1. Robert M Cover, “The Folktales of Justice: Tales of Jurisdiction” (1984) 14 Capital UL Rev 179 at 190–91.

2. See, e.g., Kate Aronoff, “It’s Time to Try Fossil-Fuel Executives for Crimes Against Humanity,” Jacobin (5 February 2019), online: https://www.jacobinmag.com/2019/02/fossil-fuels-climate-change-crimes-against-humanity (providing a certain analysis of the Rome Statute and arguing that fossil fuel executives are committing what is “literally a crime against humanity”); Judith Blau, “Trump has Committed a Crime Against Humanity” (2018) 33:4 Sociological Forum 1101 at 1105 (suggesting that rather than the International Criminal Court, jurisdiction can be established over Donald Trump’s anti-environmental policies through universal jurisdiction); Mark Byrne, “Climate Crime: Can Responsibility for Climate Change Damage be Criminalised?” (2010) 4:3 Carbon & Climate Literary Rev 278 at 279 (enumerating jurisdictional avenues under the Rome Statute); A group of U.K. lawyers have put together a non-official mass atrocity tribunal against business leaders disproportionately responsible for climate change. See “The Ecocide Trial: The Supreme Court of the United Kingdom” (30 September 2011), The Hamilton Group (website), online: http://www.thehamiltongroup.org.uk/common/ecocide.asp. See also Geoff Gilbert, “International Criminal Law Is not a Panacea - Why Proposed Climate Change ‘Crimes’ Are Just Another Passenger on an Overcrowded Bandwagon” (2014) 14:3 Int’l Crim L Rev 551 (though skeptical about the international criminalization of climate change, Gilbert proceeds to show all the different ways in which it may be legally possible). For an assessment of international criminal law as environmental protection, see Frédéric Mégret, “The Problem of an International Criminal Law of the Environment” (2011) 36:2 Colum J Envtl L 195; Mohammed Saif-Alden Wattad, “The Rome Statute & Captain Planet: What Lies between Crime against Humanity and the Natural Environment” (2009) 19:2 Fordham Envtl LJ 265. For a view according to which international criminal law should be amended to include a crime of ecocide, see Jonathan Watts, “Polly Higgins, lawyer who fought for recognition of ‘ecocide’, dies aged 50”, The Guardian (22 April 2019), online: https://www.theguardian.com/environment/2019/apr/22/polly-higgins-environmentalist-eradicating-ecocide-dies.

3. See Kate Cronin-Furman, “The Treatment of Migrants Likely ‘Meets the Definition of a Mass Atrocity’”, The New York Times (29 June 2019), online: https://www.nytimes.com/2019/06/29/opinion/immigration-children-detention.html; Mythil Sampathkumar, “Last surviving prosecutor at Nuremberg trials says Trump’s family separation policy is ‘crime against humanity’”, The Independent (9 August 2018), online: https://www.independent.co.uk/news/world/americas/trump-border-crisis-nazis-nuremberg-trial-ben-ferencz-family-separation-migrants-un-a8485606.html; John Bowden, “Kamala Harris: Trump’s treatment of migrants is ‘a crime against humanity’”, The Hill (22 June 2018), online: https://thehill.com/homenews/senate/393742-kamala-harris-trump-treatment-of-migrants-is-a-crime-against-humanity; Rebecca Hamilton, “Australia’s Refugee Policy Is A Crime Against Humanity”, Foreign Policy (23 February 2017), online: https://foreignpolicy.com/2017/02/23/australias-refugee-policy-may-be-officially-a-crime-against-humanity/; Ioannis Kalpouzos & Itamar Mann, “Banal Crimes against Humanity: The Case of Asylum Seekers in Greece” (2015) 16:1 Melborne J Int’l Law 1.

4. A new Alabama law explicitly likens abortion to a crime against humanity. “More than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin’s gulags, Cambodian killing fields, and the Rwandan genocide combined,” it says. US, HB 314, The Alabama Human Life Protection Act, 2019, Reg Sess, Ala, 2019, s 2(i); See also Allan E Parker, “The Moral Outcry”, The Moral Outcry (website), online: https://myemail.constantcontact.com/The-Moral-Outcry.html?soid=1101517943192&aid=ETPjdefo4_8. (“Would you join me in signing a petition to the U.S. Supreme Court to reverse its decisions in Roe v. Wade, Doe v. Bolton and Planned Parenthood v. Casey? These three cases allow the slaughter of millions of children in the United States of America. These three cases together constitute a crime against humanity” [emphasis added]). As I write this article, “fetal personhood,” the philosophical view behind this view, is gaining ground in the U.S. Supreme Court. See Jeannie Suk Gersen, “How Fetal Personhood Emerged as the Next Stage of the Abortion Wars”, The New Yorker (5 June 2019), online: https://www.newyorker.com/news/our-columnists/how-fetal-personhood-emerged-as-the-next-stage-of-the-abortion-wars.

5. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Classics, 2006).

6. Among many: Mark A Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007); Mark J Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers, 1999); Leora Bilsky, Transformative Justice: Israeli Identity on Trial (Michigan University Press, 2009); David Luban, “Hannah Arendt as a Theorist of International Criminal Law” (2011) 11:3 Int’l Crim L Rev 621; Alette Smeulers & Wouter Werner, “The Banality of Evil on Trial” in Carsten Stahn & Larissa van den Herik, eds, Future Perspectives on International Criminal Justice (2010) 24 [Smeulers & Werner, “The Banality of Evil on Trial”]; William Schabas, “The Contribution of the Eichmann Trial to International Law” (2013) 26:3 Leiden J Int’l L 667.

7. On “thoughtlessness” see Arendt, supra note 5 at 277-78. For a legal analysis of this theme, see Smeulers & Werner, “The Banality of Evil on Trial”, supra note 6 at 29-31.

8. Arendt, supra note 5 at 15.

9. See recently, Saira Mohamed, “Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law” (2015) 124:5 Yale LJ 1628 (arriving at a conclusion this essay will argue against).

