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

Canadian Journal of Law and Jurisprudence, February 2020

33 Pages Posted: 6 Aug 2019

See all articles by Itamar Mann

Itamar Mann

University of Haifa - Faculty of Law

Date Written: August 2, 2019

Abstract

Atrocities are often unprecedented and identifying them therefore may require moral and political judgement, 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 a 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. A 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.”

Keywords: criminal law, international law, international criminal law, political theory, legal theory, mass atrocity

Suggested Citation

Mann, Itamar, Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law (August 2, 2019). Canadian Journal of Law and Jurisprudence, February 2020. Available at SSRN: https://ssrn.com/abstract=3431058

Itamar Mann (Contact Author)

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905
Israel

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