By: Natalie R. Davidson
What are we talking about in international law when we talk about “atrocity”? This Article argues that while in the second half of the twentieth century, international atrocity norms addressed spectacular violence by public authorities, in the twenty-first century, international judges and experts have interpreted those norms so expansively that they now also address routine violence in private settings. To demonstrate this claim, this Article focuses on two paradigmatic atrocity norms: crimes against humanity in international criminal law, which now includes forced marriages, and torture in international human rights law, which now includes domestic violence, discrimination in health care settings, and low-level violence by law-enforcement personnel. While legal scholars have discussed some of these doctrinal expansions, they have not linked them to one another. Having mapped this doctrinal change and demonstrated that it constitutes a radical departure from the international legal meaning of atrocity that developed in the twentieth century, this Article offers socio-legal explanations for the change, focusing on social movement strategies, elite international lawyers’ imperfect internalization of critical approaches to international law, and broader changes in contemporary Western culture. Finally, this Article suggests avenues for further research on the implications of the new atrocity. These include conducting empirical research on the benefits and costs for victims, social change, and state power; and theorizing anew the legal doctrine of atrocity norms.