10. For a discussion of the variations in defining such volition across the customary international law terrain, see Carl-Friedrich Stuckenberg, “Problems of ‘Subjective Imputation’ in Domestic and International Criminal Law” (2014) 12:2 J Int’l Criminal Justice 311 at 315-16.

11. Under Article 32 of the Rome Statute. See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3 art 7 (registration date 1 July 2002) [Rome Statute]. See also Kevin Jon Heller, “Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis” (2008) 6:3 J Int’l Criminal Justice 419; Barrie Sander, “Doing Justice to History: The Construction of Historical Narratives within International Criminal Courts” (PhD Thesis, Graduate Institute of International and Development Studies, 2017) [unpublished]. On the relationships between mistakes and mens rea, see Annemieke van Verseveld, Mistake of Law: Excusing Perpetrators of International Crimes (TMC Asser Press, 2012).

12. On the purposes of international criminal law, see Mirjan Damaška, “What Is the Point of International Criminal Justice The Henry Morris Lecture” (2008) 83:1 Chicago-Kent L Rev 329. For a critical account, see Immi Tallgren, “The Sense and Sensibility of International Criminal Law” (2002) 13:3 Eur J Int’l L 561. The critical perspective has largely been that international criminal law generally does not realize purposes such as retribution or deterrence. Yet, this article takes the position that inasmuch as the purposes of international criminal law are divorced from such ends, it becomes impossible to justify criminal punishment. For example, it would not be acceptable to punish an individual in order to generate a historical record of atrocity; or for the purposes of a political transition from one regime to another.

13. See Luban’s analysis of Arendt’s exchange of letters with Karl Jaspers. Luban, supra note 6 at 628.

14. Arendt, supra note 5 at 277-78.

15. Compare with Heller, supra note 11 (calling for a different revision).

16. The literature is vast. See, e.g., Christine Schwöbel, ed, Critical Approaches to International Criminal Law (Routledge, 2014); Asad G Kiyani, “Third World Approaches to International Criminal Law” (2015) 109 AJIL Unbound 255; Frédéric Mégret, “The Politics of International Criminal Justice” (2002) 13:5 Eur J Int’l L 1261.

17. This article thus follows critical and TWAIL scholarship in its concern with forms of “epistemic violence.” See Dianne Otto, “Subalternity and International Law: The Problems of Global Community and Incommensurability of Difference” (1996) 5:3 Soc & Leg Stud 337 at 355.

18. Luban, supra note 6. The three challenges Luban identifies are jurisdiction, the nature of crimes against humanity, and the “banality of evil.” This essay focuses exclusively on the third.

19. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have been closed, the ICC remains the main forum. As important for the present purposes are trials initiated under the doctrine of universal jurisdiction, as well as other potential fora such as the African Court of Justice and Human Rights. On the former see recently Devika Hovell, “The Authority of Universal Jurisdiction” (2018) 29:2 Eur J Int’l L 427 at 456 (documenting all 52 cases of universal jurisdiction since the Eichmann trial); on the latter see Matiangai VS Sirleaf, “Regionalism, Regime Complexes, and the Crisis in International Criminal Justice” (2016) 54:3 Colum J Transnat’l L 699.

20. Luban, supra note 6 at 641.

21. On the “crisis of liberalism” and international courts, see Karen J Alter, “Critical Junctures and The Future International Courts in a Post-Liberal World Order” in Avidan Kent, Nikos Skoutaris & Jamie Trinidad, eds, The Future of International Courts and Tribunals: Regional, Institutional and Procedural Challenges (Routledge, 2019). On its causes see David Singh Grewal, “Three Theses on the Current Crisis of International Liberalism” (2018) 25:2 Ind J Global Leg Stud 595.

22. Arendt, supra note 5 at 277-78.

23. For a remarkable analysis of this epilogue, see Judith Butler, “Hannah Arendt’s Death Sentences” (2011) 48:3 Comparative Literature Studies 280.

24. Arendt, supra note 5 at 278.

25. Mohamed thus emphasizes the “pro-social” nature that mass atrocity crimes often appear to have. Mohamed, supra note 9 at 1643.

26. Arendt, supra note 5 at 287-88.

27. Luban, supra note 6 at 621. The formulation “flawed mores” seems to me like an enormous understatement not only of the horrendous extermination policies of the Nazi regime, but also of Arendt’s assessment of them (whether one agrees with her philosophical understanding of “banal evil” or not).

28. Martti Koskenniemi, “Between Impunity and Show Trials” (2002) 6:1 Max Planck Yearbook of UN Law 1 at 8.

29. For an excellent review of the case law from international criminal tribunals, see Sander, supra note 11 at 441-52.

30. Ibid. See more generally Mohamed Elewa Badar, The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach (Bloomsbury, 2013).

31. Luban, supra note 6 at 639. Note that some legal systems include mistake of fact and mistake of law questions within the analysis of mens rea, e.g. the German system. See in this regard Mohamed Elewa Badar, “Mens rea—Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals” (2005) 5:2 Int’l Crim L Rev 203 at 235.

32. Stefanie Bock, “The Prerequisite of Personal Guilt and the Duty to Know the Law in the Light of Article 32 ICC Statute” (2013) 9:4 Utrecht L Rev 184.

33. Rome Statute, supra note 11 at art 32.

34. See discussion of how the principle developed in European law in Stuckenberg, supra note 10 at 320-21.

35. Rome Statute, supra note 11 at art 32.

36. Ibid at art 33. For an account of customary international law in this context, see Paola Gaeta, “The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law” (1999) 10:1 Eur J Int’l L 172.

37. Alette Smeulers, “Why Serious International Crimes Might Not Seem ‘Manifestly Unlawful’ to Low-Level Perpetrators” (2019) 17:1 J Int’l Criminal Justice 105 at 122 [Smeulers, “Serious International Crimes”].

