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, perhaps you will judge the dead? Or even bring God as a defendant?Footnote 1
Robert Cover1. 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.Footnote 2 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.Footnote 3 Or take an example with a different political valence, that of abortion: some think of the largescale “extermination” of unborn fetuses as atrocities.Footnote 4 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.”Footnote 5 The iconic subtitle of Hannah Arendt’s Eichmann in Jerusalem has drawn the attention of legal scholars.Footnote 6 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).Footnote 7 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.Footnote 8 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?Footnote 9
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.Footnote 10 Differing from Arendt’s mens rea framing, criminal lawyers may see the issue as a problem of mistake of law.Footnote 11 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.Footnote 12
Arendt did not support the Israeli trial and preferred an international one.Footnote 13 Be that as it may, she by no means believed that Eichmann should have been acquitted.Footnote 14 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.Footnote 15 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 three contemporary hypotheticals. These concern offenders from developed countries. 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):Footnote 16 it highlights the way in which particular world views can become hegemonic, thus generating questionable priorities for prosecution authorities.Footnote 17
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.
2. The Conundrum of Thoughtlessness
2.1. Mens Rea vs. Mistake of Law
In an illuminating essay, David Luban explains the fundamental challenges Arendt presents to international criminal lawyers.Footnote 18 These challenges are no doubt of historical and philosophical interest, but also pertain to the contemporary practice of international criminal law, at the International Criminal Court (ICC) and elsewhere.Footnote 19 Luban writes, “All the questions she asked remain with us today, and they remain the biggest questions international criminal law must answer.”Footnote 20 As a perceived “crisis of liberalism” raises some doubts about the future of international criminal law in its current forms, an opportunity emerges to re-examine these big questions.Footnote 21
Perhaps the most unsettling of these is a question both Arendt and Luban frame as one about the mental element (or mens rea) Eichmann’s conviction rested upon. In a dramatic epilogue to her book about “the banality of evil,” she identifies a profound difficulty with Eichmann’s conviction.Footnote 22 Writing an imaginary alternative opinion for the court, she addresses the defendant:Footnote 23 “[…] you said you had never acted from base motives, that you had never had any inclination to kill anybody, that you had never hated Jews, and still that you could not have acted otherwise and that you did not feel guilty. We find this difficult, though not altogether impossible, to believe […]”.Footnote 24
As Arendt explains, the defendant was apparently not aware that the actions he committed were unlawful. He perpetrated his crimes while believing he was doing the right thing—as a moral, political, and legal judgement. He acted in a way that he thought would be valued in his own time and place.Footnote 25 Arendt thus concludes:
Eichmann was not Iago and not Macbeth […] He merely, to put the matter colloquially, never realized what he was doing […] It was sheer thoughtlessness—something by no means identical with stupidity—that predisposed him to become one the great criminals of that period […] That such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together which, perhaps, are inherent in man—that was, in fact, the lesson one could learn in Jerusalem.Footnote 26
Luban explains Arendt’s position—“Eichmann was found guilty, not for succumbing to immoral temptation or being a depraved deviant, but instead for conscientiously observing the flawed mores of the Third Reich.”Footnote 27 Martti Koskeniemmi concurs with the analysis centered on the mental element: “there is no mens rea”—he writes—when “crimes are aspects of political normality.”Footnote 28
The requirement of mens rea is however generally fulfilled if one acts of their own volition.Footnote 29 The mental element can be eliminated, e.g., if one sleepwalks into a crime. Another favorite example among criminal law professors is “automation”—a curious condition that supposedly eliminates the mens rea by motorically overtaking the self. Aside from such exotic circumstances, acting according to a perceived “normality” is not usually thought of as something that extinguishes the mental element required for conviction.Footnote 30
Under international criminal law, a different doctrine addresses the question what happens when individuals believe they are acting legally while committing a grave crime. “Never to realize what one is doing” is a “mistake of law.”Footnote 31 To be sure, the doctrine of mistake of law intimately relates to questions of mens rea. Scholars have explained this doctrine as reflecting one of the most fundamental principles of criminal law, that there is “no punishment without guilt” (nullum crimen sine culpa).Footnote 32 Unlike the elimination of the mental element, however, under Article 32(2) those who make such mistakes are not excused of criminal liability: “A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility.”Footnote 33 “Ignorantia juris non excusat.”Footnote 34
There are exceptions to this rule, importantly that of superior orders. Article 32(2) or the Rome Statute continues: “A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.”Footnote 35 Article 33 provides that when an act is (a) commissioned under superior orders that a person is obliged to carry out; (b) the person involved did not know that the order is illegal; and (c) the order is not “manifestly illegal,” then a mistake of law may relieve that person of criminal liability.Footnote 36 As Alette Smeulers has observed, the language here reflects the criminal law requirement of establishing guilt: “many low-level perpetrators do not necessarily recognize the manifest illegality of the orders they receive.”Footnote 37
I will have a little bit more to say about the manifestly illegal doctrine below. Leaving that exception aside for now, the basic dilemma Arendt identified remains (even with this limited defense for those following superior orders). What value can criminal sanction have, if defendants genuinely have no understanding of why they are punished?
Arendt invites us, strikingly, to think of Eichmann as mistaken.
2.2. Eichmann as History and as Thought Experiment
But was Arendt’s characterization of Eichmann as lacking consciousness of wrongdoing historically accurate? It seems that in fact, Eichmann knew very well that his actions were murderous and immoral.Footnote 38 While Arendt thinks there is “not very much” evidence “in this matter of motivation and conscience” the Jerusalem trial court had indeed based Eichmann’s conviction on a consciousness of wrongdoing.Footnote 39 Judges on an appeal to the Israel Supreme Court affirmed. Relying on the defendant’s own words, they emphasized that he was conscious of his crimes upon commissioning them:
[…] the appellant was fully conscious during his actions that he is contributing to the most heinous and terrible crimes. In paragraph 221 of the judgement the appellant’s testimony is quoted, and in it he admits as much:
“‘Dear President of the Court, after you have called me so that I give a clear answer, I must declare that I see this murder of Jews as one of the most terrible crimes in the history of mankind’.
And answering Justice Levi:
‘…. Even back then I saw this forceful solution as contrary to the law, a terrible thing, but to my chagrin I was committed to engage with transportation issues related to it, due to an oath of honour I wasn’t released from.’”Footnote 40
If one believes the Israeli court (which seems convincing on this point), there is no problem of consciousness of wrongdoing with Eichmann.
Why, then, the continued fascination among scholars with Arendt’s disquieting reading? For a normative inquiry, the question of whether the historical Eichmann was aware that he was acting illegally can be duly set aside. Simply assume Arendt’s characterization was correct. According to this assumption “Eichmann” believed in good faith that his decision to follow the Führer’s orders—in reality he did more than that—was both legal and moral. Even if the historical Eichmann does not in fact represent this latter Eichmann, Arendt’s characterization remains a bare and extreme example of a wider phenomenon: criminal prohibitions with universal application are not understood in the same way across radically different cultural and historical contexts. Call this person “the-thought-experiment-Eichmann.”
