Holocaust (New York: Norton, 2017), 260–273.
16. Orchard, Right to Flee.
17. Lon Fuller’s notion of a rule of law requirement of “congruence” between declared legal norms and official institutional behavior picks out the particular relationship between the authority of laws and practice that I have in mind. See Colleen Murphy, “Lon Fuller and the Moral Value of the Rule of Law,” Law and Philosophy 24, no. 3 (2005): 241–245.
18. Christopher Kutz, “How Norms Die: Torture and Assassination in American Policy,” Ethics and International Affairs 28, no. 4 (2014): 428. Kutz here seems to be referring to norms generally rather than legal norms specifically; his principal cases—torture and assassination—do not lend themselves to further discrimination, since both practices are prohibited by legal and moral norms in many contemporary societies.
19. At the time, Lemkin formulated these prohibitions in terms of laws against “barbarism” and “vandalism.” See Raphael Lemkin, “Acts Constituting a General (Transnational) Danger Considered as Offences against the Law of Nations,” paper for the Fifth Conference for the Unification of Penal Law, Madrid, October 14–20, 1933, http://www.preventgenocide.org/lemkin/madrid1933-english.htm. Also see Raphael Lemkin, Totally Unofficial (New Haven, CT: Yale University Press, 2014), 22–23.
20. Raphael Lemkin, Axis Rule in Occupied Europe (Washington, DC: Carnegie Endowment for International Peace, 1944), 79–95.
21. UN Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January 12, 1951) 78 UNTS 277; Lemkin, Totally Unofficial, 176.
22. Lemkin, Totally Unofficial, 22–23.
23. Lemkin, Axis Rule, 94.
24. Orchard, Right to Flee, 105.
25. Orchard, Right to Flee, 174–180.
26. Francis Lieber, “General Orders No. 100,” in Military Rules, Regulations and the Code of War: Francis Lieber and the Certification of Conflict, ed. Richard Shelly Hartigan (New Brunswick, NJ: Transaction, 2011), 48.
27. Hilaire McCoubrey, “From Nuremberg to Rome: Restoring the Defense of Superior Orders,” International and Comparative Law Quarterly 50 (2001): 387.
28. The distinction between perpetrator and accessory proved particularly important in determining the charges that men and women who engaged in killing actually faced, for in the German law to be a “perpetrator” of murder required both a clear interest in the death of another and a malign will reflected in the act of killing. See Devin Pendas, The Frankfurt Auschwitz Trial, 1963–1965 (Cambridge: Cambridge University Press, 2006), 56–71; also see Henry Friedlander, “Nazi Crimes and the German Law,” in Nazi Crimes and the Law, ed. Friedlander and Nathan Stoltzfus (Cambridge: Cambridge University Press, 2008), 27–33.
29. Robert Jackson, “Opening Statement, “Second Day, Wednesday, 11/21/1945, Part 04,” in Trial of the Major War Criminals before the International Military Tribunal, vol. 2: Proceedings: 11/14/1945–11/30/1945 (Nuremberg: IMT, 1947), 98. (Official text in the English language.)
30. Dapo Akande and Sangeeta Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts,” European Journal of International Law 21, no. 4 (2011): 815–852.
31. Akande and Shah, “Immunities of State Officials.”
32. Versailles Peace Treaty, June 28, 1919, 225 Parry 188; 2 Bevans 235; 13 AJIL Supp. 151, 385 (1919), Article 227.
33. Jackson Maogoto, “Early Efforts to Establish an International Criminal Court,” in The Legal Regime of the International Criminal Court, ed. Jose Doria, Hans-Peter Gasser, and M. Cherif Bassiouni (Leiden: Martinus Nijhoff, 2009), 16.
34. Maogoto, “Early Efforts.” English economist John Maynard Keynes condemned the proposal to try the Kaiser, deeming it part of a general “concoction of greed and sentiment, prejudice and deception.” John Maynard Keynes, The Economic Consequences of the Peace (New York: Harcourt, 1920), 131.
35. Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: Norton, 2011); Gill Wigglesworth, “The End of Impunity? Lessons from Sierra Leone,” International Affairs 84, no. 4 (2008): 809–827.
36. Akande and Shah, “Immunities of State Officials,” 840.
37. Mark Osiel, Obeying Orders: Atrocity, Military Discipline, and Law of War (New Brunswick, NJ: Transaction, 2001), 51–52.