38. See, e.g., Bettina Stangneth, Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer (Vintage, 2015). For a helpful review see Steven Aschheim, “SS-Obersturmbannführer (Retired)”, The New York Times (14 June 2018), online: https://www.nytimes.com/2014/09/07/books/review/eichmann-before-jerusalem-by-bettina-stangneth.html. (“The enduring image of Eichmann as faceless and order-obeying, Stangneth argues, is the result of his uncanny ability to tailor his narrative to the desires and fantasies of his listeners.”)

39. Cr C (Jm) 40/61, Attorney General v Adolph Eichmann, PD 27 169.

40. Cr C 336/61 Adolph Eichmann v Attorney General, PD 16 2033.

41. Stanley Milgram, “Behavioral Study of obedience” (1963) 67:4 J Abnormal and Social Psychology 371 at 371-78; Mohamed, supra note 9 at 1644-46; Luban, supra note 6 at 638 n 85; David Luban, “Integrity: Its Causes and Cures” (2003) 72:2 Fordham L Rev 279; Smeulers, “Serious International Crimes”, supra note 37 at 113-14.

42. Drumbl, supra note 6 at 30. See also Philip Zimbardo’s Stanford prison experiment, Saira Mohamed’s discussion of it, and a number of other relevant studies: Philip G Zimbardo, “Revisiting the Stanford Prison Experiment: A Lesson in the Power of Situation”, The Chronicle of Higher Education (30 March 2007), online: https://www.chronicle.com/article/Revisiting-the-Stanford-Prison/9676; Mohamed, supra note 9 at 1644-46.

43. JM Coetzee, Elizabeth Costello (Penguin Books, 2004).

44. Ibid at 93.

45. Ibid [emphasis added].

46. See, e.g., Charles Patterson, Eternal Treblinka: Our Treatment of Animals and the Holocaust (Lantern Books, 2002). The moral considerations I’m thinking of here are the value of animals’ life and their scientifically-confirmed experience of pain. As meat eating has recently been connected to climate change, one may also draw the connections to the latter issue, which is discussed below.

47. Matthew Zagor, “‘I am the Law!’—Perspectives of Legality and Illegality in the Israeli Army” (2010) 43:3 Israel LR 551 at 574. See also Yotam Berger, “Elor Azaria Receives Hero’s Welcome at Scene of Hebron Shooting”, Haaretz (3 July 2018), online: https://www.haaretz.com/israel-news/.premium-elor-azaria-receives-hero-s-welcome-at-hebron-shooting-scene-1.6242150.

48. As commentators have observed, the doctrine “presumes that the wrongfulness of certain conduct is manifest to the perpetrator” [emphasis added]. See Smeulers & Werner, “The Banality of Evil on Trial”, supra note 6 at 41. But this may be an unreasonable expectation. See Mark J Osiel, “Obeying Orders: Atrocity, Military Discipline, and the Law of War” (1998) 86:5 Cal L Rev 939 at 1007, 1013. (“If the reasonable soldier cannot identify his orders as manifestly illegal, then the threat of punishment for obeying them cannot deter him.” Ibid at 1007.) See also Hilaire McCoubrey, “From Nuremberg to Rome: Restoring the Defence of Superior Orders” (2001) 50:2 ICLQ 386 at 393 (“…article 33… restored a reasonable balance in the treatment of superior orders as a defence, taking into account both the paramount claims of international law and the nature of military discipline and obligation.”).

49. Smeulers, “Serious International Crimes”, supra note 37 at 4.

50. Luban, supra note 6 at 627. For a developed example based on a study of child soldiers in Sierra Leone, see Tim Kelsall, Culture under Cross-Examination: International Justice and the Special Court of Sierra Leone (Cambridge University Press, 2009) at ch 5.

51. Luban, supra note 6 at 638 (adding that “Disaster results when a criminal regime turns morality upside down and inverts ordinary legal rules and exceptions.”).

52. Though often we are tempted to imagine what future generations might think, such an imagination is likely of no avail. International lawyers sometimes tend towards overblown confidence that history is an enlightened process of progress. For a critique of this tendency see Martti Koskenniemi, “International Law in Europe: Between Tradition and Renewal” (2005) 16:1 Eur J Int’l L 113 at 123 (on the “fable” of historical progress).

53. Hannah Arendt, “Thinking and Moral Considerations: A Lecture” (1971) 38:3 Social Research 417 at 417.

54. Arendt, supra note 5 at 49; Luban, supra note 6 at 636 [emphasis added].

55. The merits and vulnerabilities of this understanding of ethics are worthy of a separate treatment. They do not directly bear on the stakes of this essay.

56. Thomas Aquinas, The Disputed Questions on Truth (Henry Regnery Co, 1952, 1953) at 331-32. See also Robert K Vischer, Conscience and the Common Good: Reclaiming the Space between Person and State (Cambridge University Press, 2010) at 52.

57. See, e.g., Bonnie Honig, Political Theory and the Displacement of Politics (Cornell University Press, 1993).

58. Hannah Arendt, On Revolution (Penguin Classics, 2006) at 221-24.

59. Hannah Arendt, The Life of the Mind (Houghton Mifflin Harcourt, 1981) at 5. The Eichmann trial can therefore be granted a certain political justification. Versions of the latter argument have been powerfully articulated by Judith Shklar (with regard to the Nuremberg Trials); and by Shoshana Felman, with regard to the Eichmann trial. Such political justifications have become among the most commonly referred to in international criminal law. Among the political justifications often cited are vindicating the victims of mass atrocity, creating a record of history, and transitioning to a post-conflict society. Arendt’s is not a political justification for the trial. See Judith N Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press, 1986) and Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century (Harvard University Press, 2002).

60. Arendt, “Thinking and Moral Considerations”, supra note 53. Rogat’s short volume The Eichmann Trial and the Rule of Law (Microfilms International University, 1961) anticipated many of Arendt’s insights and is worth a close read. See also Luban, supra note 6 at 640 (on “objective culpability”).

