Eichmann in Jerusalem – 50 Years After: An Interdisciplinary Approach [1 ed.] 9783428538935, 9783428138937

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Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Band / Volume 14

Eichmann in Jerusalem – 50 Years After An Interdisciplinary Approach

Edited by

Kai Ambos, Luís Pereira Coutinho, Maria Fernanda Palma and Paulo de Sousa Mendes

Duncker & Humblot · Berlin

K. AMBOS, L. PEREIRA COUTINHO, M. F. PALMA and P. DE SOUSA MENDES (Eds.)

Eichmann in Jerusalem – 50 Years After

Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Herausgegeben von / Edited by RiLG Prof. Dr. Kai Ambos

Band / Volume 14

Eichmann in Jerusalem – 50 Years After An Interdisciplinary Approach

Edited by

Kai Ambos, Luís Pereira Coutinho, Maria Fernanda Palma and Paulo de Sousa Mendes

Duncker & Humblot · Berlin

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2012 Duncker & Humblot GmbH, Berlin Typesetting: Konrad Triltsch GmbH, Ochsenfurt Printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISSN 1867-5271 ISBN 978-3-428-13893-7 (Print) ISBN 978-3-428-53893-5 (E-Book) ISBN 978-3-428-83893-6 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706 Ο

Internet: http://www.duncker-humblot.de

Preface On the occasion of the 50th anniversary of the end of the Eichmann trial, the Law Faculty of the University of Lisbon organized and hosted an international colloquium on the book “Eichmann in Jerusalem”. The main purpose was to evoke Hannah Arendt’s oeuvre and to reflect upon the Eichmann trial. “Eichmann in Jerusalem: A Report on the Banality of Evil” is indeed an important keystone to understanding Arendt’s work as a whole and constitutes a reference point in itself when addressing crucial problems in the fields of criminal law, international criminal law and philosophy of law. Jorge Miranda, president of the Institute for Public Law, fostered the idea of organizing the event, together with Maria Fernanda Palma, president of the Institute for Penal Law and Criminal Sciences. Subsequently, Paulo de Sousa Mendes, from the Institute for Penal Law and Criminal Sciences, and Luís P. Pereira Coutinho, from the Institute for Public Law, assumed the scientific coordination of the international colloquium that took place on April 27 – 28, 2011, in Lisbon1. The main contributions were recollected for publication in a Portuguese edition2 and in the present English edition organized with the help of Kai Ambos. The present book is organized in the following six main sections: (1) Facing the Evil; (2) Hannah Arendt, the Legal and the Political; (3) Eichmann in Jerusalem and Hannah Arendt’s Oeuvre; (4) The Eichmann Trial; (5) Reflections Starting from Eichmann in Jerusalem; (6) Contemporary Experiences of Transitional Justice. In the first section, Maria Fernanda Palma underlines the central relevance of Arendt’s reflection on the problem of evil, emphasizing the association between evil and the neutralization of essential human values within totalitarian systems, a neutralization that dissolves personhood itself. It also develops the idea that a schism exists between the historical and political scrutiny of the past – a scrutiny that may allow us to “understand” the motivations and the causal determinants which led average men such as Eichmann to act as they did – and the judgment that is inherent to Law, one that may surpass the causal understanding characteristic of History in the name of personal responsibility. A schism also exists between moral guilt within the historical realm and criminal guilt.

1

Thanks are due to the Fundação para a Ciência e Tecnologia (FCT) for financial support. Eichmann em Jerusalém. 50 anos depois. Lisboa (Associação Académica da Faculdade de Direito de Lisboa [in press]). 2

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The accidental connection between good and evil, one in which evil is desired as a means to a good, confers on evil a resistance and longevity abundantly recorded in human history. In the Eichmann trial, evil emerges as a reaction against evil. Correspondingly, Eichmann appears both as a protagonist of the evil within the nationalsocialist State and as a victim of a democratic State based on the rule of law, a phenomenon generalized since then. Just as Cain, after killing Abel, asked God whether he was his brother’s guardian, Israel, after the trial and execution of Eichmann, could ask Humanity as a whole: is Israel the guardian of Eichmann? That is the question that Paulo Otero focuses in his contribution. In the second section, Alexandre Franco de Sá starts by showing that Hannah Arendt’s analysis of totalitarianism is deeply related with Carl Schmitt’s use of the concept of ‘totaler Staat’ to characterize the Weimar Republic’s last period. This characterization is based in three main topics: the normativistic conception of law, the occupation of State structures by political parties, and the impossibility to distinguish State and society. The paper tries to show that Arendt’s approach to totalitarianism is guided by an analog threefold characterization: the loss of contact with reality, the identification of the State with the ‘onion structure’ of the party, and the politicization of the whole social and individual life. Finally, the author argues that Arendt’s description of Adolf Eichmann in Eichmann in Jerusalem is essentially articulated with this approach: this threefold distinction provides the source for the understanding of Arendt’s characterization of the way in which Eichmann talks, acts and thinks. Massimo La Torre presents and discusses one side of Hannah Arendt’s philosophical legacy that has been mostly neglected. The issue here is her concept of law in the framework of her wider theory of human conduct and of the life of mind. A connection will be attempted between her theorizing of thinking, willing and judging and her scanty, but astute remarks about the nature of law. Her concept of power (as opposed to the notion of ‘force’ and ‘violence’) will also be taken into account, being considered and treated as a sort of introduction to the dimension of a legal experience no longer seen as a matter of coercion or command, but somehow as the representation of a play, a practice. Law, in short, to Arendt – it will be argued – is not there to reduce the number of chances given to human action, but instead to open new ways and novel areas of conduct. Law, to sum up, is not regulative, but constitutive. In this sense, Arendt’s contribution is a criticism and an alternative to the traditional theory of law, which is obsessed by, and centres on, the experience and the mode of prescription. Rui Guerra da Fonseca addresses the direct influence of the Eichmann trial in ‘The Life of the Mind’, Arendt’s last book. In particular, it attempts to show that reading ‘The Life of the Mind’ taking into account the Eichmann trial can be illuminating when considering Arendt’s classification of basic human faculties – ‘thinking’, ‘willing’ and ‘judging’. Namely, such reading clarifies the correspondence between the faculties of ‘thinking’ and ‘willing’ and the categories of the legal and the political.

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In the next section, António Araújo discusses the ‘banality of evil’, proposed by Hannah Arendt in ‘Eichmann in Jerusalem’, in the light of Arendt’s thought on the issue of publicity and public space, on the one hand, and the Kantian critique of judgment, on the other. The purpose is to find a common path between the analysis of the origins of totalitarianism – where the problem of public v. private distinction is central – and the notions of ‘banality of evil’ and ‘radical evil’. According to Luís P. Pereira Coutinho, the ‘banality of evil’ can be understood as an absence. At a first level, it can be understood as an absence of meaning. At a second, more profound level, it can be understood as an absence of the very subject who is able to think and act meaningfully, a subject named in the personalist tradition as ‘person’. Indeed, Arendt’s portrayal of Eichmann marks the possibility of destruction of personhood and its replacement by something quite different, which can be named as totalitarian agency. The difference between personhood and totalitarian agency is an important key to understanding the ontological difference there is between law and unlaw. Miguel Nogueira de Brito suggests that ‘Eichmann in Jerusalem’ is certainly not a philosophical work like ‘The Human Condition’ or ‘The Life of the Mind’, but it is neither a mere journalistic break in the life of a philosopher. In his contribution he argues that the concept of the banality of evil in fact epitomizes Hannah Arendt’s political thought. The banality of evil is simply the consequence of the abandonment of thought by ordinary people and as such it aptly summarizes the basic tenets of Arendt’s political thought: secularism, cosmopolitism, a radical contractualism, individual thought as the last stronghold of political community and the refusal of theory as the basis of politics and political thought. The banality of evil symbolizes at the same time ordinary people’s responsibility for thought and the refusal, in a way, of political philosophy. This apparent paradox dissolves itself once we understand that for Arendt the political is the realm of opinion, not truth. In the section about the Eichmann trial, Paulo de Sousa Mendes discusses Arendt’s concern that the trial should only serve to render justice, and nothing else. The author analyses and comments on passages from the book and from her letters that best expressed her opinion that other purposes – like the propaganda produced by Prime Minister Ben-Gurion and Chief Prosecutor Gideon Hausner – were not legitimate. Hence, doing justice is not the same as applying a fair penalty, and this implies that there is a purpose in holding a trial that goes far beyond the proper purpose of the criminal penalty. The author stresses that Arendt gives an excellent lesson to experts in criminal law, who are often engaged in a discussion about the purposes of criminal sanctions, but who less often pay attention to the scope of the trial itself. Kai Ambos discusses the trial of Adolf Eichmann before the Jerusalem District Court, putting forward three theses. First, the Eichmann trial may be approached differently depending on an insider (legal) or outsider (social science/anthropological) perspective. Second, the, at the time of the trial, recently founded State of Israel was able to guarantee a fair trial, although in similar circumstances (adjudicating events

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of macro-criminality) other States have been and are unable to do so. Third and most importantly, however, the judgment is not entirely convincing as regards the application of the law, in particular with regard to the modes of responsibility. Miguel Galvão Teles considers the objections according to which Eichmann was submitted to retroactive law and subject to trial by a winners’ court. It sustains that, at the time of the facts, there was no source of international law imposing the principle of nullum crimen sine lege prævia, so that the question of retroactivity has to be considered at a meta-positive level, though not as one of natural law, in which, in the final instance, it is justified, even by virtue of the fact that the criminal types established in Israeli law are complex types formed by simple types that could already be incriminated prior to the facts at the places where they occurred. Opening the section that covers reflections starting from the Eichmann trial, Augusto Silva Dias treats the Milgram experiment. This experiment was conceived by the North-American psychologist Stanley Milgram of the University of Yale and carried out in July 1961, a few months after the Eichmann process was initiated, was the first of a series of experiments testing Hannah Arendt’s thesis on the banality of evil. How do people react when submitted to an authority (in this case, a scientific authority), was the question that the Milgram experiment and the subsequent ones tried to answer. This paper aims at analysing the aforementioned experiment and the results it yielded, and discuss their implications in criminal law, especially in those fields where punishment is related with the problem of submission to an authority. Cristina García Pascual addresses the following question: how is the eruption of evil in society to be faced? How can we respond to massive violations of human rights? What should we do when those violations are carried on by States or by agents under the cover or tolerance of governments? To answer that question necessarily implies to acknowledge some novelty to the kind of evil it concerns, which is named as absolute evil. Before absolute evil, we seem to be trapped in an insoluble problem, since traditional categories of thinking – including traditional moral, political and legal notions – are inappropriate to understand it and, most importantly, to understand the urgency of explaining it. This paper takes a conceptual path, which aims at surmounting some of the obstacles we are confronted when facing absolute evil, a path that involves raising some questions concerning the basis of the contemporary legal and moral world. In the last section, Pablo Galain Palermo and Álvaro Garreaud focus on the transitional justice process in Uruguay. It sets up the different mechanisms implemented in Uruguay to react against State terrorism in the past. The article refers to how Uruguay has been dealing with the past. The authors argue that criminal law and procedure are not the best mechanisms to achieve the goals of the transitional justice. On the one hand, the authors explain that the criminal procedure does not allow the knowledge of the truth and it could only partially fulfil the reparation of the victims. On the other hand, the Uruguayan transitional justice, that was focused on the punishment of the perpetrators of crimes against humanity, and the process against Eich-

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mann in Jerusalem are necessary as a reaction in order to achieve the aim of justice in cases of the most serious violations against human rights. We finally take the opportunity to express our most sincere gratitude to the Faculty of Law of the University of Lisbon, particularly to its director Prof. Dr. Eduardo VeraCruz Pinto, for the invaluable support granted for the publication of the present edition. We also like to thank André Hoelzer for complete revision and final compilation of the contributions. Last but not least, we are also very grateful to Dr. Florian Simon, publisher of the renowned publishing house Duncker & Humblot for accepting this book for publication. June 2012

Kai Ambos, Luís P. Pereira Coutinho, Maria Fernanda Palma, Paulo de Sousa Mendes

Table of Contents

Facing the Evil Maria Fernanda Palma The Banality of Evil or the Exceptionality of Good in Totalitarian Societies . . .

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Paulo Otero The Eichmann Trial: Evil as a Reaction Against Evil? . . . . . . . . . . . . . . . . . . . .

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Hannah Arendt, the Legal and the Political Alexandre Franco de Sá From the Total State to Totalitarianism: Carl Schmitt and Hannah Arendt . . . . .

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Massimo La Torre Hannah Arendt and the Concept of Law: Against the Tradition . . . . . . . . . . . . .

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Rui Guerra da Fonseca Eichmann in Jerusalem: Between the Legal and the Political in Hannah Arendt’s Thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Eichmann in Jerusalem and Hannah Arendt’s Oeuvre António Araújo Hannah Arendt, Adolf Eichmann: Of Radical Evil and Its Banality . . . . . . . . . .

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Luís Pereira Coutinho The Banality of Evil as Absence of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Miguel Nogueira de Brito When Thinking Is Acting: The Concept of the Banality of Evil as a Key to Hannah Arendt’s Political Thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Contents

The Eichmann Trial Paulo de Sousa Mendes Judging Eichmann to Render Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Kai Ambos Some Considerations on the Eichmann Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Miguel Galvão Teles 50 Years On Eichmann in Jerusalem: A Specific Mode of Criminal Law Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Reflections Starting from Eichmann in Jerusalem Augusto Silva Dias The Milgram Experiment and Criminal Liability: An Essay on the Banality of Evil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Cristina García Pascual Can Absolute Evil Be Brought to Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Contemporary Experiences of Transitional Justice Pablo Galain Palermo and Álvaro Garreaud Truth Commissions and the Reconstruction of the Past in the Post-Dictatorial Southern Cone: Concerning the Limitations for Understanding Evil . . . . . . . . . 181 List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

Facing the Evil

The Banality of Evil or the Exceptionality of Good in Totalitarian Societies* Maria Fernanda Palma I. In Hannah Arendt’s narrative in Eichmann in Jerusalem: A Report on the Banality of Evil1, the Eichmann case raises the essential issue that the mere obedience to positive law (if this is criminal in itself) may lead to violation of the most basic of human rights. According to Kant, obtaining valid content in law cannot be achieved to the same degree and with the same rigour as that which is true or false, but rather following a logic of adapting the rules to the nature of the law and to a fundamental anthropology2. Yet, obtaining this valid content is the only way of preventing obedience to the law from being discredited within the Rule of Law, by distinguishing obedience which may be demanded from merely formal obedience with no legitimacy other than the will of the legislator. By recognizing that only law which does not infringe basic human rights is valid law, infra- and super-systems for controlling the law are imposed, as well as a consensus as to what is irreducible and intolerable, both at the level of the state and at the international level. This is the first lesson for the legal thought in the Eichmann case. This is, in fact, the story of an average man, with no personal reason to hate Jews – indeed, much to the contrary3 –, who rises up within the Nazi ranks. Embedded in the infernal system of the Third Reich, he would only have been able to resist and not play a part in such an atrocious policy if he had had solid moral beliefs which were somewhat exceptional rather than merely average. Yet, the Eichmann case also raises the question as to whether criminal responsibility is bound up with historical responsibility and may be absorbed by it. To what

* Translated by Michelle L. Wells. 1 Cf. Arendt, Hannah: Eichmann in Jerusalem: A Report on the Banality of Evil. London (Penguin), 2006. 2 Kant, Immanuel: Schriften zur Ethik und Religionsphilosophie. Die Metaphysik der Sitten. Einleitung in die Rechtslehre. 2nd ed. Königsberg (Friedrich Nicolovius), 1798, p. 36 et seq. 3 Cf. Arendt (2006), p. 30, stating that Eichmann had connections with Jews, had a Jewish lover and would have been surprised by the order to exterminate the Jews in which he eventually came to play an important role.

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extent does the judging of history limit or interfere with the criminal judgment and, conversely, how far does the criminal judgment impact the judging of history4? On the one hand, the historical perspective can help us to understand the causal nexus and the motivations5 that may lead average men, rather than psychopaths, to engage in the mass extermination of other human beings based on the belief that their own race is superior. However, on the other hand, the historical viewpoint also reveals the perverseness and atrocious nature of these motivations6 and the harm they cause to all humanity. Symbolically speaking, this takes on a proportion, which, in moral terms, is similar to a change in the earth’s axis. If, in turn, we take the legal perspective as our starting point, we can see that the trial of a particular person may surpass a causal understanding of history, in terms of the relationship between phenomena and contexts, and reject an understanding that diminishes guilt, in the name of the individual responsibility that is required of us all. However, the problem of personal guilt leads us to a panorama of subjective responsibility, which is separate from the logic of social redress inherent to objective responsibility aimed at obliterating acts and accepting collective responsibility. II. Arendt’s analysis of the Eichmann case presents us with some surprising and sensitive issues. The first of these is that the political framework which led to the Holocaust was neither unique nor exceptional, being rooted in universal negative human traits, including domination of other human beings, and that explains the possibility of these negative traits being absorbed by thought systems in certain contexts of need. Secondly, there is the enormous difficulty of unexceptional people resisting these systems (in order to resist Nazism in moral terms, a person would need to be exceptional, morally speaking – and, with regard to this, we may recall the morally exceptional case of the Portuguese Consul Aristides de Sousa Mendes7). Thirdly, there is the error of not taking into consideration universal reasons, while dealing with the situation merely within the logic of the historical persecution of the Jewish people, thus legitimating the trial by a Jewish court, instead of an international court. This weakened the theory that the Holocaust was not merely an atrocious crime against the Jews but was also a crime against Humanity8. 4

Ricoeur, Paul: La mémoire, l’histoire et l’oubli. Paris (Seuil), 2000, p. 413 et seq. Ricoeur (2000), p. 427. 6 Ricoeur questions whether historiographical handling of the unacceptable is possible. He claims that the task of the historian is to understand and not to excuse (idem [2000], p. 428). 7 On the case of Aristides de Sousa Mendes, cf. Fralon, José-Alain: A Good Man in Evil Times. The Story of Aristides de Sousa Mendes. The Man Who Saved the Lives of Countless Refugees in World War II. New York (Carroll & Graf Publishers), 2001. 8 Cf. Arendt (2006), p. 269 et seq., discussing Karl Jaspers’ proposal that, having heard the factual evidence, the court of Jerusalem should have waived the right to deliver the verdict, 5

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Arendt’s analysis also allows us to conclude that the banality of evil can only be counteracted by a culture of constant external review of systems and the use of discussion methods as an alternative to propaganda and the standardization of thought. III. In addition to these ideas that we can derive from the historical facts and from Arendt’s work, I believe that another more specifically philosophical question is also raised, which calls for a brief analysis. Arendt’s work has earned a special place in modern thinking on the subject of evil9. I shall briefly summarize this here. When looking at the Eichmann case, Arendt appears to accredit particularly civilized perpetrators with evil. Kant’s radical evil10, being not merely the absence of good but a proposition of the inverse to what is good11, is far removed from the banality of evil that Arendt portrays in Eichmann’s behaviour. Eichmann is seen as someone whose moral conscience appears not even to have suffered with the acts for which he was responsible12. In Eichmann’s case, evil is associated with the neutralization of essential human values by the system, by the law and by obedience to the Führer. This banal evil is merely the expression of how the person, as the central part of the history, is dissolved within the group, which is set up as a magnet for responsibility. Arendt suggests that Eichmann always sought to belong to groups throughout his life, as if this belonging would act as a substitute or compensate for the failings in his private life13. In Eichmann’s case, as in so many others, rather than a relationship of individual growth via declaring itself not to have jurisdiction, since the nature of the crime had not yet been defined and the question remained as to where jurisdiction lay to judge a crime committed following the orders of a government. Arendt is of the opinion that Israel should have taken the evidence it had to the United Nations and shown that an international criminal trial should have taken place. 9 On thinking about evil, see my synopsis in: Palma, M. Fernanda: Princípio da desculpa em direito penal. Coimbra (Almedina), 2006, p. 85 et seq. and referred bibliography. 10 Cf. Kant, Immanuel: Religion within the Bounds of Bare Reason. Indianapolis (Hackett Publishing Co.), 2009 (Engl. transl. of “Die Religion innerhalb der Grenzen der blossen Vernunft” [1793], by Pluhar, Werner S.), p. 17 et seq. 11 Ricoeur interpreted Kant’s thinking on evil as follows: “I see in Kant the complete philosophical manifestation that supreme evil is not the gross infraction of a duty but the malice that passes for virtue is virtue’s betrayal. The evil of evil is the fraudulent justification of the maxim by apparent conformity with law – it is the semblance of morality” (Ricoeur, Paul: La symbolique du mal interpretée, in: Ricoeur, Paul/Mongin, Olivier: Le conflit des interpretations. Essais d’herméneutique. Paris [Seuil] 1969, p. 299 [own translation]). 12 Arendt (2006), p. 51 et seq. Arendt claims that “Eichmann was not Iago and not Macbeth [… ,] he had no motives […]. He merely, to put the matter colloquially, never realized what he was doing.” And ahead: “He was not stupid. It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period”, p. 287 et seq. 13 Arendt (2006), p. 31 et seq.

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the group, we seem to see a kind of search for a foetal protective mechanism and the dissolving of personhood within the logic of the group. The concept of evil raised by the Eichmann case is, above all, the failure to understand good14, the lack of stimuli from reasoning in order to attain a good which is associated, after all, with the basic rights of others. Is this banal evil the same as the meaning given to evil by Nabert in his Essai sur le mal15, that is, evil as something which is totally unjustifiable? In his detailed reflection on the subject, Nabert regards evil as that which inevitably separates the human being from his natural conscience. It cannot be justified, because no human reason can serve as an argument or explain it. Even the evil of the criminal act may not yet demonstrate this reasoning, which, indeed, presupposes the possibility of recognition. Evil that the conscience cannot recognize, due to a fundamental obstruction, jeopardizes the survival of the human conscience and does not even allow for guilt as redemption. Although evil is associated with banality in the Eichmann case, what is frightening is the lack of possibility of feelings of guilt, since the force of ethical responsibility has never been present in the decisions of the average man. As it is possible to objectively explain, this lack of conscience, this somewhat innocent evil, reveals in its banality how we, as human beings, can turn out to be humanly evil innocents, or the innocent culprits that Ricoeur or Stan Rougier refer in conversation with Marie de Solemne, in her work Innocente culpabilité16. The contribution that Arendt’s thinking brings to the discussion on evil is, therefore and above all, a demonstration of the paradox of the inhumanity of evil in the ethically impoverished humanity of the human being. IV. Lastly, we may question how Criminal Law responds to the problem of criminal guilt, when faced with such grave acts, in the context of their historical explanation. The issue raised by Arendt’s book lies in the fact that the immense historical dimension of the harm is out of step with the seriousness of the personal guilt. In historical terms, the Holocaust was of utmost gravity due to the suffering caused and because it was an affront to the very meaning of humanity17. However, from the perspective of personal guilt and individual responsibility, social contexts and personality problems may obstruct a full correspondence of gravity. 14 Arendt states: “Evil in the Third Reich had lost the quality by which most people recognize it – the quality of temptation.” (Arendt [2006], p. 150). 15 Cf. Nabert, Jean: Essai sur le mal. Paris (Les E´ditions du Cerf), 2001 (1st ed. Paris [PUF], 1955), p. 21 et seq. 16 Cf. Solemne, Marie: Innocente culpabilité. Paris (Dervy), 1998, p. 14 et seq. and p. 35 et seq. 17 Ricoeur refers to the extremely inhumane as the moral singularity of the crimes against humanity committed by the State (cf. Ricoeur [2000], p. 428 et seq.).

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Can personal guilt, on a human scale, respond without any explanation or even justification for the scale of the evil? Must immeasurable evil be rooted in immeasurable and unpardonable guilt? There is not necessarily parity between moral guilt, or even legal guilt, and the evil caused externally and objectively. Guilt is measured by the intensity of the conscience, knowledge and will, by the power to avoid, by the capacity to choose between alternatives, and by the self-restraint at the moment of the action. For Nabert, who analyses moral evil as being unjustifiable18, the subjective dimension of evil is seen as a separation between one’s conscience of oneself and of “us”, of the relationship with others and, therefore, as a kind of fragmentation of what is the general being in each person19. Should this forgetting of the being with others or this rupture with this being, which would correspond to evil, also imply unlimited responsibility? How can a process of negation of one’s self as a manifestation of the being, in contradiction with one’s self, be a process which is entirely lucid and unaccountable? Lying at the root of how we understand and identify evil is a paradoxical disorder or abnormality of process. We can only feel and recognize something as being evil rather than as an unavoidable disaster because a schism exists between what we are and what we have from the others inside each of us. Yet, this schism is necessarily evil against oneself before it becomes the suffering of the other20. Guilt does not, therefore, come into existence until there is regeneration, recognition and repair of oneself21. Unlimited responsibility will firstly be an unlimited obligation to repair oneself, beginning with repair of the suffering of others – at least by recognition. Repairing crimes against humanity can only be in the sense of recognizing as unjustifiable the suffering caused and the deep distortion of the being with others in the individual and collective conscience22. Reflection on Arendt’s work and the case that gave rise to it – as also occurs with Nabert’s work – contributes to deepening the understanding that the suffering resulting from the extermination caused by the “final solution” was not the inevitable product of a blind historical causality. It was, rather, the result of a collectively experi18

Cf. Nabert (2001), p. 21 et seq. Cf. Nabert (2001), p. 56 et seq.; p. 111 et seq. 20 Cf. Nabert (2001), p. 108, speaking of a “rupture” of the “I” with oneself, as the essence of sin. 21 Cf. Palma (2006), p. 106, following the thinking of St. Paul, as suggested by Ricoeur, Paul: “Philosophie de la volonté II. Finitude et culpabilité”. 2nd ed. Paris (Seuil), 1998, p. 288 et seq. 22 See also the important text by Jaspers, Karl: The Question of German Guilt. New York (Fordham University Press), 2001 (Engl. translation of “Die Schuldfrage. Von der politischen Haftung Deutschlands” [1947], by Ashton, E. B.), which argues for individual awareness of guilt and responsibility regarding Nazi Germany as a means towards political freedom, in stating that “political liberty begins with the majority of a people feeling jointly liable for the politics of their community” (p. 115). 19

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enced moral fragmentation of the ‘I’, of the being with others in a whole society and in each one of its participants. This fragmentation is a serious alteration of one’s self-consciousness – an exceptional alteration – but the paths leading to it were processes of conversion to mediocrity, annulment of individuality, reduction in the space for freedom of opinion and thought, overvaluing of effectiveness above what is moral, deletion of the ‘I’ and of the spiritual side of the human being. They were, ultimately, typical processes in a totalitarian society, obsessed with organization and collective affirmation. Hence, the banality that Arendt’s work demonstrates is not so much the banality of what is in itself really evil, but of its possibility. After all, anti-human, exceptional and catastrophic evil can very easily occur23, when the moral conditions and the social contexts fit together in a given historical period. This is the appeal that I can hear in Arendt’s work today, and which arises when we reflect on the current situation of multiple economic, financial and moral crises. Our reflection alerts us to the fact that the criminal guilt, since it is pervaded by history and cannot be separated from it, fulfils the need of the community to overcome the trauma caused by the crime. The criminal guilt should not serve to transform the perpetrator into a scapegoat for the collective, by means of a process of transferring guilt. Instead, it should serve to identify the distortion and the inhumanity of the act in its human genesis, thereby avoiding the development of collective processes of dehumanization. It should also serve as a criterion to punish in the precise measure to re-establish the validity of the Law, according to the Hegelian logic24, but considering the Law as an anthropological category. As Beccaria25 said, albeit in relation to the punishment, guilt is also a harsh necessity.

23 On this subject, see the chilling words of the judges who convicted Eichmann, quoted by Arendt: “You told your story in terms of a hard-luck story, and knowing the circumstances we are, up to a point, willing to grant you that under more favourable circumstances, it is highly unlikely that you would ever have come before us or before any other criminal court. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder” (Arendt [2006], p. 278 et seq.). 24 Cf. Hegel, Georg W. F.: Elements of the Philosophy of Right. Cambridge (Cambridge University Press), 1991 (Engl. translation of “Grundlinien der Philosophie des Rechts” [1820], by Nisbet, H. N.). 25 Cf. Beccaria, Cesare: On Crimes and Punishments and Other Writings. Cambridge (Cambridge University Press), repr. 2000 (Engl. translation of “Dei Delitti e delle Pene” [1764], by Davies, Richard).

The Eichmann Trial: Evil as a Reaction Against Evil? Paulo Otero I. 1. In a remote conception, evil is equated with “a certain absence of the good”1 and not with a pure absence of it. Indeed, an accidental good must always be connected with evil2 since “if evil were complete, it would destroy itself”3. One could say that in that conception, evil is not a substance4, that God is not its Author5, and that it cannot be identified with “something abstract”6: evil is rather within persons7, constituting a perversion or deviation of will8, even if an act of free will9. It thus constitutes a turning away from God10, an abuse of human freedom11, a crossing of the Malign in the way of God’s work and design12 – to do evil is to do unto others what one does not wish for oneself13. If God’s work began at Creation, and was afterwards continued by man – who, through his work, prolongs that creative process14 – evil is as old as man is. 1

Saint Thomas Aquinas: Summa Theologiae, I-I, q. 48, a. 1. This idea can be found in Dionysius (cf. De divinis nominibus, chapter 4, §20) and would be later recovered by Saint Thomas Aquinas, Summa Theologiae, I-I, q. 48, a. 1. 3 The Thomist formulation (cf. Summa Theologiae, I-I, q. 49, a. 1.) finds its origin in Aristotle, according to whom “what is bad destroys even itself”, cf. Nicomachean Ethics, trans. Bartlett, Robert C./Collins, Susan D., Chicago/London (University of Chicago Press), 2011, 1126a13 (p. 82). 4 Cf. Saint Augustine: Confessiones, VII, 16. 5 Cf. Saint Augustine: De Libero Arbitrio I, 1; Confessiones, VII, 5; Saint Thomas Aquinas: Summa Theologiae, I-II, q. 79, a. 1. 6 Cf. John Paul II: Cathecism of the Catholic Church, No 2851. 7 Cf. Saint Augustine: De Libero Arbitrio, I, 15, 33; III, 5, 15. Within a broader conception, some believe beings are partially evil, that being the case of Duns Scotus: De Primo Principio, IV, 57. 8 Cf. Saint Augustine: Confessiones, VII, 16. 9 Cf. Saint Augustine: De Libero Arbitrio, I, 16, 35. 10 Cf. Saint Augustine: De Libero Arbitrio, II, 20, 54. 11 Cf. Apostolic Constitution “Gaudium et Spes”, December, 7, 1965, No. 13. 12 Cf. John Paul II: Cathecism of the Catholic Church, No. 2851. 13 Cf. Saint Augustine: De Libero Arbitrio, I, 3, 6. 14 Cf. John Paul II: Encyclical letter “Laborem Exercens”, September, 14, 1981, No. 4. 2

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2. The Book of Genesis includes at its beginning two examples that illustrate such a connection between good and evil, simultaneously revealing the incidence of evil at the very origin of the constitutive problem of humanity: (a) In a first moment, the original sin reveals an incessant lust for power, even if it is also a manifestation of man’s God given liberty: even after God’s direct prohibition to eat from “the tree of the knowledge of good and evil”15, Adam and Eve listen to the serpent who tells them that to disobey does not imply death but “to be like gods, who know good and evil”16; (b) In a second moment, and since God’s preference for Abel angered Cain, it is possible that, by killing his brother17, Cain was aiming at becoming the exclusive receiver of God’s countenance or at least at doing away with the one that prevented God from acknowledging him and his gifts, then placing the question that still echoes today when reflecting on the rights and duties men share towards each other: “am I my brother’s keeper?”18. 3. The Eichmann trial, as well as the events that preceded and gave rise to it, constitutes another moment in the eternal struggle between evil – as a certain absence of the good which finds at its origin a specific quest for the good – and good, which, by definition, must necessarily be an absolute absence of evil19. The Eichmann trial reflects, in another sense, the drama of humanity and of each human being, who, dilacerated by an eternal division, carries within himself “a dramatic struggle between good and evil”20 : where is good and where is evil? Where does good start and evil end? Those are the anguishing questions raised by Eichmann in Jerusalem. II. 1. Taking into account the teachings of Saint Isidore of Seville, who recovered a formulation originating from Saint Augustine, the word evil has “a double meaning: what a man can do and what a man can suffer”21. 15

Gen. 2, 17. Gen. 3, 7. 17 Gen. 4, 8. 18 Gen. 4, 9. 19 Such an absolute absence of evil, the only truly immutable good, is God (Mark 10, 18; Luke, 18, 19), “the only source of beatitude of the rational and intelligent creature”, cf. Saint Augustine: De Civitate Dei, Book XII, Chapt. I; John Paul II: Encyclical letter “Veritatis Splendor”, August, 6, 1993, No. 9. 20 Cf. Apostolic Constitution “Gaudium et Spes”, December, 7, 1965, No. 13. 21 Cf. Cortes y Gongora, Luis: Etimologías. Madrid (Biblioteca de Autores Cristianos), 2004, V, 27, 1, p. 521. Saint Augustine’s formulation can be found in: De Libero Arbitrio, I, 1, 1. 16

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The Eichmann trial illustrates such a double meaning: it reveals the evil done by an ordinary man, in Nazi Germany, and also the evil that the same man finally suffered, in Jerusalem. In a certain sense, to do evil is always a form of condemnation of the one who does it to be punished with evil22 : “whoever works evil, will be requited accordingly”23. 2. Karl Adolf Eichman (1906 – 1962), a faithful servant of the III Reich, was the scrupulous and efficient executioner of a plan involving the transportation of Jews to concentration camps – a plan based on an anti-semitic conception that would lead to the death of millions of human beings. Such a form of anti-semitism, which finds its roots in the nineteenth century – echoing the Nietzschean conception of the Jewish people as the antithesis of “natural values” –, found a favorable ground in the period following the First World War. Indeed, the social and economic difficulties experienced during the Weimar period aggravated the tendency to ascribe a collective responsibility to the Jewish people and to simultaneously define the Arian people by exclusion. Such a tendency culminated in the transformation of Hitler into the personification of the affirmation of the Aryan race and of the concomitant purpose involving the annihilation of the Jews – the extermination of Jews became an objective of state action24. Connected to a false political purpose taken to be a good, evil thus becomes a collective venture led by the state itself – a state that ultimately assumes the role of defining good and evil, God’s role. Surpassing even the instigation of the serpent as described in Genesis, the Nazi state leads the community to take evil as good. The result is the “banality of evil”, as described by Hannah Arendt. It is in such a context of the surrendering of individual consciences – a true collective hallucination, which takes to be good what genuinely constitutes absolute evil – that Eichmann’s contribution to the logistics of the extermination of Jews takes place. He is the faithful officer that executes, arguably with a certain degree of autonomy, what others decide when interpreting a supposedly dominant anti-semitic feeling. Eichmann always acts within National-socialist legality, following a strict positivist logic: in a context in which all ethical referents concerning the inviolable nature of human life are eradicated, Eichmann executes a political option that he did not

22 Cf. Saint Augustine, De spiritu et littera ad Marcellinum liber unus (35,58), in: Aurelii Augustini Hipponensis episcopi de spiritu et littera ad Marcellinum liber unus: e recensione Benedictinorum e Congregatione S. Mauri varietatem lectionum animadversionibusqve brevibus illustratus, Lipsiae, 1767, p. 75, online at http://www.archive.org/details/MN40358 ucmf_0. 23 Koran, Sura 4, 123. 24 For further developments, cf. Otero, Paulo: A Democracia Totalitária. Cascais (Principia), p. 96 ff.