Scientific evidence suggests that the lack of consciousness of wrongdoing, characteristic of such an Eichmann, is quite possible for a sane person (whose actions can therefore not be exculpated under an insanity defense). The classical case in point, which legal scholars often return to,Footnote 41 is the Stanley Milgram obedience experiment, published 1963 (the year Arendt’s report from the Jerusalem trial was first published). Subjects famously administered escalating (fake) electric shocks to other participants when an experimenter asked them to do so. Almost two-thirds of the subjects proved willing to continue as their fellow participants screamed and eventually fell silent. The experiment, replicated many times, suggests it is not that difficult to convince ordinary people that otherwise repugnant instructions become legal. Mark Drumbl reminds of another relevant observation by psychologist James Waller: “the most outstanding common characteristic of perpetrators of extraordinarily evil is their normality, not their abnormality.”Footnote 42
Beyond psychology, such conformity to the wrongdoings of one’s immediate social and cultural environment is familiar from introspection. In my own life too, it may sometimes be hard for me to determine whether I’m in an Eichmann-like position—“conscientiously observing the flawed mores” of an atrocious political, social, and cultural context I happen to live in.
Take for example the systematic extermination and torture of animals in industrial slaughterhouses. Elizabeth Costello, the fictional philosopher that novelist J.M. Coetzee has invented,Footnote 43 connects the slaughter of animals and the problem of thoughtlessness. Speaking of the holocaust, she says, “It was and is inconceivable that people who did not know (in that special sense) about the camps were fully human.”Footnote 44 An Eichmann who does not realize what he is doing seems, at first blush, morally inferior to us. Costello continues, addressing her audience with the striking parallel which merits a second thought about any such feeling of superiority:
I was taken on a drive around Waltham this morning. It seems a pleasant enough town. I saw no horrors, no drug-testing laboratories, no factory farms, no abattoirs. Yet I am sure they are here. They must be. They simply do not advertise themselves. They are all around us as I speak, only we do not, in a certain sense, know about them.Footnote 45
This lack of knowledge is precisely Arendt’s thoughtlessness. The industrial slaughter of animals for meat is perhaps never legally prohibited. From a moral point of view, however, it is at the very least hard to rule out that it is worthy of the harshest reprimand.Footnote 46 Are there other such actions, which can be caught in the net of international criminal law, and represent normality in our own societies?
Matthew Zagor observed an interesting phenomenon among Israeli soldiers stationed in the West Bank: immersed in a context of systematic brutality, they apparently have a hard time differentiating between a so-called “manifestly illegal” order and a legal one.Footnote 47 But who is to say when an order really falls under such a category? Recall that the distinction is extremely important for the purposes of prosecution under the Rome Statute. Article 33 provides a superior orders defense for soldiers who fulfil criminal orders when the orders were not manifestly illegal.Footnote 48 This may be because soldiers in hierarchical military organizations are somehow trained to be “thoughtless”: As Smeulers explains, they may have a reasonable expectation and an institutional incentive to believe that the legality of orders has been “taken care of” by others.Footnote 49 They are often expected to act rapidly and not to hesitate. It is with such people, who may commit atrocities with no understanding of their unlawful behavior, that Arendt’s challenge has its sharpest bite. The point here is not to take a position on whether Israeli soldiers are ever in such an insulated cultural context, making it impossible for them to identify international crimes. I will have something to say about that below. My point now is rather that it is unjust to convict individuals whose entire environment and upbringing make it impossible for them to see otherwise-criminal activity as anything but the fulfilment of a civic duty.
This limitation to a class of clueless criminals by no means renders Arendt’s challenge negligible. As others have explained, a similar problem of a seeming lack of consciousness of wrongdoing occurs in many other international criminal cases, both actual and potential. For Luban, there’s a parallelism along these lines between the genocide in Germany in the 1940s and the genocide in Rwanda in the 1990s.Footnote 50 Like the Eichmann case, other instances where suspects thought they were acting legally may still be the most important ones to prosecute today. The problem may be endemic to the discipline of international criminal law.
Yet Luban seems to disagree about the scope of the problem. While he does not believe it to be exclusively Nazi, he objects to the view that “thoughtlessness” may pervade our own every day. For those of us living in “a decent polity”, he says, distinguishing right from wrong should not be a problem.Footnote 51 But how are we to know that what we deem to be “a decent polity” is in fact decent? That too might be a false premise, merely reflecting our society’s very indecency (or indeed its pervasiveness among multiple contemporary societies). I should be aiming to ask whether my society will be deemed decent by an “objective” observer, unmoored from its own cultural and historical biases.Footnote 52 I can never be too suspicious that I have my own little Eichmann within me.
2.3. Three Kinds of Judgement
The controversy Eichmann in Jerusalem generated is now well-rehearsed. But the charge that Arendt’s audiences as well as some of her friends had marshalled was at its time dead serious: she had absolved the Nazi from moral responsibility. This accusation is misguided. A related difficulty arises: Arendt may have inadvertently shown that Eichmann should have been acquitted of criminal charges. First, note Arendt’s answers to questions about Eichmann’s moral and political responsibility.
Morality. Eichmann displayed a propensity for clichés, and no personal judgement. In Arendt’s words, he exemplified “a curious, quite authentic inability to think.”Footnote 53 Arendt uses the latter phrase with an addition: “inability to think, namely, to think from the standpoint of somebody else”.Footnote 54 Exercising judgement does not render anyone immune of bad deeds. But it reflects an attempt to reduce their probability. Thinking might not be a sufficient condition for moral behavior, but it is a necessary one. Thoughtlessness is, quite literally, a display of moral irresponsibility, and is therefore morally objectionable.Footnote 55 Arendt’s thinking here echoes earlier Christian sources, particularly Thomas Aquinas, who has suggested that “conscience is not said to bind in the sense that what one does according to such a conscience will be good, but in the sense that in not following it he will sin.”Footnote 56 It is a moral imperative to think.
Politics. Arendt’s conception of judgement is of a participatory activity that occurs in the context of a plurality of perspectives. When we make our judgements in common, through public deliberation and mutual attempts to convince each other, we constitute our own political communities.Footnote 57 Judgment is essential for the task of self-government.Footnote 58 Arendt cleverly illustrated the link between the two in her analysis of the word “conscience”. Conscience, she observed, is not only an individual’s inner voice counselling on the rightness or wrongness of one’s own behavior. It is also, literally, con-science, or knowing-together.Footnote 59
Thoughtlessness therefore may lead to moral culpability or present a political failure. But even assuming that thoughtlessness is a reprehensible category within the two latter domains, it is still unclear that thoughtlessness can be the basis of a criminal conviction. Following legal scholar Yosal Rogat, Arendt ultimately argues that a court should be able to convict a person based on an “objective” element alone. For her, this is the actus reus with no corresponding mens rea.Footnote 60 The idea, as I understand it, is to offer a natural law justification for punishment, which may not require consciousness of wrongdoing when it comes to a class of particularly heinous crimes.Footnote 61
In Rogat’s words (which Arendt quotes), the idea is “that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal.”Footnote 62 In her imaginary judgement addressed to Eichmann, she summarizes—“In other words, guilt and innocence before the law are of an objective nature, and even if eighty million Germans had done as you did, this would not have been an excuse of you.”Footnote 63
But this is not a satisfying solution.Footnote 64 Being thoughtless is marked by the lack of independent decision. Despite the nebulous reference to natural law, it is hard to square with the requirement that one be convicted only for their own actions. Not knowing the law upheld as the most fundamental law signals an alterity so profound, it questions the law’s very status as applicable to the person possessing such ignorance. Thoughtlessness is not truly one’s own.