38. Osiel, Obeying Orders, 42; McCoubrey, “From Nuremberg to Rome,” 389.
39. Importantly, however, Article 33 of the Rome Statute of the International Criminal Court restores superior orders as a legitimate defense for individuals accused of large-scale crimes in cases where those orders are not manifestly unlawful. The article goes on to stipulate that orders to commit genocide or crimes against humanity are, in fact, manifestly unlawful. For discussion, see McCoubrey, “From Nuremberg to Rome,” 392–393.
40. The focus on institutional actors also precludes consideration of certain hypothetical cases, such as the commission of genocide by a lone individual armed with a biological weapon. See David Luban, “A Theory of Crimes against Humanity,” Yale Journal of International Law 29 (2004): 98n45.
41. Sheri P. Rosenberg, “Audacity of Hope: International Criminal Law, Mass Atrocity Crimes, and Prevention,” in Reconstructing Atrocity Prevention, ed. Sheri Rosenberg, Tibi Galis, and Alex Zucker (Cambridge: Cambridge University Press, 2016), 153.
42. For discussion of this problem of knowing with certainty when a genocide has actually been prevented, see Kerry Whigham, “Remembering to Prevent: The Preventive Capacity of Public Memory,” Genocide Studies and Prevention 11, no. 2 (2017): 53–54; see also Scott Straus, Fundamentals of Genocide and Mass Atrocity Prevention (Washington, DC: United States Holocaust Memorial Museum, 2016), chap. 6.
43. Whigham, “Remembering to Prevent.”
44. Whigham, “Remembering to Prevent,” 155; Tom Buitelaar, “The ICC and the Prevention of Atrocities: Criminological Perspectives,” Human Rights Review 17 (2016): 289.
45. Buitelaar, “The ICC and the Prevention of Atrocities.”
46. Rosenberg, “Audacity of Hope,” 161.
47. Rosenberg, “Audacity of Hope,” 155, 163.
48. For the need to address rival religious ideologies as part of long-term atrocity prevention efforts, see Yehuda Bauer, “Genocide and Mass Atrocities: Can They Be Prevented?” in Preventing Mass Atrocities: Policies and Practices, ed. Barbara Harff and Ted Robert Gurr (New York: Routledge, 2018), 20–22. For the significance of economic programs as long-term prevention measures, see Ted Robert Gurr, “Preventing Genocides and Mass Atrocities: Evidence from Conflict Analysis,” in Preventing Mass Atrocities, ed. Harff and Gurr, 67.
49. Straus, The Order of Genocide.
50. Kenneth Abbott, Robert Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, “The Concept of Legalization,” International Organization 54, no. 3 (2000): 17–35.
51. Abbott et al., “The Concept of Legalization.”
52. Abbott et al., “The Concept of Legalization.”
53. The first adopters of this approach to the study of international organizations explicitly refused to “take the position that greater legalization, or any particular form of legalization, is inherently superior.” Abbott et al., “The Concept of Legalization,” 24.
54. Tuba Inal, Looting and Rape in Wartime (Philadelphia: University of Pennsylvania Press, 2013).
55. Inal, Looting and Rape, 63–69, 133–134.
56. Inal, Looting and Rape, 170–171.
57. Inal, Looting and Rape, 173–175.
58. Inal, Looting and Rape, 61.
59. Inal, Looting and Rape, 98.
60. Inal, Looting and Rape, 95.
61. Inal, Looting and Rape, 133–135.
62. Inal, Looting and Rape, 60.
63. Inal, Looting and Rape, 91.
64. Inal, Looting and Rape, 179.
65. For discussion of the context of this statement and the significance of German interpretations of military necessity, see Isabel Hull, A Scrap of Paper: Breaking and Making International Law During the Great War (Ithaca, NY: Cornell University Press, 2014), 25–33, 41–43.
66. Hull, A Scrap of Paper, 13–15. See also William Wohlforth, “Realism,” in The Oxford Handbook of International Relations, ed. Christian Reus-Smit and Duncan Snidal (New York: Oxford University Press, 2010), 131–149.
67. Lon Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964), 37–38.
68. Fuller, The Morality of Law; Jeremy Waldron, “Why Law—Efficacy, Freedom, or Fidelity?” Law and Philosophy 13, no. 3 (1994): 259–284.
69. Orchard characterizes a “regime” as “a mechanism through which the appropriate standards of behavior suggested by … individual norms are linked together to create a response within the complexity of [an] issue area.” Cf. Orchard, Right to Flee, 6; also see Price, Chemical Weapons Taboo, 1997.
70. Sarah Sewall, “Limits of Law: Promoting Humanity in Armed Conflict,” in Law and War, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford, CA: Stanford Law Books, 2014), 23.