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take, doing so in an entirely fungible way, since if the same were not executed by him, it would still be by others. Considering the eradication of all ethical referents in the atmosphere of the Third Reich, a question becomes inevitable: was Eichmann deprived of his conscience, becoming incapable to determine himself according to different values? This question inevitably leads to another: before scenarios of profound social upheaval and concomitant surrendering of individual consciences, faced with the massive and gratuitous violence in which absolute evil manifests itself, can human dignity paradoxically lead to the exculpation of certain conduct? Seen from another angle: is all human conduct, even if radically inhuman, susceptible to exculpation in the light of human dignity, when taking into account the concrete circumstances forming (or deforming) the personality of their author? Is (just) evil the right response to (absolute) evil? Or can good lead to the understanding of the circumstances in which evil is practised, thus constituting a basis for the exculpation of the author of evil or eventually for the differentiation between “inexcusable evil” and “excusable evil”? In a certain sense, just as Cain kills Abel in order to pull towards him the love of God, doing so when blinded by jealousy of his brother, Eichmann’s evil doing is also aimed at a supposed good: the collective good of the Reich which consists in the extermination of the Jews, believed to be responsible for all evils – a belief that eventually deprives him from being fully aware of the monstrosity of his conduct. Moreover, Eichmann’s evil doing is also aimed at his own good as an efficient and diligent officer who scrupulously serves his “God”. Evil’s greatest difficulty, one could say, resides in not being an absolute absence of good: the accidental connection between good and evil, turning evil into something desired in order to attain a good, perpetuates evil, leading paradoxically to the possibility of justification or exculpation of evil human conduct. 3. From an essentially juridical perspective, the Eichmann trial can be scrutinized taking into account a series of actions which, targeting Eichmann himself, are profoundly and radically unlawful: (a) Instead of being extradited from Argentina, where he had taken refuge, Eichmann was simply kidnapped by the Israeli authorities and subsequently transported clandestinely to Israel, this being the first issue concerning the lawfulness of the means used; (b) The Court responsible for the Eichmann trial was a judicial organ of the state of Israel, an aspect that raises delicate issues of legitimacy and competence; (c) Respect for the requirements of due process of law is at the least doubtful in this case, but even ignoring that, the principle of non retroactivity of criminal law was unmistakably infringed and the possible exculpation or justificatory causes concerning the Third Reich law were not considered;

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(d) Capital punishment was applied, expressing the elimination of the vanquished by the victors and the disregard for human life by the state. Taking all this into account, one conclusion seems to be clear: the evil doer is now a supposedly democratic and non-totalitarian state. Indeed, respect for human rights and legality, applicable both to the vanquished and to the victors, constitutes a manifestation of the good, regardless of the hideous nature of the committed crimes. No state has the legitimacy to convert such principles of ius cogens into a privilege for some: even if, paradoxically, the vanquished are the ones that require protection when having fallen at the hands of the victors. A democratic state under the rule of law cannot treat its adversaries with the same means that are used by a totalitarian state against its enemies – certainly at the risk of becoming so only nominally or formally. Indeed, if it reacts against evil in an evil, arbitrary or intolerant way, a democratic state under the rule of law denies itself, adopting conduct as condemnable – perhaps more condemnable, taking into account its ideological presuppositions – as the conduct of a totalitarian state: if an intolerant state treats its enemies intolerantly that may be logical and coherent, but the same surely does not happen when a democracy responds intolerantly to its adversaries25. One could say that the Eichmann trial has revealed the existence of an uneasy boundary between a totalitarian state and a democratic state, exposing another totalitarian temptation of democratic states: to use evil in order to attain a good, thus forgetting that, morally, the practice of evil to attain that good is never licit26 and, legally, ends do not justify any means27. The Eichmann trial also revealed that the pursuit of justice, as a good, can be connected to evil, leading to the adoption of actions which convert evil into a pretentious instrument to attain a good – or a supposed good since a good, when contaminated by evil, cannot truly be so. The application of the death penalty to Eichmann, denying him the dignity that should have been recognized to him as a human being28, constitutes the response 25

On tolerance and the intolerants, see Locke, John: “A Letter Concerning Toleration”, in: Wootton, David (ed.): John Locke Political Writings. Cambridge (Hackett Publishing Co.), 1993, p. 390 f.; Popper, Karl: The Open Society and Its Enemies. Princeton (Princeton University Press), 1971 (5th ed.); Otero, Paulo: Instituições Políticas e Constitucionais, I, Coimbra: Almedina, 2007, p. 407 ff. and 655 ff. 26 Cf. Rom. 3, 8. See also Paul VI: Encyclical letter “Humanae Vitae”, July, 25, 1968, No. 14; John Paul II: Encyclical letter “Veritatis Splendor”, No. 80; idem: Cathecism of the Catholic Church, No. 1756, No. 1761 and No. 1789. 27 The same affirmation is also valid in moral terms (see John Paul II: Cathecism of the Catholic Church, No. 1753) contrary to what is argued by Machiavelli concerning the political realm in the famous Chapter XVIII of The Prince. 28 According to John Paul II, when referring to Cain, “not even a murderer loses his personal dignity and God himself is his guardian”, Encyclical letter “Evangelium Vitae”, March, 25, 1995, No. 9.

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of a state which, locating its remote roots in the Old Testament, failed to remember that the God of Abraham did not punish murder with murder when faced with the guilt of Cain, thus opening the way to atonement29. III. 1. In direct contradiction to the imperative “make sure nobody pays back wrong for wrong”30, in the Eichmann trial evil constituted the response to evil – that being the determinant element of its tragic nature. Indeed, Israel reacted to the evil contained in the Nazi state and the Final Solution – an evil embodied in Jerusalem by an ordinary servant of that state – with evil, disregarding lawfulness, using force to bring Eichmann to Jerusalem, submitting him to trial by its own judges, applying a retroactive law and condemning him to capital punishment, thus treating Eichmann in a way very similar to that which would be used by a totalitarian state against its enemies. Aiming at a good – justice – Israel resorted to evil. Consequently, instead of pursuing justice, Israel staged a trial in which the echo of injustice added to the evil consisting of all the crimes against humanity committed by the Nazis. Just as Cain, after killing Abel, asked God if he was his brother’s guardian, Israel, after the trial and execution of Eichmann, could ask Humanity as a whole: “Is Israel the guardian of Eichmann?” In a world in which we are all guardians of our brothers, and not forgetting that Eichmann was also our brother, his trial thus constitutes a powerful symbol of the helplessness of the individual when confronted with the power of the state and of the danger that power always represents to the individual: what is more, even in a democratic state based on the rule of law, respect for human rights by state power always constitutes a miracle. Ultimately, the Eichmann trial raises a paradoxical and disturbing question: did not the judges that submitted Eichmann to trial and condemned him to capital punishment incur the same fault Eichmann incurred when obeying the orders of his superiors – something that precisely led to his condemnation? In the case of those judges, their fault is perhaps aggravated: in a totalitarian state, to disobey power is an act of heroism that often leads to fatal consequences; but in a democratic state under the rule of law, refusing to apply an iniquitous law is a right and a duty of each judge, since it is never licit to collaborate or cooperate with evil or injustice31. 29

Cf. Ambrosius, Mediolanensis: De Caim et Abel, in O[mn]ia Op[er]a, Basileae, 1506, (II, 10). 30 Thessalonians, V, 14 – 15. 31 That idea can be found in Cicero (cf. De Officis, I, 7) and also later in Marsilius of Padua (cf. Defensor Pacis, Part I, Chapt. XIX, § 13). The same idea was contemporarily defended by

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Not having done so, those responsible for the Eichmann trial, benefiting from an entirely different atmosphere and able to exercise individual judgment in a way Eichmann could not, became the protagonists of a tragedy in which evil constituted a reaction against evil. Because of that, when considering the Eichmann trial, a trial of the trial becomes inevitable: if any good was pursued by the same trial, it was consumed by the evil substantiated in its many faults. It is perhaps that evil that will resonate through the centuries, something that could paradoxically contribute to the forgetfulness of the evil contained in the Holocaust and that the Eichmann trial was meant to address. A danger looms in these circumstances: the lack of consideration by the judges of a material conception of lawfulness, their conversion into mere officers of positive law. In such a scenario the exercise of jurisdiction in modern democratic societies becomes another locus of the “banality of evil”. That danger is increasingly confirmed at a moment in which judges tend to behave as submissive recipients of laws affronting human life – unborn and terminal life. Indeed, that phenomenon precisely illustrates the possible conversion of judges into mere executioners of just any political will. 2. By making evil a reaction against evil, the Eichmann trial leads us to question its judges, judicial power and ultimately the very essence of a democratic state under the rule of law: in Eichmann in Jerusalem, Eichmann is not the only one on trial; the constitutional institutions of the western world are also being tested as to their capacity to react against evil in a rightful way, regardless of the precise configuration of evil – crimes against humanity, terrorism, xenophobia or other forms of intolerance. Given this scenario, an Aristotelian consolation can still be found in the idea according to which total evil destroys itself. Saint Augustine’s statement according to which good inevitably emerges from a well ordained evil also comes to mind32 – indeed, this latter statement leads us to hope that some good may result for future generations from the heavy legacy left by the Eichmann trial.

John Paul II in the following terms: to refuse to participate in the practice of injustice is not only “a moral duty”, but also “a fundamental human right”, Encyclical Letter “Evangelium Vitae”, No. 74. For further developments on this, see Otero, Paulo: “O direito fundamental a não participar num acto injusto”, in: Barbas Homem, Pedro et al. (eds.): João Paulo II e o Direito: Estudos por ocasião do 25.8 aniversário do seu pontificado. Cascais (Principia), 2003, p. 130 f. 32 Cf. Augustinus, Aurelius: Enchiridion, ad Laurentium o De fide, spe et caritate liber I, Chap. 10.

Hannah Arendt, the Legal and the Political

From the Total State to Totalitarianism: Carl Schmitt and Hannah Arendt* Alexandre Franco de Sá In the development of the concept of totalitarianism, Hannah Arendt’s analysis appears, since the 1950’s, marked by a fundamental ambiguity. On one hand, Arendt uses the term “totalitarianism” to refer to two concrete political regimes of the Twentieth Century: German Nazism and Soviet Stalinism, both of which are considered as unique and unprecedented in her work. On the other hand, Arendt also uses the concept of totalitarianism to refer to the existential situation capable of generating the appearance of such totalitarian regimes, a situation that – being the ratio essendi of Nazism and Stalinism – is not exclusive to the concrete configuration of these very regimes. To understand the limits and the reach of this ambiguity, it is important to consider two questions, and it is this consideration that will set the pace of our study. First, we will attempt to approach the origins of Arendt’s conception of totalitarianism, showing how the source of its ambiguity lies in these origins. Secondly, it is important to show to what extent it is this ambiguity that allows Arendt to allude to the human traits of the totalitarian phenomenon beyond the specific context of totalitarianism, thereby providing the background for Arendt’s allusion to the “banality of evil,” personified in the figure of former SS official Adolf Eichmann and evoked during the account of his kidnapping from Argentina and his trial and execution in Israel. We begin, then, with the origin of Arendt’s conception of totalitarianism. This conception originates from the notion of the “Total state,” coined by Carl Schmitt in early 1930’s Germany and based on Giovanni Amendola’s initial references to the Italian Fascist State as a stato totalitario. In Schmittian thought, this term is used after 1931 to characterize the political situation of the Weimar Republic, which in Schmitt’s eyes appeared to be the culminating moment in which the neutrality of the 19th Century liberal State, with its social non-intervention and its positivist and normativist understanding of law, could not help but retreat. In 1930, Schmitt published a short essay on the thought of Hugo Preuss, one of the principal mentors of the Weimar Republic Constitution, and Preuss’ conception of a liberal and democratic, neutral and multiparty state, in which the expression of public opinion would arise as the authority capable of resolving hypothetical conflicts between the democratically legitimized powers that mutually balanced and limited each other: on one side, the President of the Reich, as well as the Chancellor and the Government * Translated by Ashley Caja.

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named by him; on the other, the Parliament and the Parties represented within it1. Compared to such a conception, Schmitt’s subsequent characterization of the Weimar Republic as a “Total State,” – or, as he will explain, a “Total Party State” – cannot help but be highly controversial. And the controversial nature of this characterization will become clear upon considering three points that will allow us to understand its essence. The first point to consider in Schmitt’s confrontation with the Weimar Republic is the confrontation with that which could be called the hegemony of a positivist and normativist understanding of the law. In the Weimar Republic, law was understood as nothing other than the norms that the legislator had established, and the Constitution only an articulated set of norms that this same legislator could change through a set of determined procedures (approval by a two-thirds majority of the representatives). According to Schmitt, this understanding of law invalidates the distinction between juridical norms and the political order that serves as their foundation, thereby obstructing the understanding that the law involves a decisive element beyond the normative, and that a State could demand the formation of a “state of exception” in order to save and conserve its intrinsic order2. Reducing law to pure normativity and the State to a simple personification of the unit of the normative system as Hans Kelsen presented it, the Weimar Republic saw itself deprived of an understanding of the law that would prevent that which one would call its internal corruption, because it was open to transform the “spirit,” the “substance,” or the “essence” of its political constitution in the name of formal compliance of normative procedures. The second point of the confrontation between Schmitt and the Weimar Republic that led him to use the concept of the Total State to characterize the neutral, liberal Weimar State arises from the relationship between political parties and the State. According to Hugo Preuss’ depiction, as well as that of all those who build on the liberal idea of a dichotomy between an intrinsically free society and a neutral, limited State that is non-interventionist in relation to that society, society would be composed by the spontaneous competition among interests, opinions, and even “world visions” that, once organized, legitimately could aspire to the conquest of political power within the heart of the State. In the Weimar Republic, if the Constitution were understood not as a political “substance,” but rather as a series of norms lacking interpretation, the parties would organize themselves as social movements and interest groups that, against the State’s neutrality, would seek to occupy it and eventually transform it according to their own “world vision.” For Schmitt, in early 1930’s Germany, this was precisely the attitude of parties like the Communist party or the Nazi party. Finally, the third point for the controversial characterization of the Weimar Republic as a Total State arises from the parties’ gradual occupation of the State. If 1 V. Schmitt, Carl: Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre. Tübingen (Mohr), 1930. 2 V. Schmitt, Carl: Politische Theologie. Berlin (Duncker & Humblot), 1996.

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the parties progressively occupied the State, if the party officials gradually installed themselves in state roles, occupying the “State apparatus” and making it less and less distinguishable from the parties and their interests, it would mean that the liberal state, at first neutral and non-interventionist, would become an instrument of political intervention for those same parties. This intervention would correspond to not only an elimination of the State’s non-interventionism or neutrality in the social realm, but even to the extension of this intervention to all aspects of social life. Through their occupation of the state, the parties, having originated in society, would make the State indistinguishable from society itself, thereby transforming all aspects of social life into politics. In the final analysis, Schmitt calls this lack of differentiation between the state and society in the context of the Weimar Republic the appearance of the total Party State. As Schmitt writes, “The parties, within which the different interests and social tendencies are organized, are society itself turned Party State, and given that there are economically, religiously, and culturally driven parties, it is also no longer possible for the State to remain neutral in relation to the economic, the religious, the cultural. In the State that has turned into the self-organization of society there is nothing, not even potentially, that is not political and belonging to the State”3. The controversial nature of Schmitt’s characterization of the Weimar Republic as a Total State therefore becomes fully clear through this last point. On one hand, this characterization points at the dispersion of the state in all dimensions of social life and at its inability to make political decisions, confront interests, moderate the parties and govern society. As Schmitt will say, “The current German State is total because of its weakness and lack of resistance, arising from the inability to resist the assault by the parties and organized interests”4. In this sense, the total party state seems total due to the substitution of a rational, teleological government of men by a mechanical, efficient administration of things. On the other hand, this characterization refers to what in Schmitt’s opinion should be the response to the weakness of a total party state. Faced with this weak state, Schmitt calls on the necessity of a strong State, a State “total in the sense of quality and of energy, such as the Fascist ‘stato totalitario,’ which means, at the outset, that the new means of power belong exclusively to the State and serve its increased power”5. Schmitt’s distinction between a weak State, total according to its quantitative identity with society itself, and a strong State, total in the sense of its ability to qualitatively distinguish itself from society, governing it and determining it, is appropriate for other authors that, as Heinz Otto Ziegler did afterwards, trace the difference between the authoritarian State (a State strong enough to regain authority over society) and a total State (a State in which the difference between State and society, State and people, or State and Party vanishes)6. 3

Schmitt, Carl: Der Hüter der Verfassung. Berlin (Duncker & Humblot), 1996, p. 79. Schmitt, Carl: “Weiterentwicklung des totalen Staates in Deutschland”, in: idem, Positionen und Begriffe. Berlin (Duncker & Humblot), 1994, p. 213. 5 Schmitt (1994), pp. 212 – 213. 6 V. Ziegler, Heinz O.: Autoritärer oder totaler Staat, Tübingen (Mohr), 1932. 4

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With the Nazi arrival to power in 1933, authors like Ernst Fortshoff sought to interpret the emerging National-Socialist State as a Total State in the sense of a State endowed with authority, an Authoritarian State that would recover its qualitative difference from and its power over interests, parties, and social movements present in society. According to Forsthoff, the convergence between the Nazi Party and State power should mean the differentiation of the State not just from all parties in general, but also from the Nazi movement itself. Forsthoff writes: “The State and the movement are not mutually identifiable. The movement can emerge from the personality of its leader. The State cannot. […] The State is linked with tradition, law, and order”7. Naturally, Forsthoff’s proposal, placing the state on a higher institutional plan than the party and the Nazi movement, can only be rejected by Nazism. And it was rejected, explicitly, in an article written by Alfred Rosenberg for the first anniversary of Hitler’s rise to power, in which he said that what was being accomplished in Germany, for Nazism, was not “the so-called totality of the State, but rather the totality of the National-Socialist Movement”8. In the face of this rejection, Carl Schmitt, after his affiliation with the NationalSocialist Party, still attempts to propose an interpretation of the new German State as an overcoming of the State-society dichotomy, and as the substitution of this dichotomy by a triad composed of the people, the movement, and the State – a triad in which the movement would be the dynamic political axis of the political unit itself, connecting the State, the static-political pole, with the people, the non-political pole9. However, orthodox Nazi jurists explicitly rejected these compromising solutions, as in the case of Otto Koellreutter10, for whom the State, far from maintaining any authority or from being able to be qualitatively differentiated from the people or the movement, would only be an emanation, that is, an instrument placed at the service of the Nazi movement and reduced to the simple expression of a politicized nation, mobilized by the dynamism of that very movement. Therefore, it could be said that National Socialism interprets itself not as the coming of a Total, Strong State, but as an original political construction: a construction based on the representation of a weakening of the State, as well as the disappearance of the authoritarian, hierarchical, and binary structure which opposes governors and the governed, State and society. It is precisely this self-understanding that is Arendt’s starting point in her treatment of totalitarianism; she avails herself of it to implicitly articulate her conceptualization of the term with the traces of that which Schmitt called the Total Party State. Let us consider the way that she carries out this articulation.

7

Forsthoff, Ernst: Der totale Staat. Hamburg (Hanseatische Verlagsanstalt), 1933, p. 31. Rosenberg, Alfred: Totaler Staat?, in: v. Trotha, Thilo (Hrsg.): Gestaltung der Idee: Blut und Ehre. II. Band, München (Zentralverlag der NSDAP), 1936, p. 21. 9 Schmitt, Carl: Staat, Bewegung, Volk. Hamburg (Hanseatische Verlagsanstalt), 1933, p. 12. 10 V. Koellreutter, Otto: Volk und Staat in der Weltanschauung des Nationalsozialismus. Berlin (Pan-Verlagsgesellschaft), 1935, p. 11. 8

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As we have seen, the first trait that Schmitt attributes to the Weimar Republic, as a Total Party State, consists of the substation of political substance by the pure formality and normativity of the juridical order. Starting from this substitution of reality by form, it could be said that the Total State is a construction whose essence is characterized by the loss of the relationship with political reality itself. For Arendt, it is this very loss of contact with political reality that essentially characterizes totalitarianism. Both the juridical normativism that Schmitt analyzes and the totalitarianism that Arendt analyzes are characterized, before all, by preparing men and modern masses not to “believe in anything visible, in the reality of their own experience”: “What convinces masses are not facts, and not even invented facts, but only the consistency of the system of which they are presumably part”11. Arendt’s insistence on the importance of propaganda for totalitarianism evokes precisely this loss of contact with reality, calling attention to the fact that this aspect of totalitarianism, far from being limited to Totalitarian States, extends beyond them. In the same way that the functioning of Schmitt’s Total State erases reality itself by the normative, Arendt’s totalitarianism dissolves the reality shared by men in a media avalanche that forges in its place a fictitious world that is entirely coherent, systematic, hermetic and immune to life. As the second determining trait of the Weimar Republic as a Total State, as we have seen, Schmitt evokes the parties’ occupation of a neutral state that makes it indistinguishable from its partisan structures. According to Arendt, it could be said that totalitarianism is the consummation of this occupation, through the assimilation of the State and the party, and the transformation of the government into a “façade which hides and protects the real power of the party”12. This disappearance of the State authority, in its relationship of hierarchical superiority over society, allows Arendt to attribute to the totalitarian movement an “onion-like” form, in which the hierarchical or pyramidal structure of authority is substituted by a horizontal one, made up of chambers that, closing in upon themselves, isolate the interior ones from any contamination which would result from contact with the exterior world. Arendt writes: “Multiplication of offices, duplication of functions, and adaptation of the party-sympathizer relationship to the new conditions mean simply that the peculiar onion-like structure of the movement, in which every layer was the front of the next more militant formation, is retained. The state machine is transformed into a front organization of sympathizing bureaucrats whose function in domestic affairs is to spread confidence among the masses of merely co-ordinated citizens and whose foreign affairs consist in fooling the outside, nontotalitarian world”13. Compared to a State that presupposes pyramidal authority and governance, the totalitarianism conceived by Arendt – inheriting from Schmitt the idea of the gradual occupation of the State by the parties – is the destruction of the hierarchical structure of the state itself 11

Arendt, Hannah: The Origins of Totalitarianism. New York (Meridian), 1972, p. 351. Arendt (1972), p. 395. 13 Arendt (1972), p. 413.

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and its reduction to the fluid immanence of the movement, admitting that “any form of legal or governmental structure can be only a handicap to a movement which is being propelled with increasing speed in a certain direction”14. Thirdly, if Schmitt, when characterizing the Weimar Republic, associated the concept of the Total State with the politicization of all aspects of human and social life, it could be said that, in Arendt’s analysis, totalitarianism is this same politicization. For Arendt, totalitarianism, by politicizing all reality, defines itself in its relation with politics by the inevitable loss of facticity as well as the identification between the real and that which is possible for a power if no resistance is encountered. Arendt writes: “The trouble with totalitarian regimes is not that they play power politics in a especially ruthless way, but that behind their politics is hidden an entirely new and unprecedented concept of power, just as behind their Realpolitik lies an entirely new and unprecedented concept of reality”15. One could say that, if the human condition cannot help but be based on what Heidegger would call an experience of finite conditions – that is, being thrown into and dispersed in a world that is always already given – the totalitarianism that is at issue here is the promotion of an experience of a specifically inhuman world, in the sense that, within it, reality itself – far from having a strictly factual status, consistent and resistant to power – is reduced to something simply “posed” by the process of politicization and “exposed” to the power that determines that very process. The notion that Arendt’s characterization of totalitarianism finds its origin in the cross between the analysis of Nazism and Stalinism on one hand with Schmitt’s use of the concept of the Total State on the other is essential to understanding how Arendt will complement this characterization by invoking the type of person that the totalitarian experience promotes. As is widely known, the case of Adolf Eichmann will become the paradigmatic example for the characterization of the type of human being that totalitarian power cultivates. Upon characterizing Eichmann as a banal man, Arendt already develops her analysis in a way that expresses itself with the ambiguity of totalitarianism: far from basing itself on the brutality, the ferocity and the fanaticism of Hitler’s and Stalin’s minions, the foundation of totalitarianism is the creation of a man who is “normal, all too normal,” a type of man that can be developed and cultivated, with unpredictable consequences, in societies that configure themselves differently from the totalitarian societies of the 20th Century. To conclude, we shall briefly look at how this type of human being is articulated with the traces of totalitarianism present both in Schmitt’s analysis of the Total State and Arendt’s analysis of the totalitarian movement. It could be said that the reduction of the real to the normative, and the eclipse of factual reality’s abundance by propaganda’s constancy correspond to a man incapable of relating reality to what is said. This failure translates into two essential aspects. On one hand, that which is said is – to use Heidegger’s words – only a Gerede: that 14 15

Arendt (1972), p. 398. Arendt (1972), p. 417.

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which everyone says merely because it is said by everyone. Before all, the type of human in question here is banal precisely because he only says that which is said; he disappears behind the clichés that come out of him as is appropriate for the situation that he finds himself in. On the other hand, that which is said, having its source only in the commonplace that it originated from, no longer possesses any stability coming from the articulation with reality. Arendt’s description of Eichmann’s last words, after the verdict and before his execution, are the best example of the way of speaking unique to the man promoted by totalitarian power: “He began by stating emphatically that he was a Gottgläubiger, to express in common Nazi fashion that he was no Christian and did not believe in life after death. He then proceeded: ‘After a short while, gentlemen, we shall all meet again. Such is the fate of all men. Long live Germany, long live Argentina, long live Austria. I shall not forget them.’ In the face of death, he had found the clichés used in funeral oratory. Under the gallows, his memory played him the last trick; he was ‘elated’ and he forgot that this was his own funeral”16. If the reduction of speech to that which is said, to the Gerede, and the “horrible gift for consoling himself with clichés,”17 is the most immediate characteristic of the man shaped by totalitarianism, corresponding to the obstruction of the access to reality by an entirely coherent propaganda which closes in on itself, the parties’ occupation of the State apparatus – as occurs in Schmitt’s analysis of the Weimar Republic – as well as the reduction of the State to the expression of a party which determines it – characteristic of Arendt’s characterization of the totalitarian phenomenon – find its correspondence in the actions of a man reduced to the condition of a simple functionary. Since no one governs or makes transcendental decisions in a Total State and everything occurs as a pure and simple result of an administrative process in place that is immanent, the man produced by the totalitarian situation does not merely distinguishes himself by his functional efficiency, yet above all this same functional efficiency, as well as the successful career that such efficiency allows, becomes the only guideline for his activity. Eichmann is precisely the paradigm of a man whose actions are determined exclusively by the functional guidelines of efficiency and organization. Eichmann’s actions are justified, in his own opinion, by his technical efficiency; and this efficiency depends on a focus on means that, making the ends indifferent, eliminates any meditation on the ends themselves: “Eichmann claimed more than once that his organizational gifts, the coordination of evacuations and deportations achieved by his office, had in fact helped the victims; it had made their fate easier. If this thing had to be done at all, he argued, it was better that it be done in good order”18. Finally, corresponding to the politicization of the entire social realm – a determining element of Schmitt’s Total State and of Arendt’s totalitarianism – the totalitarian man emerges, not just characterized by a peculiar way of speaking and acting, but 16

Arendt, Hannah: Eichmann in Jerusalem. New York (Penguin), 1992, p. 252. Arendt (1992), p. 55. 18 Arendt (1992), p. 190.

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also – and above all – by a distinct way of thinking. Perceiving in Eichmann this paradigm of a different way of thinking which is manifested in his speech made of clichés and in his entirely functionalized actions, Arendt approaches Eichmann’s way of thinking by referring to an episode in which, during his trial, he “declared with great emphasis that he had lived his whole life according to Kant’s moral precepts, and especially according to a Kantian definition of duty”19. Not managing to relate with the reality in which others exist, reducing his actions to a mechanical functionality, Eichmann – the paradigm of the totalitarian man – is herein a man unable to think from the perspective or the place of the other. Therefore, in view of Eichmann’s pretension of having lived in accordance with Kantian normativity, Arendt observes that, during the trial, although Eichmann had came up, “to the surprise of everybody”, “with an approximately correct definition of the categorical imperative”, he “distorted it” to a sort of acting without thinking, merely following the positive laws. His Kantian conduct converges with the pure positivism of the following imperative: “Act as if the principle of your actions were the same as that of the legislator or of the law of the land – or, in Hans Frank’s formulation of ‘the categorical imperative in the Third Reich,’ which Eichmann might have known: ‘Act in such a way that the Führer, if he knew your action, would approve it’”20. As a final analysis, this amputation of man’s thought, this degeneration of man to a banal functionary, mechanically fulfilling his role and being incapable of thinking for himself or of comparing his judgments with others, is what allows us to understand Arendt’s perplexity in her evocation of a “banality of evil,” as well as justify the ambiguity inherent in her concept of totalitarianism. It is a banal man, like Adolf Eichmann, and not only a fanatic militant of a totalitarian ideology, who can corrupt his thought and his critical thinking to the point of saying only that which is said and of acting blindly according to what he has been ordered to do, even when it implies committing atrocious and criminal acts. And this confirms that totalitarianism does not exhaust itself, but rather extends its features beyond the totalitarian configurations of power and with its traces it strikes the various political forms in which men are educated to be banal and uncritical functionaries.

19 20

Arendt (1992), p. 135 – 136. Arendt (1992), p. 136.

Hannah Arendt and the Concept of Law: Against the Tradition Massimo La Torre I. This paper intends to present and discuss one of the sides of Hannah Arendt’s philosophical legacy that has been mostly neglected. The issue here is her concept of law in the framework of her wider theory of human conduct and of the life of mind. A connection will be attempted between her theorizing of thinking, willing and judging and her scanty, but astute remarks about the nature of law. Her concept of power (as opposed to the notion of ‘force’ and ‘violence’) will also be taken into account and considered and treated as a sort of introduction to the dimension of legal experience now seen no longer as a matter of coercion or command, but somehow as the representation of a play, a practice. Law to Hannah Arendt – it will be argued – is not there to reduce the number of chances given to human action, but instead to open new ways and novel areas of conduct. Law in short is not regulative, but constitutive. In this sense Arendt’s contribution is a criticism and an alternative to the traditional theory of law obsessed as this is by, and centred around, the experience and the mode of prescription. In spite of what she often said of herself, Hannah Arendt was not only a political theorist, but mainly a political philosopher, or better a philosopher without further qualifications. She had been taught philosophy – as is well known – by Heidegger and then by Husserl and Jaspers. Even if she could not start an academic career in the Germany of 1930s and had instead to begin in 1933 a long, adventurous and dangerous road as an expatriate and a refugee, indeed as a pariah1, she never stopped to read, discuss and write philosophy. And though her fame and recognition is connected especially to a political book as The Origins of Totalitarianism, her entire intellectual production is surrounded – I would say – by a philosophical and even metaphysical halo. On Human Condition, On Revolution, and The Life of Mind, her last, incomplete and posthumous book, are all works which directly address issues that we find dealt with in the great philosophical classics: the notion of action and practice, the question of freedom, the nature of thinking and reasoning, and eventually strictly metaphysical topics like free will, or “essence”, and the soul. Not to speak of her permanent med1 Cf. Shklar, Judith N.: “Hannah Arendt as Pariah”, in: Partisan Review, 50, 1 (1983), pp. 64 et seq.

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itations on the roots of evil. We know she was a secular thinker; nevertheless she did not eschew God and immortality as radical problems for a reflective mind. It is thus possible – I believe – to trace back and outline a Hannah Arendt’s metaphysics, although this is never systematic or explicitly presented as such. Moreover, this general philosophy of hers is the outcome of a dialogue she entertained with some of the most relevant philosophers of her time. Heidegger of course is ever present; but she’s hardly a Heideggerian herself2. Wittgenstein is not unknown to her and there is in several of her pages a special attention to Merleau-Ponty’s phenomenology. While she seems to care more for the Classics, Plato, Aristotle, Augustin, or for Kant, she’s speaking at the same time to her contemporaries. She does not ignore Carnap or Habermas, or the Oxford ordinary language philosophy. Her production – being highly original and sometimes even idiosyncratic in some formulations and in its terminology3 – is nonetheless full of reminiscences and influences. There is a radical democratic line4, I believe, that relates her to Italian political thinkers such as Andrea Caffi and Nicola Chiaromonte via Mary McCarthy5 and Dwight MacDonald. And there is in her work an interesting suggestive family-likeness with two other beautiful minds of her time, both women and philosophers, I mean Simone Weil and María Zambrano. A few of Simone Weil’s ‘motives’ are – I am sure – clearly to be echoed in more than one essay written by Hannah Arendt: for instance, the centrality given to membership (“enracinement”) for a meaningful human life, and the repudiation of “labour” (“condition ouvrière”) as as a dimension hostile to freedom. Their, Simone’s and Hannah’s, background and interests are much alike. Both have been educated through the study of Classics, especially of Ancient Greek literature and culture. Ancient Greek to both is the true philosophical language. And both have been philosophically schooled by charismatic teachers that move in the framework of existentialism or idealism, by Heidegger and Jaspers in the case of Hannah, by Alain in the case of Simone. María Zambrano shares some of the same features, though in her case the starting point is not German or Franch philosophy, but Ortega y Gasset’s refined eclecticism. 2

As a sample of Arendt’s attitude towards Heidegger’s grand philosophy, see her Preface in: Arendt, Hannah: Men in Dark Times. New York (Harcourt, Brace & World), 1968, pp. viiiix. Cf. also Flores d’Arcais, Paolo: Hannah Arendt. Esistenza e libertà. Rome (Donzelli), 1995, chap. 2. 3 A point that is emphatically and unsympathetically underlined by Sir Isaiah Berlin: see Jahanbegloo, Ramin: Conversations with Isaiah Berlin. Recollections of an Historian of Ideas. London (Orion Books), 1993, pp. 81 ff. 4 Hannah Arendt’s model of an ideal political order – we may remember – is repeatedly pointed out to be sort of a direct democracy, a ‘Räterepublik’, or a workers’ councils republic. See for instance the concluding pages of her dense book On Revolution (idem: On Revolution. Harmondsworth [Penguin], 1979, pp. 255 et seq.). 5 Mary McCarthy, for instance, tells of a meeting in Florence between Chiaromonte and Arendt to discuss their mutual views (see McCarthy’s Postface to Chiaromonte, Nicola: The Paradox of History. Philadelphia (University of Pennsylvania Press), 1985, p. 151).