61. For a contemporary explanation in legal terms see Smeulers & Werner, “The Banality of Evil on Trial”, supra note 6 at 42 (“International criminal law needs to recognize that some perpetrators, people like Eichmann and Astiz, sincerely come to believe that what they are doing is right. They should acknowledge this and then tell them and the world: committing crimes against the human status is wrong and should therefore be punished no matter what the perpetrators committing the crimes believed.”).

62. Arendt, supra note 5 at 277.

63. Ibid at 278.

64. Luban, supra note 6 at 640 (explaining that “Arendt never came up with a satisfactory conception of objective culpability, nor did she claim to.”).

65. Drumbl, supra note 6. See also Kelsall, supra note 46.

66. Drumbl, supra note 6 at 37.

67. Ibid at 32 & 24.

68. Ibid. So as not to assuage the many by blaming the few, Drumbl ultimately counsels a sophisticated and ambitious embedding of international criminal law within “indigenous” non-criminal legal and political processes. See ibid at 206-09.

69. See also Darryl Robinson, “A Cosmopolitan Liberal Account of International Criminal Law International Criminal Courts and Tribunals” (2013) 26:1 Leiden J Int’l L 127 at 143 (suggesting the centrality of common moral intuitions in understanding the nature of culpability in international criminal law).

70. In other words, the Eichmann thought experiment demands us of an exercise of judgement in the ethical and political sense Arendt characterizes (described above).

71. The acts of extermination he was tried for were legal under the domestic law of their time and place, Nazi Germany. As a matter of international law, the case was also not straightforward. The customary international law prohibition of mass killing may have not been fully developed at the time and was arguably not a criminal prohibition. This created the much-commented-upon problem of retrospective criminal trial at the International Military Tribunals at Nuremberg. See Shklar, supra note 59 at 162 (discussing how American and French prosecutors confronted the seeming violation of the principle of legality). I thank Frédéric Mégret for offering the dual formulation in the text above.

72. Historical analogy is central to the techniques of international law. See Fleur Johns, Richard Joyce & Sunhya Pahuja, eds, Events: The Force of International Law (Routledge, 2010) and Hilary Charlesworth, “International Law: A Discipline of Crisis” (2002) 65:3 Mod L Rev 377.

73. An appeal related to what one scholar calls “the expressive turn” in international criminal law. See Barrie Sander, “The Expressive Turn in International Criminal Law: A Field in Search of Meaning” 32 Leiden J Int’l L 851 (2019).

74. International Criminal Court [ICC], “Policy Paper on Case Selection and Prioritization” (15 September 2016), online: https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf.

75. Ibid at 5, 14.

76. To cite just one source, on September 26, 2018, U.N. Secretary General António Guterres observed that “Climate change is the defining issue of our time—and we are at a defining moment.” U.N. Secretary-General, “Remarks at High-Level Event on Climate Change” (25 September 2018), United Nations Secretary-General (website), online: https://www.un.org/sg/en/content/sg/speeches/2018-09-26/remarks-high-level-event-climate-change.

77. U.N. Secretary-General, “Faced with ‘clear science, real threats,’ countries must remain committed to the Paris climate deal” (23 March 2017), United Nations Sustainable Development Goals (website), online: https://www.un.org/sustainabledevelopment/blog/2017/03/faced-with-clear-science-real-threats-countries-must-remain-committed-to-paris-climate-deal/.

78. Charter of the United Nations, 26 June 1945, Can TS 1945 No 7 at arts 39, 51. In the 1990s, both the International Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established under the U.N. Security Council Authorization to address threats to peace and security. See SC Res 827 (25 May 1993) and SC Res 955 (8 November 1994) respectively (both determining that the situations constitute a “threat to peace and security” in their preambles).

79. “‘To deny climate change is to deny the truth we have just lived’ says Prime Minister of storm-hit Dominica”, UN News (23 September 2017), online: https://news.un.org/en/story/2017/09/566742-deny-climate-change-deny-truth-we-have-just-lived-says-prime-minister-storm-hit.

80. Sheri Fink, “Puerto Rico’s Hurricane Maria Death Toll Could Exceed 4,000, New Study Estimates”, The New York Times (30 May 2018), online: https://www.nytimes.com/2018/05/29/us/puerto-rico-deaths-hurricane.html.

81. Jill Disis, “Hurricane Maria could be a $95 billion storm for Puerto Rico”, CNN Business (28 September 2017), online: https://money.cnn.com/2017/09/28/news/economy/puerto-rico-hurricane-maria-damage-estimate/index.html.

82. Gilbert, supra note 2 at 577.

83. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 at art 35(3). See also Mégret, supra note 2 at 197 (“The provision has long been the object of discussion, and has been raised in the context of the use of Agent Orange in Vietnam and the setting ablaze of oil wells in Iraq following the first Gulf War.”).

84. International Committee of the Red Cross, “Rule 45. Causing Serious Damage to the Natural Environment” (Customary IHL Database), online: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule45.

85. If it falls under Article 7 of the Rome Statute, as a widespread or systematic attack against a civilian population, with knowledge of the attack, in the form of extermination or otherwise. See also “Use of chemical weapons in Syria would be ‘crime against humanity’—Ban”, UN News (23 August 2013), online: https://news.un.org/en/story/2013/08/447352-use-chemical-weapons-syria-would-be-crime-against-humanity-ban.

86. For the notion of “gravity” see the Rome Statute, supra note 11 at art 53(1)(c).

87. Gilbert, supra note 2 at 556-57; Mégret, supra note 2 at 219-20.

88. On stigmatization in international law generally, see Oona A Hathaway & Scott J Shapiro, “Outcasting: Enforcement in Domestic and International Law” (2011) 121:2 Yale LJ 252; in the context of international criminal law, Frédéric Mégret, “Practices of Stigmatization: The Practices of the International Criminal Court” (2013) 76:3/4 Law & Contemp Probs 287; on expressivism see Sander, supra note 73.