The important aspects of thoughtlessness are its moral and political offensiveness: the total absence of an attempt to transcend one’s social, cultural, and historical conditions. This is a familiar behavior, but not in itself the basis of a crime. As the Article clarifies below, the moral and political imperatives can inform the interpretation of the law, but they cannot be the basis for eliminating its aim to identify culpability.
3. The Problem of Thoughtlessness Today
3.1. Our Eichmann Within
Drumbl has perhaps been the most perceptive commentator in explaining the scope of this problem.Footnote 65 He emphasizes circumstances of widespread or systematic violence in which entire societies are bent upon killing innocent people. His examples are numerous. He focuses his study on non-Western cultures and societies far removed from liberal legalism. Reading him, it’s almost hard to imagine an international criminal case that would not, somehow, involve a question about an apparent lack in consciousness of wrongdoing.
Drumbl clarifies that he does not want to revive a defense for those merely following orders.Footnote 66 But his analysis is particularly clear when we think precisely of their fate. He contends:
the perpetrator of mass atrocity is qualitatively different than the perpetrator of ordinary crime […] Extraordinary international crime often flows from organic groupthink in the times and places where it is committed, making individual participation therein less deviant and, in fact, more of a matter of conforming to a social norm.Footnote 67
Drumbl further points out the way in which the apparent lack of wrongdoing widens the circle of responsibility. “This deep complicity cascade does not diminish the brutality or exculpate the aggressor. But it […] assuages the many blaming the few.”Footnote 68 Assuming that atrocity is based on consciousness of wrongdoing becomes an illusory palliative.
Reading Durmbl may however reaffirm a false impression, which Luban, and other commentators, also make: that the distinction between a context of atrocity where “groupthink” pervades, and a context of normality where we think for ourselves, remains firm and epistemically accessible. Drumbl ends up focusing on situations of mass killing, which we are indeed intuitively accustomed to think of as international crimes.Footnote 69 But the full implications of Arendt’s argument on thoughtlessness are far more radical. They require not only an analysis of cases that we easily label as cases of international crime (typically far away from home).
The Eichmann thought experiment demands a certain exertion in the task of judgement. It requires us to question our own assumptions. And it asks us to examine where we may have thus far not even identified crimes, because atrocious acts somehow dissolve into our common sense and thus may become transparent.Footnote 70 Such concealment characteristically may occur due to the laziness of habitual ways of thinking, but also due to cultural preferences (which we may rightfully cherish).
If we are to have any understanding for Eichmann, we might observe that it was doubly difficult for him to know that what he was doing was criminal: (i) because he may have been blinded by his following of the Reich, and (ii) because it was not that clear that crimes against humanity existed under positive international law at the time.Footnote 71 As it turns out, mistakes of law are intimately related to questions about the principle of legality. Once again, Eichmann’s double difficulty, stated this way, is anything but rare. It perfectly represents a larger paradigm of defendants. And it may occur precisely when an international tribunal or a domestic court applying universal jurisdiction seeks to assert accountability for crimes that seem historically unprecedented. These crimes can be enormous atrocities, but it is harder to think of them in that way because there is no readily available historical analogy.Footnote 72 Many of us may have our own views on what are the unprecedented crimes of our time. Cleary, we would not agree on their designation as such.
The restated question, informed by the Eichmann thought experiment, is therefore: who among us today may be (i) blinded by our own membership in our cultural and social context; and (ii) committing morally atrocious acts, that fit—perhaps not without difficulty—into the international criminal law categories of our own time. Answering requires a certain diversion from “ordinary” international criminal cases, venturing into territory that is doctrinally and politically controversial. Three contexts that may illustrate this re-articulation of the Eichmann thought experiment are the context of a discussion on environmental crimes; the context of a discussion on the prosecution of crimes against migrants; and the context of a discussion on crimes against the unborn.
All three sets of issues are at the outer margins of the discipline of international criminal law. They are barely within contemporary understandings of its appropriate scope, or wholly outside of its mainstream views. Yet the public profile of each of them is on the rise as I write these words. In each of these, the expressive charge “crimes against humanity!” has been marshalled in good faith.Footnote 73 Each of these claims serves to discuss powerful contemporary political sentiments pertaining to aspirations of justice on a planetary scale and—for those who make them—unprecedented atrocity.
While the first two examples may be perceived as part of a progressive agenda for international criminal law, the third example belongs to a world of conservative and religious politics. This divergence is crucial for the current argument. It emphasizes the conceptual structure of the problem, rather than any specific priorities for international criminal prosecution. We may assume that each of the groups making the claims below genuinely and emphatically believes that the acts they point to are among the worst on the planet.
3.2. Three Contemporary Illustrations
3.2.1. Crimes against the Climate
On September 15, 2016, the Office of the Prosecutor of the ICC published a periodical Policy Paper on Case Selection and Prioritization.Footnote 74 This document was a shift in the priorities of the prosecutor’s office, emphasizing environmental issues.Footnote 75
It’s easy to see why one might think that environmental crimes should be included high on the prosecutor’s priority list.Footnote 76 On March 23, 2017, U.N. Secretary-General António Guterres explained that “Climate change is an unprecedented and growing threat to peace, prosperity and development”;Footnote 77 invoking a threat to peace is traditionally an allusion to the UN’s coercive powers—from war to the establishment of an international criminal tribunal.Footnote 78
If this language seems to pertain to a future event, and therefore not to a problem of criminal liability, note the words of the Prime Minister of Dominica, Roosevelt Skerrit: “to deny climate change is to deny a truth we have just lived.”Footnote 79 Skerrit spoke after Hurricane Maria, which left a death toll of over 4,000 across Caribbean nations,Footnote 80 alongside mass displacement and damages estimated around $90 billion.Footnote 81
The causes of climate change are difficult to square with the requirements of international criminal law, primarily because of how hard it is to show causation with any specific act.Footnote 82 There are environmental crimes that are much easier to prosecute than those pertaining to climate change. Protocol 1 of the Geneva Conventions includes a prohibition on “methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment.”Footnote 83 As the provision reflects customary international law,Footnote 84 it clearly may entail criminal responsibility under the Rome Statute (or by way of universal jurisdiction).