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Nonetheless, Zambrano’s fundamental references are to be found in the Greek and Latin Classics and she makes of the inner life of mind one of her favourite topics. This time is not Augustin, but Seneca the central author of a reflection about the soul6. In Zambrano’s case too we find a passionate defence of politics as participation and somehow turbulence and an approach to political philosophy that does not pretend to avoid ontological or metaphysical interrogation. In short, ‘political, not metaphysical’ could not be a research programme either for Simone, or for Hannah and María. To this trio one should perhaps also add Rachel Bespaloff, whose wonderful essay De l’Iliade7was well known to Hannah Arendt8. Her existential condition was indeed close to that experienced by Bespaloff (they both were Jews, women and philosophers, seeking refuge from the horror pending on them and the world in Vichy France). Bespaloff’s sensitive remarks on the notion of law in Homer’s Iliad and the Bible, between Athens and Jerusalem, might have influenced a few of Arendt’s later ruminations. In particular Arendt would have shared the centrality Bespaloff gives to law, more than to philosophy, as founder and guarantor of the city, that is, of a common plural life without violence: “Peut-être est-ce le grand legislateur, et non le philosophe, qu’il faut considerer comme l’héritier légitime de la sagesse d’Homer et le successeur d’Hector”9. Yet Bespaloff seems to relate the sense and the rule of justice to the needs of life10, a claim that Arendt would strongly oppose. However, in my paper it’s not Arendt’s background and intellectual affinities that I propose to discuss. I would rather like to sketch what a possible concept of law we could derive from Arendt’s general philosophical theses. I would like to consider what place law could take in her ‘system’. My contention is that Hannah Arendt has indeed her own concept of law, that this is related to the web of her general philosophy, and that such concept of law is highly original and somehow opposed to most of the tradition in legal theory. I would dare to claim that her views on law are even more interesting and stimulating for lawyers and citizens than much of the current scholastic disputes among jurisprudents, for instance about the so-called nature of law or about ‘inclusive’ or ‘exclusive’ legal positivism.

II. 1. To understand Arendt’s notion of law we should first try to offer a scheme of her general philosophy. In a nutshell this is given – I believe – by three series of tripar6

See Zambrano, María: El pensamiento vivo de Séneca. Buenos Aires (Editorial Losada), 1944. 7 Bespaloff, Rachel: De l’Iliade. Paris (Allia), 2004 (1st ed. New York [Brentano], 1943). 8 See for instance Arendt’s reference to Bespaloff in her Men in Dark Times (Arendt [1968], p. 114). 9 Bespaloff (2004), p. 80. 10 Bespaloff (2004), p. 83.

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titions concerning respectively the sphere of (i) human conduct, of (ii) mind, and of (iii) power in general terms. The first series, the one about human acting, we find in her book On Human Condition. Here we are confronted with three phenomena and the correlative concepts that are seen as covering the whole of human practice. These are now well-known and are the following: labour, work, and action, or – said differently – labouring, or toiling, making, and doing, or acting. Labour human beings undertake and suffer to sustain and feed their vital cycle. Labouring is what people do to survive. It is oriented to the needs of life and is generally painful and subject to necessity. It’s an activity whose purpose is clearly outside itself. Sowing and harvest are instrumental to having food. Labour’s only sense is keeping alive human bodies and maintaining in motion men’s life. “Whatever labor produces is meant to be fed into the human life process almost immediately, and this consumption, regenerating the life process, produces – or rather, reproduces – new ‘labor power’, needed for the further sustenance of the body”11. Work is a different kind of enterprise. It’s the production of an artefact that has a form. Behind the artefact there is an idea, a model. Its outcome is not immediately destined for consumption. It is intended to last in time, to endure its own use. It is indeed to be used, not to be consumed and thus destroyed and absorbed through the vital cycle of life. A chair, for instance, clearly a result reached through work, is there not for consumption, but for use: it’s not to be devoured or digested just by somebody using it, that is by somebody sitting in it. However, this work, such making, has its own purpose once more outside of itself. It is a tool. Its intrinsic rationality, as the one engaged in labouring, is still fully instrumental. A flute-maker makes a flute for an end that is not the same flute-making. The activity does not stand on itself and needs an additional and external justification. Now, making’s having its own purpose beyond the reach of the making itself is its fundamental difference from action. In action, by doing, the purpose is within the activity itself. By flute-playing I do not pursue an end that is beyond flute-playing. Action is something we do for its own sake. And this is so, because action is somehow a collective enterprise, it is to be done in public, it needs an audience, people who gather together. The most relevant form of doing, of action in this sense, is – says Hannah Arendt – politics, people gathering to act in concert and deliberate about the content and the boundaries of their being together – which is the city. In this sense politics is somehow gratuitous: it’s not social. Arendt would have certainly endorsed Simone Weil’s following remark: “Cité, cela n’evoque pas du social”12. Politics according to Arendt’s view is not functional to still, to calm social needs. The city is not the social – this is the main thesis we find discussed in her book On Revolution. The political man is not a manager or 11 Arendt, Hannah: On Human Condition. Chicago (University of Chicago Press), 1998 (1st ed.), p. 99. 12 Weil, Simone: Venice sauvée. Paris (Gallimard), 1968, p. 44.

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an administrator, besides not being a father or a husband, or a master or a shepherd (which was a theme of On Human Condition). Social rights could be fatal to political rights that are the only ones that really make the difference in a democracy. In Arendt’s perspective social rights, being as they are subject to the necessity revealed by vital needs, are hostile to political rights that are founded on convention, not on nature, on freedom, not on necessity. Necessity does not know law and it can be disposed to break any rule of law. Moreover, social rights, as claims to receive some goods through delivery, can be easily fulfilled and – so to say – declined in a passive mood. Participation here may just mean having a share when and if something is delivered. It does not imply or require active involvement in the delivery itself. True citizenship hence cannot rest upon the urge or a devise to satisfy basic needs. Redistribution and social justice are external to citizenship – this is Arendt’s much disputed and controversial claim. 2. In the area of mind, of thinking in general we find another tripartition in Arendt’s work. This time it is the series: thinking, willing, judging. Thinking in the proper sense – we are told – is not equivalent to knowing. While knowing is a search for truth, thinking is a more general and basic intellectual enterprise. It is rather a search for meaning. Here Arendt relies on a famous distinction advanced by Kant, the one between reason, Vernunft, and intellect, or understanding, Verstand. While intellect is the faculty of knowing, by organizing and structuring sense data through concepts and propositions, reason is somehow prior to intellect in so far as it offers to the latter categories, ideas and principles. Knowing is the outcome of a question we raise about reality, about what it “is”. But in order to have and raise a question we should first conceive and understand it, we should make sense of the question itself, we should give it a meaning and a point (a relevance). In short, we should move from what it ‘is’ to what it ought to ‘be’. And this is only possible through a previous, more basic and transcendental mental activity which is thinking. Knowing is directed to reality; thinking is abstracting from it. To know I have to face reality, to approach it. To think I need to forget reality, to take distance from it, somehow to leave it. This is why traditionally philosophy – thinking to the utmost – has been often considered a kind of death; it means indeed to leave this world to reach the nowhere of thought-objects that are invisible, ghosts to the eyes of the practical man perhaps. It’s ‘apprendre à mourir’ – to recall Montaigne’s famous words. In this sense thinking is also opposed to doing. While I think – says Hannah Arendt – I cannot undertake a doing. I then find myself in the condition of suspending any doing, scholé, somehow a nowhere which I can then use as a yardstick to look at and measure reality, once I have to assess it. Thus, thinking is preliminary and necessary to judging. Thinking has to do with invisibles, with universals, while judging is addressed towards real things and it aims to evaluate its particulars, its concrete and singular items.

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When I say that something is right or wrong, I am judging, but I can do so because I have previously gone through a process of de-sensing sense data and of producing thought-objects before the mind, that is I have gone through a process of abstracting from the reality of particulars and reflecting over categories, ideas and principles. A general rule I find by thinking, since I need an effort of imagination, of seeing an invisible (the general rule). Judging instead is the capacity of referring a particular, a visible, to a universal, an invisible – the general rule – both in the case we have a universal ready at hand or not. A difficult task indeed. Judgment in short is required – to quote Hannah Arendt – since “no rule is available for the application of the rule”13, indeed a formidable sentence that we find repeated nearly expressis verbis in the late Wittgenstein’s work and in a page of Herbert Hart’s Essays in Jurisprudence and Philosophy14. By thinking I am ‘two-in-one’. I think in so far as I silently discuss with myself. In the nowhere of abstract thought and far away from the particular reality of doing, I am no longer one but two. However, these ‘two-in-one’ are not enemies: they should make friends, since they will find a way to ultimately reach an agreement. They listen the one the other, even if they dissent and disagree. This now is the point where the difference resides between thinking and willing. When I will, I am aware that I could not will. Or I shall say: ‘I will, but I cannot’. Thus ‘I will’ makes sense, in so far as ‘I nill’ is always open to me. The self of willing is gain a ’two-in-one’; but this time the ‘two’ I experience in myself are rivals. They do not claim for or give reasons the one to the other; they do not aim to reach an agreement and understanding. They are not ready to listen the opponent. They are willing instead to win, to overcome, to bend him. Their end is complete, final victory of the one over the other: the other’s surrender. I will, in so far as I do overcome the other within myself that does not will and resists. And by willing I affirm myself as I am at that particular, contingent moment of time. I do not forget myself at all; I do not withdraw from myself to find me as a ‘two-in-one’. “This bondage to the self – Arendt writes – distinguishes the I-will from the I-think, which also is carried on between me and myself but in whose dialogue the self is not the object of the activity of thought”15. By finally deciding, I am again one and only one. I am fully present to myself without a fastidious double. I am the one that wills and only what is that this one wills. Thinking in short is sort of dialogue, somehow an experience of ‘friendship’, friendship – to use Aristotle’s image – with the other self that is within oneself. Willing is a contest, a conflict, a fight; there is no friendship involved. It takes place within “the inner strife between what I would and what I do”16 . It’s – to use Augustin’s words 13

Arendt, Hannah: The Life of Mind. Vol. 1. New York (Harcourt Brace & Co.), 1978, p. 69. 14 Hart, Herbert: Essays in Jurisprudence and Philosophy. Oxford (Oxford University Press), 1983, p. 106. 15 Arendt, Hannah: Between Past and Future. London (Penguin), 2006, p. 161. 16 Ibid., p. 155.

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– a ‘hot contention’. Moreover, through willing I – so to say – cut the causal thread that connects fact to fact in a kind of genealogical chain, the great, iron chain of being. Willing has no genealogy, it doesn’t tolerate any; it’s a beginning for itself. It’s a reality jump, a somehow inexplicable novelty; it is the ontological root of freedom. Arendt stresses very much this point and somehow dramatizes it. The ontological queerness of willing is explained in terms of a kind of ontological ‘state of exception’, a coup d’état in the otherwise conservative and repetitive chain of being. “In respect to desire, on the one hand – she writes –, and to reason, on the other, the will acts like ‘a coup d’état’, as Bergson one said, and this implies, of course, that ‘free acts are exceptional’”17. Thus, Hannah Arendt notion of willing is a strong decisionist one, the epiphany of Ausnahmezustand. It’s fully sovereign, in the romantic sense that there is no justification for it. It’s an absolute beginning. Thinking and judging instead do not have this strong ontological and ‘exceptionalist’ implication. They might even be thought as indifferent towards liberum arbitrium, or else possible alternatives to its radicalism. Thinking deals with invisibles, ‘universals’, and it remains all the way through invisible; there is no eternal manifestation of it: it does not ‘appear’, while judging deals with ‘particular’, with visibles cases or items, which are then qualified intersubjectively and publicly. Thinking however prepares the way to judging: in a similar way cosnciousness is a preliminary to conscience. Thinking prepares and produces those ‘universals’ that judging is called to find and apply. In this sense judging is the visible and public moment of thinking, that is, a dimension where somehow thinking is finally confronted with a plurality of thinkers. “The manifestation of the wind of thought is not knowledge; it is the ability to tell right from wrong, beautiful from ugly”18. This implies that thinking is not fully severed from acting, that it is not but intrinsic to an alternative form of possible ‘good life’, vita contemplativa versus vita activa. Acting takes place in a context of plurality of judging mind and subjects, that are trained and prepared to such task, to judging, through their thinking. 3. Finally, there is Arendt’s third tripartition, the one concerning power in general. In her work the first and simplest notion of power is that of ‘strength’ or force, Kraft in German. This is individual power, the one I can use to bend an opponent’s will in an intersubjective intercourse, or to modify the shape, or to stop the movement, of an object. “Strength – writes Arendt – unequivocally designates something in the singular, an individual entity; it is the property inherent in an object or person and belongs to its character, which may prove itself in relation to other things or persons, but is essentially independent of them”19. There is no relationality, nor any need of a commonality of behaviour, to have strenght; it does not spring from coordination, but from the nature of the individual as such. 17 Arendt, Hannah: Lectures on Kant’s Political Philosophy, (ed. by Beiner, Ronald). Chicago (University of Chicago Press), 1989, p. 3. 18 Arendt (1978), p. 193. 19 Arendt, Hannah: Crises of the Republic. Harmondsworth (Penguin), 1972, p. 113.

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Arendt’s second notion of power here is that of ‘power’ in the proper sense, Macht, which is conceptualised as the capacity to act in concert. “Power – she writes – corresponds to the ability not just to act but to act in concert. Power is never the property of an individual; it belongs to a group and remains in existence only so long as the group keeps together”20. Political power is Macht’s paradigmatic expression. Power springs from coordination and concert and is the outcome of the mutual commitment of people. Strength we have in any case, since it is connected to the very life of any individual. Power we can have only by a collective engagement of individuals. Strenght is always there among humans; power requires special conditions: an agreement, promises, consent, an idea of a collective enterprise, and then conventional rules. “In distinction to strength, which is the gift and the possession of every man in his isolation against all the others, power comes into being only if and when men join themselves together for the purposes of action, and it will disappear when, for whatever reason, they disperse and desert one another”21. Power has a constitutive effect, since it produces a new scheme and novel scope for human behaviour. Strength is sterile, power is creative, as far as the faculty of opening new perspectives in the realm of action is concerned. There is in power “an element of world-building”22. Thus power takes always the upper hand; in a confrontation between “strength” and “power” the former will succumb: “No strength is ever great enough to replace power”23. Eventually, we have violence, Gewalt. But this kind of power in general is in fact a disruption of power in the proper sense, of Macht, of power as acting in concert. “The opposite of violence is not non-violence, but power” – Arendt writes in her Denktagebuch24. Power is communicative, discursive, violence of course not, and this is reflected in their respective rationality. “Violence […] – she says – is distinguished by its instrumental character”25. It is dominion, ruling definitely disconnected from being ruled, ruling over others – which can only be strictly instrumental or – to use Jürgen Habermas’ terminology – strategic. For violence all individuals are means; they are never partners. Here you move people by forcing them; but you do not move together with them. You push, but you are not pushed. So that we could perhaps say that the metaphor of violence is an unmoved mover, motor immobilis, causa non causata. Violence is extremely expensive in terms of energy involved, and it cannot reach the end of founding political order. “Power and violence – she says – are opposites; when the one rules absolutely, the other is absent […] Violence can destroy power; it 20

Ibidem. Arendt (1979), p. 175. 22 Ibidem. 23 Arendt (1968), p. 23. 24 Arendt, Hannah: Denktagebuch 1950 bis 1973 (ed. by Ludz, Ursula/Nordmann, Ingeborg). München (Piper), 2002, vol. 2, p. 698. 25 Arendt (1972), p. 115. 21

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is utterly incapable of creating it”26. Stability and the legitimacy – or ‘authority’, to use Arendt’s terminology – that accompanies stability are prerequisites of a political order, of Macht. Now, stability can be produced only through acting, action, the evidence of a common public sphere among a plurality of people. Violence does not overcome plurality; it can only suppress it by making individual freedom superfluous. Violence performs against plurality, which power, Macht, actually springs from. Violence we face and undergo as an event of nature; power we experience and practice on the contrary in the domain of conventional reality, a novel ontological dimension, once we are given a common scope of action through mutual commitment, through promises. Violence we suffer, Macht we enjoy. Violence does not only destroy power, but also law and the communication that nurtures it. Discourses are stopped; it is silence that wins. “When violence rules absolutely, as for instance in the concentration camps of totalitarian regimes – she writes –, not only the laws – les lois se taisent, as the French Revolution phrased it – but everything and everybody must fall silent”27. Through violence we get not only lawless, but rootless too; our commitment and our fidelity do not count and become pointless. Through power on the contrary we are given the chance of enracinement – to use a word cherished by Simone Weil –; since we have stake in it, we are committed to it, we are asked to share it. III. Now, how does law fit into this picture? Which role does law play within it? I can here only just outline an answer. I limit myself to list a few implications of Arendt’s views for the concept of law. A first implication is the following. In the picture Hannah Arendt offers us of the life of mind language can no longer be considered as basically descriptive or, in other words, oriented to truth and knowledge. Language we learn and receive in the form of speech, and speech cannot be explained or enjoyed as a sum of pictures of facts plus a few ejaculations as expressions of feelings, of pleasure or pain28. Language in its core is neither pictorial nor expressive or emotive. For Hannah Arendt language is oriented to meaning and this is different from truth and is prior to it. Meaning, not truth, will be the yardstick by which to assess the validity of linguistic utterances and sentences. This centrality of meaning, as disconnected from of truth, makes it possible to give a full acknowledgement to all those forms of language that are not knowledge-oriented. If language in general is no longer paradigmatically cognitive, but rather imaginative, or widely normative, dealing that is with “universals” or “invisibles”, the language of law – which clearly is far from hav26

Idem, p. 125. Arendt (1979), p. 18. 28 See Arendt (1968), pp. 15 – 16.

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ing a descriptive or cognitive function – will be fully meaningful in its own right. Legal language and rules will not be less rational than most of ordinary language. In Arendt’s perspective therefore law will not be seen as an irrational, emotive, domain of human experience. It can be treated as much cognitively and rationally as other forms of language and speech. Moreover, if law is not cognitive, but at the same time is meaningful and principled, and meaning is seen as somehow prior to truth, since it gives the latter its point and its principles – and this seems Arendt’s view –, we shall no longer be lured to assume an imperativistic notion of law. That is, we shall be free to deny that law is descriptive and prescriptive (prescription being considered, in a cognitivist paradigm of language, the only serious alternative to description), and still be able to maintain that law is meaningful. Within Arendt’s semantics, thus, the fact that law is not cognitive does not push law in the domain of willing, of prescriptions and imperatives. Thinking and judging in her theory of the mind are separate both from knowing and willing. Now, the conclusion that law is not imperative is drawn by Hannah Arendt herself. Law to her is not a practice or a device that is aimed to restrain or reduce the plurality of human conduct. In the human condition law’s place is within action and serves to give an institutional stability to power in the proper sense, to Macht. Law is kind of “walls” for power. “Just as a city – she writes – could come into being physically only after the inhabitants had built a wall around it, so the political life of the citizens […] could begin only after the law had been posited and laid down”29. Law is sort of a fence30 that qualifies a space as playground. Human conduct is not necessarily constrained or limited through law. Law on the contrary is something whose function and effects mainly are to increase the scope of possible courses of action. Let me quote from her essay On Violence, where she lays down a sort of definition of law that I find remarkable. The point of legal rules – she writes – “is not that I submit to them voluntarily or recognize theoretically their validity, but that in practice I cannot enter the game [of the law] unless I conform; my motive for acceptance is my wish to play, and since men exist only in the plural, my wish to play is identical with my wish to live”31. Inter homines esse, moving among human beings, is equivalent – she recalls – to sheer living. There is no other way for us. And law offers us the scope for the relationality that makes our human life what it is. This is why “the common dilemma: either the law is absolutely valid […], or the law is simply a command with nothing behind it but the state’s monopoly of violence is a delusion. All laws – she concludes – are ‘directives’ rather than ‘imperatives’. They direct human intercourse as the rules direct the game”32. Law – summing up 29 Arendt, Hannah: “The Great Tradition I. Law and Power”, in: Social Research, 74, 3, (2007), p. 717. 30 See Arendt (1968), pp. 81 – 82. 31 Arendt (1972), p. 157. 32 Ibidem.

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– is the structure of action in its paradigmatic form of communal power, Macht. And law’s binding force and validity are not derived from violence or from sanctions, not from the threat of an evil, nor either – it is to be noted – from morality, but from the reality of acting in concert and from the mutual commitment that this reality refers to. Indeed, Hannah Arendt’s anticipates much of contemporary legal neo-institutionalism for which it’s not commands or prescriptions the basic moods or ‘pieces’ or basis of legal norms but rather ‘institutions’, meant as sort of (serious) games, or areas where to develop and perform actions33. Law to her is not a practice or a devise that is addressed to restrain or reduce the plurality of human conduct. Human conduct is not constrained and – so to say – limited through law. Law on the contrary is first and foremost something whose function and effects are to increase the scope of possible courses of behaviour. It is plausible to conceive law as a coercive and repressive enterprise, if we look at it from the angle of criminal law. But criminal law is a piece of a wider puzzle, whose framework is laid down by rules that are not ‘imperatives’ (as usually criminal law rules are), but rather – to use Arendt’s terminology – ‘directives’. To reach this conclusion Arendt bases her argument on Alessandro Passerin d’Entrèves remarks in his book The Notion of State34. Passerin d’Entrèves, an Italian legal philosopher, and an old friend of Norberto Bobbio’s and a colleague of Herbert Hart at the Oxford University, to explain law referred to the practice of a game. In a game rules are followed as valid, though they are not coercive and backed by some kind of punishment. People abide by them voluntarily. Passerin d’Entrèves in short assumes that most of legal rules are binding independently from their possible sanction. He stresses the element of spontaneous allegiance that they are resting upon. In conceptualizing the dichotomy ‘directives’ versus ‘imperatives’ Arendt goes much further; she reshapes the non-coercive character of several legal rules not so much in terms of spontaneity, but by directing her attention to the logical and ontological features of the rules in question. In a game rules are not only regulative, or imperative, in the sense game rules are basically “constitutive” ones, ones that serve to make the game possible and practicable, as a special sphere of conduct. Without chess rules there is no chess; on the contrary without criminal law rules on murder, there is still murder unfortunately going on among human beings and murder can still be conceived as a wrong. Hannah Arendt takes Passerin d’Entrèves’ point about law being similar to games and radicalizes further. In her essay On Violence, she writes: “I think Passerin d’Entrèves’ comparison of the law with the ‘valid rules of the game’ can be driven further. For the point of these rules is not that I submit 33 For an overview of legal neo-institutionalist views, cf. my Law as Institution (Dordrecht, [Springer], 2010, chap. 4), and also my article “Ota Weinberger, Neil MacCormick e il neoistituzionalismo giuridico”, in: Zanetti, Gianfrancesco (ed.): Filosofi del diritto contemporanei. Milan (Cortina), 1999, pp. 1 ff. 34 Passerin D’Entrèves, Alessandro: The Notion of State. Oxford (Oxford University Press), 1967. See the Italian original, La dottrina dello Stato, 2nd ed., Giappichelli, Torino 1967, especially p. 187.

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to them voluntarily or recognize theoreticaly their validity, but that in practice I cannot enter the game unless I conform”35. Arendt, in short, somehow reproposes John Searle’s distinction between ‘regulative rules’ and ‘constitutive rules’ presented by the American philosopher in his seminal book Speech Acts36, without – I suspect – being aware of such distinction. And she makes this distinction in a pivotal moment of her concept of law. Reconceptualizing law in terms of ‘directives’ or – to use John Searle’s terminology – of ‘constitutive rules’ has revolutionary consequences for the whole of legal theory. A first consequence is a different idea of what the binding force of a legal provision consists of. In the traditional legal doctrine rules’ binding force or, if you prefer, normativity, is based on the rule being backed by a sanction, a sanction being an evil which is threatened for the case of the violation of the rule. Here the mode for the production of a norm is a command, a will addressed to compliance and supported, should it become necessary, by coercion, violence, that is, the infliction of an evil to the non-complying subject. To have a sanction thus we need a previous command, and a command implies a command-issuer endowed with the power and force appropriate to bend the will of the people addressed by his orders. Command is privilege of a superior, a rule is the destiny of an inferior. This is the traditional picture of law. Sometimes, within this picture, specifically concerning the issuing of commands and the performance of coercive acts to make them effective, legal theorists, in order to claim for the normativity of those commands, ask for an additional moral justification. Command and violence should thus be accompanied by a scheme of moral justification. Such scheme however does not change the ontology of the command-obedience situation; it can only colour it with some blend of morality. Duty, and the corresponding binding force, would be the combination of power plus moral justification. More often than not legal theory adds that power as a factual situation is also able to produce normativity, either through a kind of ontological dynamical drive (Georg Jellinek’s normative Kraft des Faktischen), or in so far as its operations are normally moral as such (law as required by – and instrumental to – the common good). Factual authority thus – says for instance John Finnis, a contemporary natural lawyer – enjoys a moral legitimacy in so far as it is effective, since it is only through effective authority (command) that we could organize society and implement some common good. It is a “perhaps scandalously stark principle”37 – he admits it –; but we don’t have an alternative. Or rather there is an alternative, anarchy, but this would be disruptive of any form of common good among human beings. However, once we believe that legal rules are not imperatives, that is commands, but instead “directives”, kind of game rules, constitutive rules, rules that do not impose obligations, but for instance ascribe powers (see e. g. H. L. A. Hart’s “secondary rules”) or define situations giving them a special sense or value, or rules that qualify 35

Arendt (1972), p. 157. Searle, John: Speech Acts. Cambridge (Cambridge University Press), 1967. 37 Finnis, John: Natural Law and Natural Rights. Oxford (Clarendon), 1980, p. 250.

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events, so that now x ought to stay for y, then we should acknowledge that – and this is again a quotation from Arendt’s essay On Violence – “the sanction of laws […] are not their essence”38. We may recall that Hans Kelsen, perhaps the most prominent among legal positivist jurisprudents, said just the opposite and claimed that sanctions are the main concern, indeed the very intensional object of legal norms. But if legal rules do not always and conceptually have as their object sanctions, or else are not necessarily backed by sanctions, what is their normativity based on? Now, Arendt’s answer to this question is quite different from the one usually given by traditional legal theory which, when normativity is no longer conceptualised as resting upon force, makes reference to a special political or moral obligation that can or cannot be intrinsic to the form of law. Law’s normativity would thus be equivalent to laws’ moral or political legitimacy or justification. However, for Hannah Arendt a moral or a political obligation is sort of nonsense. It is a nonsense, because a moral or political obligation should be confirmed by an exercise of thinking. Now, thinking is an enterprise that, though it has to do with invisibles, with universals, is punctual, contingent. Thinking starts every time anew, from the beginning. Precedents here are not binding, and there are not positive rules that could not be waived. No exclusionary reasons are admitted into this domain. Thinking does not accept others’ conclusions nor does it reach conclusions of its own that could not be defeated though a further exercise of thinking. This indeed is the strength of conscience, and this is why wickedness can be traced back to a lack of thinking. Thoughtlessness can lead to immoral behaviour, into evil even. Radical evil might thus be said to be a denial of the necessary conditions of both ‘thinking’ and ‘doing’: against ‘thinking’, because it is thoughtless; against ‘doing’, because it is hostile to plurality and novelty. Radical evil indeed is an extreme form of thoughtlessness, one expression of which, and one of the most dangerous and full of terrible consequences, is the incapacity to discuss within oneself, in that ‘two-in-one’ that is thinking, orders and commands. In fact, thinking tends to put in question whatever it deals with. “Thinking inevitably has a destructive, undermining effect on all established criteria, values, measurements of good and evil, in short, on those customs and rules of conduct we treat of in morals and ethics”39. Thinking has a subversive trait and character that is intrinsic to conscience; such character however renders conscience somehow dangerous and fatal to law. Law needs a stability and a reliability in its own binding force that moral justification, in so far as it is related to thinking, seems to be incapable to offer. Moreover, when we think, we are somehow in a ‘nowhere’, we retreat from any membership, while the law refers to a special place that makes a difference to us and thus can provide for a sense of belonging. “The everywhere of the thinking ego […] is a nowhere”40. 38

Arendt (1972), p. 156. Arendt (1978), Vol. 1: Thinking, p. 175. 40 Idem, p. 200. 39

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The special and stable normativity of law is given though its particular “constitutive” nature. Law somehow creates, ‘constitutes’, a new reality, the ‘city’, so that if we stick to such reality, if we intend to be a ‘citizen’, that is, to act within that new reality, we should follow that law, or better make use of it, employ it. “My motive for acceptance – says Hannah Arendt – is my wish to play, and since men exist only in the plural, my wish to play is identical with my wish to live. Every man is born into a community with pre-existing laws which he ‘obeys’ first of all because there is no other way for him to enter the great game of the world”41. We have above considered Arendt’s tripartition of mind’s forms of engaging itself: thinking, willing, judging. Now, which of these three forms is the one that better relates to legal reasoning? There can be little doubt – I believe –: it is judging. Thinking is too abstract and unstable; it also develops in a no man’s land, in a nowhere of invisible entities, concepts, universals, and far away from other people and from common sense reality. Law, however, is embodied in reality; it is a founder of realities. For judging there must be a starting point, or at least a ground to finally reach and tread on, and the law offers itself as such ground; thinking on the contrary dissolves whatever ground is offered to it. “Thinking must always begin afresh”42, which would be too much for the law to put up with, since it would make it impossible for legal rules to comply with their role. Thinking indeed is somehow hostile to general rules. When thinking, “if what you are doing consisted in applying general rules of conduct to particular cases as they arise in ordinary life, you will find yourself paralysed because no such rules can withstand the wind of thought”43. To Arendt laws, legal rules, are ‘ideas’, in term of ‘causes’, not of ‘essences’, of human reality44, of that reality that is given between human beings in the space that their plurality opens up. Therefore law cannot do without common sense, the sixth sense – says Arendt – that connects all the others five to the context of being. Common sense is a sense of being that is preliminary to empirical concrete experience. It’s a sort of pre-understanding of reality, and we strongly need it in the law, since this, differently from morality, has a context, a time and a place, and rests upon effectivity. IV. Traditionally, it is willing, decision, that is considered to offer a phenomenological basis for law. Law is command, is prescription, is discretion – this is what Law Schools and the ‘tradition’ tell us. Willing is seen as consisting of a practice of commands and obedience. I will in so far as I find a resistance in the intention I am expressing. There is a will if there might be an opposition, Augustin’s ‘hot contention’. A decider is related to some opponent. It’s somehow the Hegelian dynamics of a mas41

Arendt (1972), p. 157. Arendt (1978), Vol. 1: Thinking, p. 178. 43 Idem, p. 175. 44 See Arendt (2002), Vol. 1, p. 465. 42

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ter measuring and proving himself against a slave. Decisions, willing, will fit very well in a picture of law considered as series of commands, of imperatives. But if law is reshaped as consisting mainly of directives, of rules opening not closing, increasing not reducing courses of action, adding not deleting the number of chances and crossroads along our road, what we need and should refer to is rather judging, the faculty of finding the normative general clause through which to cover and give sense to the particular situation we are called to deal with. So, it’s judging the faculty of mind that law mostly and basically requires. But for Hannah Arendt judging is something that has to do with doing. Judging, a mind’s faculty, and doing, acting, a practical activity need and refer mutually to each other, in the sense that action refers to deliberation and that judging has to be confirmed publicly. Judging, like doing, has to do with the world of visibles, not of invisibles. It takes place in a contest of appearances; it should be able to be shown. Law is a matter of action, not of labour, nor of work, of making. Its meaning is in a sense intrinsic to itself; its mood is not consequentialist, but deontological. Its point is to allow people to enjoy a special portion of reality that it opens up. Law’s point is not beyond law. Law thus is somehow equivalent or coextensive to action, to vita activa, and it’s a matter of power, Macht, somehow of acting in concert for the acting in concert’s sake. Law – she says – is an “institution of power”45. And power should refer to constitutive rules to produce and stabilize its own world. “In politics not life but the world is at stake”46. The same holds for the law. To law is intrinsic the mode of foundation. Collective bodies, societies are initiated through some act of foundation. And this to take place and be visible and durable has to assume the form of the law. The law in this sense is beginning, an initium. Such property marks its difference from the very distinct phenomenology of empirical necessity and of its being conceptualised and reported through scientific laws. Laws as statements of causal necessity are in no possible way a beginning; they confirm or certify a repetition, a perpetual return. But the law in the normative and legal sense is the marking of a break in the causal chain. Something new is happening and is laid down. Natality somehow is the event passing a law can be compared to. Natality however is the event which – according to Arendt – better instantiates and explains freedom. Freedom, liberty, is not to be thought of mainly as a moment of willing, in the tradition of ‘free-will’ doctrines. It is not an inner experience, an intimate expression of endorsement, but rather as a faculty, a capacity to act. This capacity is expressed and realized by altering the necessity of causal laws and life cycles; it is the faculty of beginning a new scheme of conduct. Freedom thus is fundamentally initium, giving birth to novelty. Its primordial roots we find in the fact that men are born anew each time and so they start a new story. Natality is the basic form of initium, and it opens up to the existential experience of freedom. 45 46

Arendt (2002), Vol. 2, p. 676. Arendt (2006), p. 155.

