Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law

FEATURED RESEARCH PAPER, 15 Jun 2020

Itamar Mann | Canadian Journal of Law and Jurisprudence – TRANSCEND Media Service

Abstract:

Atrocities are often unprecedented and identifying them therefore may require moral and political judgment, not only the application of legal rules. Consequently, potential defendants charged for perpetrating them may be genuinely unable to recognize the law that prohibits their criminal activity. Starting from its classical treatment in Hannah Arendt’s Eichmann in Jerusalem, this problem has perplexed scholars who have noted the seemingly normal character of defendants in mass atrocity cases. In disagreement with other scholars in the area, I argue for recognition of a “mistake of law” defense in international criminal law.

The article demonstrates the stakes of the claim through three hypothetical international criminal cases with different political underpinnings: cases against individuals responsible for the risks of climate change; against abusers of migrants in the context of border enforcement; and against individuals responsible for the termination of pregnancies in abortion clinics. I argue for a dual approach: on the one hand, prosecutors and judges must constantly leave open the possibility of a radical departure from extant doctrine and precedent in charging individuals. On the other, they must recognize that defendants may reasonably not be able to recognize the law qua law, when such departures occur. The internal tension between these two imperatives sheds light on the predicament of international criminal adjudication. Recognition of the proposed mistake of law defense is but a modest doctrinal solution for a much more fundamental difficulty. Yet it is especially crucial today, with an ever-clearer normative divergence among actors in the “international community.”

“Imagine yourself a tribunal. Pretend you have an audience – a community of some sort that will recognize you as a tribunal. Now, go all the way. What grandeur of transformation of the normative universe would you perform? Will you simply issue a general writ of peace? A warrant for justice notwithstanding the facts and the law? Will you order everyone to be good? Perhaps you will judge the dead? Or even bring God as a defendant?^{”   — Robert Cover}

Introduction

Some seemingly “normal” activities may, under reasonable (if unorthodox) interpretations of international criminal law, be construed as international crimes. Think of activities knowingly increasing the environmental risks of climate change, perhaps initiated by an energy mogul.

Consider abusive acts of detention and systematic infliction of pain, physical and mental, which unauthorized migrants, including children, suffer at the hands of border enforcement. Or take an example with a different political valence, that of abortion: some think of the large-scale “extermination” of unborn fetuses as atrocities. Should such acts, where “perpetrators” believe they have acted legally, at times even heroically, be the basis for international criminal liability? And if so, subject to what limitations? Beyond the answers of extant law, the question is worth considering in normative terms.

To examine what is at stake, this Article returns to one of the most perplexing conundrums in criminal legal theory, Hannah Arendt’s problem of “the banality of evil.” The iconic subtitle of Hannah Arendt’s Eichmann in Jerusalem has drawn the attention of legal scholars. Yet I believe we have not so far fully developed its implications with regard to mistakes of law. Rather than an interpretation of Arendt’s argument, the purpose of this Article is to push her notion of “thoughtlessness” to its prescriptive conclusions (which ultimately, she may not have agreed with). Arendt’s argument pertains to the very possibility of establishing criminal liability. As she articulated it, this is a problem of the defendant not showing the mental element (mens rea) necessary for conviction of a crime. Should those who follow the expectations of their society, or orders of their military commander, without realizing that they are acting criminally, be held liable for their actions?

If the material elements of the crime are fulfilled, international criminal law generally answers positively. The requirement of intent is realized whenever a person acts of their own volition. Differing from Arendt’s mens rea framing, criminal lawyers may see the issue as a problem of mistake of law. Even if international criminal law allows them, Arendt gives reason to believe that the criminal prosecutions of those who did not know that their actions were illegal are problematic. Such prosecutions may be entirely foreign to defendants’ beliefs and their most fundamental convictions. They may therefore render questionable or even defunct basic purposes of criminal law, such as individual retribution and deterrence.

Arendt did not support the Israeli trial and preferred an international one. Be that as it may, she by no means believed that Eichmann should have been acquitted. Perhaps inadvertently, however, Arendt provides the outlines for a more general conclusion: the contemporary rule according to which a mistake of law cannot normally relieve a person of international criminal liability should be revised. Contrary to current international criminal law, those who are genuinely mistaken about law should not be convicted. The rationale for this becomes starkest in cases where the law itself is not fully settled, which, I argue, nevertheless may be some of the most important cases. Mistakes of law thus shed light on the principle of legality.

The Article spends considerable effort analyzing the contemporary hypotheticals. These concern offenders from developed countries, who morally assess situations around them in a way that differs from a perceived consensus within their societies. In this focus, the Article shares certain preoccupations of critical approaches to international criminal law, including those advanced by Third World Approaches to International Law (TWAIL): it highlights the way in which particular world views can become hegemonic, thus generating questionable priorities for prosecution authorities.

Yet the Article also departs from these important bodies of literature. Critical and TWAIL literature has often stressed that international criminal law may enforce a particularly “Western” normativity. This article proposes a different perspective, highlighting instead the radical discrepancy between normative visions even within developed countries. From the perspective of some critical and TWAIL scholars, the article may be criticized as underplaying important dimension concerning the actual priorities of international criminal law, and how they advance neo-colonial dynamics. After all, the point has often been that in fact the International Criminal Court’s jurisdiction is triggered selectively against individuals in weak states. I have no dispute with that. I aim to emphasize rather that alongside the dimension of differential power, another dimension of differential moral imaginations should complicate our critique.

While the Article addresses the doctrinal framework of international criminal law, the questions I discuss are pervasive to criminal law more generally. While it addresses the particular doctrinal debate about mistakes of law, it aims to open a larger question about the very nature of criminal law. It will hopefully therefore be of interest not only to international criminal lawyers, but to a wider range of criminal law scholars and legal theorists.

Part 2 below reintroduces Arendt’s argument on the problem of thoughtlessness. Part 3 illustrates the practical implications that the theoretical question has in international criminal cases, addressing the three contemporary hypotheticals I started off with. Part 4 advances my normative argument. I seek to stress the importance of novel interpretations of international criminal law. At the same time, I argue that those who are oblivious of the criminality of their behavior should not be held liable, if they could not have been expected to know the relevant law. This part of the Article further draws connections between the mistake of law questions, and an ever-clearer reality of global divergent understandings of fundamental normative questions. Part 5 concludes by reference to a work of art.

The Conundrum of Thoughtlessness

Mens Rea vs. Mistake of Law

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Itamar Mann – University of Haifa, Faculty of Law, Faculty Member

This article originally appeared on Transcend Media Service (TMS) on 15 Jun 2020.

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