Beyond criminalization of the Protocol 1 provision, international crimes committed during war may have grave environmental consequences. An attack using chemical weapons may amount to a war crime or a crime against humanity regardless of its environmental consequences.Footnote 85 But the latter can increase the perceived “gravity” of the crimes and thus push the ICC prosecutor towards prioritizing its investigation.Footnote 86
Most polluting activities, however, are the by-products of business. Such activity seems not only legitimate. It is also widely celebrated for preserving and developing collective wealth. Environmental law has therefore focused on tinkering with business incentives to make polluters “internalize” the costs of their activities. This task is arguably more suitable for administrative law and tort law, rather than for criminal law.Footnote 87 It does not come with the expressive bite or negative stigma of criminal law, let alone international criminal law.Footnote 88 Criminal enforcement of environmental protection is relatively exceptional, perhaps because most environmental harms are generated by the very structure of a capitalist market.Footnote 89
Yet as early as 1997, speaking of the “cultural genocide” of climate change,Footnote 90 President Kinza Clodumar of the Republic of Nauru warned: “…the willful destruction of entire countries and cultures, with foreknowledge, would represent an unspeakable crime against humanity. No nation has the right to place its own, misconstrued, national interest before the physical and cultural survival of whole countries”.Footnote 91 His words are not only an invocation of international criminal law categories. They also attempt to impute a consciousness of wrongdoing to the culprits. The latter cannot be mistaken and think that these activities are legal, says Clodumar.
At the wake of President Donald Trump’s anti-environmental policies,Footnote 92 another commentator invoked the expressive charge of crimes against humanity—once again referring to climate change. In an opinion piece published by The Guardian, Lawrence Trocello described the problem of thoughtlessness.Footnote 93 Trocello suggests that “Most of us have wondered about the human context of past crimes against humanity: why didn’t more people intervene? How could so many pretend not to know? To be sure, crimes against humanity are not always easy to identify while they unfold”.Footnote 94 His questions could not be more relevant. Arendt’s Eichmann is the paradigmatic example of why such crimes may not be easy to identify in real time. We are often so immersed in our world in which they represent positive activities, as not to be able to think of them at all. To reiterate Elizabeth Costello’s words, we “do not know.”
For Trocello, this seeming lack of understanding of how crimes against humanity unfold is a kind of willful blindness.Footnote 95 Reflection can dispel the clouds, at least when coupled with some temporal distance from the social context in which a crime was committed: “We need some time to reflect and to analyze, even when our reasoning suggests that large-scale human suffering and death are imminent. The principled condemnation of large-scale atrocity is, too often, a luxury of hindsight.”Footnote 96 This question about the possibility of judgement to transcend social context has been introduced above. The imagination of a more enlightened future is the writer’s attempt to avoid the pitfalls of thoughtlessness.Footnote 97
Both Clodumar in 1997, and Trocello two decades later, invoke the category of crimes against humanity rather casually. Neither of them makes any real case under international criminal law. They nevertheless open a richer understanding of how Arendt’s thoughtlessness remains important in popular thinking about global justice. And they signal a general direction as to how the concept may be incorporated into contemporary international criminal legal argumentation.
Climate change is of interest because its atrocious consequences, including mass displacement and food shortages, are currently unfolding in growing speed.Footnote 98 In recent years, we have increasingly tended to imagine what the planet will be like when human presence is no longer possible.Footnote 99 Particularly harmful policies may conceivably fall under Article 7 of the Rome Statute: a widespread attack against a civilian population that may amount to extermination or forced displacement of populations.Footnote 100 At the same time, the underlying behavior stems precisely from a cultural context that valorizes the maximization of profit and thus may come with no consciousness of wrongdoing. Harmful emissions stem from “positive” business activity rather than “guilty minds.”
If a prosecutor chooses to indict individuals for international crimes leading to climate change, demonstrating its foreseeable deadly results, defendants may raise the argument that such activity is not criminal. The prosecution, they would say, violates the principle of legality.Footnote 101 For that argument to succeed, they would have to show that their activities are not currently criminal under international criminal law (which, once again, is a question). But such individuals, heroes of the market, can be understood as being in the Eichmann-like position described above. Their actions result from their embeddedness in a social context where such behavior is valued. Even if it is true that their actions directly contribute to calamitous climate change, it is ultimately not clear extant international criminal law applies to it. These defendants’ social contexts may not be wholly different from our own.
3.2.2. Crimes Against Migrants
In March 2011, the ICC Office of the Prosecutor opened its investigation into the situation in Libya, following a referral by the UN Security Council.Footnote 102 The investigation concerns crimes against humanity, including of murder and persecution, starting February 15, 2011.Footnote 103 As the ICC Prosecutor explained to the UN Security Council in her statement of May 8, 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.”Footnote 104 ICC Prosecutor Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.”Footnote 105 As she explains, “thousands of vulnerable migrants, including women and children, are being held in detention centers across Libya in often inhumane condition.”Footnote 106
At question are acts not strictly within the traditional scope of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery.Footnote 107 In a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity.Footnote 108 At the same time, however, various observers have pointed to the complicity of European countries with the relevant acts.Footnote 109 EU states, and Italy in particular, have used Libyan militia to ensure migrants do not make it across the Mediterranean.Footnote 110Foreknowledge is often invoked by the most sophisticated humanitarian and pro-migrant organizations in this area: by supporting and arming Libyan militia, European actors knowingly expose migrants to those acts they condemn.Footnote 111 In other words, they display a certain consciousness of their own wrongdoing.
The border enforcement and deportation policies of other countries have also raised concerns about possible internationally criminal acts. Particularly infamous are facilities Australia has managed on the Papua New Guinean island of Manus, and is still managing on Nauru.Footnote 112 Here, private contractors such as G4S and Ferrovial have run camps of systematic or widespread inhuman detention.Footnote 113 UN watchdogs as well as NGOs have observed that agents of these facilities have applied torture on detainees under their custody. Activists have submitted complaints about their activities to the ICC Office of the Prosecutor (further discussed below).Footnote 114
US Immigration enforcement officers have also increasingly been accused of torture practices.Footnote 115 Democratic Party Representative Alexandria Ocasio-Cortez, of New York, has memorably called migrant detention facilities “concentration camps.”Footnote 116 Though the label is not a legal category, it is a clear appeal to a cultural imagination of atrocity. Particularly infamous is the Trump administration’s defense of the child separation policy, and its unprecedented application of punitive measures on children.
Recently, the ICC Prosecutor has opened a preliminary examination examining the deportation of the Rohingya people from Myanamar to Bangladesh.Footnote 117
On September 13, 2017, UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, Agnes Callamard, published her report to the UN General Assembly, on the “Unlawful Death of Refugees and Migrants”.Footnote 118 The report meticulously documents border control practices with horrible impacts on the world’s most disempowered populations: mass deaths by drowning,Footnote 119 an epidemic of mental illness and self-harm in refugee camps,Footnote 120 and indefinite detention periods in harrowing conditions.Footnote 121 Callamard’s report does not absolve human traffickers from responsibility, but opens a much wider net for a future international criminal investigation focusing on crimes against migrants, including indictments of agents of “developed” countries.Footnote 122
Callamard’s findings are squarely relevant to a discussion of the problem of thoughtlessness in international criminal law. As she writes, the report concerns “an international crime whose very banality in the eyes of so many makes its tragedy particularly grave and disturbing.”Footnote 123 The idea of “banality in the eyes of many” refers to the fact many do not believe these are crimes. From Callamard’s perspective, I think, these people are making a mistake about the law. In her recommendations, she spells out the practical implications: “The International Criminal Court should consider preliminary investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met.”Footnote 124
Callamard suggests investigations going far beyond Bensouda’s consideration of human trafficking in Libya and the deportation of the Rohingya people. The story she tells in her report has a truly global scale. It is not ordinary for a UN body to recommend to the ICC what cases it should consider.Footnote 125 Yet Callamard concludes that parts of these practices amount to international crimes. They are composed of prohibited acts, which, in a “systematic” or “widespread” manner, constitute an “attack” against the “civilian population” of migrants.Footnote 126
Callamard is pointing to the fact that the abuse of migrants is far from being a concern shared by humanity at large. Many of us ignore it or respond with a shrug. For Callamard, this collective shrug, however, does not serve as evidence that no crime has occurred. To the contrary, this disregard may be a sign of how grave the crime really is.Footnote 127 A global audience of spectators who are happy to see migrants suffer makes their degradation even worse.