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Now, the political experience of freedom is to be found in the constitutional moment, the practice and the act of founding a city, a body politic. This is the social pendant of individual natality47. Likewise, and consequently, law, the rules that lay down the institutional framework of a commonwealth, of the res publica, the ‘city’, are to be referred to natality, since they are an initium for public life. Here also we find – according to Arendt – a chance for a reconciliation between liberty and authority, since the liberty of the initium, the constitution, is the ground of the following acting in concert of citizens. These will find moreover in that primordial act of freedom a source and a reason of their abiding by the rules addressed to them through republican institutions. By the law a jump, a breach, a break, is brought about in the great chain of being; likewise through natality a new being was born to us, to the world. Law in a sense reformulates the novelty, the ‘miracle’, which is an essential feature of human affairs. This is announced by the fact of natality, this is also all the difference between ‘nature’ (where rule causal laws) and ‘history’ (where we only get normative rule, the laws of lawyers, lawgivers and citizens) nature is made of necessity, history of action. “Historical processes are created and constantly interrupted by human initiative, by the initium man is insofar as he is an acting being”48. Every act is somehow a “miracle”, in so far as it is not fully determined through eternal necessity. “Every act, seen from the perspective not of the agent but of the process in whose framework it occurs and whose automatism it interrupts, is a ‘miracle’ – that is, something which could not expected”49. Law is the formulation and the visible entity of such miracle. As a matter of fact, law is both the beginning and the end of a process of deliberation and of doing in concert among human beings. Acting in concert presupposes normative rules in order to happen and succeed; and its final success and result ends up in some sort of decision or conclusion that takes the form and the effect of a rule constituting a context for new, future action. Such moment or act of founding is hardly to be conceptualised as labouring, for it is somehow independent from life needs and their satisfaction: normative rules, a constitution, are not directly instrumental or material to needs satisfaction. They deal with a public sphere to be founded and guaranteed, not with the good life each of us try to pursue according to his wishes and interests. It is not either an act of making, of fabrication, since the law is not an artefact that once issued or made becomes independent from a repetition of the mode of its production. Law in this sense is like a piece of theatre. To make sense and be what it intends to be in the world a piece of theatre should be performed. It is there to be performed. It is theatre, if it is performed. The same could be said of a concert or of a symphony. The law too is there to be used, ‘performed’ also, to be followed and abode by. 47

Cf. Brunkhorst, Hauke: Hannah Arendt. München (Beck), 1999, p. 29. Arendt (2006), p. 169. 49 Idem, p. 168.

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Nonetheless, we are often confronted with an understanding of law in terms of a fabrication and with doctrines that view law “entirely in the image of the making”50. But then violence, not power, is likely to be the outcome; here indeed the law will be a great constitutional failure, since it is immediately applied as an imperative, a command whose sense however should inevitably be found elsewhere. We eventually reach a point where law and power overlap, but not in the Weberian sense of law being instrumental to specific pre-political social interests. We have power, if we are within the law. And law is binding in so far as it’s bathing – so to say – within power, within people acting together and building their special collective reality. Law produces a world that then only can give existence to the law as long as it lasts and is able to last. “Political institutions, no matter how well or how badly designed, depend for continued existence upon acting men; their conservation is achieved by the same means that brought them into being”51. This, by the way, is the reason why Hannah Arendt is so sceptical about human rights as distinct from citizens’ fundamental rights. A human right that is not immediately translated into citizenship is a right without the ‘walls’ of a city (Arendt likes to quote a fragment by Heraclit, B 44, where the Greek philosopher uses the metaphor of the ‘walls’ to explain the role and the relevance of laws), that is, without a context of positive rules and a space of common action; hence it is somehow a shadow, since there is no Macht behind it, no citizens gathering to protect it, no common public realm, no possibility for the rights holders to deliberate and decide on their own rights. “The Rights of Man, supposedly inalienable, proved to be unenforceable – even in countries whose constitutions are based upon them – whenever people appeared who were no longer citizens of any sovereign state”52. Human rights imply a constitutional order and this cannot but be rooted in a concrete political community that has specific borders. There is no global citizenship that is more than a façon de parler: “Nobody can be citizen of the world as he is the citizen of his country”53. In this perspective there cannot be then a question of separation between law and politics, because law is radically an outcome of politics and politics is ontologically a rule of law. However, power can be ‘divided’, while this is impossible to violence. And it’s impossible to willing too; willing is a self-affirmation of a unitary self that has overcome division. It is monological, it is tyrannical; and it should be so. Arendt somehow shares Carl Schmitt’s radical views on human decision. Yet this to her is just a reason why not to assume a decisionist view of power. Decision is not argumentative and can hardly be shared. It does not fit very well in that paradigmatic domain of acting in concert that are politics and power.

50

Idem, p. 139. Idem, p. 152. 52 Arendt, Hannah: The Origins of Totalitarianism. New York (Schocken Books), 2004, p. 372. 53 Arendt (1968), p. 81. 51

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Division and separation indeed are internal to power, since power is a matter of coordination and concert and bases on the experience of plurality. Power and law share the same code of human conduct. They permanently refer the one to the other. Law is the outcome and the authoritative basis for power. This is finally the ground why power cannot really be limited or controlled by law as an independent entity: the ontology of power is the same as that of law. “Power can be restrained by law but ultimately can be checked only by power”54.

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Eichmann in Jerusalem: Between the Legal and the Political in Hannah Arendt’s Thought* Rui Guerra da Fonseca Introduction The subject in question – an analysis of the Eichmann trial in Jerusalem, in the light of a duality of intentionalities reflected on Hannah Arendt’s thought, between the legal and the political – is originated by a retrospective reading of The Life of the Mind, which would be Arendt’s last book, resulting from texts of academic lessons and lectures – initiated in 1972 for presentation in the following year at the Gifford Lectures1. Hannah Arendt died suddenly on the 4th December 1975, a Thursday, and she had just finished the second part of The Life of the Mind – “Willing”2 on the previous Saturday. Originally conceived in three parts – “Thinking”, “Willing” and “Judging” (as the core of The Human Condition: “Labor”, “Work” and “Action”3) – The Life of the Mind would nevertheless see the light of day with only the first two. However, Mary Mccarthy’s edition includes an Appendix (Judging), which consists of excerpts from Arendt’s lectures on Kant’s political philosophy concerning the critique of judgment4. A retrospective reading, as said above, not only because The Life of the Mind is subsequent to the first edition of Eichmann in Jerusalem – A Report on the Banality of Evil (1963), but above all because the latter seems to have marked a fundamental moment of Arendt’s thought that would reach its highest point with the first, Hannah * I would like to thank Paulo Rodrigues, professional translator, for proof reading the following text. 1 Cf. Mary Mccarthy’s “Editor’s Note”, in: Arendt, Hannah: The Life of the Mind – Vol. 1: Thinking. San Diego/New York/London (Harcourt), 1978, p. xiii, and her “Editor’s postface”, in: Arendt, Hannah: The Life of the Mind – Vol. 2: Willing. San Diego/New York/London (Harcourt), 1978, pp. 241 ff. 2 Cf. “Editor’s postface” in: Arendt (1978), p. 241. 3 Cf. Arendt, Hannah: The Human Condition. Chicago (University of Chicago Press), 1998. 4 According to Mary Mccarthy, after Hannah Arendt’s death “a sheet of paper was found in her typewriter, blank except for the heading ‘Judging’ and two epigraphs. Some time between the Saturday of finishing ‘Willing’ and the Thursday of her death, she must have sat down to confront the final section” – cf. “Editor’s postface”, in: Arendt (1978), p. 242.

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Arendt’s last work. Right at the start of the Introduction of The Life of the Mind, Hannah Arendt makes a point of explaining that the Eichmann trial constituted one the determinant facts – “the immediate impulse” – of her concern with mental activities, due to the thoughtlessness (absence of “thinking”) which surprised her so much in the former lieutenant colonel of the SS: that lead directly to the first part, “Thinking”5. It is not so much what the observation of Eichmann himself brings, but another perspective that matters. In fact, Eichmann in Jerusalem is a report (as the subtitle itself expresses) – an analysis – traversed to the last line by a duality of intentionalities or “dispositions” (in Arendt’s words) that finds expression in the counterpoint between the “spectacle” or “political show” set up by David Ben-Gurion, Israeli’s Prime-Minister – responsible for Eichmann’s capture in Argentina – and for the staging of the trial’s ambiance (we will see that this is not a high sense of the political, contrary to others, namely the one implied in both the attitude and action of the three judges who conducted the trial and ruled the final decision6), and the trial itself as a legal procedure and its final decision. In a passage of the epilogue of Eichmann in Jerusalem, together with a quotation of the Court, Hannah Arendt gives us – perhaps clearer than in any other occasion – a notion of the impact that duality produced on her thought, and where the affinity with what would become The Life of the Mind ten years later unequivocally begins to take shape. With reference to the problem of the plurality of purposes that some (or almost everyone?) wanted the trial to serve (like the Court said: “all of which were ulterior purposes with respect to the law and to courtroom procedures”), and underlining that “[t]he purpose of a trial is to render justice, and nothing else”7, the Court would point 5

Cf. Arendt (1978), Vol. 1: Thinking, pp. 4 ff. Which is generally praised by Hannah Arendt, despite her divergence about what should have been its justification. There are several reports on the Eichmann trial, sometimes emphasizing the whole trial staging and its antecedents, sometimes enhancing an objective view of it. Usually, though, we can find in those reports a constant giving in to subjectivity, to that subjectivity of a person who is observing the unfolding of facts and life stories of atrocity by witnesses (and sometimes his or her family’s or friends’ own stories), all in the presence of Eichmann himself (to what it was certainly impossible to remain indifferent). Giving in considerably to that subjectivity, but very aware of it, Haim Gouri says (to himself, and even in other words on more than one occasion): “In the end, you have to remind yourself that this is a court of law. The power of the trial arises, in part, from these hours that seem to be wasted on dry, long drawn-out arguments, on technicalities. [§] But the trial will eventually return to the substance of the case, and you will once again be enveloped in that atmosphere that is so difficult to convey.” (cf. Gouri, Haim: Facing the Glass Booth. Detroit [Wayne University Press], 2004, p. 138). And is it not The Life of the Mind, Hannah Arendt’s last effort for (her) objectivity towards the Eichmann trial, working over an evidently felt conflict, which is than elevated to a theoretical possibility (objective)? 7 That can be seen as a clear call to the foundations of the ‘rule of law’, and an expression of the Court’s essential ‘legalistic approach’ (about the idea of legalism, starting with a generic but fundamental notion as “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules”, cf. Shklar, Judith N.: Legalism. Law, Morals and Political Trials. Cambridge/London [Harvard University Press], 1986, pp. 1 ff., passim). 6

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out an idea as determinant in itself as for what it awakened in Arendt’s mind: “The court, moreover, could not overstep these limits without ending “in complete failure”. Not only does it not have at its disposal “the tools required for the investigation of general questions”, but it also speaks with an authority whose very weight depends upon its limitation. “No one has made us judges” of matters outside the realm of law, and “no greater weight is to be attached to our opinion on them than to that of any person devoting study and thought” to them8. What must be emphasized here is the expression study and thought: if judging isn’t contained in them, they certainly are a condition of the latter. Hannah Arendt didn’t finish “judging”; but she undoubtedly started to unveil that, for that, the mind must take from “thinking” the quietness and passiveness that characterize it. And this already calls for a more detailed analysis.

I. For Arendt, what is at stake is “the Will as the spring of action, that is, as a ‘power of spontaneously beginning a series of successive things or states’ (Kant)”9. If the Will “is as obviously our mental organ for the future as memory is our mental organ for the past”, it can then be very well said that “the basic trouble with the Will is that it deals not merely with things that are absent from the senses and need to be made present through the mind’s power of re-presentation, but also with things, visible and invisible, that have never existed at all”: on the turning to the future – “that in principle is indeterminable and therefore a possible harbinger of novelty”10 – the worry isn’t anymore “with ‘objects’ but with projects, and it is not decisive whether they are formed spontaneously or as anticipated reactions to future circumstances”; and so, “just as the past always presents itself to the mind in the guise of certainty, the future’s main characteristic is its basic uncertainty”11. Taking the perspective of self-individual, for Hannah Arendt “[t]here can hardly be anything more contingent than willed acts, which – on the assumption of free will – could all be defined as acts about which I know that I could as well have left them undone. A will that is not free is a contradiction in terms – unless one understands the faculty of volition as a mere auxiliary executive organ for whatever either desire or reason as proposed”12. What in modern age emerges as entirely new – characterizing it, emphasizing the “future” as a domain of the will which started to substitute Reason as the higher 8

Cf. Arendt, Hannah: Eichmann in Jerusalem. A Report on the Banality of Evil. London (Penguin), 2006, pp. 253 – 254. 9 And “every man, by virtue of his birth, is a new beginning”: cf. Arendt (1978), Vol. 2: Willing, p. 6. 10 Idem, p. 18. 11 Idem, pp. 13 – 14. 12 Idem, p. 14.

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human faculty – is the notion of progress, “a more serious and more complex item offered at the superstition fair of our time”13. According to Jaspers, human freedom is guaranteed by the fact that we do not possess the truth; truth compels, and man can be free only because he doesn’t know the answer to the ultimate questions: I must will because I do not know. The Being which is inaccessible to knowledge can be revealed only to my volition. Not knowing is the root of having to will14. And this Hannah Arendt saw in Heidegger to, in an early stage of his thought, with the introduction of the Sorge as a philosophical term (in “Being and Time”), meaning “a caring for” as well as “worry about the future”15. The point is that, if “[w]illing, it appears, is characterized by an infinitely greater freedom than thinking (…) this undeniable fact has never been felt to be an unmixed blessing”: the emphasizing of the future and progress exposes “men of thought to the contingency of all things human more radically and more mercilessly than ever before”, and “[w]hat had been ever since the end of antiquity the ‘problem of freedom’ was now incorporated, as it were, in the haphazardness of history” and in “the random character of personal decisions originating in a free will”, which is not “guided neither by reason nor by desire”16. Will, as a moment of freedom or “the power of beginning something new”, contrasts with the traditional liberum arbitrium: the latter “decides between things equally possible and given to us, as it were, in statu nascendi as mere potentialities, whereas a power to begin something really new could not very well be preceded by any potentiality, which then would figure as one of the causes of the accomplished act”17. Thus coming to the antagonism, the conflict “between two mental activities that seem unable to co-exist”. Still in Arendt’s own words, “[w]hen we form a volition, that is, when we focus our attention in some future project, we have no less withdraw from the world of appearances than when we are following a train of thought. Thinking and willing are antagonists only insofar as they affect our psychic states; both it is true, make present to our mind what is actually absent, but thinking draws into its 13 Cf. Arendt, Hannah: On Violence. San Diego/New York/London (Harcourt Brace & Co.), 1970, p. 29. The idea of progress is a constant in the arising of liberalism, one of the common subjects of thinking till Max Weber, and an important element on justifying the use of force: cf. Guerra da Fonseca, Rui: O Fundamento da Autotutela Executiva da Administração Pública. Contributo para a sua compreensão como problema jurídico-político. Coimbra (Almedina), 2012, pp. 167 ff. e 339 ff. (this text corresponds to my PhD thesis, on the subject of administrative self enforcement power or the capability of administrative bodies or agencies of direct and immediate enforcement of their own unilateral decisions affecting the citizens’ rights without prior judicial validation in a court of law; the essential problem is its possibility and justification, as a legal-political problem). 14 Cf. Arendt (1978), Vol. 2: Willing, p. 22. 15 Cf. Arendt (1978), Vol. 2: Willing, p. 22. 16 Idem, p. 28. 17 Idem, p. 29.

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enduring present what either is or at least has been, whereas willing, stretching out into the future, moves in a region where no such certainties exist”18. Thinking requires the Hegelian “quiet of the past” (“die Ruhe der Vergangenheit”); a quiet, as Hannah Arendt puts it, that is guaranteed by the fact that what is past cannot be undone and that Will ‘cannot will backwards’, and thus the “gap between past and future” where the thinking ego is localized, “while it can absorb what it is no more without any disturbance from the outside world, it cannot react with the same equanimity to projects formed by the will for the future”. Indeed, “[e]very volition, although a mental activity, relates to the world of appearances in which its project is to be realized; in flagrant contrast to thinking, no willing is ever done for its own sake or finds its fulfilment in the act itself. Every volition not only concerns particulars but – and this is of great importance – looks forward to its own end, when willing something will have changed into doing-it. In other words, the normal mood of the willing ego is impatience, disquiet, and worry (Sorge), nor merely because of the soul’s reacting to the future in fear and hope, but also because the will’s project presupposes an I-can that is by no means guaranteed. The will’s worrying disquiet can be stilled only by the I-can-and-I-do, that is, by a cessation of its own activity and release of the mind from its dominance”19. “In short”, still in Arendt’s own words, “the will always wills to do something and thus implicitly holds in contempt sheer thinking, whose whole activity depends on ‘doing nothing’”. As she points out, “no theologian or philosopher has ever praised the ‘sweetness’ of the willing ego’s experience, as philosophers were wont to praise that of the thinking ego”, with the exceptions of Duns Scotus and Nietzsche (and the latter, questioning the true existence of the power of thinking, didn’t have the one of willing by granted anyway): they both understood the Will “as a kind of power” and delight of the willing ego with itself (“to the extent that the I-will anticipates an I-can; the I-will-and-I-can is the Will’s delight”)20. The moods of the willing and of the thinking are therefore radically different. While the “predominant mood of the Will is tenseness”, the “predominant mood of the thinking ego is serenity, the mere enjoyment of an activity that never has to overcome the resistance of matter”. Radically, that first tension “can be overcome only by doing, that is, by giving up the mental activity altogether; a switch from willing to thinking produces no more than a temporary paralysis of the will, just as a switch from thinking to willing is felt by the thinking ego to be a temporary paralysis of the thinking activity”. But if this tension “brings ruin to the ‘mind’s tranquillity’”, then “the only task left for the Will is indeed to ‘will not to will’”21.

18

Idem, p. 35. Idem, pp. 36 – 37. 20 Idem, pp. 25, 36 – 37. 21 Idem, p. 38. 19

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II. There is no way this antagonism dissected by Hannah Arendt is not projected on the State, the respublica governed by men22. The problem is the impartiality of reason, for if the latter is one true “tribunal” – and this brings Kant and Hegel together – only its impartiality or non compromising with the Will’s ex novo may give real meaning to the aristotelic substitution of “government of men” by “government of laws”, following Locke’s modern perspective23 ; otherwise, the danger is that of a surreptitious permanence of the “government of men” under the disguise of a “government of laws”24. What specifically characterizes the political, as a task of fulfilling the possible justice according to place and time variables, is a constitutive intentionality towards creation, towards the new, looking for results beyond the positive establishment of action criteria, i. e. results with material (and spiritual) social consequences already in perspective, that is, willing a conformation which is as much of immediate actions as of transformation of the external reality to the citizens’ self-determination25. Already the specifically legal distances itself from that willing of conformation: it doesn’t will to create anything, it is not moved by innovation but only by establishing 22

On this projection in the context of separation of powers and the use of force (enforcement powers) cf. Guerra da Fonseca (see fn. 13), max. pp. 640 ff., e). Exploring this tension between past and future in a ‘gyroscopical construction’ of the constitutional order, cf. Tribe, Laurence H.: The Invisible Constitution. Oxford/New York (Oxford University Press), 2008, pp. 207 ff. and fig. VI. 23 On impartiality as objectivity or rationality in the context of the distinction between the fulfilment of the law by the judicial power or the administrative power, within the frame of the antagonism or duality of ‘moods’ seen above, cf. Guerra da Fonseca (see fn. 13), pp. 580 ff. 24 Considering that the “government of laws” aims not only to avoid government arbitrariness, but also to assure spaces of freedom, of non interference, to the governed (calling for the distinction public/private), in the context of the differentiation between structures of loyalty (totalitarian societies) and structures of legality (democratic societies) as identification forms leading to political cohesion, cf. Andrade Esteves, Maria da Assunção: A Constitucionalização do Direito de Resistência. Lisboa (AAFDL), 1989, pp. 134 – 135. Also, cf. Castanheira Neves, António: Teoria do Direito. Coimbra (Universidade de Coimbra), 1998, pp. 77 ff.; Barbas Homem, António P.: O Justo e o Injusto. Lisboa (AAFDL), 2001, pp. 53 ff.; Schmitt, Carl: Teoría de la Constitución. Madrid (Alianza Editorial), 2003, pp. 150 ff.; Arendt (1970), pp. 40 – 41; Marques Guedes, Armando; Direito Administrativo. Lisboa (AAFDL), 1957, pp. 102 ff.; idem: “A Administração Pública”, in: Marques Guedes, Armando: Estudos de Direito Administrativo. Lisboa (Centro de Estudos Fiscais), 1963, p. 20; idem: As Funções do Estado Contemporâneo e os Princípios Fundamentais da Reforma Administrativa. n.p. (Secretariado da Reforma Administrativa), 1968, pp. 4 ff. For Wade, H. William. R./Forsyth, Christopher F.: Administrative Law. New York (Oxford University Press), 2004 (9th ed.), p. 24, that substitution of the “government of men” by the “government of laws” wouldn’t be but a ‘quixotism’. 25 It is precisely this intentionality that characterizes the initiative, which, despite what may set it in motion, always begins with a ‘voluntas’ (Will) that in a certain sense is always original. On this subject and what follows ahead, cf. Guerra da Fonseca (see fn. 13), pp. 580 ff.

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what in a certain case, where the fact is given26, is just (right). Therefore, as intentionality, it lacks initiative, essentially depending on hetero-initiatives, which because of that allow the object to be considered as given. This great dichotomy is nothing else but the transposition to the State’s action of the dual human intentionality that constantly and in everything shows itself, so in the exercise of public powers as well: between the “yes” and the “no”, the “doing” and the “not-doing”, the “go” and the “staying”, the “conform” and the “preserve”, the “construction” and the “reconstruction”. This duality is a result of uncertainty and endness, and corresponds to the one established by Hannah Arendt between thinking and willing in The Life of the Mind. The fact is that, if “thinking aims at and ends in contemplation, and contemplation is not an activity but a passivity”27, “[a]lthough it is always the same mind that thinks and wills, as it is the same self that unites body, soul and mind, it is by no means a matter of course that the thinking ego’s evaluation can be trusted to remain unbiased and ‘objective’ when it comes to the other mental activities”28. Since Hannah Arendt did not finish the “judging”, its contribution or place in the life of the mind, considering the duality we’ve been talking about, is unclear. Nevertheless, we can turn to her lectures on Kant’s political philosophy concerning the critique of judgment in order to understand her thought on the subject. Arendt points out that the links between the two parts of The Critique of Judgment “are closer connected with the political than with anything in the other Critiques”: one of those links stands on the “most decisive difference between the Critique of Practical Reason and the Critique of Judgment” – whilst the moral laws of the former “are valid for all intelligible beings”, the rules of the latter “are strictly limited in their validity to human beings on earth”; (ii) another of those links lies precisely “in that the faculty of judgment deals with particulars which ‘as such, contain something contingent in respect to the universal’ which normally is what thought is dealing with”. After Arendt, the “judgment of the particular” (beautiful/ugly, right/wrong) has no place in Kant’s moral philosophy, that is, judgment is not practical reason: whilst the latter 26

The ‘case’ or the fact-given means here the opposite of fact-to-be (creation) or the caseto-be (construction), thus not identifying itself necessarily with ‘conflicts of interests’: in the words of Oliveira Ascensão, it is irrelevant for a notion of ‘judicial’ (as a function in the context of separation of powers) that such a task expresses itself resolving conflicts of interests or abstractly pronouncing rules – cf. Oliveira Ascensão, José de: “A reserva constitucional de jurisdição”, in: O Direito, 123, 2/3 (1991), p. 468. Kelsen also thought that from the point of view of the general rule that must be fulfilled by the courts of law. It was of ‘secondary importance’ the nature of ‘controversy’ of the judicial: in criminal law, most of all, it would be a ‘mere formality’ (cf. Kelsen, Hans: General Theory of Law and State. Cambridge/MA Harvard University Press], 1949, p. 273). 27 Cf. Arendt (1978), Vol. 1: Thinking, p. 6. 28 Cf. Arendt (1978), Vol. 1: Thinking, pp. 4; 23. It is this “cannot trust” that the separation of powers aims to eliminate or minimize at the State level, since institutions are inevitably occupied and directed by individuals whose minds live in that same duality: cf. Guerra da Fonseca (see fn. 13), pp. 640 ff., e).

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‘reasons’ and tells me what to do and what not to do, lays down the law and is identical with the will, which utters commands and speaks in imperatives, judgment, on the other hand, arises from “a merely contemplative pleasure or inactive delight” (in Kant’s own words). But that can only result, as critical thought, when I open myself to the judgment of others and its confrontation with my own, which means I have to put myself in their place – and the faculty that makes it possible is imagination: this is the enlargement of the mind; and “[t]o think with the enlarged mentality – that means you train your imagination to go visiting […]”. But “visiting” doesn’t mean the substitution of my points of view by the other’s (prejudice): it implies – in my own words – liberation from our own particulars in order to understand the other’s – that is “impartiality” as the true ability to “reflect upon human affairs”, allowing us to reach our own “general standpoint”29. That the rule of action is different from the one of judgment is definitely expressed by Kant with the examples on war and the soldier: it is not because we judge the latter “sublime” that the practical maxim “there shall be no war” is denied or inverted: it would only be so for “an idealistic fool”30. The subject cannot be analysed here, nor is even a beginning of such an analysis the purpose of these brief lines. But still, the relevancy that Hannah Arendt places on this Kant’s assertion: “That is beautiful which pleases in the mere act of judging it”31 must be pointed out. Would it be simplistic – or even worse – to say than that what is just is beautiful? May be not. And considering it, renders one more citation irresistible: “The less idiosyncratic your taste is the better it can be communicated; communicability again is the touchstone. Impartiality in Kant is called ‘disinterestedness’, the disinterested delight in the Beautiful. … If, therefore, #41 [in the Critique of Judgment] speaks of an ‘Interest in the Beautiful’, it actually speaks of having an ‘interest’ in disinterestedness. … Because we can call something beautiful, we have a ‘pleasure in its existence’ and that is ‘wherein all interest consists’. (In one of his reflections in the notebooks, Kant remarks that the Beautiful teaches us to love without self-interest [ohne Eigennutz]). And the peculiar characteristic of this interest is that it ‘interests only in society’”32. It seems not only farfetched but even devious, considering Hannah Arendt’s thought, pretending to see in “judging” a mere Hegelian synthesis between “thinking” and “willing”. If this is not the time for such a profound analysis, it is notwithstanding of maximum relevance – back to our context – to think for a moment in the relationship between this elements or dispositions, in so trying to understand Arendt’s proposal as to what should have been the ruling and its reasoning in the Eichmann case.

29

Cf. Arendt (1978), Vol. 2: Willing, pp. 253 – 258. Idem, pp. 259 – 261. 31 Idem, p. 265. 32 Idem, p. 270.

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III. It is well known that Hannah Arendt left us a proposal as to what, in her opinion, should have been the sentence in the Eichmann case33. Let us mind on its final part: “Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. In politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with Jewish people and the people of a number of other nations – as though you and your superiors had any right to determine who should and who should not inhabit the world – we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.”34.

Hannah Arendt’s proposal as to the grounds of the ruling in the Eichmann trial has an eminent political incidence and reference – in the sense of reference to the “way of life in and of the community”35. It must be pointed out, by the way, the strong presence of the verb “[to] want” directly related with the political – it could not be expected that no member of the human race would “want” to share the world with whom doesn’t want to share it with him/her to the point of physical elimination. This politicality which Hannah Arendt transports to the grounds of the ruling – the “judging” – doesn’t deny this latter disposition in her opinion, nor the trial as legalistic approach, which Arendt constantly praises. In the first place, because “judging” concerns, or is a problem, of “human beings on earth”, therefore that refers to the political, not identifying itself fully with “thinking”. But still it depends on the latter (as “willing” itself, as a matter of fact). If “judging” is of particulars – here, in a judicial trial where justice is the only purpose, human beings of flesh and blood on earth –, it always rests on an essential “thinking” on the universal36 : “judging” is not “sheer logical reasoning” (the only one that “has definitely cut all strings to living

33

Cf. Arendt (2006), pp. 277 ff. Idem, p. 279. 35 This last expression is mine, and not used by Arendt: cf. Guerra da Fonseca (see fn. 13), pp. 487 ff., passim. 36 If the political function (when thinking in functional terms) has a vocation to care for the universal, like it has to Hegel (cf. Rommel, Guy: L’art de juger. Bruxelles (La Charte/Bruylant), 2008, p. 2; about the legislative power, in Hegel, as a “power of organizing the universal”, being the law an expression of the “general” and the acts of the executive an expression of the “particular”, and showing the retroaction of the ‘universal dimension’ of the law to Aristotle, cf. Gomes Canotilho, José J.: Direito Constitucional e Teoria da Constituição. Coimbra (Almedina), 2003 (7th ed.), pp. 714 – 715), that universal, as “general”, must not be mistaken with the objects of the “thinking” for Hannah Arendt, which are “out of the world”. The “general” is, after Arendt, an option, a “willing”, that doesn’t dispense with the previous moment of “thinking”: to think about justice – about what it is – establishes nothing as to the “way of life in and of the community”. 34

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experience”)37, and so, the judicial decision, implying a deliberation on justice (universal), implies as well having already witnessed just and unjust deeds38. If the deliberative part of “judging” seems to bring it closer to the political, that is in fact merely apparent, for that nearness rests only at the level of a “thinking” which is common to both “judging” and “willing”. From the latter – where the political belongs as an option – “judging” and the judge distance themselves. The position of “judging” and of the “judge” is that of the spectator, of the interest on disinterest39, but that interests only in society. This descent to the “way of life in and of the community” isn’t therefore optional (which characterizes the political as “willing”, willing the new that has no existence yet, creating), but a thinking to an end – because all thinking is to an end40 –, which is understanding the meaning41. That is why Hannah Arendt praises the work of the judges in the Eichmann trial in two main directions: (1) when considering the evidence, in a context where most of the witnesses bring facts, which are a matter of truth and not of meaning, with no intrinsic contribution to the latter in what comes to the defendant in himself; (2) and in the search to understand the person Eichmann (his motives, his eventual sorrow), presupposing correctly, Arendt considers, that the truth (of facts) doesn’t imply the meaning42. Conclusion In short, what Hannah Arendt criticizes in the Eichmann trial is the attempt to transform it into an “intention”, a “project” – that is, political – when it should be concerned only with objects and not with projects. It is indeed that intentional dimension of the political, which goes far beyond the task of “judging”, that Arendt criticizes as a “show”. Not the reference of the ruling to the political, taking the latter as a thing of men on earth, “way of life in and of the community”, but an option for creating something new from the act of “judging”43. Such a conclusion can only be reached through a retrospective and complementary reading of Arendt’s work, projecting the interpretation effect resulting of The Life of the Mind upon Eichmann in Jerusalem. The former – and her last work – seems to be an ultimate effort of discipline of thought, to resolve the still “bloody” critique inked on the latter. 37

Cf. Arendt (1978), Vol. 1: Thinking, p. 87. Idem, p. 87. 39 Idem, pp. 92 ff.; see also above, II. 40 Idem, p. 54. 41 Idem, pp. 69 ff.; 93 ff. 42 Idem, p. 15. 43 In the light of this duality object/project (politically conforming reality through a new originated in an intentionality with that exact purpose) we can analyse the difference between the condemnation itself and its execution (namely, Eichmann’s cremation, in a special crematorium, the scattering of his ashes in the Mediterranean beyond the limits of Israeli territorial waters, so no memorial or final resting place could present a point of pilgrimage). 38

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Even so, Hannah Arendt’s conclusions in Eichmann in Jerusalem – namely her proposal on the grounding of the sentence – still deserve a critique from many points of view and analysis. Namely, that of Criminal Law, which is obviously not our context here. But also from the point of view of legal personalism, in what relates to the death penalty, and the consideration inherent to Arendt’s proposal: even if no one would want to share the world with Eichmann (and wouldn’t his family?), what sollen implied his death? Would that be a legally admissible “general will”, and the court a legitimate interpreter of it (in the case of an affirmative answer to the first question)? Or wouldn’t it then mean a hidden “project”, transforming the court into an intentional creator of “new facts”, which is characteristic of a political intentionality that the court should not be allowed to have, an intentionality so very different of that (way of life in and of the community) which is called upon in many judicial moments (as when the court must interpret – aiming the application of general rules – concepts such as “public interest”, “public order”, or even general prevention purposes of criminal penalties)44 ? The Eichmann case is as much in the origins of The Life of the Mind and its dispositions that project themselves upon the State – between the legal and the political –, as it still constitutes an excellent stage for that analysis today. One question cannot remain silent, though: if Hannah Arendt could have rethought or rewritten her proposal on the grounds of Eichmann’s condemnation after The Life of the Mind, would she have done it in the same terms as in 1963?

44

Cf. Guerra da Fonseca (see fn. 13), pp. 626 ff. In Hannah Arendt’s elaboration on her proposal concerning the grounds and reasoning of Eichmann’s condemnation, an assertion surely weighed: that Jews had never before actually been confronted with genocide (cf. Arendt (2006), p. 153). This might have lead Hannah Arendt “willing” to see here a necessity or (false) justification of “general prevention”.

