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The Criminalization of Atrocities in Domestic Legal Systems Since World War II

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The Criminalization of Atrocities in Domestic Legal Systems Since World War II UNIVERSITY OF CALIFORNIA, IRVINE Implementing International Law: The Criminalization of Atrocities in Domestic Legal Systems Since World War II DISSERTATION submitted in partial satisfaction of the requirements for the degree of DOCTOR OF PHILOSOPHY in Political Science by Mark Samuel Berlin Dissertation Committee: Professor Wayne Sandholtz, Co-Chair Associate Professor Charles Anthony Smith, Co-Chair Professor David John Frank Assistant Professor Diana Kapiszewski Professor Christopher Alexander Whytock 2015 © 2015 Mark Samuel Berlin DEDICATION To my parents, who have always supported me in all of my pursuits ii TABLE OF CONTENTS Page LIST OF FIGURES iv LIST OF TABLES v ACKNOWLEDGMENTS vi CURRICULUM VITAE viii ABSTRACT OF THE DISSERTION x CHAPTER 1: Introduction 1 CHAPTER 2: An institutional redesign theory of international legal implementation 27 CHAPTER 3: The history of efforts to adopt anti-atrocity norms in domestic criminal law 55 CHAPTER 4: Statistical evidence: Criminal code redesign and atrocity criminalization 88 CHAPTER 5: Verifying the mechanisms: The adoption of anti-atrocity laws in Guatemala 112 CHAPTER 6: Conclusion: Contributions, scope conditions, and future research 156 REFERENCES 175 APPENDIX 3.1: Interviewees for Chapter Three 190 APPENDIX 4.1: Selected secondary sources used to code dataset on anti-atrocity laws 191 APPENDIX 4.2. Coding rules for dataset on anti-atrocity laws 192 APPENDIX 4.3: States that adopted national anti-atrocity laws 199 APPENDIX 4.4: States that adopted national anti-atrocity laws prior to independence 202 APPENDIX 4.5: States that adopted redesigned criminal codes since 1945 203 APPENDIX 5.1: Text of atrocity crimes in 1973 Guatemalan criminal code 205 APPENDIX 5.2: Interviewees for Chapter Five 209 iii LIST OF FIGURES Page Figure 2.1 National criminal laws against genocide, 1940-2011 20 Figure 2.2 National criminal laws against war crimes, 1940-2011 21 Figure 2.3 National criminal laws against crimes against humanity, 1940-2011 21 Figure 5.1 Causal mechanisms in atrocity criminalization in Guatemala 122 iv LIST OF TABLES Page Table 1.1 International legal instruments in the international anti-atrocity regime 10 Table 4.1 Total states that adopted anti-atrocity laws, 1945-2011 97 Table 4.2 Event history analysis of genocide law adoption 98 Table 4.3 Event history analysis of war crimes law adoption 99 Table 4.4 Event history analysis of crimes against humanity law adoption 100 Table 4.5 Polity2 regime scores by path to criminalization 108 Table 5.1 Empirical tests for atrocity criminalization 122 Table 5.2 Consistency of evidence with predicted observations 152 v ACKNOWLEDGMENTS Part of what attracted me to pursuing an academic career was my (naïve) belief that it promised me a life free of dependence on others: a vocation in which I alone could maintain control over my work and thus be solely responsible for its quality. In the end, I learned that would only be partly true; while my failures throughout my time as a graduate student have indeed been attributable only to me, my successes have undoubtedly been the result of the assistance I received from what seem like countless individuals and institutions. First and foremost, I am incredibly fortunate to have had such a wonderful group of mentors serve on my dissertation committee. Wayne Sandholtz has been an ideal adviser. From the beginning, he granted my ideas the respect that he would those of a colleague, never discouraging me from any lines of inquiry that inspired me nor demanding I adopt any particular approach to pursuing them. Instead, his sagacious feedback always aimed to (and did) help me better realize my own ideas. Tony Smith is the type of supporter few graduate students are lucky enough to have in their corner. His door was always open, and his enthusiastic guidance on all matters of professional development has been invaluable. David Frank’s feedback was always incisive, and I benefited immensely from the many opportunities to pick his brain about my inchoate ideas. Diana Kapiszewski has always been unbelievably generous with her time, her brainpower, and her encouragement, and her meticulous and voluminous feedback always challenged me in the most constructive ways. Chris Whytock has a unique ability to put himself in your intellectual shoes, and think about your ideas that way you think about them. As a result, his feedback was always both exceptionally thoughtful and constructive. In all, I am both honored and humbled to have enjoyed the support of a group of scholars whose work I admire so greatly and from which I have drawn so much inspiration. A number of institutions also provided invaluable support for this project. The bulk of financial support came from a Doctoral Dissertation Improvement Grant I received from the National Science Foundation Law and Social Sciences Program (SES-1423578). I also received several smaller grants over the years from