On February 26, 2018, Nils Melzer, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, joined many of Callamard’s conclusions about the treatment of migrants: “Migration laws, policies and practices that knowingly or deliberately subject or expose migrants to foreseeable acts or risks of torture or ill-treatment […] are conclusively unlawful and give rise to State responsibility.…”Footnote 128 Beyond state responsibility, Melzer too references personal international criminal liability:
States and the ICC-Prosecutor should examine whether investigations for crimes against humanity or war crimes are warranted in view of the scale, gravity and increasingly systematic nature of torture, ill-treatment and other serious human rights violations […] as a consequence of corruption and crime, but also as a direct or indirect consequence of deliberate State policies and practices of deterrence, criminalization, arrival prevention, and refoulement.Footnote 129
Focusing specifically on the U.S.-Mexican border, human rights scholar Kate Cronin-Furman published an op-ed in The New York Times focusing on themes relevant to the problem of thoughtlessness.Footnote 130 Citing testimony from atrocity trials and truth commissions, the author argues that border enforcement personnel committing crimes such as torture likely “think of what they’re doing as they would think of any other day job.” These people, who are “just following orders” as she says, should be shamed through the initiation of international criminal prosecution. They can thus be deterred, explains the author, from continuing to commit their atrocities.
Assume that Italian coast guard forces knowingly expose migrants and asylum seekers to torture in Libyan detention centers: either by directly handing them over to Libyan militia, or by alerting Libyan militia when migrant boats leave the Libyan coast.Footnote 131 Would such Italian agents be liable for torture as a crime against humanity, either directly or vicariously?Footnote 132
One defense that these agents may raise, as above, is the principle of legality. Such acts stem from the state’s interest in protecting its borders and are not (clearly) illegal. But even if the acts would be found to be illegal under international law, a defense of mistake of law under Articles 32 and 33 of the Rome Statute could perhaps be voiced: the Italian agents were following orders that even if illegal, are surely not “manifestly” so. The defendants are immersed in a world in which border protection is an important civic duty, even if it takes a high human toll. And it is not that clear, after all, that their actions are indeed criminalized.
3.2.3. Crimes Against the Unborn
The two sets of examples offered above may seem to have in common an aim of expanding the types of cases falling under the jurisdiction of the court. Liberal internationalists and left-leaning cosmopolitans have often expressed such a wish.Footnote 133
Yet there is no promise that such an expansion would ultimately work in favor of political goals that such groups cherish. “Creative” interpretations of international criminal law can also advance prosecutions with a very different political valence.Footnote 134 If imputing criminal liability to individuals responsible for numerous abortions now seems like a somewhat outlandish hypothetical, this is by no means analytically necessary. It is simply the result of Christian ultra-conservative views not, for now, being all that popular among those entrusted with interpreting the relevant legal instruments.
On November 1, 2017, the United States’ Congress heard testimony on a new anti-abortion Bill, the Heartbeat Protection Act of 2017.Footnote 135 Star Parker, a conservative activist and the founding director of the Center for Urban Renewal and Education, gave an interesting speech, worth analyzing here in some detail.Footnote 136 Just like others did in the context of climate and migration, Parker chose to make her case through an invocation of mass atrocity: “Slavery was, as abortion is, a crime against humanity.”Footnote 137 The fact that Parker is black makes her reference to slavery all the more compelling.
Indeed, Parker spoke from a position rooted in black identity and black culture. She started by referring to rapper Nicki Minaj and her statement that her “abortion of her unborn daughter still haunts her”.Footnote 138 Parker then referred to her own past experience, explaining that she too decided to have a number of abortions, and was ridden by guilt: “I was one such woman.”Footnote 139 In line with Arendt’s view on moral judgement briefly explained above, the invocation of conscience is coupled with a claim about the ability to see from the perspective of the other. This is a silenced, invisible other, made vulnerable by existing social conditions: “My testimony on behalf of the innocent life growing in the womb, and the vulnerable men and women considering abortion.”Footnote 140 Such conditions, she explains, are aggravated by antagonistic social forces: the intrinsic value of life is constantly eliminated by a desire for material gain, instrumental efficiency, and social conformity. For her, this is a “conflict between humanity and convenience, personhood and property, justice and public opinion.”Footnote 141
Parker takes slavery as a paradigmatic crime against humanity.Footnote 142 Like the charge in climate change advocacy, the idea is that a fundamental value was destroyed for the sake of utility and greed. Parker also presents this as a case of thoughtlessness. Owning slaves was previously an “acceptable” American behavior (embraced by American heroes such as Thomas Jefferson and George Washington).Footnote 143 People who failed to transcend their own cultural contexts through the exercise of judgement could be involved in slavery without having any kind of consciousness of wrongdoing. In this context, Parker takes a clear position on the most basic debate in legal philosophy, between positivism and natural law. Just like Arendt obliquely did in this context, Parker sides with natural law.Footnote 144
This appeal to natural law allows Parker to discuss another important theme linking abortion to a history of mass atrocity, i.e., the question who counts as human:Footnote 145
Like slavery, tensions were created in a public square and in law concerning who qualified for natural rights worthy of protection. In the first eighty nine years of our nation’s existence it was the black slaves who sought freedom, and equal protection under the law, and many attempts were made to heed their cry […] Today it is the conceived person living in the womb of its mother that should be considered human with opportunity of equal protection under the law.Footnote 146
Parker’s discourse displays three relevant and interrelated assumptions: (1) one must transcend their own historical conditions, asserting one’s individual conscience against doxa; (2) history is a progressive process, which allows us in the present to better judge the past, and will also allow future generations to better judge our own time; and (3) while some atrocities might seem unprecedented, one can nevertheless adopt an appropriate attitude towards them by highlighting their commonalities with past atrocities.Footnote 147
This style of reasoning cuts across partisan politics: one can take precisely the same rhetorical stance while claiming that certain contributions to climate change must be interpreted as criminal. One can invoke them to protect and assist the most destitute of unauthorized migrants. Rather than testifying to their weakness, the political malleability of these arguments speaks to how commanding they can be.