Eichmann in Jerusalem and Hannah Arendt’s Oeuvre

Hannah Arendt, Adolf Eichmann: Of Radical Evil and Its Banality António Araújo The topic of publicity crosses the entire work of Hannah Arendt. Although it was already present in her first post-war book, The Origins of Totalitarianism (1951), it gained relevance in The Human Condition (1958). Afterwards, it was resumed in the construction of the term “banality of evil” that marked Eichmann in Jerusalem (1963) and, finally, in the interpretation of Kant’s work, the third part of The Life of the Mind (1978 – 1982), left unfinished by Arendt’s death. Her vision of publicity can be summed up in Heidegger’s pronouncement: Das Licht der Öffentlichkeit verdunkelt alles, which we could translate as “The light of the public obscures everything”, used by Arendt in the preface to Men in Dark Times (1968). In this dictum from Being and Time Heidegger protests against the false authenticity of modern times, or more precisely, against the irresistible force of trivia – of gossip, to use his words –, which destroys all that is real and authentic and truly worthy of the attention of men. For Arendt Heidegger’s axiom, both sarcastic and perverse, was an eloquent summary of the “dark times” of the time in which “the public realm has lost the power of illumination which was originally part of its very nature”, as she wrote in the text “Thoughts about Lessing”. Arendt explained the advent of the dark times in these terms: “If it is the function of the public realm to throw light on the affairs of men by providing the space for appearances in which they can show in deed and word, for better and worse, who they are and what they can do, then darkness has come when this light is extinguished by ‘credibility gaps’ and ‘invisible government’, by speech that does not disclose what it sweeps under the carpet, by exhortations, moral and otherwise, that, under the pretext of upholding old truths, degrade all truth to meaningless triviality”1.

Hannah Arendt misses that “space for appearances”, a place where men can show, for better or for worse, who they are and what they do. The Greek polis provides the perfect image of that space. In the polis men had a space where they could express – and share – their qualities and, therefore, were protected from the chatter and futility. In this circle of excellence and distinction the inhabitants of the city-states competed with each other for the approval of their peers and, guided by the ideals of heroism 1 Cf. Arendt, Hannah: Men in Dark Times. San Diego (Harcourt Brace & Co.), 1983, p. viii.

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and immortality, narrated past events, stories of remarkable deeds, worthy of admiration. Thus, the polis emerged as a true “memory organization”, which rescued the men from the laws of finitude and oblivion. Human events, through a continuous work of remembering, were released from the erosion of time. Likewise, the polis carried the extraordinary to the everyday, giving a new meaning to the life of the Athenians. Similarly, Arendt wrote, the res publica of the Romans acted as a device against the triviality of their daily lives. This kind of place – an “agonistic space”, competitive but also argumentative or persuasive – could only be born within a homogeneous community in which all the inhabitants of the city-state knew and used speech on equal terms. Moral homogeneity, lack of anonymity and political equality were thus the three cornerstones of the polis. Therefore, the survival of the “agonistic space” depended upon a principle of restricted access or, more specifically, the limitation of citizen’s rights to free Athenian males2. Hence, the rehabilitation of the polis is unthinkable today. The eruption of mass society and the extension of citizenship rights destroyed the foundations of the “agonistic space” because they brought moral heterogeneity to the public space, condemning it to anonymity and inequality. While in ancient Greece there was an inequality between the members of the polis and the multitude of excluded (slaves, women, metics), now the differentiation was carried into the public space: de jure, the admission in this space is now open to everyone but, once there, there are no equal opportunities of intervention, and yet, there is clear criterion to determine this unequal capacity to intervene in the public sphere. Access, permanence, speech, the public space, especially in mass societies, always seems to require an element of discrimination and thus the existence of elites seems almost unavoidable. No wonder that some authors, such as Margaret Canovan3, Sheldon Wolin4 and Hanna Pitkin5, criticize the work of Arendt, considering that it incorporates two contradictory political principles. Firstly, a democratic principle which is expressed in the call for the participation of citizens. Secondly, an elitist principle which sees the restrictions on citizenship as a conditio sine qua non for the survival of the public space.

2

Cf. Benhahib, Seyla: “Models of public space: Hannah Arendt, the liberal tradition, and Jürgen Habermas”, in: Calhoun, Craig (ed.): Habermas and the Public Sphere, Cambridge, Mass. (MIT Press), 1992, pp. 78 – 79. 3 Cf. Canovan, Margaret: “The contradictions of Hannah Arendt’s political thought”, in: Political Theory, 1 (1978), pp. 5 ff. 4 Cf. Wolin, Sheldon: “Hannah Arendt: democracy and the political”, in: Hinchman, Lewis P./Hinchman, Sandra K. (eds.): Hannah Arendt. Critical essays. New York (State University of New York Press), 1994, pp. 289 – 306. 5 Cf. Pitkin, Hanna: “Justice. On relating private and public”, in: Hinchman, Lewis P./ Hinchman, Sandra K. (eds.): Hannah Arendt. Critical essays, New York (State University of New York Press), 1994, pp. 261 – 288.

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Trying to solve this apparent contradiction in the thought of Arendt, Maurizio Passerin d’Entrèves (in a book which is a remarkable synthesis of Arendt’s ideas6) maintains that the author of The Human Condition adopted two models of action. One which could be described as “expressive” and another as “communicative”. Both corresponding to, in turn, two visions of the public space, alternating between the “dramatic setting” (elite type) and the “discursive space” (democratic type). Considering this, Seyla Benahib talks about the duality between “agonistic space” and “associational space”7. Rather than making these distinguo, it’s important to keep in mind the evolution of the thought of Arendt. When she wrote The Human Condition she had a heroic, individualistic and elitist vision of politics, which was later abandoned in favour of civic participation in collective decisions. The latter will lead her to advocate a “council democracy” in the book On Revolution (1963), a few years after the Hungarian revolution. It is worth recalling that, according to her biographer Elisabeth Young-Bruehl, Arendt followed with enthusiasm the Portuguese revolution of 19748. Another key aspect of her political thought is the idea of blurring of boundaries between public and private, which Arendt inscribes within the broader context of her complex theory of modernity. For Arendt, modern times are the times of “social”. Men “lost the world” when they changed the public space of action for the private space of economic interests. It’s important to remember the meaning of these concepts for Arendt: the “social” is an unreasonable expansion process of economic activities, which has developed since the eighteenth century and transformed economy in the central political issue of modern societies. The “loss of the world”, in turn, means the restriction or even the removal of the public sphere (the “space of appearances”) and its gradual but irrevocable replacement by the private world of lonely introspection. In modern times, work became the most relevant component of the vita activa and the homo laborans vanquished the zoon politikon. According to Hannah Arendt, in a world in which work is a supreme value, the private activities of men left the inner circle in which they moved (oikos) to integrate the public sphere. Economic needs become a central political question to a point where the public space of freedom (politics) is dominated by the private space of need (economy). In other words, the private sphere is dissolved into the public space and the latter becomes dominated by the former. It is this dilution between public and private that is at the heart of Arendt’s theory of modernity and explains the great tragedy of our time: totalitarianism. The specific nature of the totalitarian system is the simultaneous destruction of the sphere of public life (through the isolation of men and the annihilation of their political 6

Cf. D’Entrèves, Maurizio Passerin: The Political Philosophy of Hannah Arendt, London (Routledge), 1994. 7 Cf. Benhahib (1992), pp. 78 – 79. 8 Cf. Young-Bruehl, Elisabeth: Hannah Arendt. For Love of the World. New Haven (Yale University Press), 1982, p. 438, p. 466.

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skills) and of the sphere of private life, as a space of individual autonomy, in a radically new way. This idea came soon in The Origins of Totalitarianism and was deepened by the expression “banality of evil”, turned famous by her account of the Eichmann trial. After watching the Eichmann trial Arendt concluded that the most characteristic feature, or even the essential one, of his personality was the absence of a set agenda or, more precisely, the fact that he was unable “to realize what he was doing”, a much criticized claim from the historiographical point of view. Arendt continues: “He was not stupid. It was sheer thoughtlessness – something by no means identical with stupidity – that predisposed him to become one of the greatest criminals of that period. And if this is ‘banal’ and even funny, if with the best will in the world one cannot extract any diabolical or demonic profundity from Eichmann, that is still far from calling it commonplace”9. Eichmann’s crimes were not the result of his stupidity or of his wickedness: they were, rather, a reflection of his insensitivity to evil, of what Arendt called the “sheer thoughtlessness”. For her the “Eichmann case”, and all post-war “cases” pose one of the more complex moral issues of all time: the question of the nature and mechanisms of judgment. In fact, Nazism was such a radical new phenomenon that men did not have rules or codes to deal with it and, as such, they had to be guided solely by their own judgments. In Nazi Germany, “[t]hose few who were still able to tell right from wrong went really only by their own judgments, and they did so freely […]. They had to decide each instance as it arose, because no rules existed for the unprecedented”10. This is a key phrase: no rules existed for the unprecedented. The meticulous application of Eichmann in the detailed fulfillment of the bureaucratic rules might be a possible answer to the lawlessness that was introduced by the Holocaust. The bureaucratic zeal was the counterpart of the lack of critical judgment. Actually, the abdication of the power to judge was for many the escape from the experience of totalitarian order. In fact, from the moment men cease to wonder about the meaning of their actions, the horror becomes a triviality. We have then the terrible, unspeakable and unthinkable “banality of evil”11.

How does all this relate with the problem of publicity? To understand this connection we must move to the last writings of Hannah Arendt, the two volumes of The Life of the Mind – Thinking and Willing. And in particular her interpretation of the Kantian critique of judgment (Judging, the last part of her unfinished trilogy). At the beginning of Thinking Hannah Arendt admits that her interest in “the life of the mind” was born during the trial in Jerusalem. Once again, she acknowledges the impression caused by Eichmann’s empty personality: “The deeds were monstrous, but the doer – at least the very effective one now on trial – was quite ordinary, commonplace, 9 Cf. Arendt, Hannah: Eichmann in Jerusalem. A Report on the Banality of Evil. New York (Penguin), 2006, pp. 287 et seq. 10 Arendt (2006), p. 295. 11 Arendt (2006), p. 252.

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and neither demonic nor monstrous. There was no sign in him of firm ideological convictions or of specific evil motives, and the only notable characteristic one could detect in his past behavior […] was not stupidity but thoughtlessness”12. It was this “thoughtlessness” that sparked Arendt’s interest in the problems of “the life of the mind”, driving her to the next and excruciating question: to what extent does the practice of evil require “thoughtlessness”? As I mentioned before, Hannah Arendt had already realized that the “Eichmann case” was related, mainly, with the power of judgment, with the “ability to tell right from wrong, beautiful from ugly”. It is in the study of that power that Arendt comes along with the Kantian critique of judgment which, in her view, was the core of Kant’s political theory. By interpreting the critique of judgment, Arendt emphasizes the distinction between the sensus communis and sensus privatus. The sensus communis means, since Saint Thomas Aquinas, a kind of “sixth sense” that “fits us into a community with others, makes us members of it and enables us to communicate [about] things given by our five private senses”13. He thus expresses the necessary link between the subject and the community or, from another perspective, the necessary communicability of judgment. Remember that Kant in the Critique of the Power of Judgment defined the sensus communis as follows: “By sensus communis […] must be understood the idea of a sense of a communal sense, i. e., a faculty for judging that in its reflection takes account (a priori) of everyone else’s way of representing in thought, in order as it were to hold its judgment up to human reason as a whole and thereby avoid the illusion which, from subjective private conditions that could easily be held to be by objective, would have a detrimental influence on the judgment”14. Taking this definition, and the need to comply with “everyone else’s way of representing”, Arendt stresses “[j]udgments and especially the judgments of taste, always reflect upon and their taste, take their possible judgments into account. This is necessary because I am human and cannot live outside the company of men”15. Therefore, the power of judgment is based on an intersubjective relationship, perhaps dialogical, and on the dignification of otherness. A man reduced to the sensus privatus of the five senses would be the subject unable to formulate an opinion. Insanity, according to Hannah Arendt, is the loss of common sense or, in Kant’s words, the “communal sense”16. 12

p. 4.

Cf. Arendt, Hannah: The Life of the Mind. San Diego (Harcourt Brace & Co.), 1978,

13 Cf. Arendt, Hannah: Responsibility and Judgment (ed. Kohn, Jerome). New York (Schocken Books), 2003, p. 139. 14 Cf. Kant, Immanuel: Crítica da faculdade do juízo. Portuguese transl. Lisboa: Edições 70, 1992, p. 196. 15 Cf. Arendt (1978), p. 266. 16 Cf. Arendt, Hannah: Lectures on Kant’s Political Philosophy. Chicago (University of Chicago Press), 1992, pp. 70 – 72.

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The power of judgment stands, consequently, on a clear distinction between the public sphere of the sensus communis and the private sphere of the sensus privatus. For this reason, modernity, with its hegemony of the “social” that tends to blur the distinction between the public and private spheres, helps to qualify the Holocaust as a typically “modern” phenomenon; the most “modern” of the phenomena and, so to speak, a natural consequence – I cannot stress it enough: a natural consequence – of modernity. That leaves an open question: what sensus communis could exist and thrive in Nazi Germany? If the answer is negative, it is difficult to demand, as Arendt does, that “human beings be capable of telling right from wrong even when all they have to guide them is their own judgment” and – she adds – even if that judgment “happens to be completely at odds with what they must regard as the unanimous opinion of all those around them”. Hence, as Suzanne Jacobitti17, Jean Yarbrough and Peter Stern say18, perhaps the problem should not be located under “judging” but under “thinking”, since this “silent dialogue” between it and itself (Arendt) constitutes, in itself, a defense against wrongdoing. Simply, the “thinking”, in this case and for that purpose, must receive the influx of the power of judgment. This, based on the sensus communis, opens therefore an area of convergence between public criticism – or its absence – and the “banality of evil”. In a different interpretation, which I will only mention briefly, authors such as Shiraz Dossa, elaborating over Arendt’s text about Eichmann, consider that the capacity for wrongdoing is due to a transposition into the public sphere of a “selfish privacy” (self-interested privacy)19. In short, Hannah Arendt’s vision of modernity is singularly pessimistic. Nevertheless, Arendt did not accept the “banality of evil”, or felt defeated by the fatality of the “dark times”. On the one hand, she claimed that men should go pick up from the past examples and models that the present denied them. She knew, however, that this task could not be developed with the support of the tradition that modernity had destroyed. It should instead be based on the selective exercise of memory and careful collection of pieces from the past, an idea that Arendt picked up from the “fragmentary historiography” of Walter Benjamin and “destructive hermeneutics” of Heidegger.

17 Cf. Jacobitti, Suzanne Duvall: “The public, the private, the moral: Hannah Arendt and political morality”, in: International Political Science Review – Revue internationale de science politique, 4 (1991), p. 285. 18 Cf. Yarbrough, Jean/Stern, Peter: “Vita Activa and Vita Contemplativa: Reflections on Hannah Arendt’s political thought in The Life of the Mind”, in: The Review of Politics, 3 (1981), pp. 323 – 354. 19 Cf. Dossa, Shiraz: “Hannah Arendt on Eichmann: The public, the private and evil”, in: The Review of Politics, 2 (1984), p. 166, pp. 170 et seq.

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On the other hand, Arendt never stopped believing in the values of autonomy and solidarity, i. e., the possibility of rebuilding a democratic discourse through the civic engagement of all citizens20. Memory and speech were, therefore, the two qualities that Hannah Arendt used to respond to the threat of dark times, revealing a profound humanism, even among the ruins of a century plagued by an evil that was so sticking by both its radicalism and banality. In a letter to Karl Jaspers, Arendt makes reference to “radical evil” and some sought to see in it a contradiction with the concept of “banality of evil”. But, in truth, what made the Holocaust so terribly unique was its ability to convert the “radical evil” in a reality accessible and achievable by men as ordinary as Adolf Eichmann. The “banality of evil” is not, contrary to what many critics said, a concept that relativizes the Holocaust and exonerates the authors and executors. It is, rather, the unsettling denouncing of the unlimited wickedness of ordinary men, like those that we can find in this amphitheater of the Faculty of Law, in this April afternoon. Hannah Arendt’s report may be occasionally dated in some respects, particularly in the description that she makes of the role of the Jewish councils, as demonstrated by a very recent book by Deborah Lipstadt21. But, essentially, the address to ordinary men, like all of us, is the definitive proof that the work of Hannah Arendt maintains an uncomfortable and disturbing freshness. Unfortunately.

20 Cf. Focher, Ferruccio: “L’umanesimo politico di Hannah Arendt”, in: Il Politico – Rivista Italiana di Scienze Politiche, 1 (1991), pp. 5 – 27. 21 Cf. Lipstadt, Deborah E.: The Eichmann Trial. New York (Schocken Books), 2011.

The Banality of Evil as Absence of Law Luís Pereira Coutinho “Your ideas are terrifying and your hearts are faint. Your acts of pity and cruelty are absurd, committed with precipitation, as if they were irresistible. Finally, you fear blood more and more. Blood and time.” Paul Valéry

Introduction The dissociation between the National-Socialist regime and the concept of law was often defended, particularly within the Radbruch formula. The precise terms of that dissociation – if the same is to be confirmed – remain unclear though. In the following lines, we shall argue that Arendt’s portrayal of the “banality of evil” in Eichmann in Jerusalem may be explicatory at this level, even if in a negative or antithetical way. I. The Banality of Evil as Absence of Meaning 1. According to Hannah Arendt, the “banality of evil” can be essentially characterized by an absence – by an absence of meaning. For her, meaning is what we search for when we think1. In her words, “what makes us think” is precisely “the need to search for the meaning of whatever is or occurs”2. Meaning is thus not to be confused with what merely is or occurs. When one speaks of meaning one is never merely speaking of a thing or things. At stake is a questioning of things that asks, precisely, for their meaning. For example, when one speaks of the meaning of law one is not merely speaking about a set of norms presiding over society; one is speaking about something not to be confused with the mere existence of those norms, i. e., with their existence as “external objects”. One can thus say that meaning is something with no “objective” reality. It rather is a reality for the subject who seeks it and eventually finds it, acknowledging or recognizing it. Meaning is thus not independent from the subject who recognizes it: having no “objective” quality, meaning is only a reality to the point that it is acknowledged by the subject when exercising an essential subjective capacity.

1 Cf. Arendt, Hannah: The Life of the Mind – I – Thinking. San Diego (Harcourt Brace & Co.), 1978, pp. 57 – 58. 2 Arendt (1978), p. 166.

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Meaning in that sense is something entirely strange to the phenomenon portrayed in Eichmann in Jerusalem. Indeed, the totalitarian phenomenon, as described by Arendt, entirely dissolves the subject who searches for meaning. Ideally, that phenomenon converts the subject into a mere agent of “objective laws”, “objective” since taken to be scientific and thus independent from the subjects who acknowledge them (e. g. laws of race, laws of evolution, laws of history, laws of economics). Ultimately, the good totalitarian subject is not truly a subject, but an agent, an objectified subject. Indeed, as an agent, he is fully accomplished at the moment in which his subjective acknowledging capacities are fully eliminated by the “objective world”. Even more: he is fully accomplished at the moment in which his very subjectivity is shaped according to those supposedly objective laws of race, of evolution, of history or of economics. That is precisely what Arendt signals as “the Eichmann phenomenon” which she takes to be “the central moral, legal, and political phenomenon of our century”3. A phenomenon essentially substantiated in Eichmann himself, a quiet and scrupulous complier of murderous duties, demonstratively incapable of telling right from wrong even if, after all, “an average, ‘normal’ person”4. Someone who acts, not out of deep beliefs and personal convictions, but out of simple conformity with what is regular in his world – an objective and morally indistinct world, a world destitute of meaning, which functions by itself and for itself, in a way that is totally independent from any subjective capacity of acknowledgment or recognition. The most disturbing passages of Eichmann in Jerusalem are precisely those in which Arendt signals that, for Eichmann and for many like him, things went on as they did during the Final Solution simply because it became normal or regular for them to go on that way. Notions such as personal responsibility were either forgotten or taken to be unproblematic. In a very disturbing way, from Eichmann’s perspective he had acted the way he had as a matter of course: “Eichmann needed only to recall the past in order to feel assured that he was not lying and that he was not deceiving himself, for he and the world he lived in had once been in perfect harmony (…) [In] the general, and generally accepted, atmosphere of the Third Reich, ‘of course’ he had played a role in the extermination of the Jews; of course if ‘he had not transported them, they would not have been delivered to the butcher.’ ‘What’, he asked, ‘is there to admit?’”5

Arendt recovers this point in the epilogue, at the moment in which she denounces the failure she believed the Eichmann trial had been. For the Author: “Closely connected with this failure was the conspicuous helplessness the judges experienced when they were confronted with the task they could least escape, the task of under3 Cf. Arendt, Hannah: Eichmann in Jerusalem – A Report on the Banality of Evil. New York (Penguin), 2006 (1st ed., 1963), p. 148. 4 Arendt (2006), p. 26. 5 Arendt (2006), pp. 52 – 53.

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standing the criminal whom they had come to judge. (…) The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal. From the viewpoint of our legal institutions and of our moral standards of judgment, this normality was much more terrifying than all the atrocities put together, for it implied (…) that this new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it wellnigh impossible for him to know or to feel that is he is doing wrong”6.

In a logical if disturbing way, that impossibility is utterly irrelevant in the world in which this “new type of criminal” acts. Indeed, in the “generalized atmosphere” of that world, those acting are never forced to question themselves; they are never asked to recognize (or not to recognize) meaning to what they do – for them, that subjective element has simply been removed from the realm of reality. It is simply demanded of them to continuously act according to the laws and regularities of their world, thus observing what is objective in their world. I believe that that is Arendt’s fundamental thesis on Eichmann. It should be added that there is a strong parallel between that thesis and Heidegger’s conception of modern subjectivity as reduced to technology. In that condition, Heidegger argues, man is reduced to “technological man”, someone “kept reliably on call only by gathering and ordering all his plans and activities in a way that corresponds to technology”7. 2. If, in Eichmann in Jerusalem, Arendt describes the “banality of evil”, her later work – notably, The Life of the Mind – confirms that the notion of “banality of evil” fundamentally means an objectification of the world or, more precisely, a surrendering of subjectivity to that same objectification. When addressing the roots of that objectification, Arendt takes it to be the inevitable result of the annihilation of a fundamental human capacity: thinking. Thinking is something different from knowing. Indeed, to know – ultimately, to know in a technical or scientific way – is to proceed according to methodical requirements that turn the resulting knowledge into something independent from the subject who knows. Indeed, the best technical or scientific knowledge is an objective knowledge, i. e., it is a knowledge adjusted to the object and independent from the subject8. If knowing is an objective endeavour, thinking is never independent from the subject. In Arendt’s words, thinking is “the soundless dialogue of the I with itself”9. Thinking thus relates to an I who resists objectification, preventing oneself from that possible fall. Thinking, Arendt proceeds, “is the guarantor of an altogether silent

6

Arendt (2006), p. 276. Cf. Heidegger, Martin: “Letter on Humanism”, in: Krell, David Farrell (ed.): Martin Heidegger Basic Writings. New York (Harper Collins Publishers), 1977, p. 255. 8 Cf. Arendt (1978), pp. 61 et seq. 9 Arendt (1978), pp. 74 – 75. 7

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I-am-I”10. And if that activity produces knowledge, it is an a-methodical and non-objective knowledge; knowledge “with and by myself”, from myself11. The annihilation of thinking that takes place in Eichmann’s “generalized atmosphere” inevitably generates an absence of that sort of knowledge. It consequently generates an absence of those things – named by Arendt as “things of thought” – that exist only in the mind of the one who thinks. Things that thus are not objective, such as meaning12. One speaks of meaning, but one could as well speak of justice or of “the law” – of that “law” which is only authentically “law” when meaningful. All those realities are eradicated from Eichmann’s world – a world in which all that is “visible” for the spirit is totally absent. A world reduced to the normalcy of things themselves, to technological regularity, to objectivity13. To sum up, what Arendt suggests is that these are the conditions for the phenomenon described as the “banality of evil”, a phenomenon in which “of course” Jews are transported, “of course” they are delivered to the butcher, but in which no one acts out of the “the affirmation of oneself as evil” or reflects on “oneself” as evil – in the first place because no one is never actually forced to reflect on “oneself” as someone relevant for the definition of one’s knowledge and the shaping of one’s world. The moral downfall of the Third Reich is thus the downfall of an entirely objective world, of a world that annihilates thinking and consequently eliminates from the realm of reality all those things that are but “things of thought”. 3. Illustrating this last point further, one should mention Arendt’s recovery of Solon’s allusion to those things that have no other “measure” but the “measure” of the human spirit. An allusion that would be later recovered by Plato as concerning those “ideas” which are “perceivable only by the eyes of the mind”14. Those ideas – such as the ideas of justice, truth, harmony or the good – are the ones that are perceived by the philosopher when thinking, i. e., when seeking meaning. To seek meaning in this sense is not a methodical endeavour. The Ancients referred to it as “wonder”. In the same context, and very significantly, Arendt recovers Socrates’ view according to which thinking leaves no place left for the existence of things such as “disharmony, ugliness or evil”. Arendt also recovers Socrates’ explanation for that: it is absurd to suppose things such as ugliness or evil to be meaningful. In those cases, “the 10

Ibidem. Cf. Arendt, Hannah: “Thinking and Moral Considerations”, in: Social Research: An International Quarterly, 38:3 (1971), pp. 417 – 446 (418). 12 Arendt states that thinking (knowledge “with and by myself”) is always concerned with things that are “present only to the mind”, i. e., with things that are ‘for us’ and not with things merely perceived by the senses which are strange to us (Arendt [1971], pp. 423 – 424). 13 In a relevant passage, Arendt refers to that world as the world of “the non-wicked everybody who has no special motives and for this reason is capable of infinite evil”, Arendt (1971), p. 445. There are remarkable similarities between such a description and the Heideggerian description of the world of the ‘They’. 14 Cf. Arendt (1978), p. 170. 11

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things are just the things we see”15. The “eyes of the mind” perceive nothing whatsoever in them; those eyes would never rest at those things in “wonder”. In a modern language, one can say that in those cases things are reduced to their pure objectivity. It is absurd to suppose that they have meaning since it is absurd to suppose a subject that acknowledges them as meaningful, i. e., who recognizes in them the essential “measure” of his mind. A world in which evil is banal is precisely a world deprived of that “measure” – a world thus reduced to pure objectivity. Furthermore, that world is characterized by something even more absurd. Something that only became a possibility due to the dominance of method that characterized Modernity and that thus could have never been anticipated by the Ancients. In fact, no Author among the Ancients could ever anticipate a world in which the subjects themselves are converted into mere agents of things as they are in their pure objectivity. In such a world, not only meaning is lacking but the very idea of meaning becomes incomprehensible, fundamentally because it becomes incomprehensible to accept as knowledge a wisdom with no other “measure” but that of the human mind. Now, a world in which not only meaning is lacking but the very idea of meaning becomes incomprehensible is Eichmann’s world: in it, evil becomes banal. This is precisely the context that clarifies Arendt’s statement according to which thinking prevents one from evil. In that statement, Arendt is not arguing that all those who think are incapable of evil – a statement that would be quite simplistic and even implausible. The point Arendt is making is quite different: by definition, thinking maintains the idea of meaning as comprehensible; when exercised, the capacity of thinking keeps meaning within the realm of reality, preventing an integral objectification of the world and of the subjects themselves. Therefore, if thinking does not make evil impossible, it makes banal evil impossible. That is, evil actions are never taken by the thinking person as a matter “of course”; the person who thinks is never entrenched in that point in a merely objective world. II. Absence of Meaning as Absence of Law 1. Corresponding to an absence of meaning, the “banality of evil” also corresponds, I shall now argue, to an absence of law. That if one presupposes the person (i. e. someone able to reflect on the meaning of her actions and to be responsible for the same) as co-essential to law. Indeed, the hypothesis I shall put forward following Eichmann in Jerusalem is as follows: the person in that sense is the antithesis of the totalitarian agent (i. e. the objectified or technologized subject, whose criminal actions are unproblematic for him or herself), in the exact same manner that law is the antithesis of a totalitarian system. Hence, the difference between the underlying sub-

15

Cf. Arendt (1978), p. 150.

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jects is the key to understanding the ontological difference there is between law and unlaw. Within this line of reasoning, what singles out “the Eichmann phenomenon” as a particularly relevant phenomenon – even if upsettingly generalized during the 20th century – is the destruction of personhood and its replacement by totalitarian agency. Something that becomes manifest at the moment in which Eichmann abstains from thinking on the meaning of his own actions, limiting himself to an indigent observance of the objective processes and regularities of his world. What is more, something that turns Eichmann into an outlaw in the most radical sense, explaining the utter incomprehension of his judges when placed before him and the consequent failure of his trial. Indeed, Eichmann’s judges, asked to apply the law, necessarily presupposed a subject able to understand the meaning (or lack thereof) of his own actions and, by the same token, the meaning of the condemnation or absolution of the same actions – with meaning being something co-essential to law. Thus, Eichmann could not have generated anything but utter incomprehension in those judges. 2. In this context, it should be remembered that the idea of personhood – essentially identified with the capacity to think and thus to evaluate into conscience the meaning of one’s actions, and being responsible for the same –, not being strange to the Western philosophical tradition, has been particularly marked within a contemporary line of thought – personalism – which emerged in the wake of 20th century totalitarian movements. That line of thought – developed by writers such as Emmanuel Mounier, Jacques Maritain, Gabriel Marcel and Martin Buber among others – starts from a central belief: human beings are persons. That is only apparently a tautology. Indeed, as Christian Smith synthesizes, “to believe that human beings are persons, not something else, and to grasp the meanings and ramifications of that belief is to stake out a position among rival positions that is neither self-evident nor universally shared (…). Of course, person is a word we use in our discourse pervasively and without much thought. But an exploration of the meanings of ‘person’ reveals that it involves significant, distinctive substantive content that carves out a view of humanity that is different from other, seemingly viable positions. It actually means something quite momentous to say that humans are persons (…). Such a claim believes that there are characteristic qualities of human beings that cannot be reduced to the elements of other, non personalist realities”. In particular, such a claim “believes there is more to the human than being the constituents of functional social orders, which are the agents of action, who fulfil their roles in order to meet the requisite needs and goals of those ordered systems”16.

16 Cf. Smith, Christian: What is a Person? Chicago/London (University of Chicago Press), 2010, pp. 102 – 103.

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One can say that Arendt’s later thought is also fundamentally concerned with that more there is to the human. Indeed, her conception of fundamental human capacities – thinking, willing and judging – precisely addresses that question. And when observing the utter absence of one of those capacities in Eichmann – thinking –, Arendt suggests that in Eichmann one is able to observe the culmination of a characteristically modern mode of conceiving the world – and also of conceiving human beings themselves: a mode that tends to centre itself on laws, processes and other supposedly “objective” regularities – in the most characteristic cases referring to history, evolution or economics. What is more, a mode that centres on those laws in a totalizing way, since the very subjectivity of human beings is reduced to the fulfilment of roles in “objective” systems shaped according to the same laws. What Arendt names as totalitarianism emerges at the moment in which those processes and regularities succeed in shaping reality – becoming reality itself –, shaping actually existing systems and, even more perversely, shaping actually existing agents of those systems, who face themselves as such17. In the moment that happens, the idea of personhood, and the inherent idea of responsibility, is eradicated. In totalitarianism, there are inexorable regularities and agents of the same – agents who perform the corresponding actions as a matter “of course”, in the exact way Eichmann did. 3. The connection thus evidenced between a totalitarian system and its agents finds its antithetical parallel in the connection there is between law (that is, an authentic lawful order) and person (that is, the subject not reduced to inexorability and thus not irresponsible). Indeed it is precisely that irreducibility that is assumed or presupposed by law, at least in so far as the idea of responsibility remains co-essential to it. In a lawful order in that sense there are no inexorable regularities or agents of the same, but something entirely different: there are norms and there are persons who acknowledge the meaning of those norms in conscience, remaining responsible for their actions (eventually, responding for the same actions when breaching those norms). If that is so, meaning cannot possibly be alien to law; more precisely, the acknowledgment or recognition of the meaning of its norms by complying (or eventually breaching) subjects is co-essential to law. One could say that meaning is what defines law as “the law”18. 17 Cf. Arendt, Hannah: The Origins of Totalitarianism. San Diego (Harcourt Brace & Co.), 1976 (1st ed., 1951), pp. 341 et seq. In Tony Judt’s synthesis, “the lasting importance of Arendt’s major work rests not upon the originality of its contribution but on the quality of its central intuition. What Arendt understood best, and what binds together her account of Nazism and her otherwise unconnected and underdeveloped discussion of the Soviet experience, were the psychological and moral features of what she called totalitarianism. By breaking up and taking over all of society, including the whole governing apparatus itself, totalitarian regimes dominate and terrorize individuals from within”, cf. “Hannah Arendt and Evil”, in: Judt, Tony: Reappraisals – Reflections on the Forgotten Twentieth Century. New York (Penguin), 2008, pp. 73 – 92 (75). 18 On Law as “the Law”, cf. Smith, Steven Douglas: Law’s Quandary. Cambridge/MA (Harvard University Press), 2004, pp. 41 et seq.

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In Joseph Vining’s words, law “presupposes, creates and demands the person”, an actor who is “never captured or transformed into material or processes that merely are”, remaining able to acknowledge a meaning – the meaning of law – that is not to be confused with what merely is19. There is a characteristically modern mode of thought which “eliminates the actor”, “dissolving the actor into what is, what happens” – a mode that thus obliterates the echo in conscience of whatever is or happens. That is not legal thought – a thought that will only persist for as long as we are able to “escape from a circle that would have us dying into what merely is, into the material or into history”20. We can thus say that law – the law – opposes the unrestricted expansion of modern science, preserving a self – the person – science is unable to apprehend or to understand: “Law stands in the way of science; law, and person and sense of self, are mutually sustaining and interpenetrating. So law stands in the way of self-destruction, and the person stands in the way of destruction, for the loss of self and the loss of law proceed together, but grasping the one stops departure of the other”21.