89. Among many: Naomi Klein, This Changes Everything: Capitalism vs. the Climate (Simon & Schuster, 2015). And yet, a conversation about the role of international criminal law in environmental protection had been carried out for more than two decades now, see, e.g., Gerhard Loibl & Markus Reiterer, “International Criminal Law and the Environment” (1996) 26:5 Envtl Pol’y & L 192 at 192-95.

90. International criminal law does not include a category of cultural genocide. The phrase is brought, in scare quotes, only to reflect the idea that the speaker conveyed.

91. Quoted in Kevin Hillstrom & Laurie Collier Hillstrom, Australia, Oceania, and Antarctica: A Continental Overview of Environmental Issues (ABC-CLIO, 2003) at 193 [emphasis added].

92. David Cutler and Francesca Dominici, “A Breath of Bad Air: Trump Environmental Agenda May Lead to 80,000 Extra Deaths per Decade”, news@JAMA (10 May 2018), online: https://newsatjama.jama.com/2018/05/10/jama-forum-a-breath-of-bad-air-trump-environmental-agenda-may-lead-to-80%E2%80%85000-extra-deaths-per-decade/ (for a widely-reported assessment by Harvard scientists).

93. Lawrence Torcello, “Yes, I am a climate alarmist. Global warming is a crime against humanity”, The Guardian (29 April 2017), online: https://www.theguardian.com/commentisfree/2017/apr/29/climate-alarmist-global-warming-crime-humanity [emphasis added].

94. Ibid.

95. On willful blindness in international criminal law, see, e.g., William A Schabas, “Mens Rea and the International Criminal Tribunal for the Former Yugoslavia” (2003) 37:4 New Eng L Rev 1015.

96. Torcello, supra note 93.

97. But see Koskenniemi, supra note 52.

98. See generally MIT Joint Program on the Science and Policy of Global Change, “Food, Water, Energy, Climate, Outlook: Perspectives From 2016” (2016), online: https://globalchange.mit.edu/sites/default/files/newsletters/files/2016-JP-Outlook.pdf; World Bank, “Shock Waves: Managing the Impacts of Climate Change on Poverty” (2015), online: https://research.un.org/en/climate-change/reports; Lyal S Sunga, “Does Climate Change Kill People in Darfur” (2011) 2:1 J Human Rights & the Environment 64.

99. For an analysis of this imagination, see Dipesh Chakrabarty, “The Climate of History: Four Theses” (2009) 35:2 Critical Inquiry 197.

100. Rome Statute, supra note 11. While objecting to the criminalization of climate change inducing activities generally, one scholar emphasizes that its consequences in terms of displacement may already be internationally criminalized. See Gilbert, supra note 2 at 554.

101. Gilbert, supra note 2 at 562 (invoking the principle of legality as a possible defense against attempts to internationally criminalize activities resulting in climate change).

102. SC Res 1970 (26 February 2011); International Criminal Court, “Situation in Libya ICC-01/11”, online: https://www.icc-cpi.int/libya.

103. Ibid.

104. International Criminal Court, “Statement of ICC Prosecutor to the UNSC on the Situation in Libya” (9 May 2017), online: =https://www.icc-cpi.int/pages/item.aspx?name=170509-otp-stat-lib.

105. Ibid at para 27.

106. Ibid at para 26.

107. “Enslavement” is a crime against humanity when carried out in the context of a widespread or systematic attack on a civilian population. See Rome Statute, supra note 11 at art 7(1)(c).

108. “France calls UN Security Council meeting over Libya slave auctions”, France24 (22 November 2017), online: https://www.france24.com/en/20171122-france-calls-un-security-council-meeting-libya-slave-auctions-macron.

109. See, e.g., Mariagiulia Giuffré & Violeta Moreno-Lax, “The Rise of Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration Flow” in Satvinder Sing Juss, ed, Research Handbook on International Refugee Law (Edward Elgar, 2019) 82.

110. Amnesty International, “Cruel European migration policies leave refugees trapped in Libya with no way out” (12 November 2018), online: https://www.amnesty.org/en/latest/news/2018/11/cruel-european-migration-policies-leave-refugees-trapped-in-libya-with-no-way-out/.

111. Charles Heller and Lorenzo Pezzani, “Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean” (2018), online: https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf (explaining that “Italy and the EU have come to exercise both strategic and operational control over the Libyan Coast Guard, which has been made to operate refoulement by proxy on behalf of Italy and the EU. This policy has been implemented with full knowledge of the Libyan Coast Guard’s violent behaviour and the detention and inhumane treatment that awaited migrants upon being returned to Libya.”).

112. Claire Henderson, “Australia’s Treatment of Asylum Seekers: From Human Rights Violations to Crimes Against Humanity” (2014) 12:5 J Int’l Criminal Justice 1161; Amy Maguire et al, “Australia, Asylum Seekers and Crimes against Humanity?” (2015) 40:3 Alternative LJ 185; Ben Doherty, “International Criminal Court told Australia’s detention regime could be a crime against humanity”, The Guardian (13 February 2017), online: https://www.theguardian.com/australia-news/2017/feb/13/international-criminal-court-told-australias-detention-regime-could-be-a-against-humanity; Helen Davidson, “Australia subjected refugees to crimes against humanity, class actions allege”, The Guardian (9 December 2018), online: https://www.theguardian.com/australia-news/2018/dec/10/australia-subjected-refugees-to-crimes-against-humanity-class-actions-allege.

113. Amnesty International, “Spanish corporate giant Ferrovial makes millions from Australia’s torture of refugees on Nauru” (5 April 2017), online: https://www.amnesty.org/en/latest/news/2017/04/spanish-corporate-giant-ferrovial-makes-millions-from-australias-torture-of-refugees-on-nauru/.