research centers at UC Irvine, specifically, the Center for Global Peace and Conflict Studies, the Center for Organizational Research, and the Center in Law, Society and Culture. The UC Irvine Department of Political Science and School of Social Science also provided several grants and fellowships. I also spent four months as a guest researcher at the Peace Research Institute Frankfurt in Frankfurt, Germany. I would like to thank all the researchers and staff there for welcoming me so warmly and for offering thoughtful comments on my work in progress. This project also took me to libraries across the U.S. and Germany to collect data, and I extend my most heartfelt appreciation to the numerous librarians who assisted me, including those at the Library of Congress, Harvard University, the University of Chicago, and the German National Library in Frankfurt. Special thanks are deserved by Neel Agrawal, the global law librarian at the Los Angeles County Law Library. Neel consistently went above and beyond his duties in helping me track down obscure foreign legal materials, and his enthusiasm and generosity made my numerous trips to the library a genuine pleasure. Over the years, I also benefited from presenting my work in a number of fora, including the UC Irvine International and Comparative Sociology Workshop and the Law and Latte workshop series. I am thankful to all the participants in those groups who offered me feedback and encouragement. In addition to those serving on my dissertation committee, several professors at UC Irvine at various points offered either professional guidance or helpful vi comments on my work, including Deborah Avant, Graeme Boushey, Daniel Brunstetter, Alison Brysk, Sara Goodman, Ann Hironaka, and Evan Schofer. I am especially lucky to have received mentorship from the late David Easton, who was as kind and generous in spirit as he was ruthless in his “criticism of everything existing.” I would also like to thank all the individuals who generously offered me their time by granting me interviews. I am also especially grateful to Yvonne Aguilar, whose tireless and enthusiastic assistance in interpreting interviews, setting up meetings, and driving me all over Guatemala City in terrifying traffic was indispensible to this project. I also would like to thank the numerous individuals who contributed to this project by translating documents from a variety of languages into English. Finally, I could not imagine having completed a Ph.D. without the unwavering support of my wife and best friend, Madeleine. She tolerated far too many working nights and weekends, consoled my countless frustrations, and was always willing to cook me delicious food when I most needed it (despite her own busy work schedule). Her patience has given me tranquility in spite of all the stress, and her support has given me strength in spite of all the insecurity. She has been my secret weapon, and no words can express my appreciation for all that she has done. vii Curriculum Vitae Mark Samuel Berlin [email protected] Academic Appointments Assistant Professor, Department of Political Science, Marquette University, 2015-present Education Ph.D. University of California, Irvine, Political Science, 2015 M.A. University of California, Irvine, Political Science, 2013 B.M. Berklee College of Music (cum laude), Music Production and Engineering, 2002 Publications Refereed journal articles 2016 “Why (not) Arrest? Third-party State Compliance and Noncompliance with International Criminal Tribunals.” Forthcoming in Journal of Human Rights. Other publications 2013 “From Pirates to Pinochet: Universal Jurisdiction for Torture.” Pp. 83-106 in The Politics of the Globalization of Law: Getting from Rights to Justice, edited by Alison Brysk. New York: Routledge. 2011 “Monitoring the Global Private Military and Security Industry: What Do We Know, What Do We Need to Know, and How Can We Know It.” UC Institute on Global Conflict and Cooperation Occasional Paper No. 4. 2011. Co-authored with Deborah Avant and Karl Kruse. Grants, fellowships, and awards 2014 National Science Foundation Dissertation Improvement Grant (SES-1423578), Law and Social Sciences Program. 2014 Center for Global Peace and Conflict Studies research grant, UC Irvine. 2013 A. Kimball Romney Award for Outstanding Research Paper, School of Social Sciences, UC Irvine. 2013 David Easton Award for Outstanding Graduate Student Paper, Department of Political Science, UC Irvine. viii 2013 Center for Organizational Research research grant, UC Irvine. 2013 Associate Dean’s Fellowship, School of Social Sciences, UC Irvine. 2013 Department of Political Science research grant, UC Irvine. 2013 Center in Law, Society and Culture research grant, UC Irvine. 2012 Center for Global Peace and Conflict Studies research grant, UC Irvine. 2012 Department of Political Science summer research travel grant, UC Irvine. 2012 Department of Political Science research grant, UC Irvine. 2011 Scholarship to attend the Institute for Qualitative and Multi-Method Research, Department of Political Science, UC Irvine. 2011 International Studies Association Annual Convention travel grant.
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