4. There is a question that inevitably arises if one takes into account the verified correspondence between person and law: is the person a merely artificial construction, acritically accepted by jurists but ultimately as fictitious as the Übermensch, the agent of class or the homo oeconomicus? I surely will not presume to answer this last question. I do however find it important to point out that the same is not strange to legal thought. Firstly, the same question is not strange to those thinkers who developed a treatment of personhood within the Aristotelian-Thomistic tradition. For those thinkers, personhood is not “a mere structure artificially superimposed to reality out of mere convention and routine”, but an ontological demand related to the very essence of man – a demand in which man fully accomplishes himself as man, in which man “becomes act”. And as long as law – different from unlaw, in the same way right is different from wrong – presupposes and preserves that demand, a correspondence remains between “the end of law” and “the end of man himself”22. Outside the Aristotelian-Thomistic tradition, Joseph Vining understands the connection between law and person as an ontological connection. Indeed, Vining essentially sustains the view that the person is (i. e., persists against the possibility of selfdestruction) as long as law persists (being law an order which presupposes and pre19 Vining, Joseph: From Newton’s Sleep. Princeton (Princeton University Press), 1995, pp. 104, 235. 20 Vining (1995), p. 128. 21 Vining (1995), p. 207. 22 Cf. Gomes da Silva, Manuel Duarte: “Esboço de uma Concepção Personalista do Direito”, in: Separata da Revista da Faculdade de Direito da Universidade de Lisboa, XVII (1965), pp. 69 and 105.

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serves the person). Thus “the question what the law ‘is’ is not so very different from the question what we ‘are’”23 When addressing specifically the question concerning the reality (or non-artificiality) of the person, Vining advances an illuminating comparison, reasoning in a negative yet very clarifying manner. For Vining, the person is an entirely different presupposition as to its nature and ontological status from the “working presuppositions” that are entertained by science. Vining’s position is summarized in the following passage: “There is the possibility that the presuppositions which must be entertained to do legal work need only be working presuppositions and that one can remain agnostic as to them to the end of one’s life (…). In law the possibility of conscious illusion, the living to the end of one’s life with only working assumptions cannot be absolutely denied. Economics operates with a working assumption of economic man, physics works with particles, waves and other units of thought and discourse that are only working assumptions. But, on the other hand, economics and physics are not so pervasive in life. The door is closed on economics and physics at 5:00 or 10:00 in the evening and the whole person returns home or goes out to search for home. Actual belief in that which is presupposed in law may be necessary, in the largest sense, necessary beyond the necessities the logic that cannot even begin without definition of entities. Belief may be necessary to actual and actually experienced obligation and authority, to actual persistence in legal work that can lead to actual obligation and authority”24.

Thus being, the person, even if it is a construction of human beings presupposed by jurists, is distinct from other constructions of human beings – of an artificial nature – since it entails an openness to human experience in its entirety, including that experience that transcends the objective necessities of logic. In particular, the person as a presupposition only becomes understandable in reference to elements which are not related to the objective experience of the world, but rather with the subjective selfexperience of subjects themselves: elements such as belief, experienced obligation or authority. In sum, and paraphrasing Miguel de Unamuno, the person is a non-artificial construction of human beings in the exact same way man is a subject and not an object25. Also enlightening is one other passage in which Vining explicitly asks if lawyers are deceiving themselves when presupposing the person, that is: if, after all, the presupposition that the person is has no more credit – being a “merely useful” presupposition – than the negation of the same implied in modern science. According to Vining that is not the case:

23

Cf. Vining (1995), p. 128. Vining (1995), p. 207. 25 On Joseph Vining’s conception, see Smith, Steven Douglas: “Persons all the Way Up”, in: Research Paper No. 10 – 003, Legal Studies Research Paper Series, University of San Diego School of Law, 2010 (online at SSRN: http://ssrn.com/abstract=153500). 24

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Luís Pereira Coutinho “There is a difference whatever the final judgment on lawyer’s assertions may be. Lawyers presuppose mind, to be sure, as they go about their business, but they are not doing so for the purpose of ‘seeing what would happen if’ or of predicting. The presupposition of mind is a useful presupposition, has a use, in securing willing obedience and the joint pursuit of shared purposes as they are expressed through law, which is derived by legal method. But this usefulness – if the term useful can be used without moving into a detached and manipulative stance – is not realized without belief. It is the positive assertion of the existence of mind and caring person that makes the presupposition useful in law; whereas in science it is not the assertion that is useful but the hypothetical proposition, which is set up and sought to be disproven and which is refined and changed as the facts are surveyed. Indeed, in science the transformation of hypothetical into positive assertion gets in the way of modifying or discarding the predictive device. In law the assertion or the belief is prior to the methodological presupposition, though certainly lawyers (and people generally) work to maintain the possibility of belief. And hearing and understanding, willing obedience, mind and meaning, are part of the experience of the lawyer and the nonlawyer, part of the evidence, not merely propositions derived from the evidence. The evidence (again, if experience of these things is to be treated as evidence, to make the two cases at all comparable) is not of a kind which a scientist would admit, for the scientist is always detached and outside that which he or she work”26.

5. I defended, in essence, that there is a necessary connection between personhood and law. I should point out, before finishing, that to sustain the existence of a necessary connection between personhood and law – of personhood and Right – does not mean to sustain a necessary connection between personhood and rights; that considering that personhood is not the ultimate criterion for the recognition of rights. That criterion is to be found in human dignity. Human dignity – that is, the intrinsic value of human beings merely as such27 – constitutes the foundation of law and it is in its ultimate reason that human beings are holders of human rights28. Differently, personhood is the presupposition of law – or, if preferred, an ontological element which is co-essential to law. Indeed if law as the law is to become the order of society, it is imperative that human beings come to be persons, thus come to be the holders of the duties corresponding to those rights. In that light, the essential binomials to consider are personhood and human dignity, presupposition and foundation of law, duties and rights.

26

Idem, pp. 145 – 146. Ratzinger, Joseph: L’Europa di Benedetto nella Crisi delle Culture. Siena (Cantagalli), 2005, p. 54. 28 For further developments, Pereira Coutinho, Luis: “Human Dignity as a Background Idea”, forthcoming in: Kirste, Stephan (ed.): Human Dignity and the Foundation of Law. Stuttgart (Steiner-Verlag [in preparation]). 27

When Thinking Is Acting: The Concept of the Banality of Evil as a Key to Hannah Arendt’s Political Thought Miguel Nogueira de Brito Introduction: Reserve Police Battalion 101 Shortly after the end of World War II a woman denounced her husband to the police, as a sequel to a family quarrel, with regard to the latter’s participation, when serving in Reserve Police Battalion 101, in the mass assassination of Jews and Poles during the Nazi occupation of Poland. This “domestic affair” thus led to the discovery of one of the most heinous crimes of the Germans during the war. Historian Christopher Browning describes one of those crimes, pointing out the circumstance that not one of those involved had been a member of the special trained units known as the Einsatzgruppen, who were usually involved in the Final Solution. Instead they were “middle-aged family men of working- and lower-middle-class background from the city of Hamburg”. They were considered “too old to be of use to the German army”. Addressing the men of Reserve Police Battalion 101, their commandant, Major Trapp, informed them of their mission: they were to separate all male Jews of working age from the Polish village of Józefów and take them to a work camp, and to shoot all those remaining – women, children and the elderly – on the spot. And then Major Trapp made an extraordinary offer: “if any of the older men among them did not feel up to the task that lay before them, they could step out”1. Out of the nearly 500 men that were part of the Reserve Police Battalion 101 a mere dozen accepted Major Trapp’s offer2. That is, a mere dozen men accepted the offer immediately. Once the shooting began, more men were simply unable to withstand the task and asked to be relieved. Some claimed they could not shoot defenceless women and children. Be that as it may, the fact is that “at least 80 per cent of those called upon to shoot continued to do so until 1,500 Jews from Józefów had been killed”3. At 9.00 p. m., when the last Jews had been killed, some seventeen hours after the beginning of the slaughter, and the men prepared to leave Józefów, a ten-year-old girl 1 Cf. Browning, Christopher R.: Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland. London (Penguin), 2001, pp. 1 – 2. 2 Cf. Browning (2001), p. 71. 3 Cf. Browning (2001), p. 74.

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appeared, bleeding from her head. She was taken to Major Trapp, “who took her in his arms and said, ‘you shall remain alive.’”4. Later, Trapp confided to his driver, concerning the Józefów massacre, “If this Jewish business is ever avenged on earth, then have mercy on us Germans”5. What is the relevance of all this to Hannah Arendt’s concept of the banality of evil? In order to answer this question, it will perhaps be useful to underscore two issues. First, the same historical facts that were investigated by Christopher Browning were also the subject of study by another historian, Daniel Jonah Goldhagen, whose book, with the suggestive title Hitler’s Willing Executioners: Ordinary Germans and the Holocaust, was published in 1996, four years after the first edition of Browning’s book. To Goldhagen the Order Police took as much part in the perpetration of the Holocaust as the Einsatzgruppen and the SS6. Concerning Major Trapp’s address to his men, searching to justify the killing that was about to begin with the deaths of innocent German women and children at the hands of Allied bombing, Goldhagen says: “The perversity of the Nazified German mind was such that thinking of their one children was not intended to, calculated to, and evidently did not – except in the case of a few – arouse sympathy for other children who happened to be Jewish. Instead, thinking of their children spurred the Germans to kill Jewish children”7. The perspectives of Goldhagen and Browning differ in two main points. On the one hand, Goldhagen believes that all of German society had been imbued with an eliminationist anti-Semitism since much earlier than the Nazi period, in fact an anti-Semitism with roots in the Christian medieval world. As a consequence, the Holocaust is not to be viewed as an unintended cumulative radicalization of the Nazi policy concerning the Jews, because of impersonal functioning of bureaucracies or any other reasons. Instead, the Germans’ anti-Jewish policy was animated by the “the maximum feasible eliminationist option possible”8. On the contrary, Browning claims that a succession of traumatic experiences in Germany between 1912 and 1929 “makes the history of Germany and German anti-Semitism different from any other country in Europe”9. On the other hand, and as a result of his interpretation of the role of anti-Semitism in German history, Goldhagen believes in a pattern of uniform and generalized cruelty by the Germans, including the members of Reserve Police Battalion 101, towards 4

Cf. Browning (2001), p. 69. Cf. Browning (2001), p. 58. 6 Cf. Goldhagen, Daniel J.: Hitler’s Willing Executioners: Ordinary Germans and the Holocaust. London (Little, Brown & Co.), 1996, p. 181. 7 Cf. Goldhagen (1996), p. 213. 8 Cf. Goldhagen (1996), p. 422. For a critique of Goldhagen’s work cf. Finkelstein, Norman G./Birn, Ruth B.: A Nation on Trial: The Goldhagen Thesis and Historical Truth. New York (Metropolitan Books), 1998. 9 Cf. Browning (2001), p. 197. 5

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the Jews10. On the contrary, Browning claims that the attitudes of the men of Reserve Police Battalion 101 were not uniform; those attitudes impose a multi-layered portrayal of the battalion in the sense that “different groups within the battalion behaved in different ways”. There were the eager killers who sought the opportunity to kill. But there were also, although they were the smaller group, those who refused to take part in the slaughter. Among these only one person in the battalion refused to take part for reasons of principle; all the others did not reproach their comrades but they just claimed they were too weak to kill women and children, being themselves husbands and fathers. The largest group in the battalion was composed of those who were ready to do whatever they were asked to do, that is, those that did not risk “the onus of confronting authority or appearing weak” but neither did they “volunteer for or celebrate the killing”. According to Browning, “increasingly numb and brutalized, they felt more pity for themselves because of the ‘unpleasant’ work they had been assigned than they did for their dehumanized victims”11 The second point one must emphasize concerns the theoretical model that forms the basis for Browning’s historical interpretation. This interpretation is in fact inspired by Stanley Milgram’s experiments on “obedience to authority”. Milgram tested the capacity of individuals to resist authority in cases where those individuals are not under direct threat. According to Milgram’s experiment, which was avowedly designed as an attempt to explain the actions of the Nazis in the Holocaust12, volunteers were instructed by a “scientific authority” to administer electrical shocks on a supposed victim. Two thirds of the experiment participants administered the experiment’s final 450-volt shock. While recognizing the differences between the experiment and Józefów’s massacre, Browning claims that the policemen’s behaviour supports Milgram’s conclusions. Direct proximity to the horror of the killing increased the number of those that refused to take part. On the other hand, with the growing industrialization of the killing of the Jews and the removal of the killings to the death camps, the policemen no longer felt they were responsible, even if they were encharged with transporting the Jews to their final destiny. Finally, as in the

10 According to Goldhagen, considering the possibility they were given of refusing to take part in the killing and the small number of those that took advantage of that possibility, “by choosing not to excuse themselves from the genocide of the Jews, the Germans in police battalions themselves indicated that they wanted to be genocidal executioners” (cf. Goldhagen [1996], p. 279). 11 Cf. Browning (2001), p. 215. 12 In fact, Stanley Milgram, in his Obedience to Authority: An Experimental View (New York [Harper & Row], 1974, p. 5), mentions Hannah Arendt’s characterization of Eichmann not as a sadistic monster but as an obedient bureaucrat. The reference to Milgram’s experiment in the text does not mean the acceptance of its scientific validity but is only meant to point out the plausibility of situations in which evil is not rooted in the agent’s individual personality (cf., also, the experiment conducted in 1971 by Philip Zimbardo and related in his book: The Lucifer Effect: Understanding How Good People Turn Evil, New York [Random House], 2007).

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case of Milgram’s experiment without direct surveillance, many policemen did not comply with orders when not directly supervised13. Although the ideological justifications were different (in Milgram’s experiment the belief in science; anti-Semitism in Nazi Germany), the common ground is the presence of the habit of obeying authority, in the absence of which no society is able to survive14. The importance of this habit is confirmed, in the case of the men of Reserve Police Battalion 101, by the fact that they were “ordinary men”, not specifically prepared to carry out the Final Solution like the Einsatzgruppen15. According to Browning, the actions of the battalion concerning the killings of the Jews reveal another aspect, namely conformity with the group, which is not present in Milgram’s experiment16. In this context the significance of Józefów’s massacre to Hannah Arendt’s concept of banality of evil becomes evident. This episode of the Holocaust proves the relevance for the concept, even if this concept does not fit Eichmann’s case17. The “ordinary men” of Reserve Police Battalion 101 are, in fact, more appropriate tokens of the concept. Hannah Arendt claimed that “Eichmann may very well remain the concrete model of what I have to say”18. Even if Eichmann is not that model, which is a matter of historical investigation, this does not in the least undermine the philosophical importance of what she had to say. From the historical point of view what only matters to us is the ascertainment of the existence of normal people, with normal motives and intentions, such as obtaining promotion or not appearing weak to their comrades, who are capable of committing hideous crimes. What are the consequences of this idea of the “banality of evil”, that has caused such uproar since the publication of Hannah Arendt’s book on the trial of Adolf Eichmann? In the next pages I will begin by tracing the origin and evolution of the concept in Arendt’s thought (II.). After that I will attempt to characterize the concept of the banality of evil as part of a secular conception of evil, following the lead of Susan Neiman (III.). Finally, I will explore the connections between the concept of the banality of evil and Arendt’s political philosophy, pointing out the importance in her thought of the capacity to judge and the refusal of the idea of politics as theory (IV.). 13

Cf. Browning (2001), pp. 175 – 176. Cf. Browning (2001), p. 189. 15 Cf. Browning (2001), p. 184. 16 Cf. Browning (2001), pp. 184 ff. 17 This is precisely Christopher Browning’s opinion: he considers “Arendt’s concept of the ‘banality of evil’ a very important insight in order to understand many of the perpetrators of the Holocaust, but not Eichmann himself. Arendt was fooled by Eichmann’s strategy of selfrepresentation in part because there were so many perpetrators of the kind he was pretending to be” (cf. Browning, Christopher R.: Collected Memories: Holocaust History and Postwar Testimony. Madison (University of Wisconsin Press), 2003, pp. 3 – 4). 18 “Letter from Hannah Arendt to Gershom Scholem, July 24, 1963”, in: Arendt, Hannah: The Jewish Writings. Ed. by Kohn, Jerome/Feldman, Ron H. New York (Schocken Books), 2007, p. 471. 14

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I. The Banality of Evil: From the Words to the Idea The wording “banality of evil” appears twice in Arendt’s book Eichmann in Jerusalem: firstly in the subtitle of the book, “A Report on the Banality of Evil”; secondly, when Arendt comments on Eichmann’s final sentences, just before he was executed19. On this latter occasion Eichmann said: “After a short while, gentlemen, we shall all meet again. Such is the fate of all men. Long live Germany, long live Argentina, long live Austria. I shall not forget them”. In the face of death Eichmann, says Arendt, “had found the cliché used in funeral oratory. Under the gallows, his memory played him the last trick: he was ‘elated’ and he forgot that this was his own funeral”. She proceeds: “it was as though in those last minutes he was summing up the lesson that this long course in human wickedness had taught us – the lesson of the fearsome, word-and-thought-defying banality of evil”20. In a later essay Hannah Arendt explains the scarce use of the expression in the very book that coined it: “the book’s subtitle, A Report on the Banality of Evil, seemed to me so glaringly borne out by the facts of the case that I felt it needed no further explanation. I had pointed to a fact which I felt was shocking because it contradicted our theories concerning evil, hence to something true but not plausible”21. In the same vein she says in another text: “Some years ago, reporting the trial of Eichmann in Jerusalem, I spoke of ‘the banality of evil’ and meant with this no theory or doctrine but something quite factual, the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology, or ideological conviction in the doer, whose only particular distinction was a perhaps extraordinary shallowness. However monstrous the deeds were, the doer was neither monstrous nor demonic, and the only specific characteristic one could detect in his past as in his behaviour during the trial was something entirely negative: it was not stupidity but a curious, quite authentic inability to think”22. Arendt had indeed pointed out, after all, the existence of an “inner connection between the ability or inability to think and the problem of evil”23. What does this “inner connection” mean? Eichmann’s trial awakened in Arendt a hypothesis through which she was able to understand the nature of evil under the conditions of totalitarianism. That hypothesis 19 In fact the words appear only once, if we acknowledge that the subtitle does not appear in The New Yorker articles that formed the basis of the book (cf. Bernstein, Richard: “Are Arendt’s Reflections on Evil Still Relevant?”, in: Benhabib, Seyla (ed.): Politics in Dark Times: Encounters with Hannah Arendt. Cambridge (Cambridge University Press), 2010, p. 300). 20 Cf. Arendt, Hannah: Eichmann in Jerusalem: A Report on the Banality of Evil. New York (Penguin), 1977, p. 252. 21 Cf. Arendt, Hannah: Responsibility and Judgment (edited and introduced by Jerome Kohn). New York (Schocken Books), 2003, p. 18. 22 Idem, p. 159. 23 Idem, p. 166.

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consisted of questioning whether the practice of evil could be possible in the absence not only of “evil motives” but also of no motives whatsoever and even in the absence of any particular activity involving volition and interest. In other words, the hypothesis Arendt formulated consisted of admitting that perversity was not a necessary condition for the practice of evil. The question that Eichmann’s trial put to Arendt was the following: “could the activity of thinking as such, the habit of examining and reflecting on whatever comes to pass, regardless of specific content and quite independent of results, could this activity be of such a nature that it ‘conditions’ men against evildoing?” And would not the urgency of this question be enforced by the “rather alarming fact that only good people are ever bothered by a bad conscience whereas it is a very rare phenomenon among real criminals? A good conscience does not exist except as the absence of a bad one”24. And perhaps the best guarantee to the absence of a bad conscience is the presence of thought. Although Arendt presents Eichmann in Jerusalem almost as a journalistic report, the importance of its subject is well evidenced by the fact that one of her last and most ambitious books, The Life of the Mind, begins by mentioning the banality of evil. In this book she says that behind that phrase there was no thesis or doctrine, although she was aware that it went counter to our tradition of thought about the phenomenon of evil. And she adds: “Evil, we have learned, is something demonic […]. However, what I was confronted with was utterly different and still undeniably factual. I was struck by a manifest shallowness in the doer that made it impossible to trace the uncontestable evil of his deeds to any deeper level of roots or motives. The deeds were monstrous but the doer – at least the very effective one now on trial – was quite ordinary, commonplace, and neither demonic nor monstrous. (…) It was this absence of thinking – which is ordinarily an experience in our everyday life, where we have hardly the time, let alone the inclination, to stop and think – that awakened my interest.”25

As a means to explore the possibility of a connection between the ability to think and the removal of evil, Arendt attempts to establish, building on Kant, a distinction between thinking and knowing. This is the distinction between thinking as the use of reason in order to reach understanding and knowing as the intellect that is capable of certain, verifiable knowledge26. Kant believed, in fact, in the necessity of thinking beyond the limitations of knowledge and this is, in large measure, the sense of his distinction between theoretical reason, which establishes in solid bases the possibility of knowledge, and practical reason, which attempts to think about questions that reason raises but knows it will never be able to answer. The metaphysical questions of 24

Idem, pp. 160 – 161. Cf. Arendt, Hannah: The Life of the Mind. Vol. 1, San Diego (Harcourt Brace & Co.), 1978, pp. 3 – 4. 26 Cf. Arendt (2003), p. 163. 25

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God, freedom, and immortality are removed from the horizon of possible objects of knowledge and viewed as constructs of reason. According to Arendt, Kant “discovered the ‘scandal of reason’, that is, the fact that our mind is not capable of certain and verifiable knowledge regarding matters and questions that it nevertheless cannot help thinking about”27. The distinction between thinking and knowing finds its parallel in the difference between the quest for truth and the quest for meaning. Knowledge searches for truth but thought needs meaning. For Arendt, “the need of reason is not inspired by the quest for truth but by the quest for meaning. And truth and meaning are not the same. The basic fallacy, taking precedence over all specific metaphysical fallacies, is to interpret meaning on the model of truth”28. On the basis of these distinctions Arendt was able to say that “inability to think is not stupidity; it can be found in highly intelligent people, and wickedness is hardly its cause, if only because thoughtlessness as well as stupidity are much more frequent phenomena than wickedness”29. Following her distinction between thinking and knowing, Arendt enunciates three propositions in order to demonstrate the inner connection between the ability to think and the problem of evil: (1) the faculty of thinking, as distinguished from the thirst for knowledge, must be ascribed to everybody and cannot be a privilege of the few; (2) the faculty of thought essentially questions all of its results and so we cannot expect a final definition of what is good and what is bad; (3) as the activity of thought deals with invisibles one must ask how it can be relevant for the world of appearances in which we live30. It is only possible to answer this last question if one realizes that in emergency situations, in which everything appears to fall apart, as happens in totalitarian systems, thinking is no longer “a marginal affair for society at large”: “when everybody is swept away unthinkingly by what everybody else does and believes in, those who think are drawn out of hiding because their refusal to join is conspicuous and thereby becomes a kind of action”31. The importance of the concept of the banality of evil to the understanding of totalitarianism is present in two questions Arendt poses: firstly, in what way were those few different who did not collaborate and refused to participate in public life? Secondly, if not all who collaborated and participated were simple monsters, what was it that made them behave as they were? The answer to these questions is simple. Those that did not participate were the only ones that dared to judge for themselves; on the contrary, it was the members of respectable society that were the first to yield, “when

27

Cf. Arendt (1978), vol. 1, p. 14. Idem, p. 15. Bernard J. Bergen refers to the reversion of the precedence of truth over meaning in Hannah Arendt; cf. his The Banality of Evil: Hannah Arendt and the “Final Solution” (Lanham [Rowman & Littlefield], 1998, pp. 53 ff.). 29 Cf. Arendt (2003), p. 164. 30 Idem, pp. 166 – 167. 31 Idem, p. 188. 28

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they exchanged one system of values against another”32. And they exchanged it without submitting this new system of values to doubt, as is proper of modernity, and by simply invoking the obedience due to authority and the laws of the land. In her letter to Gershom Scholem, answering the harsh critiques he made to her book on the trial of Eichmann, Arendt wrote: “It is indeed my opinion now that evil is never ‘radical’, that it is only extreme, and that it possesses neither depth nor any demonic dimension”33. In works before Eichmann in Jerusalem, Arendt made use of the concept of radical evil. Does the concept of the banality of evil mean any inflexion in her thought on evil? In fact, no. The expression “radical evil” designates the object of evil; the expression “banality of evil” describes the subject, the agent, of evil. Both refer to the reality of evil under the conditions of totalitarianism. “Radical evil” is the condition in which the human being becomes superfluous34, the systematic search to transform human nature in something that is no longer human. This is what differentiates the Holocaust from previous occasions in Europe when mass murders, genocides, torture and terror occurred35. According to Arendt, one of the facts that made this phenomenon possible was the creation of people who belonged to no nation state in a world in which there was an indissoluble connection between nationality and the capacity to be the holder of human rights. So, there is the possibility of the appearance of “radical evil” whenever it is necessary to deal with people that have no legal or political status. The occurrence of refugees is a problem as serious in the twenty first century as it was in the twentieth36. Radical evil finds its subjective complement in the banality of evil; perhaps one can even say that this banality is one of the modes of propagation of that radicalism. It is especially by means of the absence of thought that radical evil can “overgrow and lay waste the whole world precisely because it spreads like a fungus on the surface”37.

32

Idem, pp. 44 ff. Cf. “Letter from Hannah Arendt to Gershom Scholem, July 24, 1963”, in: Arendt (2007), p. 471. 34 Cf. Arendt, Hannah: The Origins of Totalitarianism. New York (Schocken), 2004, p. 592. 35 I say “in Europe” because, as pointed out by Sven Lindqvist, Auschwitz was the industrial modern application of an extermination policy that had long been common practice in the European world domination (cf. Lindqvist, Sven: “Exterminate All the Brutes”: One Man’s Odyssey in the Heart of Darkness and the Origins of European Genocide [transl. from the Swedish by Joan Tate]. New York [The New Press], 2007). 36 Cf. Bernstein (2010), p. 298. 37 “Letter from Hannah Arendt to Gershom Scholem, July 24, 1963”, in: Arendt (2007), p. 471. 33

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II. A Secular Conception of Evil? According to Susan Neiman, Eichmann in Jerusalem can be viewed as a modern theodicy for it gives us an approach to evil that puts aside the Creation and at the same time provides an answer to the question that confronts any theodicy: “showing how the world can be affirmed, even loved, without denying the evil within it”. This means the possibility of explaining evil without referring to mysteriously evil intentions38. Traditionally, theodicy aimed at reconciling divine omnipotence and goodness with the existence of evil in the world. In view of this, some have defended that Auschwitz means the liquidation of theodicy itself, at the same time as others have sought to redeem the theistic position when confronted with the Final Solution39. Arendt intends not so much to deny the theistic position – although she certainly did not endorse it – as to reject the transcendence of evil. To reject the transcendence of evil implied claiming that a phenomenon of such dimension as the Holocaust had become possible not only on account of the intentions and deeds of some fanatic racists and sadistic men but as the result of the connivance of a majority. The intentions of all those people constituting that majority were not directly aimed at the elimination of millions of Jews but simply at the accomplishment of the tasks that had been assigned to them. It is in this setting that Arendt substitutes the absence of thought for evil intention. It was in part the inability to think that made the Holocaust possible. What is more, the inability to think is compatible not only with the absence of malefic intentions but even with the presence of seemingly good intentions, at least under normal conditions, such as the intention to obey superiors or even the intention to save as many lives as possible. The absence of profound evil intentions, combined with the inability to habitually think of criticizing orders, enables Arendt to view Eichmann as an empty bureaucrat and not as somebody with a diabolic or perverted mind. At the same time, according to Arendt, the inability of the Jewish Councils to think through the consequences of their acts, handing over to the Nazis lists of persons in return for saving some lives, only had the effect of facilitating greater efficiency in the killing of millions40. So we have reached a situation in which the Holocaust was made possible by the actions of millions of people with trivial evil intentions, people like Eichmann (it would be perhaps more correct to say: people like the men of Reserve Police Battalion 101), who “did not actively will the production of corpses, but was willing to walk over them, literally if it advanced his career; the lukewarm well-meaning bystanders who wrung 38 Cf. Neiman, Susan: “Banality Reconsidered”, in: Benhabib, Seyla (ed.): Politics in Dark Times, 2010, p. 309. 39 See, for example, Adams, Marilyn McCord: “Horrendous Evil and the Goodness of God”, in: Adams, Marilyn McCord/Adams, Robert Merrihew (eds.): The Problem of Evil. Oxford (Oxford University Press), 1990, pp. 211 ff. 40 Cf. Arendt (1977), pp. 180 ff.

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their hands and retreated to inner emigration as the catastrophe around them grew; and people whose intentions were often exemplary , but whose mistakes of judgment led them to actions that produced the opposite of what they intended”41. In this regard one could even compare Arendt’s critique of the Jewish Councils with the comments she made regarding the performance of the Catholic Church, particularly the actions of Pope Pious XII, concerning the extermination of the Jews by the Nazis. The two main critiques that were made of Arendt – her refusal to see Eichmann as a monster and the counterproductive action of the Jewish Councils – have the same root. This is the idea according to which the intentions of participants cannot be established merely on the basis of subjective states of mind but on objective facts. To Arendt this was not meant to excuse Eichmann. It was meant to imply that Eichmann’s responsibility was located in the simple fact that he ignored the consequences of his actions42. It is important, even necessary, to have a secular conception of evil because such a conception allows us to resist the temptation of the absolutization of evil, which is presented by some people in our days as a characteristic trait of the so called war against terror43. Arendt herself has in secular terms envisaged the guarantee against evil represented by the activity of thinking44. III. The Idea of the Banality of Evil in Hannah Arendt’s Political Philosophy Even though Eichmann in Jerusalem was not conceived as a theoretical work it would also be incorrect to view it as a simple piece of journalistic work. In fact, the concept of the banality of evil has critical importance in Hannah Arendt’s political thought. This importance is perceptible on multiple levels. 1. Arendt’s Cosmopolitanism Firstly, the concept of the banality of evil helps us to overcome one of the critiques that Arendt’s book has given rise to, the accusation of her lack of love for the Jewish people. As stressed by Elizabeth Young-Bruhel, Arendt was certainly not moved by the love of the Jewish people; she was moved by the love of the world, or Amor Mundi45. 41

Cf. Neiman, (2010), p. 310. Idem, p. 311. 43 Cf. Bernstein (2010), p. 295. 44 Cf. Arendt (2003), p. 157. 45 Cf. Young-Bruehl, Elisabeth: Hannah Arendt. For Love of the World. New Haven (Yale University Press), 1982, pp. xvii, 324 and 327. 42

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The critique of the lack of love for the Jewish people to which Eichmann in Jerusalem was submitted by Gershom Scholem can be summarised as follows: how can a Jewish woman not take part in the suffering of her people to the point of criticizing facts that she did not observe, such as the actions of the Jewish Councils? Answering her supposed absence of love of the Jewish people she said: “I have never in my life ‘loved’ any people or collective – neither the German people, nor the French, nor the American, nor the working class or anything of that sort”. Arendt clearly saw herself as a Jew: even if she refused the belief of a people in itself, she did not question for a moment her belonging to the Jewish people “as a matter of course, beyond dispute or argument”46. Arendt’s refusal to identify with a collective entity is precisely the other side of her ascribing responsibility to everyone through the activity of thinking, or its absence. At the same time if the ability to think can be required of everyone , as opposed to a blind identification with some collective, there are solid grounds to build a cosmopolitan attitude in politics. This cosmopolitan attitude, which is pervasive in Arendt’s thought, has other important expressions. Most importantly, Arendt refuses to identify politics with coercive power and she instead sees public deliberation as the essence of politics. Consequently she also insists on the internationalization of human rights and the institution of international justice as the only effective means to handle the crimes of genocide that are characteristic of our time47. 2. Thinking and the Political Life A second point that needs to be underlined is the relationship between responsibility through thinking and the distinction made by Arendt with regard to the various forms of vita activa. In The Human Condition, one of her most important books, Arendt insists on it being possible to establish a significant distinction between the world of action, the world of production and the sphere of necessity. According to Arendt, “the modern age was intent on excluding political men, that is, man who acts and speaks, from its public realm as antiquity was on excluding homo faber”48. To Arendt’s mind action is the true condition of human life: men can force each other to work for them and use the world of things without adding any new objects to it, but a life without discourse and action would not be a real human life for the simple reason that it would not be a life lived among human beings49. 46 “Letter from Hannah Arendt to Gershom Scholem, July 24, 1963”, in: Arendt (2007), pp. 466 – 467. 47 Cf. Arato, Andrew/Cohen, Jean L.: “Banishing the Sovereign? Internal and External Sovereignty in Arendt”, in: Benhabib, Seyla (ed.): Politics in Dark Times 2010, pp. 137 ff. 48 Cf. Arendt, Hannah: The Human Condition. Chicago/London (University of Chicago Press), 1958, p. 159. 49 Cf. Arendt (1958), pp. 7, 9, 98, 134, 175 – 176, 183 – 184.

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When Arendt claims that the absence of thought is one of the reasons that made the Holocaust possible, how can we place this category of “thought” within her distinction of the forms of the vita activa? We already know that, for Arendt, thinking is different from knowing, as meaning is different from truth. Is it possible that thinking is part of that most important form of active life, which is political action? Arendt clearly stated that “thinking and acting are not the same, and to the extent that I wish to think I have to withdraw from the world”50. According to her action takes place in the world, with other people, while thinking presupposes a withdrawal to the world of solitude, the undertaking of a “dialogue of me and myself”51. In the opinion of some critics, Arendt’s analysis of the faculty of judgment, based on Kant, is the missing link that allows the establishment of a relationship between the life of the citizen and the life of the mind52. Arendt believed the Kantian critique of the faculty of judgment to be the basis for the missing Kantian political philosophy. In this sense she questioned herself: “is our ability to judge, to tell right from wrong, beautiful from ugly, dependent upon our faculty of thought? Do the inability to think and a disastrous failure of what we commonly call conscience coincide?”53 On the other hand she wrote: “Thinking deals with invisibles, with representations of things that are absent; judging always concerns particulars and things close at hand”54. Finally, the power to judge always exists in “anticipated communication” with others and rests on a potential agreement with them, as opposed to the solitary nature of thinking55. It is tempting to join together thinking, judging and political action, at least to all those that adopt a rationalistic vision of politics along the lines of, say, Jürgen Habermas. However, to Arendt thinking is not the same as the political activities of debate and deliberation. Thinking prepares the ground for judging and political action in essentially negative in form as it purges our fixed habits of thought, and ossified rules and standards56. Arendt’s analysis of Socrates, “an example of a thinker who was not a professional, who in his person unified two apparently contradictory passions, for thinking and acting”, is quite revealing on this issue57. However, not all the possible connections between thinking and the problem of evil are in this way revealed. In emergency situations thinking transforms itself 50

Cf. Arendt, Hannah: “On Hannah Arendt”, in: Hill, Melvyn (ed.): Hannah Arendt: The Recovery of the Public World. New York (St. Martin’s Press), 1979, p. 304. 51 Cf. Arendt (1978), vol. 1, p. 185; Arendt, Hannah: Between Past and Future: Eight Exercises in Political Thought. New York (Penguin), 19772, pp. 220 – 221. 52 Cf. Villa, Dana R.: Politics, Philosophy, Terror: Essays on the Thought of Hannah Arendt. Princeton/NJ (Princeton University Press), 1999, p. 87. 53 Cf. Arendt (2003), p. 160. 54 Cf. Arendt (1978), vol. 1, p. 193. 55 Cf. Arendt (19772), pp. 220 – 221. 56 Cf. Villa (1999), p. 89. 57 Cf. Arendt, (1978), vol. 1, p. 167; Arendt (2003), pp. 82 ff., p. 173.