114. See, e.g., a communication submitted by the Global Legal Action Network (GLAN) together with Stanford Law School’s International Human Rights Clinic: Tendayi E Achiume et al, “The Situation in Nauru and Manus Island: Liability for crimes against humanity in the detention of refugees and asylum seekers” (February 13, 2017), online: https://docs.wixstatic.com/ugd/b743d9_e4413cb72e1646d8bd3e8a8c9a466950.pdf [“GLAN-Stanford complaint”].

115. Sam Levin & Amanda Holpuch, “Trump policy of detaining children “may amount to torture”, UN says—as it happened”, The Guardian (22 June 2018), online: https://www.theguardian.com/us-news/live/2018/jun/22/trump-family-separation-crisis-immigration-border; Beth Van Schaack, “The Torture of Forcibly Separating Children from their Parents”, Just Security (18 October 2018), online: https://www.justsecurity.org/61138/torture-forcibly-separating-children-parents/; Meg Satterthwaite & Rebecca Riddell, ““Zero Tolerance” and the Detention of Children: Torture under International Law”, Just Security (21 June 2018), online: https://www.justsecurity.org/58269/zero-tolerance-detention-children-torture-international-law/; Widespread or systematic torture may constitute a crime against humanity. See Rome Statute, supra note 11 at art 7(1)(f).

116. See, e.g., Masha Gessen, “The Unimaginable Reality of American Concentration Camps”, The New Yorker (21 June 2019), online: https://www.newyorker.com/news/our-columnists/the-unimaginable-reality-of-american-concentration-camps.

117. International Criminal Court, “Statement of ICC Prosecutor, Mrs Fatou Bensouda, on Opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh” (18 September 2018), online: =https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya; see also Kevin Jon Heller, “Implications of the Rohingya Argument for Libya and Syria (and Jordan)”, Opinio Juris (10 April 2018), online: http://opiniojuris.org/2018/04/10/additional-implications-of-the-otps-rohingya-argument/.

118. Agnes Callamard (Special Rapporteur of the Human Rights Council on extrajudicial, summary or arbitrary executions), Unlawful death of refugees and migrants, UNGAOR, 72 Sess, UN Doc A/72/335 (2017).

119. Ibid at para 2.

120. Ibid at para 52(b).

121. Ibid at para 6.

122. Ibid at para 55.

123. Ibid at para 1. See also Kalpouzos and Mann, supra note 3.

124. Ibid at para 90.

125. Of course, beyond the formal mechanism of UN Security Council referral, enshrined in the Rome Statute, supra note 11 at art 13(b).

126. The formulation tracks the language of the Rome Statute, supra note 11 at art 7.

127. See also Mohamed, supra note 9 at 1637 (explaining that “we can see the normalcy of violence as a feature that makes that violence an even more appropriate target for the criminal law”).

128. Nils Melzer, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, HRCOR, 37 Sess, UN Doc A/HRC/37/50 (2018) at para 64(e).

129. Ibid at para 65(j).

130. Cronin-Furman, supra note 3.

131. See also Itamar Mann, Violeta Moreno-Lax & Omer Shatz, “Time to Investigate European Agents for Crimes against Migrants in Libya” (29 March 2018), EJIL: Talk! (blog), online: https://www.ejiltalk.org/time-to-investigate-european-agents-for-crimes-against-migrants-in-libya/.

132. Recently, two lawyers made this and further such claims in a submission to the International Criminal Court. See Omer Shatz & Juan Branco, “Communication to the Office of the Prosecutor of the International Criminal Court Pursuant to the Article 15 of the Rome Statute” (2019), online: https://www.academia.edu/39389018/EU_Migraiton_Policies_in_the_Mediterranean_and_Libya_2014-2019_.

133. See, e.g., Michael G Kearney, “On the Situation in Palestine and the War Crime of Transfer of Civilians into Occupied Territory” (2017) 28:1 Crim LF 1 at 3 (noting that “The impetus towards advancing the application of international criminal law beyond atrocity is clearly perceived in contemporary analyses of poverty, discrimination, asylum status, and hate speech”). For a collection of critiques of this orientation, see Karen Engle, Zinaida Miller & DM Davis, eds, Anti-Impunity and the Human Rights Agenda (Cambridge University Press, 2016).

134. The Heritage Foundation has been a particularly active think tank when it comes to international criminal law. See, e.g., Paul Larkin Jr, “Can Captured ISIS Fighters Be Prosecuted for Genocide in an International Tribunal?” 225 The Heritage Foundation Legal Memorandum (22 January 2018), online: https://www.heritage.org/sites/default/files/2018-01/LM-225.pdf. More generally, a body of scholarship has recently emerged demonstrating the conservative potential of human rights arguments. See, e.g., Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford University Press, 2017); Samuel Moyn, Christian Human Rights (Pennsylvania University Press, 2015); Nicola Perugini & Neve Gordon, The Human Right to Dominate (Oxford University Press, 2015).

135. US, Bill HR 420, Heartbeat Protection Act of 2017, 115th Cong, 2017.

136. Star Parker, “Star Parker tells U.S. Judiciary Committee Slavery and Abortion are the Same” (1 November 2017), online: YouTube https://www.youtube.com/watch?v=jMdN69mgMzQ.

137. Ibid. One might note here that it is unlikely that slavery was a crime against humanity during the entire history of slavery. For the early roots of judicial enforcement of a prohibition on slavery see Jenny S Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford University Press, 2012).

138. Parker, supra note 136. See also Ashley McGuire, “Nicki’s abortion: Minaj reveals unspoken truths”, The New York Post (8 January 2015), online: https://nypost.com/2015/01/08/nickis-abortion-minaj-reveals-unspoken-truths.

139. Parker, supra note 136.

140. Ibid.

141. Ibid. Compare with a classical work of legal theory in which “personhood and property” are mutually-constitutive, not oppositional: Margaret Jane Radin, “Property and Personhood” (1982) 34:5 Stan L Rev 957.