But can her claim that abortions are a crime against humanity be taken seriously? Conservative scholar Robert George has argued that embryos fully qualify as rights-bearing persons, just as severely disabled or comatose individuals are. He thus equates between abortions and acts of killing.Footnote 148 Similarly, U.S. Supreme Court Justice Clarence Thomas compared birth control to eugenics, and its historical motivation “to exterminate” the black population.Footnote 149
Based upon the black letter of the law alone, there is no reason to disagree. Under Article 7 of the Rome Statute, systematic or widespread extermination of a civilian population amounts to a crime against humanity.Footnote 150 There is no reason, in principle, why unborn fetuses cannot constitute a civilian population.Footnote 151
In many parts of the world, including nine U.S. states, abortions are permitted at any stage of pregnancy.Footnote 152 Framing abortion as widespread or systematic killing directly collides with the normative convictions reflected by such laws: reproductive rights, says the title of another Bill, are human rights.Footnote 153 Pro-life advocates, arguing against such policies, point to the fact that some fetuses have the capacity to experience pain.Footnote 154 Some of them, they rightfully say, could survive outside the womb and become adults. There is no necessary or analytic reason to determine the debate one way or the other. There is no such reason to exclude unborn fetuses from protections given to other humans. Within the U.N. Human Rights Committee, a lively discussion recently emerged on the question whether the unborn enjoy the right to life protected by Article 6 of the International Covenant on Civil and Political Rights.Footnote 155
If we do indeed try to take Parker’s crime against humanity argument seriously, we might conclude that she demands of us no departure from extant law. Neither popular opinion (international or American), nor the jurisprudence of international criminal tribunals, support the idea that mass abortions constitute a crime against humanity. A recent general comment on the right to life by the U.N. Human Rights Committee militates precisely to the opposite direction, protecting a right to healthy and safe abortion.Footnote 156 But a textual reading of the Rome Statute does allow for such an interpretation. And human rights instruments (those of international criminal law included) are often understood as protections precisely against the dangers of public opinion.Footnote 157 Someone like Parker may claim: doctors performing or directing such abortions should not enjoy protections if they are mistaken about the law. “A mistake […] shall not be a ground for excluding criminal responsibility.”Footnote 158 These doctors, so the argument goes, are misguided by the social and cultural contexts in which they are living.
It would be a gross understatement to say that it is “not entirely clear” that international criminal law prohibits systematic abortions. But it was also truly unclear that there was an international criminal prohibition against genocide during Eichmann’s criminal acts. The literature on retrospective punishment, particularly surrounding the (earlier) Nuremberg tribunals, unquestionably testifies to the latter legal difficulty.Footnote 159
4. When do We Acquit the Thoughtless?
Many of those who commit mass atrocities act without knowledge of the law. Presumably some of them could have known about it. Especially when the law is not entirely clear, it is questionable whether perpetrators of mass atrocity with no such knowledge should be convicted. Such convictions, whether of Arendt’s Eichmann or of perpetrators in the hypothetical cases above, may be detrimental to the purposes of international criminal law. It is hard to imagine that persons punished for heinous acts that they had no idea are criminal, can comprehend the punishment (even if they do not agree with it). And it is hard to imagine that they would be deterred from performing other atrocities that they do not see as morally or legally problematic.
Of course, to convict a defendant of an international crime there is no need that the defendant agrees with the law. Nor is there any requirement that a defendant recognize the result of the criminal process as just. What is a necessary condition is that the defendant will be able to identify the law qua law. A useful distinction here is the difference between John Austin’s positivism, and H.L.A. Hart’s corrective. While for Austin law is a command backed by a sanction, Hart required that people be able to recognize the binding force of law as something else than simply brute force (applying a so-called “rule of recognition”).Footnote 160 It is necessary that a defendant in an international criminal trial be able to recognize the law as law, not as an arbitrary infliction of violence.Footnote 161
The Eichmann thought experiment requires us to imagine minds with moral convictions that are far removed from our own. As the thought experiment reflects, people with such minds can believe the most morally repugnant actions imaginable are nevertheless legal. The three hypothetical examples provided above are intended to show that there is nothing necessarily correct about our own contemporary moral convictions. These are three cases that, I hope, have moved various kinds of readers in different directions (with at least some degree of discomfort about one or more of the examples). Indeed, The Eichmann thought experiment requires us to acknowledge that our moral convictions are often fundamentally divided.
Some may object, assuming a kind of consensus in the international community around certain basic values. International criminal law is directed towards “core crimes.” War crimes, crimes against humanity, and genocide—so goes the argument—are precisely the kind of crimes that “anyone knows” are illegal. The principle of legality, fundamental to criminal legal theory, requires that such crimes be interpreted in accordance with widely held perceptions and expectations. In the Rome Statute, the principle is codified in Article 22—“nullum crimen sine lege.” The principle is also referred to as the principle of strict interpretation, suggesting an analysis that will follow well-trodden paths.Footnote 162 Particularly relevant, Article 22(2) provides that “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.”Footnote 163
According to the objection, there can therefore be no problem of “mistakes” about international criminal law. These are the acts held as criminal by the “international community as a whole.”Footnote 164 Whoever commits such crimes must know that they have acted criminally. The problem of thoughtlessness may have been relevant during the formative post-war period in which Eichmann was tried. But the basic international legal norms and institutions have since solidified. Today, the problem of thoughtlessness simply does not arise.
This type of response assumes that when a person intentionally engages in behavior that is morally reprehensible from the perspective of the “international community,” consciousness of wrongdoing can be imputed to them. In criminal law more generally, suspects are assumed to have the ability to find out the law if they do not know it. A defense for mistakes of law, the literature often reiterates, simply encourages an undesirable behavior of indifference and willful blindness about the law. Oliver Wendell Holmes is often quoted on this: “It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit [mistake of law as an] excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales.”Footnote 165
As for international crimes, a characteristic argument is slightly different: there are certain acts for which consciousness of wrongdoing does not have to be proven, because they are so manifestly unlawful on their very face. This is what a reference to “manifestly illegal acts” means. And this is likely what Arendt meant, when she wrote that “the very earth cries out for vengeance.”Footnote 166 As one commentator asserts—perhaps overconfidently—“honest errors about the illegality of genocide, crimes against humanity, and aggression are unthinkable.”Footnote 167
But this attempt to brush away the problem of thoughtlessness is unsatisfactory. No such consensus in “the international community” exists—even not about the fundamental prohibitions of international criminal law.
The existing language of the Rome Statue too admits that there can be mistakes about some international crimes, i.e., war crimes. Article 33 provides a defense for soldiers following orders that are not manifestly illegal. The Statute further assumes that unlike war crimes, crimes against humanity and genocide are always “manifestly illegal” (Article 33 2.). The distinction within Article 33 supports the argument I make here inasmuch as some “thoughtless” criminals are granted a defense. But I believe granting the defense only in cases of war crimes committed under superior orders makes no sense analytically. The underlying “problem of thoughtlessness” may be applicable in crimes against humanity and genocide as well. From this perspective, the subordinate following orders and the uncritical follower of cultural mores are not qualitatively different; they are points on a spectrum of socialized normativity. As Christian theologians such as Aquinas and Grotius had it, “invincible ignorance exculpates acts resulting from it.”Footnote 168 Though soldier act within an organization that encourages such ignorance for the sake of operational speed and seamlessness, it cannot be regarded as the provenance of soldiers alone.