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into a form of action. Hannah Arendt says exactly this, as mentioned above: “when everybody is swept away unthinkingly by what everybody else does and believes in, those who think are drawn out of hiding because their refusal to join is conspicuous and thereby becomes a kind of action”58. In emergency situations, not to mention totalitarianism, the individual, and no longer the (non-existent) community, is the political unit. At the same time the existence of emergency situations in which thinking becomes acting shows the importance of the fundamental rights of thought, such as the freedom of conscience, freedom of expression and freedom of the press. 3. Obedience and Consent Eichmann in Jerusalem opens new perspectives regarding the problems of obedience and consent to political authority, as well as its implications concerning the issue of collective responsibility. In her already much quoted letter to Gershom Scholem, Hannah Arendt says that “there can be no patriotism without permanent opposition and criticism”, and that “the wrong done by my own people naturally grieves me more than wrong done by other peoples”59. On this matter the commentary made by Hannah Arendt on the argument used by all defendants in trials of crimes against humanity since Nuremberg is particularly important. This argument, repeated to exhaustion, consists of honouring the duty of obedience. According to Arendt, “Obedience is a political virtue of the first order; and without it no body politic could survive. Unrestricted freedom of conscience exists nowhere, for it would spell the doom of every organized community. All this sounds so plausible that it takes some effort to detect the fallacy. Its plausibility rests on the truth that ‘all governments’ in the words of Madison, even the most autocratic ones, even tyrannies, ‘rest on consent’, and the fallacy lies in the equation of consent with obedience”60.

Arendt goes deeper and says that “there is no such thing as obedience in political and moral matters”, religion being “the only domain where the word could possible apply to adults”. Hence the question to be addressed to those who participated and obeyed orders should never be “Why did you obey?”, but “Why did you support this?”. She even affirms that “much would be gained if we could eliminate this pernicious word ‘obedience’ from our vocabulary of moral and political thought”61. According to Arendt we are obliged to deal here with a collective and political responsibility that flows out of the quality of being member of a community, and 58

Cf. Arendt (2003), p. 188. “Letter from Hannah Arendt to Gershom Scholem, July 24, 1963”, in: Arendt (2007), p. 467. 60 Cf. Arendt (2003), p. 46. 61 Cf. Arendt (2003), p. 48. 59

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from which one can only escape by abandoning that community62. From here she concludes that only the newly created (in the twentieth century) category of people, refugees and expatriates that do not belong to any internationally recognized community, are unable to be politically responsible in this sense. Apart from this we can say that her thought assumes a decidedly and even radical contractual character, as she admits no third option besides consenting and rejecting63. 4. Truth in Political Thought The concept of the banality of evil is, arguably, the key to understanding Arendt’s refusal of political philosophy, or at least some kind of political philosophy64. For Arendt the problem of evil, our faculty of telling right from wrong, is connected to our ability to think, as already mentioned. That is why, apart from having distinguished the activity of thinking from the activity of knowing, she says, concerning the former, that we “must be able to ‘demand’ its exercise from every sane person, no matter how erudite or ignorant, intelligent or stupid, he may happen to be”65. Thinking has a preparatory role regarding the political activity of judging; it is also this distinction between thinking and the political realm that accounts for the relation between truth and politics. For Hannah Arendt, politics is not to be conceived, and even less carried on, on the basis of philosophical truths, but as the subject of judgments that express opinions. What is more, opinions have nothing to do with absolute truths to which philosophers and religious men aspire, although certainly from different points of view, but only with the preservation of freedom by means of changing opinions, debate and argumentation. The political realm has nothing to do with philosophical, or rational, truth because this “concerns man in his singularity”. Things happen differently with factual truth which is “political by nature” as it is always related to other people, being dependent on testimonials and the act of witnessing. Facts and opinions are not antagonistic and belong, according to Arendt, to the same realm66. On the other hand, facts inform opinions but can also be presented as mere opinions, which is one “among the many forms that lying can assume”67. 62

Cf. Arendt (2003), pp. 149 – 150. In a similar way, see Cavell, Stanley: The Claim of Reason. Oxford (Oxford University Press), 1982, p. 23. 64 Cf. Abensour, Miguel: Hannah Arendt Contre la Philosophie Politique? Paris (Sens &Tonka), 2006, pp. 16 ff., 49 ff.; cf. Arendt, Hannah: On Revolution. London (Penguin), 1990, pp. 319, fn. 1; idem (1958), pp. 220 ff. 65 Cf. Arendt (1978), vol. 1, p. 13. 66 Cf. Arendt (19772), pp. 238, 246. 67 Cf. Arendt (19772), Between Past and Future, p. 250. Lying is the subject of her essay “Lying in Politics” (Arendt, Hannah: Crises of the Republic. San Diego [Harcourt Brace], 1969, pp. 1 – 47); see also Jay, Martin: The Virtues of Mendacity: On Lying in Politics. Charlottesville (University of Virginia Press), 2010, pp. 157 – 167. 63

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Politics and the pursuit of truth are related to different forms of life: the former is carried out in a “world of universal interdependence”; the latter takes place between me and myself in the solitude of philosophical thought68. This is why Arendt has sought to reframe political thought on the model of Kant’s reflections on the faculty of judgment, since this faculty concerns the ability of the human mind to deal with particulars, as well as sociability, viewed not simply as our dependence upon those of our kind but as “the very condition of judging”69. At the same time the political life “does not encompass the whole of man’s and the world’s existence”70. If there is no place for truth (beyond factual truth) in politics, there can be no politics without thinking.

68

Cf. Arendt (19772), p. 242. Cf. Revault d’Allones, Myriam: “Le Courage de Juger”, in: Arendt, Hannah: Juger: Sur la Philosophie Politique de Kant (transl. from English by Myriam Revault d’Allones). Paris (Éditions du Seuil), 1991, p. 220; cf. the critique of Badiou, Alain: Abrégé de Métapolitique. Paris (Éditions du Seuil), 1998, p. 22, opposing this reduction of politics to public opinion and the elimination of the “militant identification of politics”, which is, according to Badiou, the only one capable of revealing the connection between politics and thought. 70 Cf. Arendt (19772), p. 263. 69

The Eichmann Trial

Judging Eichmann to Render Justice* Paulo de Sousa Mendes “Justice must not only be done, it must be seen to be done.” Lord Hewart, in: Rex v. Sussex Justices, Ex parte McCarthy (1924)

Introduction Hannah Arendt, in her report on the Eichmann trial published in The New Yorker, in the subsequent book Eichmann in Jerusalem and the respective epilogue and also throughout the correspondence she maintained both with friends and opponents, always asserted the firm belief that Adolf Eichmann should merely be judged to render justice, and nothing else. I shall outline the precise extent of that belief, and at the same time highlight those passages in her book and correspondence which demonstrate that the paramount ambition to render justice was constantly jeopardized by means of other concurring aims that seemingly guided the judgment. I. Searching for Justice Arendt would never have passed up such a historic opportunity as attending the Eichmann trial, for whatever reason. In June, 1960 Arendt disclosed to her friend Mary McCarthy: “I am half toying with the idea to get some magazine to send me to cover the Eichmann trial”1. When applying for research funding, in a letter to the Rockefeller Foundation she wrote in December, 1960: “You will understand I think why I should cover this trial; I missed the Nuremberg Trials”2. Eventually, she succeeded in being engaged by William Shawn, executive editor of The New Yorker, to cover the trial, her work ultimately being published in five articles (A Reporter at * Translated by André Hoelzer and revised by Michelle L. Wells. 1 “Hannah Arendt to Mary McCarthy (New York, June 20, 1960)”, in: Brightman, Carol (ed.): Between Friends: The Correspondence of Hannah Arendt and Mary McCarthy 1949 – 1975. New York (Harcourt Brace), 1995, p. 81. 2 Cf. Buerkle, Darcy C.: “Affect in the Archive: Arendt, Eichmann and The Specialist”, in: Bathrick, David/Prager, Brad/Richardson, Michael D. (eds.): Visualizing the Holocaust: Documents, Aesthetics, Memory. New York (Camden House), 2008, p. 236.

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Large: Eichmann in Jerusalem, published in February and March, 1963)3. Her desire to attend the trial was related to the expectation that in the course of the trial justice would be rendered. Without that expectation – which she expressed clearly – Arendt would never have gone to Jerusalem4. However, she quickly became aware that Eichmann’s trial was intended to culminate in a “show trial”5 tailored to satisfy political purposes that, notwithstanding their nobleness, in her opinion did not render justice. II. Staging a Show Trial Israel’s Prime Minister David Ben-Gurion gave the order to abduct Eichmann from Argentina and take him to Israel to stand trial for the central role he played in the “Final Solution of the Jewish question”6. Ben-Gurion was the invisible stage director of the process, since he was speaking with the voice of the public prosecution headed by the Attorney-General Gideon Hausner himself who – in Arendt’s sarcastic words – “representing the government, [did] his best […] to obey the master”7. Indeed, the submissiveness of the Attorney-General, as the judiciary authority, in relation to the Prime Minister, who represented the executive power, was evident from the very moment that Hausner allowed Ben-Gurion to interfere in the drawing up of the prosecution’s strategy. As Ben-Gurion saw it, the Eichmann trial should focus on all the crimes the Nazi regime had perpetrated against the Jewish people, and even on all the anti-Semitic crimes committed throughout history. Hausner sent a first draft of his opening address to Ben-Gurion, on which the latter commented exhaustively8. This strengthened Hausner’s determination to include the crimes of Nazism against the Jewish people, contrary to that which the Criminal Police authority had suggested9 he ought to do, i. e. restrict himself to facts that could be directly imputed to Eichmann10. However, Hausner recognized that the result of aiming to 3

Arendt, Hannah: “A Reporter at Large: Eichmann in Jerusalem”, in: The New Yorker, February 16, 963, pp. 40 – 113; February 23, 1963, pp. 40 – 111; March 2, 1963, pp. 40 – 91; March 9, 1963, pp. 48 – 131; March 16, 1963, pp. 58 – 134. 4 Cf. Arendt, Hannah: Eichmann in Jerusalem: A Report on the Banality of Evil. London (Penguin), 2006, p. 286. 5 Arendt (2006), p. 4. 6 On Eichmann’s capture, cf. Lipstadt, Deborah. E.: The Eichmann Trial. New York (Schocken Books), 2011, pp. 10 – 18. 7 Arendt (2006), p. 5. 8 Cf. Cesarani, David: Eichmann: His Life and Crimes. London (Vintage), 2005, p. 256. 9 The police investigation was under the direction of Bureau 6, which was created for that purpose and was commanded by Avraham ‘Rami’ Zellinger. The interrogation of Eichmann was carried out by Chief inspector Avner Less. Police interrogation started on May 29, 1960, yielding 275 hours of recording and 3564 pages of transcriptions (Cesarani [2005], pp. 241 – 243, pp. 249 – 250). 10 Cf. Cesarani (2005), p. 252.

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hold Eichmann responsible for all the crimes of Nazism would be to face a huge lack of evidence, eventually decreasing the odds in favour of securing the defendant’s conviction as an outcome of the trial11. Above all, Hausner attempted to associate Eichmann with what had happened in the Eastern territories (in the Warthegau, West Prussia, Danzig, province of Poznan and Upper Silesia)12, given that the centre of gravity of the “Final Solution” had been located in those territories, although Eichmann in fact left few marks there. Hausner overcame that difficulty by trying to demonstrate that Eichmann could still be accused of genocide on the whole, precisely because he had led the Jewish Department of the Reich Security Head Office, having organized the “Final Solution” and centralized the deportation and concentration of the Jewish population in extermination camps while holding this position. Hausner would later admit that the choice of that strategy was “one of the most difficult decisions I had to take”13. Ben-Gurion’s aspiration was that the trial would take on the proportions of a truly worldwide event. Teddy Kollek, head of the Prime Minister’s Office, and Yekutiel Keren, commissioner of the Jerusalem Police, were entrusted with the task of assuring the logistics and media coverage of the trial. Kollek and Keren ensured the use of the House of the People (Beth Ha’am), which had been built shortly before14 and made the adjustments to its main hall which were necessary for the trial, including the famous bulletproof glass dock where the defendant sat15. Media coverage was assured by means of awarding television-broadcasting rights to Capitol Cities Broadcasting Corporation, an American company, since Israel did not possess adequate technological resources for this purpose16. Incidentally, Arendt ironically pointed out that “the American program, sponsored by the Glickman Corporation, [was] constantly interrupted – business as usual – by real-estate advertising”17. The audience was initially composed mostly of journalists (450 accreditations), but there were also diplomats (45) and members of national and foreign organizations (50), with the remaining 165 seats being taken by the Israeli public18. Arendt noticed that there was very quickly a drastic change in the audience. The journalists withdrew and the hall became crowded with “survivors”, with middle-aged and elderly people, who were immigrants from Europe like herself19. The young Israelis did not appear; nor did the Jews from Israel. Arendt took these absences as a sign of the failure of Ben-Gurion’s mobilizing efforts, whose aspiration was that the trial would serve 11

Cf. Cesarani (2005), p. 252. Cf. Arendt (2006), p. 217. 13 Cesarani (2005), p. 252. 14 Cf. Arendt (2006), p. 4. 15 Cf. Cesarani (2005), pp. 253 – 254. 16 Cf. Cesarani (2005), p. 254. 17 Arendt (2006), p. 5. 18 Cf. Cesarani (2005), p. 255. 19 Cf. Arendt (2006), p. 8.

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to prove to the Israelis – in particular to those who were too young to know the history – the significance of living amongst non-Jews and the security that only Israel could provide them20. What Ben-Gurion had in mind was that the trial would serve as a pretext for teaching a couple of “lessons” to the Jews and Gentiles, to Israelis and Arabs, in other words, to the entire world. Arendt summarized those lessons as follows: “There was the lesson to the non-Jewish world: ‘We want to establish before the nations of the world how millions of people, because they happened to be Jews, and one million babies, because they happened to be Jewish babies, were murdered by the Nazis.’ Or, in the words of Davar, the organ of Mr. Ben-Gurion’s Mapai party: ‘Let world opinion know this, that not only Nazi Germany was responsible for the destruction of six million Jews of Europe.’ Hence, again in Ben-Gurion’s own words, ‘We want the nations of the world to know … and they should be ashamed.’ The Jews in the Diaspora were to remember how Judaism, ‘four thousand years old, with its spiritual creations and its ethical strivings, its Messianic aspirations,’ had always faced ‘a hostile world,’ how the Jews had degenerated until they went to their death like sheep, and how only the establishment of a Jewish state had enabled Jews to hit back, as Israelis had done in the War of Independence, in the Suez adventure, and in the almost daily incidents on Israel’s unhappy borders. And if the Jews outside Israel had to be shown the difference between Israeli heroism and Jewish submissive meekness, there was a lesson for those inside Israel too: ‘the generation of Israelis who have grown up since the holocaust’ were in danger of losing their ties with the Jewish people and, by implication, with their own history. ‘It is necessary that our youth remember what happened to the Jewish people. We want them to know the most tragic facts in our history.’ Finally, one of the motives in bringing Eichmann to trial was ‘to ferret out other Nazis – for example, the connection between the Nazis and some Arab rulers’”21.

Arendt regarded those lessons as superfluous in some respects, and as positively misleading in others22. Anti-Semitism had already been disapproved, not because the Jews had grown more popular, but because – in the words of Ben-Gurion – most people “realized that in our day the gas chamber and the soap factory are what anti-Semitism may lead to”23. Convincing the Jews in the Diaspora of the hostility that the world always dispensed to them was equally redundant24. The message Ben-Gurion tried to pass by way of contrasting the Israeli heroism and the submissive meekness with which the Jews stepped to their death was ill taken, for no other non-Jewish group or people had ever conducted themselves differently, for the triumph of the hangmen resides always in the submission of the victims, forced on them by demonstrating that there are many things considerably worse than death25. A possible intention to strengthen a “Jewish consciousness” was also ill considered, as one of the pre20

Cf. Arendt (2006), p. 8. Arendt (2006), pp. 9 – 10. 22 Cf. Arendt (2006), p. 10. 23 Arendt (2006), p. 10. 24 Cf. Arendt (2006), p. 10. 25 Cf. Arendt (2006), pp. 11 – 12.

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requisites for Israeli statehood was precisely the change in a mentality that depended on an ancient, religiously anchored dichotomy of Jews and Gentiles26. According to Arendt, Ben-Gurion’s aspirations did not fail in one single respect: the trial did indeed play an important role with regard to the hunting down of other Nazis27. Hausner followed the tone set by Ben-Gurion, not only with regard to the indictment, but also – or rather, chiefly – during the opening address that took three sessions28. He said, for example: “It is not an individual that is in the dock at this historic trial, and not the Nazi regime alone, but anti-Semitism throughout history”29. Arendt denounced that indictment, stating that it “was bad history and cheap rhetoric; worse, it was clearly at cross-purposes with putting Eichmann on trial, suggesting that perhaps he was only an innocent executor of some mysteriously foreordained destiny, or, for that matter, even of anti-Semitism, which perhaps was necessary to blaze the trail of ‘the bloodstained road traveled by this people’ to fulfill its destiny”30. Arendt thought that the Eichmann trial, dominated as it was by the intentions of Ben-Gurion and the efforts of the prosecution, ran the risk of ruling out the “individual […], a person of flesh and blood” that was standing trial31. In short, the Eichmann trial would not therefore have contributed to rendering justice. III. The Prosecution Strategy On February 2, 1961, the charge sheet was submitted to the Jerusalem District Court, filed as Criminal Case No. 40/61 (The Attorney-General vs. Adolf Eichmann), wherein Eichmann was indicted for fifteen crimes, on the basis of the Israeli “Nazi and Nazi Collaborators (Punishment) Law”, enacted in 195032. The first four counts (1 – 4) were “crimes against the Jewish People”, an offence set out in section 1(a)(1) of the aforementioned Punishment Law [and the Criminal Law Ordinance of 1936]. To begin with, Eichmann was accused of causing, together with others, the deaths of millions of Jews. In this regard, emphasis was placed on the role he played as a central figure in the implementation of “The Final Solution” and the instructions he gave to exterminate Jews in Germany, and in the countries of the Axis and the occupied areas. Furthermore, the charge stated that Eichmann directed the 26

Cf. Arendt (2006), p. 11. Cf. Arendt (2006), p. 12. 28 Cf. Poliakov, Léon: Le procès de Jérusalem: Juger Adolf Eichmann. 1st reprint. Paris (Calmann-Lévy), 2009 (1st ed. 1963), pp. 107 – 116. For a circumstantial report on the opening sessions held by Hausner, cf. Lipstadt (2011) p. 61 ff. 29 Arendt (2006), p. 19. 30 Arendt (2006), p. 19. 31 Cf. Arendt (2006), p. 20. 32 Cf. Cesarani (2005), p. 252. 27

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commanders of the Auschwitz camp to use the gas Zyklon B and assured the supply of the necessary quantities of gas. In this context, the charge added that, immediately following the occupation of Poland, in September, 1939, Eichmann carried out acts of expulsion, the uprooting of populations, and extermination. He was identified as being responsible for the actions of massacre units, the so called Operation Units, in the Soviet Union in 1941. He was also indicted for the deaths of Jews deported to the Ghettos in the East. The deaths of approximately half a million of the Jews of Hungary were also attributed to him. Secondly, Eichmann was accused of subjecting millions of Jews to inhuman living conditions, including their enslavement, before killing them. Thirdly, Eichmann had to answer for causing serious mental and bodily harm to millions of Jews, referring to the entire period of the Nazi regime, by means of enslavement, starvation, mass arrest, as well as the social and economic boycott. On the fourth count, Eichmann was accused of devising the sterilization of Jews and compelling Jewish women to undergo artificial abortions in Theresienstadt, commencing in the year 1942. According to the indictment, all those acts were committed with the intention of destroying the Jewish People and occurred in the period after August, 1941, when Eichmann was informed of the Führer’s order regarding the “extermination of the Jewish People”. The subsequent counts (5 – 7) dealt with the same crimes, although not considering them as crimes against the Jewish People, but as crimes against humanity, which were also charged as offences under Section 1 of the Nazi and Nazi Collaborators (Punishment) Law, 5710 – 1959. The difference was based on the fact that they were not committed in order to destroy a whole people, hence referring to the period before August, 1941. The fifth count charged Eichmann with crimes very similar to those in counts 1 and 2, while the sixth count charged him with persecution of Jews on racial, religious and political grounds. The seventh count referred to the plunder of Jewish possessions, by means of different acts of violence, including murder. The eighth count made reference to war crimes against Jews. Crimes against non-Jews, also described as crimes against humanity under the Nazi and Nazi Collaborators (Punishment) Law, were reported in counts 9 to 12 and included the deportation of over half a million Polish civilians in inhuman conditions, with the intention of settling Germans in their place, the expulsion of more than 14,000 Slovenes, the deportation of tens of thousands of Gypsies, and the deportation of 93 children from the village of Lidice (Czechoslovakia) to Poland, where they were eventually murdered. The punishment for all these crimes was death, according to section 1 of that Law. The last three counts (13 – 15) dealt with Eichmann’s involvement in a “hostile organization”, such as S.S., the security service S.D. and the secret police Gestapo.

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These were the only crimes not punished with the death penalty. The indictment considered that Eichmann was located at the very centre of the conspiracy against the Jewish People and, by reason of his position, he was held responsible for carrying out all of these horrible crimes, from all points of view.33 Eichmann had played a key role during all stages. He had even been the individual who was actually responsible for the extermination of the Jewish People. Following the Führer’s order to exterminate the Jewish People, it was Eichmann who received the incumbency from the head of the Security Police and the S.D., Reinhard Heydrich.34 Moreover, Eichmann had taken part in the Wannsee Conference (January, 1942), intended to coordinate all efforts to implement the “Final Solution”35 and, following that, he was appointed by Heydrich – who had scheduled the conference – as “the competent chief of service” in all questions related to the extermination of the Jews, as he admitted during police interrogation36. Thus, the indictment attempted to prove that Eichmann was a key figure in the extermination measures37. In her report on the trial, Arendt seems to suggest that she was sceptical about the huge range of Eichmann’s indictment. She also disagreed with the strategy adopted by the Attorney-General during the trial’s sessions. She stated that Hausner detracted from the subject, insofar as he made a whole parade of witnesses, testifying on facts that had little or no relation to the defendant’s deeds, even though they were horrifying and true38. According to Arendt, “Mr. Hausner had gathered together a ‘tragic multitude’ of sufferers, each of them eager not to miss this unique opportunity, each of them convinced of his right to his day in court. The judges might, and did, quarrel with the prosecutor about the wisdom and even the appropriateness of using the occasion for ‘painting general pictures,’ but once a witness had taken the stand, it was difficult indeed to interrupt him, to cut short such testimony, ‘because of the honor of the witness and because of the matters about which he speaks,’ as Judge Landau put it.”39 Even so, those testimonies were not essential to the trial. IV. The Jerusalem Court’s Judgment Arendt disapproved of the indictment. Nor did she spare the defence, which was led by Dr Robert Servatius, a German lawyer appointed by Eichmann and paid by Israel40, whose performance she considered to be inept41. 33

Cf. “Le réquisitoire de Gideon Hausner (extraits)”, in: Poliakov (2009), p. 108. Cf. Poliakov (2009), p. 110. 35 Cf. Arendt (2006), p. 112. 36 Cf. Poliakov (2009), p. 112 f. 37 Cf. “La plaidoirie du Dr Robert Servatius” (extraits), in: Poliakov (2009), p. 120. 38 Cf. Arendt (2006), p. 18. 39 Arendt (2006), p. 209 f. 40 Cf. Cesarani (2005), p. 245 ff. 34

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In contrast, Arendt commended the competence and impartiality of the judges, who were three German Jews: Moshe Landau (the presiding judge), Benjamin Halevi and Yitzahk Raveh42. For Arendt, they embodied the best of the German Legal sciences. Arendt particularly admired Landau. In a letter to Karl Jaspers, she described him as an extraordinary person, on account of his qualities of humility, intelligence and open-mindedness43. She praised the way in which the presiding judge conducted the sessions, which amounted to 114 in total (from April 11 to June 29, 196144)45. In accordance with these assessments, Arendt finally provided a much more sympathetic exposition of the verdict than she did of the prosecutor’s spoken allegations. According to Arendt: “The judgment falls into two parts, and the by far larger part consists of a rewriting of the prosecution’s case. The judges indicated their fundamentally different approach by starting with Germany and ending with the East, for this meant that they intended to concentrate on what had been done instead of on what the Jews had suffered. In an obvious rebuff to the prosecution, they said explicitly that sufferings on so gigantic a scale were ‘beyond human understanding,’ a matter for ‘great authors and poets,’ and did not belong in a courtroom, whereas the deeds and motives that had caused them were neither beyond understanding nor beyond judgment. They even went so far as to state that they would base their findings upon their own presentation, and, indeed, they would have been lost if they had not gone to the enormous amount of work that this implied. They got a firm grasp on the intricate bureaucratic setup of the Nazi machinery of destruction, so that the position of the accused could be understood. In contrast to the introductory speech of Mr. Hausner, which has already been published as a book, the judgment can be studied with profit by those with a historical interest in this period. But the judgement, so pleasantly devoid of cheap oratory, would have destroyed the case for the prosecution altogether if the judges had not found reason to charge Eichmann with some responsibility for crimes in the East, in addition to the main crime, to which he had confessed, namely, that he had shipped people to their death in full awareness of what he was doing”46.

Arendt condensed the contested factual material, as decided by the court, into four points: “There was, first, the question of Eichmann’s participation in the mass slaughter carried out in the East by the Einsatzgruppen, which had been set up by Heydrich at a meeting, held in March, 1941, at which Eichmann was present. However, […] Eichmann was connected with 41

Arendt’s opinion as to the performance of Dr. Servatius was probably not that impartial. Others noted that he was a good choice (in this respect, cf. Cesarani [2005], p. 15 and p. 246). 42 Cf. Cesarani (2005), p. 255 f. 43 Cf. “Hannah Arendt to Karl Jaspers (Jerusalem April 25, 1961)”, in: Kohler, Lotte/Saner, Hans (eds.): Hannah Arendt Karl Jaspers. Correspondence 1926 – 1969. San Diego (Harcourt Brace), 1992, p. 437. 44 Cf. Arendt (2006), p. 244. 45 Actually, Arendt did not attend all sessions of the trial, but only the initial presentation by the prosecution, the cited witnesses’ evidence and the first days of the declarations of the defendant (cf. Cesarani [2005], p. 15). 46 Arendt (2006), p. 211 f.

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this important phase of the Final Solution only in that he received the reports of the killers, which he then had to summarize for his superiors. […] Hence, all that was left was evidence that Eichmann was well informed of what was going on in the East, which had never been in dispute, and the judgment, surprisingly, concluded that this evidence was sufficient to constitute proof of actual participation”47 “The second point, dealing with the deportation of Jews from Polish ghettos to the nearby killing centers, had more to recommend it. It was indeed ‘logical’ to assume that the transportation expert would have been active in the territory under the General Government. However, we know from many other sources that the Higher S.S. and Police Leaders were in charge of transportation for this whole area – to the great grief of Governor General Hans Frank, who in his diary complained endlessly about interference in this matter without ever mentioning Eichmann’s name. […] Unless one accepted the prosecution’s preposterous claim that Eichmann had been able to inspire Himmler’s orders, the mere fact that Eichmann shipped Jews to Auschwitz could not possibly prove that all Jews who arrived there had been shipped by him. In view of Eichmann’s strenuous denials and the utter lack of corroborative evidence, the conclusions of the judgment on this point appeared, unhappily, to constitute a case of in dubio contra reum”48 “The third point to be considered was Eichmann’s liability for what went on in the extermination camps, in which, according to the prosecution, he had enjoyed great authority. It spoke for the high degree of independence and fairness of the judges that they threw out all the accumulated testimony of the witnesses on these matters. […] They started by explaining that there had existed two categories of Jews in the camps, the so-called ‘transport Jews’ (Transportjuden), who made up the bulk of the population and who had never committed an offense, even in the eyes of the Nazis, and the Jews ‘in protective custody’ (Schutzhaftjuden), who had been sent to German concentration camps for some transgression and who, under the totalitarian principle of directing the full terror of the regime against the ‘innocents,’ were considerably better off than the others […]. They were not subject to the selection and, as a rule, they survived[.] Eichmann had nothing to do with Schutzhaftjuden; but Transportjuden, his speciality, were, by definition, condemned to death, except for the twenty-five per cent of especially strong individuals, who might be selected for labor in some camps. In the version presented by the judgment, however, that question was no longer at issue. Eichmann knew, of course, that the overwhelming majority of his victims were condemned to death; but since the selection for labor was made by the S.S. physicians on the spot, and since the lists of deportees were usually made up by the Jewish Councils in the home countries or by the Order Police, but never by Eichmann or his men, the truth was that he had no authority to say who would die and who would live; he could not even know”49.

The fourth and last point dealt with Eichmann’s authority over the Eastern territories: “The question of his responsibility for living conditions in the ghettos, for the unspeakable misery endured in them, and for their final liquidation, which had been the subject of testimony by most witnesses.”50 The verdict concluded that “Heydrich 47

Arendt (2006), p. 212. Arendt (2006), p. 212 f. 49 Arendt (2006), p. 214. 50 Arendt (2006), p. 215.

48

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[…] had been given central authority over the implementation of the Final Solution, without any territorial limitations, hence Eichmann, his chief deputy in this field, was everywhere equally responsible.”51 Arendt disagreed with that conclusion and expressed her opinion, contrary to that of the court, that Eichmann did not possess “executive powers” over the region52. In this respect, Arendt considered that “here, too, his role was that of an expert for ‘transportation’ and ‘emigration’”53. More than explaining the conclusions of the court with regard to the factual material, Arendt actually commented on and criticized them, while distancing herself to a point so as to give the impression that, according to her opinion, Eichmann had been held responsible for acts that were broader and more serious than those that could expectably and reasonably be located in his range of action, confined to “[…] the nature of his task, the collection and deportation of all Jews […].”54 But then it is hard to understand the reasons why Arendt acclaimed the verdict that apparently she did not agree with. Nor can we understand the reasons that led her to juxtapose the verdict with the terms of the charge, as the court happened to approve the facts and the theses of the prosecutor. Arendt made a great effort to demonstrate that the collective of the judges deviated from the theses of the indictment, but actually the verdict confirmed practically all of the crimes, one by one55. The court only acquitted Eichmann of the murder of 93 Czech children in Lidice56. As far as differences between the verdict and the indictment are concerned, if anything it is possible to stress the court’s effort to identify and justify the kind of responsibility Eichmann should be blamed for, taking into account the numerous participants in the mass crimes he was accused of. Arendt put this aspect into words as follows: “Eichmann, it will be remembered, had steadfastly insisted that he was guilty only of ‘aiding and abetting’ in the commission of the crimes with which he was charged, that he himself had never committed an overt act. The judgment, to one’s great relief, in a way recognized that the prosecution had not succeeded in proving him wrong on this point. For it was an important point; it touched upon the very essence of this crime, which was no ordinary crime, and the very nature of this criminal, who was no common criminal; by implication, it also took cognizance of the weird fact that in the death camps it was usually the inmates and the victims who had actually wielded ‘the fatal instrument with [their] own hands.’ What the judgment had to say on this point was more than correct, it was the truth: ‘Expressing his activities in terms of Section 23 of our Criminal Code Ordinance, we should say that they were mainly those of a person soliciting by giving counsel or advice to others and of one who enabled or aided others in [the criminal] act.’ But ‘in such an enormous and complicated 51

Arendt (2006), p. 216. Cf. Arendt (2006), p. 216. 53 Arendt (2006), p. 218. 54 Arendt (2006), p. 259. 55 Cf. Arendt (2006), p. 244 f. 56 Cf. Arendt (2006), p. 245.

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crime as the one we are now considering, wherein many people participated, on various levels and in various modes of activity – the planners, the organizers, and those executing the deeds, according to their various ranks – there is not much point in using the ordinary concepts of counseling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands […]’”57.

Ultimately, what was the kind of responsibility attributed to Eichmann? Within the framework of the Israeli legal system, modelled on the common law systems, conspiracy constitutes a concept that implies a person’s involvement in plotting the crime, even though he did not take part in the accomplishment as principal offender. The indictment considered Eichmann a conspirator regarding most of crimes he was accused of, while rejecting the simple role as a zealous servant who mindlessly obeyed orders without even reflecting on the victims’ fate. If only a zealous servant, at the most, the role of accomplice could have been accepted. However, the court refused to specifically apply the concept of conspiracy to the case. Nevertheless, that did not imply that the importance of Eichmann’s contribution to the “Final Solution” was diminished. Quite the contrary, the court considered that the traditional categories of complicity did not apply to the extremely wide-ranging structure of the “crimes against the Jewish People”, whether from the perspective of the external elements (actus reus) or from the subjective elements (mens rea). Actually, the “killing of Jews”, “causation of severe harm to Jews” and other similar legal concepts are, by definition, completely incompatible with the description of traditional crimes against persons and do not allow for the normal distribution of roles in the criminal involvement. According to the court, the campaign for the extinction of the Jews should be viewed as a single though wide-ranging act, which could not be subdivided into actions or operations carried out by different individuals, in diverse periods of time or at different locations. The defendant had inside knowledge of the secret of extinction of the Jews from June, 1941, and played a central part in the extinction campaign from August, 1941, which were reasons enough to impute all actions on account of collective or organizational responsibility to him58. In short, the court conceived a novel kind of attribution of responsibility suitable for the nature of the macro-crimes dealt with. Eichmann was condemned to death (August 15, 1961)59 and the penalty was confirmed by the Supreme Court (May 29, 1961)60. All appeals for clemency were denied 57

Arendt (2006), p. 246 f. (italics not reproduced). For an excerpt of the Court decision, cf. “La sentence (Audience du 15 décembre 1961)”, in: Poliakov (2009), p. 307 f. 58 Cf. Judgment in the Trial of Adolf Eichmann: http://www.ess.uwe.ac.uk/genocide/Eich mannv.htm (as retrieved in January, 2012). 59 Cf. Arendt (2006), p. 248.