142. See also WEB Du Bois, Black Reconstruction in America: 1860-1880 (The Free Press, 1998).

143. William W Freehling, “The Founding Fathers and Slavery” (1972) 77:1 The American Historical Rev 81.

144. In keeping with a tradition of thinking among American conservatives, see, e.g., Robert P George, “Natural Law” (2008) 31:1 Harv JL & Pub Pol’y 171; Randy E Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights” (1997) 20:3 Harv JL & Pub Pol’y 655.

145. See also George, supra note 144 at 176.

146. Parker, supra note 136 [emphasis added].

147. When Parker concluded her testimony, a Congressman asked her whether the comparison between abortion and slavery was her own. He must have forgotten that not so long earlier, in July 2017, John Bush was confirmed as a judge on the 6th Circuit Court of Appeals. Bush’s nomination caused some controversy due to a blog post in which he compared, under a pseudonym, between slavery and abortion. Parker, supra note 136. On the same blog, the confirmed judge had also mocked climate change alarmism. See Alexandra Wilts, “Republicans confirm Trump-nominated judge who compared abortion to slavery”, The Independent (20 July 2017), online: https://www.independent.co.uk/news/world/americas/us-politics/john-bush-trump-judge-republicans-confirm-lgbt-rights-abortion-slavery-a7851976.html.

148. George, supra note 144 at 176. Compare with Sheila Jasanoff, “Biology and the Bill of Rights: Can Science Reframe the Constitution?” (1987) 13:2/3 Am J L & Med 249 at 269 (discussing the analogy between abortion and eugenics in public discourse).

149. Box v Planned Parenthood of Indiana and Kentucky, Inc, 139 S Ct 1780 at 1788 (US 2019).

150. Rome Statute, supra note 11 at art 7.

151. Under international criminal law, there is no need for there to be an armed conflict, and humans outside the context of war are protected by the provision. (I’ve relied on this point above as well, in the contexts of environmental and migration atrocities).

152. “Abortion Restrictions in States”, The New York Times (17 June 2013), online: https://archive.nytimes.com/www.nytimes.com/interactive/2013/06/18/us/politics/abortion-restrictions.html.

153. US, Bill HR 7228, Reproductive Rights are Human Rights Act of 2018, 115th Cong, 2018.

154. See, e.g., Stuart WG Derbyshire, “Can fetuses feel pain?” (2006) 332 BMJ 909.

155. The committee formally excluded the unborn from the right to life, “despite pleas from more than one hundred governments and pro-life organizations,” including the United States, Russia, Poland, and Egypt. See Stefano Gennarini, “UN Human Rights Committee formally excludes unborn child from ‘right to life’”, LifeSite (3 November 2017), online: https://www.lifesitenews.com/news/un-human-rights-committee-formally-excludes-unborn-child-from-right-to-life. For the general comment by the committee, generally protecting women’s rights to safe and health abortions, see Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, HRCOR, 2018, CCPR/C/GC/36.

156. Ibid. Yet note that the United States, for example, has opined in this context that the Committee’s work products “do not in and of themselves provide legal support under international law.” They are rather “merely […] non-binding views….” See “Observations of the United States of America on the Human Rights Committee’s Draft General Comment No. 36 On Article 6—Right to Life” (October 6, 2017) https://www.state.gov/wp-content/uploads/2019/05/U.S.-observations-on-Draft-General-Comment-No.-36-on-Article-6-Right-to-Life-.pdf.

157. See also Re’em Segev, “Justification, Rationality and Mistake: Mistake of Law is no Excuse? It Might Be a Justification!” (2006) 25:1 L & Phil 31 at 35 (noting that “interpretations of legal rules could be (not only justified but also) correct even when different from those of authorized individuals or institutions.”).

158. Rome Statute, supra note 11 at art 32.

159. See Shklar, supra note 59.

160. HLA Hart et al, The Concept of Law, 3rd ed by Penelope A Bulloch & Joseph Raz (Oxford University Press, 2012).

161. Even if they end up saying, as will often be the case, that the trial is illegitimate. See in this regard Koskenniemi’s discussion of Slobodan Milošević. Koskenniemi, supra note 28 at 1.

162. Caroline Davidson, “How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court” (2017) 91:1 St John’s L Rev 37; Mohamed Shahabuddeen, “Does the Principle of Legality Stand in the Way of Progressive Development of Law” (2004) 2:4 J Int’l Criminal Justice 1007 at 1009.

163. Rome Statute, supra note 11 at art 22. Note the suspicion of analogy, which, as demonstrated in the analysis of Parker’s testimony, is a central device for unorthodox legal interpretation.

164. Ibid at preamble.

165. Oliver Wendell Holmes, The Common Law (Belknap Press, 1963) (1881) at 41.

166. Arendt, supra note 5 at 277.

167. Stuckenberg, supra note 10 at 322. Compare with Smeulers & Werner, “The Banality of Evil on Trial”, supra note 6 at 42 (“Social-psychological research has shown how even reasonable people can come to see genocide as legitimate and necessary and thus proves that we can and may not take it for granted that reasonable people will always recognize such an order as manifestly illegal.”).

168. In the words of Ben Vermeulen, “Grotius on Conscience and Military Orders” (1985) 6 Grotiana (ns ) 3 at 14. On the relationship between law and conscience, see also James Scott Brown, “Francisco Suárez: His Philosophy of Law and of Sanctions” (1934) 22:3 Geo LJ 405 at 421.

169. Tom McCarthy, “Donald Trump: I’d bring back ‘a hell of a lot worse than waterboarding’”, The Guardian (7 February 2016), online: https://www.theguardian.com/us-news/2016/feb/06/donald-trump-waterboarding-republican-debate-torture.

170. Which emerged largely due to Antonio Cassese’s finding that violence in Sudan did not constitute genocide. For an illuminating analysis of the political stakes of the debate, see Mahmood Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (Three Rivers Press, 2010). For Cassese’s full report see “Report of the International Commission of Inquiry on Darfur to the Secretary-General” (January 25, 2005) https://www.un.org/ruleoflaw/blog/document/report-of-the-international-commission-of-inquiry-on-darfur-to-the-united-nations-secretary-general/.