71. Sarat et al., Law and War, 37–38.
72. Hyeran Jo, Compliant Rebels (Cambridge: Cambridge, University Press, 2015), 13–15.
73. Ruti Teitel, Transitional Justice (New York: Oxford University Press, 2000); Martha Minnow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998); Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004).
74. Teitel, Transitional Justice; Kit Wellman, “Amnesties and International Law,” in War: Essays in Political Philosophy, ed. Larry May (Cambridge: Cambridge University Press, 2008), 249–265; Margaret Urban Walker, Moral Repair: Reconstructing Moral Relations after Wrongdoing (Cambridge: Cambridge University Press, 2006); Colleen Murphy, A Moral Theory of Political Reconciliation (Cambridge: Cambridge University Press, 2012).
75. Teitel, Transitional Justice; Pablo de Greiff, “Theorizing Transitional Justice,” in NOMOS LI: Transitional Justice, ed. Melissa S. Williams and Rosemary Nagy (New York: NYU Press, 2012), 31–77; Colleen Murphy, Conceptual Foundations of Transitional Justice (Cambridge: Cambridge University Press, 2017).
76. It is doubtful whether this represents a new dichotomy in any case, since an interest in legalization is already evident in discussions of rule-of-law reforms within transitional societies.
77. Mark Drumbl, Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press, 2007), 24.
78. Teitel, Transitional Justice; Christine Bell, “Of Jus Post Bellum and Lex Pacificatoria: What’s in a Name?” in Jus Post Bellum: Mapping the Normative Foundations, ed. Carsten Stahn, Jennifer Easterday, and Jens Iverson (New York: Oxford University Press, 2014), 201.
79. Eric Posner and Adrian Vermeule, “Transitional Justice as Ordinary Justice,” Harvard Law Review 117, no. 3 (2004): 761–825.
80. Murphy, Conceptual Foundations, 24.
81. Murphy, Conceptual Foundations, 42.
82. Murphy, Conceptual Foundations.
83. Murphy refers to such cases as combining “horizontal” and “vertical” inequalities. Murphy, Conceptual Foundations, 47.
84. Teitel, Transitional Justice, 44–46, 164–169.
85. Murphy, Conceptual Foundations, 55–56.
86. As I have noted elsewhere in this study, I do not think that such widespread wrongdoing necessarily undermines the moral prohibitions against these actions, since such moral prohibitions are not related to prevailing practices in the same way.
87. Murphy, Conceptual Foundations, 67.
88. Murphy, Conceptual Foundations, 72–73.
89. David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation, and the Apartheid Legal Order (Oxford: Hart, 2003). See also David Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford: Oxford University Press, 1991).
90. Hakeem Yusuf, Transitional Justice, Judicial Accountability and the Rule of Law (Abingdon, UK: Routledge, 2013).
91. Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship (Cambridge: Cambridge University Press, 2011).
92. Stephen Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice (Cambridge: Cambridge University Press, 2010).
93. Hansjörg Strohemeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor,” American Journal of International Law 95, no. 1 (2001): 55.
94. Strohemeyer, “Collapse and Reconstruction.”
95. Consider Ruti Teitel’s influential description of the status of law in transitional societies: “In transitional jurisprudence, the conception of justice is partial, contextual, and situated between at least two legal and political orders. Legal norms are decidedly multiple, the idea of justice always a compromise.” Teitel, Transitional Justice, 9.
96. Hobhouse, Brunt of the War, 318. Hobhouse became actively involved in postwar rebuilding efforts, establishing schools for wool dying and weaving in multiple locations in the years before World War I. But her general assessment of the power of laws to constrain large-scale crimes decreased with time. In a new preface written in 1923 for the Dutch edition of The Brunt of the War, Hobhouse concluded that the rules of humanitarian law, however “excellent on paper, can easily be, and indeed are eluded in a thousand ways.” Emily Hobhouse, “Introduction to the Reprint of ‘The Brunt of the War’ by Emily Hobhouse,” Oxford, Bodleian Library, MS Hobhouse 1, 8–9.
97. Larry May, After War Ends (Cambridge: Cambridge University Press, 2011), 194.
98. The contentious character of such determinations is illustrated by Article 231 of the Treaty of Versailles, the so-called war guilt clause. James Morgan Read, Atrocity Propaganda, 1914–1919 (New Haven, CT: Yale University Press, 1941), viii.
99. Fionnoula Ní Aoláin and Dina Francesca Haynes, “The Compatibility of Justice for Women with Jus Post Bellum Analysis,” in Jus Post Bellum, edited by Carsten Stahn, Jennifer Easterday, and Jens Iverson (New York: Oxford University Press, 2014), 167.