For years, torture joined slavery as a paradigmatic absolute prohibition of customary international law (“jus cogens”). But recall President Donald J. Trump, far from being alone, repeatedly demanding that terrorism suspects receive treatment worse than water-boarding.Footnote 169 Perhaps there is a near-unanimous agreement that genocide is always prohibited. But the rubber meets the road when one operationalizes the genocide definition in concrete circumstances. We have seen the lack of consensus, e.g., in the aftermath of allegations of genocide in Sudan.Footnote 170 To paraphrase an oft-quoted quip by Carl Schmitt, whoever invokes interests of “the international community as a whole” wants to cheat.Footnote 171
Recently, defending the notion of an international community commonly upholding core global values, James Crawford wrote that
[…] whether or not there is a ‘global community’—a matter that rather depends on one’s definition of community—there are incontestably global, communal or collective interests. Among these, I would list a minimum of environmental stewardship—for example, the preservation of species from avoidable extinction, the protection of the ozone layer—and the prevention as far as possible of wars of destruction and weapons of mass destruction.Footnote 172
Does this mean that acts contributing to climate change should be prosecuted as crimes against humanity? At present, that does not seem likely. Does this mean that there will be an international consensus around prosecuting the Syrian regime for its war of annihilation, including the use of weapons of mass destruction, when such a proposal will come before the U.N. Security Council? There is no reason to believe a proposal that has so far failed—on normative grounds from Russian and Chinese perspectives—will succeed in the foreseeable future.Footnote 173 Perhaps a criminal prohibition was not what Crawford had in mind. However, he does write of a “minimum,” which only illustrates that the so-called international community may never agree about when international criminal prosecution is appropriate. A lack of consensus about the most fundamental categories of international criminal law is built into the discipline and cannot be denied. This lack of consensus emerges from a context of difference among members of the relevant “community.” It is not only that we consciously disagree. It is also that we do not share our unconscious normatively-laden cultural assumptions.
The text of the Rome Statute—particularly Article 7 on crimes against humanity emphasized above—allows for, even invites, a wide scope of interpretation. International criminal law more broadly is often indeterminate and has an “open texture.” The three examples described above demonstrate that the capacity for novel interpretations within the text of Article 7 is vast.Footnote 174 Tribunals have warned that the category of “other inhumane acts” (Article 7(k)), which can also be the basis of liability for crimes against humanity, should be interpreted carefully.Footnote 175 The reason for this is that it may be in tension with the principle of legality.Footnote 176 On the other hand, in a textual interpretation, one cannot ignore that the drafters put the provision there.
The fact that a certain heinous activity may pass among “the international community” at large as innocuous seems to be a good reason for such a catch-all provision. Indeed, such indifference may be one more reason to investigate a suspect activity: those who are its victims may not have any other forum for their claims.Footnote 177 The argument that international criminal law should be interpreted conservatively may end up granting immunity for widely accepted atrocities while capturing only the atrocities that come with ready-made social stigma. But as Arendt warned, the most heinous acts are often not simply repetitions of yesterday’s crimes. Prosecutors aiming to apply international criminal law, both at the ICC and in the domestic contexts of universal jurisdiction, must exercise their own judgement in interpreting the law. It is within such interpretations that Arendt’s moral and political reflections on judgement become relevant.Footnote 178
It is important to advance morally and politically new interpretations of international criminal law to address acts that are terrible and novel in equal parts.Footnote 179 In my own opinion, the environmental and migration issues addressed above reflect injustices rooted in globalization and extreme global inequality, which previous generations likely could not have imagined. But it is equally important not to end up convicting defendants who could not have known they were violating international law. International criminal law cannot simply rely on the conservativism of consensus, because such consensus may amount to the background cultural conditions for the worst of crimes. But it cannot hold people liable of the gravest crimes when they could not have been expected to do otherwise.
In domestic law, if a person had a bona fide belief that they were acting lawfully, it may (or may not) be appropriate for them to be convicted.Footnote 180 But the reasoning with international criminal law should be somewhat different. The discipline self-consciously seeks to go beyond particular political communities.Footnote 181 Prosecutors and judges should exercise their own judgement and advance new interpretations of international criminal law, while recognizing mistake of law defenses when such interpretations end up foreign to defendants.
In a recent Article also addressing the seeming normality of international criminals within their own societies, Saira Mohamed makes a proposal very different from my own. In her view, international criminal law should set “aspirational goals.” She explains that international criminal law “does more than just reflect average behavior: it can function as a voice of our moral imagination and move us to aspire beyond the ordinary.”Footnote 182 The proposal is a possible solution to what Mohamed calls the “deviance paradox”: the fact that international criminal trials often prosecute defendants with no consciousness of wrongdoing for the worst of crimes.
I disagree. Coercive legal arrangements are not an appropriate vessel for expressing public ideals and aspirations. And international criminal tribunals should not be in the business of “giving voice to the better angels of our nature”—as Mohamed writes.Footnote 183 Generally, aspirational goals should be the subject of public discussion and political deliberation. As far as international law goes, they are appropriate for declarations and non-binding, soft law, instruments. But when they refer to international criminal law, such recommendations amount to a call to punish people who cannot recognize their own wrongdoing.Footnote 184 This is of course problematic from the perspective of the principle of legality. Note however that the concern is also closely tied with mistakes of law. A problem in recognizing the law naturally leads to more mistakes about it.
Such a policy may also solidify the role of international criminal law as a site for the performance of ideological domination.Footnote 185 Defendants in an international criminal law context should not be punished by a system where they cannot be expected to identify the law, or think of somehow as their own. During investigations, suspects should be questioned on issues related to whether they even suspected their actions might be internationally proscribed. During trials, defendants should be allowed to show evidence relevant to their peculiar cultural contexts. Once again, this does not mean that they must ultimately agree with any finding the tribunal reaches on these issues.
The recommendation can perhaps be clearer when applied to the illustrations provided above. Assume that the ICC Office of the Prosecutor considers the investigation of cases against energy moguls, border guards, or directors of abortion clinics. Assume that a sufficiently solid textual interpretation of Article 7 can frame each of them as crimes against humanity. And assume, finally, that the Prosecutor also believes they all show a sufficient level of gravity.Footnote 186 Should defendants in either category be able to raise a mistake of law as a defense? The standard should be whether they could have known their actions would be thought of as illegal.Footnote 187 One domestic rule that comes close to such a standard is Article 17 of the German Criminal Code, which provides that
If at the time of the commission of the offence the offender lacks the awareness that he is acting unlawfully, he shall be deemed to have acted without guilt if the mistake was unavoidable. If the mistake was avoidable, the sentence may be mitigated pursuant to section 49(1).Footnote 188
Think of the complaints submitted to the ICC Office of the Prosecutor, regarding alleged crimes against humanity committed by Australian agents in the context of border enforcement.Footnote 189 As described above, the circumstances concern offshore detention and processing facilities on Nauru and Manus Island. When the complaints began, it may have been the case that such agents could not have known that their actions would be considered as crimes. Not only were they presumably immersed in a culture that normalized the so-called “deterrence” of migrants.Footnote 190 The interpretation of international criminal law that made their acts illegal may have not been entirely clear. At that point in time, they should have been able to raise a defense based on a mistake of law.