171. Carl Schmitt, The Concept of the Political, enlarged ed, translated by George Schwab (Chicago University Press, 2007) at 54. Also quoted in Luban, supra note 6 at 626 (referred to as Schmitt’s “cynical slogan”).

172. James Crawford, “The Current Political Discourse Concerning International Law” (2018) 81:1 Mod L Rev 1 at 4.

173. See UN Security Council, “Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution” (22 May 2014), UN Meetings Coverage and Press Releases (website), online: https://www.un.org/press/en/2014/sc11407.doc.htm; “Those responsible for war crimes in Syria ‘will be held accountable for what they have done’”, UN News (2 March 2018), online: https://news.un.org/en/story/2018/03/1003981.

174. This pervasiveness of interpretation of criminal provisions is, of course, not specific to international law. See in this context, Dan M Kahan, “Ignorance of Law Is an Excuse: But Only for the Virtuous” (1997) 96:1 Mich L Rev 127 at 153 (“The principle of legality, for example, proclaims that legislatures alone are responsible for defining crimes and disavows any lawmaking role for courts; the truth, however, is that criminal statutes typically emerge from the legislature only half-formed and must be completed through contentious, norm-laden modes of interpretation that are functionally indistinguishable from common-law making.”).

175. The Prosecutor v Uhuru Muigai Kenyatta, ICC-01/09-02/11, Judgment (23 January 2012) at para 269 (International Criminal Court), online: https://www.icc-cpi.int/CourtRecords/CR2012_01006.PDF (“this residual category […] must be interpreted conservatively and must not be used to expand uncritically the scope of crimes against humanity”).

176. Kenneth S Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, 2009) at 336.

177. Itamar Mann, “The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the Court of Critique” (2010) 1:4 Transnat’l Leg Theory 484 at 485-96 (explaining the notion of a “court of last resort”).

178. Affirming the role of political judgment in legal responses to political violence, see Bronwyn Leebaw, Judging State-Sponsored Violence, Imagining Political Change (Cambridge University Press, 2011) at 5, 14-27. See more generally Shklar, supra note 59.

179. On universal jurisdiction prosecution and the “daring judge” (which Robert Cover alludes to in epigraph), see Hovell, supra note 19 at 447.

180. The question of a cultural defense for perpetrators of crime has often been debated. Whatever one’s opinion about that question, in the domestic context of a democracy, citizens are at least in principle given an opportunity to recognize the law through participation in its framing.

181. In the context of human rights more generally, see Jennifer Nedelsky, “Communities of Judgment and Human Rights Judgment” (2000) 1:2 Theor Inq L 245.

182. Mohamed, supra note 9 at 1637.

183. Ibid at 1666.

184. Such an issue can problem may be identifiable, for example, in the case of Dominic Ongwen, the child-soldier who became a commander in Joseph Kony’s Lord’s Resistance Army. See Mark A Drumbl, “Victims who victimize” (2016) 4:2 London Rev Int’l L 217 at 234-43; Barrie Sander, “We Need to Talk about Ongwen: The Plight of Victim-Perpetrators at the ICC” (19 April 2016), Justice in Conflict (blog), online: https://justiceinconflict.org/2016/04/19/we-need-to-talk-about-ongwen-the-plight-of-victim-perpetrators-at-the-icc/.

185. This critique echoes the preoccupations of the critical and TWAIL literature in international criminal law. See note 17 above.

186. Under the Rome Statute, supra note 11 at art 17(1)(d).

187. In the German legal system, “avoidable” mistakes of law lead to mitigation of sentence; “unavoidable” mistakes relieve defendants of culpability. And see in this context Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part (Oxford University Press, 2013) at 284: “Article 32(2) of the ICC Statute should be interpreted in a more flexible or liberal way, taking recourse to a criterion of avoidability or reasonableness, which would enable the judges to find practical and just solutions on a case-by-case basis.” Ambos is quoted alongside other relevant sources in Sander, supra note 11 at 450 n 4064.

188. Strafgesetzbuch [StGB] [Criminal Code], §17, translation at https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html. See also Stuckenberg, supra note 10 at 321-22 (“a liberal and principled criminal law must exonerate if a mistake is unavoidable because it would be manifestly unjust—and a violation of the principle of guilt—to punish a person for the failure to do something they were unable to do.”).

189. E.g., the “GLAN-Stanford complaint”, supra note 108.

190. Sharon Pickering & Leanne Weber, “New Deterrence Scripts in Australia’s Rejuvenated Offshore Detention Regime for Asylum Seekers” (2014) 39:4 Law & Soc Inquiry 1006; on deterrence more generally see Thomas Gammeltoft-Hansen, “International Refugee Law and Refugee Policy: The Case of Deterrence Policies” (2014) 27:4 J Refugee Studies 574.

191. Doherty, supra note 112.

192. In the words of a German court, such behavior reflects a failure to “exert one’s conscience.” Quoted in Badar, supra note 30 at 243.

193. And see the German cases quoted in ibid.

194. For a good overview, see Ahson T Azmat, “What Mistake of Law Just Might Be: Legal Moralism, Liberal Positivism, and the Mistake of Law Doctrine” (2015) 18:3 New Criminal L Rev 369 (labelling this group of theorists “moralists”).

195. Dan M Kahan, supra note 174 at 152-53.

196. See, e.g., Segev, supra note 157 at 35 (arguing that mistakes of law can be morally justified, though “perhaps it is never justified for persons to be ignorant or mistaken concerning rules that reflect fundamental and obvious moral conclusions [….] This category… might be narrower than what is usually meant by the notion mala in se.”).

197. On the problem of identifying the relevant political community in context of universal jurisdiction prosecution, see Hovell, supra note 19.

198. Compare with Lyndsey Stonebridge, “The Perpetrator Occult: Francis Bacon Paints Adolf Eichmann” (2011) 17:2/3 Holocaust Studies 101.