Hannah Arendt as a Theorist of International Criminal Law

This paper examines Hannah Arendt\u27s contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt\u27s correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt\u27s conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her performative theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than that of Raphael Lemkin; (3) the banality of evil, and its relation to legal conceptions of mens rea; and (4) her ultimately inconclusive assessment of law\u27s capacity to confront the radically unprecedented crimes of regimes that are themselves criminal, and which systematically invert the values necessary to distinguish legal rules from exceptions. The essay was written for a symposium on women and international criminal law in honor of Judge Patricia Wald