As complaints multiplied, as did their news coverage,Footnote 191 it likely became impossible to remain so immersed in the insular context, as to fail to realize that this became a debated issue. Or, if one did remain so immersed, it could very well have been the result of a kind of irresponsibility, deliberately avoiding judgment. Now the relevant enforcement personnel could no longer be so mistaken as not to consider the possibility that their actions were indeed criminal. Such a failure would reflect morally and politically blameworthy thoughtlessness in the rudimentary kind of legal interpretation that is expected of officials in such positions.Footnote 192
When they can be expected to know about them, individuals have an obligation to consider interpretations of international criminal law that may apply to their actions. (The source of this obligation is not legal per se, as the discussion above of the three kinds of Arendtian judgement reveals). This of course does not mean that they must reach the conclusion such interpretations are correct. Nor does it mean, going back to the example, that a conviction of Australian agents who performed roles within this abusive system can be predetermined. Surely, numerous factual and legal issues remain to be investigated. But it does draw the normative limits on when a defense of mistake of law should be recognized in the context of heinous acts of systematic inhuman treatment and torture.
A similar analysis holds true about the Israeli soldiers discussed above, those who cannot tell the difference between a legal and a “manifestly illegal” order. If they simply cannot have any suspicion that a certain order is “manifestly illegal” it would most certainly be fair to exculpate them from international criminal liability. With Israeli military practices in the West Bank and Gaza so often under public scrutiny, it is hard to imagine how that would be the case.Footnote 193 They should thus have an obligation to exercise judgement on the issue and have a position, even if a basic one. Once again, this does not mean that in case of prosecution, conviction would in any way be obvious. It does not even mean, in and of itself, that they will reach a conclusion that their behavior must change. It just sets the limits on when a mistake of law excuse would be appropriate, if extant law were to be corrected. The same principle applies regarding interpretations of the law rooted in any political or moral orientation. As realist and critical legal scholars have taught us long ago, it is truly impossible to have an interpretation free of such an orientation.
An influential group of scholars has explained the mistake of law doctrine in the common law context, appealing to morality.Footnote 194 Though they do not work in international law, briefly responding to them may illuminate the present argument. Motivating these theorists is the question: why cannot those who attempted to act legally, but failed, be excused?
The “moralists” explain: if the rationale of the doctrine is the one Holmes identified, namely encouraging individuals to learn the law, punishing those who tried seems counter-productive. Excusing them would be much more effective in encouraging citizens’ legal education. These theorists advance a critique of Holmes. Encouraging technical-legal knowledge, they say, is simply not the justification for the doctrine. To the contrary, the doctrine is based on a deeply moralist view of criminal law. This view tells citizens that they will fare best in the legal system if they act according to the social morality of their community. Dan Kahan put this lucidly:
If maximizing legal knowledge were really the objective, however, the law would apply a negligence standard, rather than a strict liability standard, to legal mistakes. Refusing to excuse even reasonable mistakes discourages investments in legal knowledge by making it hazardous for a citizen to rely on her private understanding of the law. This resentment of legal knowledge makes sense because the doctrine assumes, contrary to the classic conception, that individuals are and should be aware of a society’s morality and that morality furnishes a better guide for action than does law itself. Thus, far from trying to maximize the incentive that presumptively bad men have to know that law, the doctrine seeks to obscure the law so that citizens are more likely to behave like good ones.Footnote 195
From the perspective of such moralists, this essay’s argument may seem curious. I have offered a potential excuse precisely for those who have committed the morally most repugnant crimes (at least in the eyes of the prosecuting authority).Footnote 196 Indeed, the argument seems flawed both from a Holmesian point of view (it does not encourage people to learn the law); and from a moralist point of view (it does not encourage people to act morally). Can the argument survive?
Notice Kahan’s reference to “a society’s morality.” The assumption of a shared community is common to several of the scholars who have advanced the “moralist” argument. This essay does not aim to refute (or bolster) such views. What is common to them is that they assume the backdrop of a common set of normative assumptions that the prosecution and the defendant have some epistemic access to. This assumption does not necessarily hold when it comes to the mass atrocities international criminal law addresses. Such cases may ensue from contexts in which there is an epistemic difference between the prosecuting authority and the suspect.Footnote 197
Ignoring such a difference cannot make potential defendants learn the law (as Holmes would like). Such defendants are psychologically or culturally too far removed from a given interpretation of the law to even know what it is they should learn. And ignoring it also cannot rest on the assumption of a shared community of morals. When it is made outside of a context of public deliberation and participation, such an assumption may eliminate the legal aspect of law, maintaining a mere mechanism of coercion.
Moshe Ninio, Glass [booth] (2010-11)
5. Conclusion
In his Glass [booth] (2010-11), artist Moshe Ninio presents a photo of Eichmann’s iconic stand prepared for his Jerusalem trial. Eichmann sat here back in 1962, shielded by bullet-proof glass. The trial was famously broadcast to Israeli listeners in real time, and the booth had previously been the subject of countless images. Arendt too, when she examined Eichmann’s figure, looked at him through this transparent box. Ninio’s image is however different: he took his photo from inside the booth.Footnote 198
Perhaps unbeknownst to the artist, the image provides an illustration of an imperative that should be recognized in the structure of international criminal law. The image is diametrically opposed to Cover’s words, which I have opened with. Cover elevates his readers by asking them to radically reopen the question: who is it that is most worthy of criminal sanction? Ninio submerges his viewers and situates them in the defendant’s seat, as if charged with the worst of crimes. By doing so, the artist says: we may all have our Eichmanns within. Sitting in Eichmann’s booth can therefore be interpreted as a call to recognize the condition of thoughtlessness in the sense of not aiming to convict those who cannot recognize their own crimes.
Embeddedness in our social, historical, and cultural contexts is what makes us who we are. So much of what such embeddedness gives us we justifiably hold dear. This essay does not aim to dismiss the value of tradition or collective identity (which the Eichmann trial helped assert). To the contrary, it offers one component for a more pluralist practice of international criminal law; a version of international criminal law that recognizes a reality of global cultural and moral difference, without relinquishing the discipline’s commitment to account for the worse of crimes.
Our embeddedness in radically different cultural contexts and epistemic communities makes it difficult for us to transcend such contexts and judge from the no-man’s perspective of global law. Any such attempt to apply global law comes with a situated perspective. A recognition of mistakes of law (as characterized above), admits such situatedness, without conceding that situatedness makes the moral and political conclusions of judgement any weaker.
Arendt regarded Eichmann with bitter mockery and loathing. But criminal law should reflect that the thoughtlessness of Eichmann in the thought experiment version is not some exotic dysfunction. The more important point in Arendt’s analysis is revealing that such thoughtlessness is commonplace. If international criminal law purports to advance criminal justice the world over, the law that applies should recognize the multiplicity of moral worlds among its subjects.