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by the Israeli President, Itzhak Ben-Zvi (May 31, 1962)61. Execution occurred two hours after Eichmann had been informed that his appeal for clemency had been refused62. He was hanged, his body cremated (at his own request) and his ashes disposed of in the Mediterranean Sea, far away from Israel’s territorial waters63. V. Rendering Justice For Arendt, justice was something other than the attitudes displayed by both BenGurion and the Attorney-General. Justice would not permit the attitude of the Attorney-General, and instead required isolation, allowed for sadness, but excluded anger64. Justice required that the defendant be tried, defended and convicted, and that all other questions, which were apparently of major importance, be postponed65. Justice insisted on the importance of Adolf Eichmann66. Perhaps the person behind the defendant did not matter to the court of Jerusalem. Indeed, Arendt considered the Eichmann trial a failure, mainly because the court was not able to deal with a novel type of criminal, the mass murderer who never ever committed a murder67. Therefore, the question is whether Arendt’s concept regarding both the facts that should be imputed to Eichmann and the kind of attribution of responsibility suitable to mass murder differed from the court’s concept. Throughout the book Eichmann in Jerusalem, Arendt does not use an autonomous narrative, nor does she disclose her own judgement about the facts that should be imputed to Eichmann. Since Arendt’s book constitutes a report, she basically followed the trial, making her comments while changing the tone from mere description to irony, and from time to time showing a glimpse of sarcasm. That tone did not please her critics, and the chief one, Gershom Scholem, told her in a letter that he did not subscribe to “[…] insensibility, the frequently almost sarcastic and malevolent tone used while dealing with subjects that touch us in the most sensitive point”68. Apart from the tone, Arendt always maintained she had written a simple report. In a TV interview she gave to Thilo Koch, recorded in New York (1964, January 24th), Arendt once again asserted that her book did not “contain, to tell the truth, any kind of thesis. 60

Cf. Arendt (2006), p. 249. Cf. Arendt (2006), p. 249. 62 Cf. Arendt (2006), p. 250. 63 Cf. Arendt (2006), p. 322 f. 64 Cf. Arendt (2006), p. 6. 65 Cf. Arendt (2006), p. 5. 66 Cf. Arendt (2006), p. 5. 67 Cf. Arendt (2006), p. 215 and p. 274. 68 “Scholem an Arendt (Jerusalem, 23./24. Juni 1963)”, in: Arendt, Hannah/Scholem, Gershom: Der Briefwechsel. Berlin (Jüdischer Verlag im Suhrkamp), 2010, p. 429. 61

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It is a presentation of accounts, amounting to little more than revealing facts that were discussed throughout the trial in Jerusalem”69. Nevertheless, Arendt constantly expressed her opinion and apparently she did not agree with the direction the trial took. Then again, if the facts of the charge, which were embraced by the court, did not matter, what were the relevant facts? Arendt seems to say that Eichmann did little more than work enclosed in his office! Indeed, enclosed in his office, Eichmann signed papers and did the meticulous work of a bureaucrat. He was not a sadistic Nazi directly involved in material acts of extermination. Despite emphasizing this difference, Arendt did not, however, seek to exculpate Eichmann, as follows from the fact that she accepted that the conviction had in any case been the same. Moreover, the death penalty did not trouble her (it was the first and only time it was applied in Israel)70. Neither did she pay special attention to the objections raised to the legitimacy of the trial, considering them merely legalistic and not detrimental to the concept of justice71. Arendt even intended to refute some of these objections, by means of legal arguments, in her epilogue72. In short, Arendt did not deviate as much from the verdict pronounced by the court as appears at first glance. Arendt revealed her annoyance at the controversy raised by her report on the Eichmann trial, regarding many of the criticisms leveled at her as personal attacks73. She particularly took offence at criticisms that came from those sectors of the Jewish community that affirmed that she had exculpated Eichmann. In the interview with Thilo Koch, Arendt responded to the criticisms by saying: “No one who ever read my book could assert that I ‘exculpated’ the crimes of the Nazi time. The same happened with Hochhuth’s book: given that Hochhuth criticized Pacelli’s position at the time of the Final Solution, at once saying that by doing so he had exculpated Hitler and the S.S., presenting Pio XII as the real guilty. Based on this absurdity that nobody can support and that is easy to render invalid, the attempt is to instigate discussion. The same goes for the controversy about the book on Eichmann. It is said that I had ‘exculpated’ Eichmann and then the culpability of Eichmann is proven – most of the time, starting from quotes taken from my book!”74 In this answer, Arendt alluded to the indignation caused by the reference in her report to the collaborationist attitude of the Jewish Councils at the time of the

69 “Le ‘Cas Eichmann’ et les Allemands: Entretien avec Thilo Koch”, in: Arendt (2002), p. 1410. 70 Cf. Lipstadt (2011), p. 173. 71 Cf. Lipstadt (2011), p. 164 ff. 72 Cf. Bernstein, Richard J.: Radical Evil. A Philosophical Interrogation. 6th reprint. Cambridge (UK)/Malon (USA) (Polity), 2007 (1st ed. 2002), p. 217. 73 Cf. Neiman, Susan: “Banality Reconsidered”, in: Benhabib, Seyla (ed.): Politics in Dark Times: Encounters with Hannah Arendt. Cambridge/New York (Cambridge University Press), 2010, p. 305. 74 Arendt (2002), p. 1412.

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mass deportations75. Yet indignation also arose because many of the readers believed that Arendt was diminishing the guilt of the great organizer of the deportations to the death camps. Those who were indignant, however, were not aware of the ideas Arendt tried to communicate to all her readers in such a radical way. VI. Arendt’s Thoughts on the Banality of Evil Arendt rejected the traditional idea that evil is something unintelligible. She also rejected the notion that evil was necessarily the outcome of an intentional action. This twofold negation is so radical and so counterintuitive that it resulted in widespread incomprehension. We are so convinced that doing evil must be intentional that the slightest postulation of someone being the architect of the Holocaust without intention seems to aim at acquitting him and, at the same time, it seems to imply that the Holocaust was not a deeply horrendous evil. In describing Eichmann as a clown incapable of profound thoughts, she pictured him as deserving of “disgust or contempt, but not shock or awe”76. Nonetheless, Arendt did not mean to exculpate him. The truth is that Eichmann did not hate the Jews, he even preferred not to get involved in their extermination, and the only time he witnessed the acts of barbarity, he became unwell77. Does that distinguish him from an arrogant and remorseless Nazi? Maybe not. Arendt wanted only to demonstrate that it is not the intention, but the ability to judge, which is at the centre of the moral action78. The influence of the Kantian ethics leads us inadvertently to believe that the only genuine good thing is a good will79. On the contrary, Arendt considered that, in the face of the Holocaust, the good will becomes irrelevant, especially because a surprisingly high number of well-intentioned people collaborated in the “Final Solution”, revealing a tremendous indifference to the fate of the victims. What Eichmann, like many more, was longing for was not the death of millions of Jews, but to advance in his career80. Anyway, there were no doubts that Eichmann always did the best he could to make the “Final Solution” truly final81. It is necessary to judge the man, but certainly the man is insignificant compared to the monstrosity of the facts82. He is a mediocre devotee of Hitler, like hundreds of 75

As to Arendt’s consideration about the actions of the Jewish Councils, cf. Benhabib, Seyla: “Arendt’s Eichmann in Jerusalem”, in: Villa, Dana (ed.): The Cambridge Companion to Hannah Arendt 1st reprint. Cambridge/New York (Cambridge University Press), 2002 (1st ed. 2000), p. 69 ff. 76 Neiman (2010), p. 308. 77 Cf. Neiman (2010), p. 308. 78 Cf. Neiman (2010), p. 309. 79 Cf. Bernstein (2007), p. 219. 80 Cf. Neiman (2010), p. 309. 81 Cf. Arendt (2006), p. 146. 82 Cf. Bernstein (2007), p. 219.

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other men83. Arendt was right when she said there was no profoundness in his thoughts. Moreover, as he sat at his desk, he did not materially commit any crime. Yet, considering the facts as a whole, Arendt affirmed Eichmann’s responsibility as a mass murderer. Hence she did not diverge from the Court of Jerusalem’s verdict. Arendt’s doubts upon the justice of the trial did not have an effect on the credibility of its closure, not even when it led to the death penalty, which was indeed executed; that, she said, was the only logical outcome. Conclusion Arendt’s reflection shook the fundamentals underlying the concepts of traditional ethics. Indeed, the “banality of evil” upsets both the categories of our moral thinking and its reflections on criminal law84. Her reflection also disturbs us from another perspective. Actually, Arendt reminds us that doing justice is much more than applying a fair penalty85. There is a function of the trial that goes far beyond the finality of the penalty itself, and this does constitute an excellent lesson for enlightening the expert in criminal law, who is so often busy discussing the purpose of criminal penalties, but hardly ever pays attention to the scope of the trial itself. I believe that this is another reason why Arendt’s thinking is fairly enlightening.

83

Cf. Poliakov, Le procès de Jérusalem, cit., p. 9. Cf. Bernstein (2007), p. 222; cf. also May, Larry: Crimes Against Humanity: A Normative Account. Cambridge (Cambridge University Press), 2005, p. 64; finally, cf. Luban, David: “State Criminality and the Ambition of International Criminal Law”, in: Isaacs, Tracy/ Vernon, Richard (eds.): Accountability for Collective Wrongdoing. Cambridge (Cambridge University Press), 2011, p. 61 f. 85 Cf. Horsman, Yasco: Theaters of Justice. Judging, Staging, and Working Through in Arendt, Brecht, and Delbo. Stanford (Stanford University Press), 2011, p. 21. 84

Some Considerations on the Eichmann Case Kai Ambos Introduction This paper will mainly focus on some legal issues of the Eichmann trial, drawing on previous works1 and presenting three theses. The first of these – which is the only one in which I will refer to the book by Hannah Arendt – is that in the Eichmann case we saw for the first time, at least explicitly in this type of macro-criminality cases2, a clash between the legal actors, the ‘insiders’ – that is, the prosecutor, the judge and the defence – and the external observers, the ‘outsiders’ – for example, historians, anthropologists and persons with a similar humanities background. My second thesis is that the, at the time, newly founded State of Israel demonstrated in the Eichmann case that it was capable of conducting a fair trial, in circumstances where other States were unable to do so. We must remember that Eichmann was no ordinary criminal but was, in fact, the organizer of the Holocaust. The third thesis I would like to put forward is that, regarding the law on participation in crime (the role of principals and secondary participants), the judgment is rather confusing with regard to Eichmann’s liability as a participant in the criminal enterprise of the ‘Final Solution’. I. Outsiders vs. Insiders and the Fair Trial Little needs to be said about my first two theses, since both are somewhat obvious. Proof may be found for the first thesis by analyzing the testimony of those who conducted the trial and who are still alive today. Indeed, in a recent interview3 Gabriel Bach, the deputy Israeli prosecutor in the trial, stated:

1 Cf. Ambos, Kai: Der Allgemeine Teil des Völkerstrafrechts. Berlin (Duncker & Humblot), 2002, in particular p. 182 et seq. There is also an updated summary version in Spanish (idem: La parte general del derecho penal internacional. Montevideo [Konrad-AdenauerStiftung], 2005, reprint. Bogotá [Temis], 2006, p. 216 et seq.) and in Portuguese (idem: A parte geral do direito penal internacional. Bases para uma elaboração dogmática. São Paulo [Revista dos Tribunais], 2008, p. 250 et seq.). 2 See on the concept of macro-criminality Jäger, Herbert: Makrokriminalität. Studien zur Kriminologie kollektiver Gewalt, Frankfurt am Main (Suhrkamp), 1989. 3 The excerpts are a translation from the German of an interview given by Bach to Deutschland Radio Kultur, 7. 4. 2011, available at http://www.dradio.de/dkultur/sendungen/ thema/1431281/ (consulted on 24. 1. 2012).

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“I knew nothing about Hannah Arendt before she came. She arrived a few days before the trial and I was told at the time that a philosopher from America, Hannah Arendt, had arrived and wished to write a criticism of the case – before it had even started. Something sounded a little strange to me and I made it known that I was available to meet her in order to discuss the issues she had raised. Two days later I received a reply saying that she was not available to talk to anyone from the Public Prosecutor’s Office. This surprised me once again – I mean, she did not have to accept what we were saying, but to not be available to speak to anyone from the Public Prosecutor’s Office, that was a bit strange. Even so, I gave instructions not only for her to be allowed to attend the trial on a daily basis, but also for her to be able to consult all the documents, both for the defence and the prosecution, so that she might gain some insight into any issues she might have. And then she wrote this book. […] not only expressed some strange ideas, but actually reproduced many of the documents she quoted in a totally distorted fashion […]. Amongst other things, she wrote, for example, that we portrayed Eichmann in such a bad light that we actually minimized Hitler and Himmler’s guilt. She wrote this in her book. That is also ridiculous, naturally. Of course Hitler and Himmler came up with the idea. Eichmann was responsible for carrying it out. But the fact that he was such a fanatic and that, for this very reason, he remained head of the department of Jewish affairs for the whole time does not diminish the guilt of those who had previously taken the main decisions. All of this is very, very strange and difficult to accept. […] is absolutely wrong to state that he was only carrying out orders in a somewhat banal fashion. We managed to actually show that in this case.”

It seems, then, that Hannah Arendt did not wish to know – let alone understand – the perspective of those conducting the trial. According to the latter, represented by Bach, Hannah Arendt produced an erroneous account of the trial, even distorting the “truth” of the trial. This approach was also the subject of criticism in a book published two years after the judgment4. Obviously this is only partly true. In fact, the strictly legal perspective was of no interest to Hannah Arendt. She is concerned with understanding the Eichmann phenomenon as “banality of evil”, that is, as a representative of the Nazi system which could only exist and function because there were many banal people, just as mediocre as Eichmann himself, who formed the workings of the system or were even converted into indispensable cogs in the Nazi machine of destruction5. Clearly, Hannah Arendt’s critique was the cause of much concern among the prosecutors, but it is important to stress the differences of perspective. Again, her perspective came from outside the case and, furthermore, did not focus on the technical, criminal law issues of the case but solely on the sociological, psychological and anthropological aspects.

4

Cf. Robinson, Jacob: And the crooked shall be made straight: The Eichmann Trial, the Jewish catastrophe and Hannah Arendt’s narrative. New York (Macmillan), 1965. 5 For a defense of Arendt and an analysis of the expression “banality of evil”, see the recent Luban, David: “Hannah Arendt as a theorist of international criminal law”, in: International Criminal Law Review, 11 (2011), p. 621 et seq., which states that Arendt’s critique “raises questions that are still relevant today”.

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Both of these perspectives are legitimate and perform important, yet different, functions. They reflect the tension between the interdisciplinary external vision, normally adopted by an (interdisciplinary) truth commission, and the internal legal vision of a criminal court, which is only seeking to determine whether the defendant is guilty or not6. With regard to my second thesis, it is worth recalling that the State of Israel demonstrated great independence in the Eichmann case, thereby guaranteeing that Eichmann had a fair trial7. Eichmann was even allowed to choose any (German) lawyer he wanted, Nazi or otherwise8. Prosecutor Bach himself recalled that at his first meeting with Eichmann he informed him of his right to remain silent and his right to have a lawyer9. There is broad consensus in the vast amount of legal literature on the case, and particularly in the English and the German literature, that Eichmann had a fair trial10. This cannot be overestimated given the fact that in these cases there is always a danger that the defendants are deprived of their most basic rights and a criminal law of the enemy11 is applied. II. The Type of Liability Applied to Eichmann: Principal, Accomplice or Something Else? The fairness of the trial can also demonstrated by the general part theories applied in order to impute the Nazi holocaust to Eichmann. Unfortunately, this part of the judgment – and this is my third thesis – is quite confusing. First of all, the Jerusalem Court did not consider the fact that Eichmann had belonged to organizations declared to be criminal by the Nuremburg International Mili-

6 See also the recent paper by Birn, Ruth Bettina: “Criminals as manipulative witnesses: A case study of SS General von dem Bach-Zelewski”, in: Journal of International Criminal Justice (JICJ), 9 (2011), p. 444 et seq., which alludes to the “[…] inherent tension between historical narratives and legal requirements” (p. 474). 7 On Eichmann’s detention in Buenos Aires and the subsequent remedying of the violation of Argentinean sovereignty, cf. Ambos, (supra note 1), p. 190. On the doctrine of “male captus, bene detentus”, which is relevant in this context, cf. Paulussen, Christophe: Male captus bene detentus? Surrendering suspects to the International Criminal Court. Antwerp (Intersentia), 2010. 8 Eichmann was defended by Dr. Robert Servatius (cf. Taylor, Telford: Die Nürnberger Prozesse, 2nd ed., München [Heyne], 1996, p. 496; Große, Christina: Der Eichmann-Prozess zwischen Politik und Recht, Frankfurt/M [Lange], 1995, p. 22). 9 In the full oral version of the interview (supra note 3) which is not reproduced on the indicated website. 10 See the references in Ambos (supra note 1), fn. 110. 11 This phenomenon is exhaustively discussed in Cancio, Mélia/Gómez-Jara Diez, C. (coords.): Derecho penal del enemigo. El discurso penal de la exclusion. Madrid: (Edisofer)/ Buenos Aires-Montevideo (BdeF), 2006, which includes an article of mine in Volume I, pp. 119 – 162.

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tary Tribunal12 to be sufficient to find him criminally liable, i. e., it rejected mere membership liability. Let us recall that Eichmann was the head of the section IV B 4 of the “Reichssicherheitshauptamt”, an office that resulted from the merger of the security service of the Nazi party and of the security police of the Nazi state (Gestapo). In this function Eichmann organized and coordinated the deportations of the Jews to the concentration camps. Notwithstanding, the Court felt that it was necessary for Eichmann to have engaged in active conduct with a view to the commission of crimes, i. e., that mere membership in a criminal organization would not be sufficient: “The Prosecution had to prove the Accused’s membership in these organizations – and this membership is not in dispute – and in addition that the Accused took part in the commission of crimes, as a member of these organizations – and this has been proved”13.

With this statement the Court took a far more liberal approach than the criminal law of most western democracies which criminalizes the mere membership in criminal or terrorist organizations14. In fact, the Israeli law also broadly criminalizes membership by means of four offences with varying wording, burdens of proof and sanctions15. The second substantive aspect which demonstrates that the trial was a fair one relates to the issue of conspiracy. Here we must take into account the fact that Israeli 12 Eichmann was a member of the “Schutzstaffel” (SS), the “Sicherheitsdienst” (SD) and the Gestapo, all of which were declared to be criminal organizations by the Nuremberg International Military Tribunal. The “Korps der Politischen Leiter der NSDAP” (Leadership Corps of the Nazi Party) was also declared to be a criminal organization. The “Sturmabteilung” (SA), the Government of the Empire and the military junta under the high command of Wehrmacht were not considered to be criminal (cf. Internationaler Militärgerichtshof: Der Prozeß gegen die Hauptkriegsverbrecher vor dem Internationalen Gerichtshof Nürnberg. Nürnberg [Internationaler Militärgerichtshof], 1947, Vol. 1, pp. 286 – 314). 13 “District Court of Jerusalem, case of Adolf Eichmann, 12 December 1961”, International Law Reports, 36, 5-276, paragraph 215 (author’s emphasis). 14 See the in-depth study by Morozinis, Ioannis: Dogmatik der Organisationsdelikte: eine kritische Darstellung der täterschaftlichen Zurechnungslehre in legalen und illegalen Organisationsstrukturen aus strafrechtsdogmatischer und rechtstheoretischer Sicht sowie ein Beitrag zur Lehre vom Tatbestand. Berlin (Duncker & Humblot), 2010. 15 The offences are set by sections 58 and 85 of The (Emergency) Defence Regulations 1945, section 3 of the Prevention of Terrorism Ordinance No. 3 of 5708 – 1948, and section 147 of the Israeli Criminal Code of 1977. The Israeli Military Court of Appeal interpreted ‘membership’ to include passive-nominal membership (Appeal no. 7\68 Baransi v. The Military Prosecutor, Collection [of the Military Court of Appeal] 2, 62, at 67 [1968]). It further ruled that mere intention to join an illegal organisation is sufficient for conviction (Appeal no. 8\70 Baransi v. The Military Prosecutor, Collection 3, 7, at 30 [1970]). Recently, the Israeli Supreme Court has interpreted the term ‘membership of a terrorist organisation’ in the context of the preventive arrest of ‘illegal combatants’. The Court made some effort to narrow the scope of this term, noting that: “… it is insufficient to show any tenuous connection with a terrorist organization in order to be included within the cycle of hostilities in the broad meaning of this concept” (CrimA 6659/06 A. v. The State of Israel, 11 June 2008, para. 21 of Justice Beinisch’s judgement).

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criminal law is heavily influenced by English common law16 and that it was only after the Eichmann trial that criminal law concepts of continental Europe gained a certain importance17. The English law influence explains why the prosecution used the common law concept of conspiracy in the Eichmann case. However, the Court rejected this concept for evidentiary reasons and applied quite a narrow concept of conspiracy demanding “more than mere consent”: “We do not consider that a person who consents to the perpetration of a criminal act or acts (for this is the essence of the conspiracy), makes himself ipso facto liable, without any additional ground of responsibility, as actual perpetrator of all those acts. […]. Such responsibility demands […] something more than mere consent, such as soliciting, aiding, abetting, and even in the extreme case of common purpose […] at least the presence of the Accused at the commission of the crime”18.

We thus arrive at the point where the type of liability actually used by the Court to convict Eichmann was individual responsibility proper, i. e., Eichmann’s perpetration or (secondary) participation in criminal acts. To begin with, we have a linguistic issue here. Since the judgment was originally written in the official language of the State of Israel, Hebrew, and since very few people can read Hebrew, the vast majority of analysts have drawn on the English version19, or another translated version20. This may help to explain the terminological confusion of this part of the judgment with regard to the mode of liability (form of perpetration or secondary participation). The Court uses different words, which are inconsistent and contradictory: on the one hand, it says that Eichmann is an accomplice21. Here, we may tend to think of the concept of “accomplice” that exists in continental Europe. However, in common law and in English law “complicity” may imply more than mere assistance to or cooperation in the main offence as normally understood in most civil law systems22. The 16

District Court of Jerusalem, supra note 13, paragraph 189: “[…] in conformity with the rules of English Common Law, from which they are derived […]”. 17 This was mainly due to Sheneor Zalman Feller, a jew of Romanian origin, legal practitioner and professor in Bukarest, who immigrated to Israel in 1964 and became full professor at Hebrew University (HU) in 1967. He imported some ideas from Romanian and Soviet law (he had also worked as a prosecutor in the Soviet Union), and was the PhD supervisor of Mordeachi Kremnitzer and Miri Gur Arye, who later became also Professors at HU and have been very influential in some legal reforms (I am indebted to Prof. Mir Gur Arye for sharing this information with me). 18 District Court of Jerusalem, supra note 13, paragraph 188. 19 Originally published in the International Law Reports (supra note 13). 20 There is also a German version in Less, Avner W. (ed.): Schuldig: das Urteil gegen Adolf Eichmann, Frankfurt (Athenäum), 1987. 21 “District Court of Jerusalem, case of Adolf Eichmann, 12 December 1961” (as in note 13), paragraph 194: “[…] everyone who acted in the extermination of Jews, knowing about the plan for the Final Solution and its advancement, is to be regarded as an accomplice in the annihilation of the millions who were exterminated […]”. 22 While Ashworth, Andrew: Principles of Criminal Law. 6th ed., Oxford (OUP), 2009, p. 404 et seq., appears to understand complicity in the sense of complicity or other forms of secondary participation (“principal is a person whose acts fall within the legal definition of the

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term accomplice may also be understood in the sense of a co-perpetrator, that is a person who acts “jointly with another” (Art. 25 (3)(a) ICC Statute), or the Spanish colaborador necesario23. The judgment also speaks of the principal offender24, in classical common law terminology ‘principal of first degree’, which in civil law systems would be the direct or material perpetrator who commits the crime, in the most narrow sense, with his own hands. However, the common law only uses the term ‘principal’ in somewhat sharp distinction to the ‘secondary participant’, i. e., the person who plays a less important role in the execution of the crime. It also becomes clear here that the Court does not adopt the differentiated or dualistic model of participation (“Differenzierungsmodell”), which distinguishes between the different forms of participation already at the level of attribution of responsibility (distinguishing, as Art. 25 (3) of the ICC Statute25, between forms of perpetration [direct, jointly with another or through another person] and forms of secondary participation [instigation and assistance])26 but rather uses the unitarian system of perpetration (“Einheitstätermodell”)27, which

crime, whereas an accomplice is anyone who aids, abets, counsels, or procures a principal. […]. Two persons can be co-principals, so long as together they satisfy the definition of the substantive offence and each of them inflicted wounds on the victim with the required fault, for example”), Ormerod, David: Smith and Hogan’s Criminal Law, 13th ed, Oxford (OUP), 2011, p. 190-1 does not make such a clear distinction (“The distinction between a joint principal and an aider or abettor is sometimes a fine one. […], the test would be: did D2 by his own act contribute to the causation of the actus reus? If he did, he is a principal”). 23 According to Article 28 (2) of the Spanish Criminal Code “[l]os que cooperan a su ejecución con un acto sin el cual no se habría efectuado” would also qualify as perpetrators. See recently in favour of an introduction in Germany, Díaz y García Conlledo, Miguel: “Der Einfluss der Roxinschen Täterschaftstheorie (insbesondere betreffend die Mittäterschaft) auf die spanische Rechtslehre und Rechtsprechung”, in: Goltdammer’s Archiv für Strafrecht (GA), 158 (2011), pp. 259, 282 et. seq. 24 District Court of Jerusalem, supra note 13, paragraph 194: “His responsibility is that of a ‘principal offender’ who perpetrated the entire crime in co-operation with the others.” Here the court compares this type of responsibility with that of two people who collaborate in the forging of a document (ibid.: “Two persons may collaborate in the forging of a document, each one of them forging only a part of the document”). This approach has now been confirmed by the Lubanga Trial Judgment, ICC 01/04 – 01/06 – 2842, T.Ch. I, 14 March 2012, para. 999 and passim; for a discussion see Ambos, “The first judgement of the International Criminal Court (Prosecutor v. Lubanga): A comprehensive analysis of the legal issues”, International Criminal Law Review 12 (2012), 115, at 141 et seq. 25 On the different forms of participation in Art. 25 (3) of the Rome Statute of the International Criminal Court, see Ambos, Kai: “Article 25”, in: Triffterer, Otto (ed.): Commentary of the Rome Statute of the ICC, 2nd. ed. Oxford (Hart Publishing), 2008, p. 743 et seq. 26 A further form of participation is the already mentioned (supra note 23) Spanish “colaborador necesario”. 27 District Court of Jerusalem, supra note 13, paragraph 197: “[…] we wish to emphasize that in any case the Accused is regarded as committing the crime itself […] whether he committed an act in order to facilitate or to aid another in carrying out the extermination […], or whether he counselled or solicited others to exterminate […]”.

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considers any causal contribution to the criminal result as ‘perpetration’ or ‘commission’28. The issue of the correct and precise form of responsibility is particularly relevant given the fact that Claus Roxin developed the theory of control over (domination of) the act (“Tatherrschaft”) by means of an organized power structure (“Organisationsherrschaft”) around the same time as the Eichmann trial took place (in the 1960 s), taking the facts of the case as an example. However, the Jerusalem Court made no use of this theory. In fact, it could not have even known about it since Roxin’s work was only published after the trial (in 1963)29. Instead Eichmann’s responsibility was determined with regard to his participation in the ‘Final Solution’, i. e., any kind of participation, notwithstanding its concrete form (either a form of perpetration or a form of secondary participation) was deemed sufficient. Indeed, although a pure form of collective or organizational responsibility was rejected, the point of reference was the collective enterprise of the ‘Final Solution’. This follows from two considerations. On the one hand it can be inferred from the various references to the ‘Final Solution’ in the judgment: “[…] all the acts perpetrated during the implementation of the Final Solution of the Jewish Question are to be regarded as one single whole, and the Accused’s criminal responsibility is to be decided upon accordingly”30. […]. “Hence, the Accused will be convicted (if no justification for his acts are found) of the general crime of the ‘Final Solution’ in all its forms, as an accomplice to the commission of the crime, and his conviction will extend to all the many acts forming part of that crime, both the acts in which he took an active part in his own sector and the acts committed by his accomplices to the crime in other sectors on the same front”31.

On the other hand, the judgment refers to the Nazi organized power apparatus in which Eichmann knowingly participated: “It was therefore clear from the outset that a complicated apparatus was required to carry out the task. Everyone who was let into the secret of the extermination, from a certain rank upwards, was aware, too, that such an apparatus existed and that it was functioning, although not everyone of them knew how each part of the machine operated, with what means, at what 28 Regarding the different types of single perpetrator model, see the recent work by Rotsch, Thomas: “Einheitstäterschaft” statt Tatherrschaft. Tübingen (Mohr Siebeck), 2009, p. 131 et seq. and passim. 29 Claus Roxin published his key article on “Straftaten im Rahmen organisatorischer Machtapparate” in: GA, 110 (1963), pp. 193 – 207 (for an English translation see now “Crimes as Part of Organized Power Structures”, JICJ 9 [2011], pp. 191 – 205). He had, of course, already worked on the article before and therefore the development of his theory was indeed parallel to the Eichmann trial which ended with the judgment of December 12, 1961. The first edition of Roxin’s work for his Habilitation (“Täterschaft und Tatherrschaft”), in which the theory of domination of the act was more broadly developed, was published in 1963 (8th ed. 2006); on the “Organisationsherrschaftslehre”, see p. 242 et seq. of that book. 30 District Court of Jerusalem, supra note 13, paragraph 190. 31 Ibid., paragraph 195.

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pace, and not even at which place. Hence, the extermination campaign was one single comprehensive act, which cannot be divided into acts or operations carried out by various people at various times and in different places. One team of people accomplished it jointly at all times and in all places”32.

Finally, Eichmann is regarded as being responsible just like any person who knowingly participated in the Nazi criminal enterprise of the Holocaust: “But more important than that: In such an enormous and complicated crime as the one we are now considering [the final solution, K.A.], wherein many people participated at various levels and in various modes of activity – the planners, the organizers and those executing the acts, according to their various ranks – there is not much point in using the ordinary concepts of counselling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of the victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals were close to, or remote from, the actual killer of the victim, means nothing as far as the measure of his responsibility is concerned. On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command, the ‘counsellors’ in the language of our Law. As regards the victims who did not die but were placed in living conditions calculated to bring about their physical destruction, it is especially difficult to define in technical terms who abetted whom: he who hunted down the victims and deported them to a concentration camp, or he who forced them to work there”33. “[…] even if we view each sector of the implementation of the Final Solution separately, there was not one sector wherein the Accused did not act in one way or another, with a varying degree of intensiveness, so that this alternative way would also lead us to find him guilty all along the front of extermination activities”34.

We may therefore conclude that the Court basically argued that macro-crimes of the kind in question should be dealt with in accordance with their specific nature. The ordinary structure of individual forms of liability (distinguishing between perpetration and secondary participation) does not adequately capture this specific nature since it ignores the particular relationship between the system (criminality) and the individual (criminality) in a macro-criminal context. While it is clear that International criminal law should primarily be concerned with macro-criminality and that domestic criminal law is, normally, concerned with ordinary and individual criminality, the boundaries between the system and the individual level are not always clear. While ordinary, domestic criminal law, at whatever level and in whatever form, always aims at the individual perpetrator, it is clear that ICL cannot ignore the political, social, economic and cultural background of the criminal events (‘the crime base’). Thus, it goes well beyond the establishment of mere individual responsibility. It also seems clear that the system and individual level are not mutually exclusive but rather

32

Ibid., paragraph 193. Ibid., paragraph 197 (author’s emphasis). 34 Ibid., paragraph 198. 33

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complement each other; a one-sided focus on one or the other would not fully take into account the complexities of macro-criminality. Be that as it may, even though Eichmann was ultimately convicted as a “principal offender”, based on his many acts of support for and cooperation in the Final Solution, the Court argued in favour of a kind of collective or organizational responsibility. In fact, the Court’s reasoning reminds us of the concept of joint criminal enterprise (“jce”), which, based on the English common design theory, has experienced a kind of revival in the case law of the UN Ad Hoc Tribunals, especially the International Tribunal for the former Yugoslavia (“ICTY”)35. One must not overlook, however, that this concept has been much criticized in legal scholarship36 and is still rejected by the International Criminal Court37. Returning to the concept of domination of the act by means of an organized power apparatus (Organisationsherrschaft), the question still remains – and this issue was not analyzed in the Eichmann trial – as to whether a person like Eichmann, belonging to a regime’s intermediate, organizational level, can have domination of the act within the meaning of this theory. I have earlier said the following in this regard: “Taking a closer look […] it cannot be denied that only the top level of the organization, normally formally constituted as the National Defence Council, the Junta or even mere government, may exercise absolute domination by means of and over the organized power structure which is subordinate to it. In addition, this top level represents the State in a particular way and is responsible for any potential interference with fundamental rights […]. All other power is merely derived and, therefore, in its exercise to be attributed to the State leadership. Only the domination of the State leadership may not be blocked from above or interfered with in any other way. In contrast, such ‘interference’ is entirely possible with regard to a high or mid-level employee such as Eichmann: his orders to transport Jews to concentration camps could have been suspended or cancelled by his superiors at any time. Also, his command power over the direct executors could have been superseded by his superiors without difficulty, since the direct perpetrators, ultimately, were not responsible to Eichmann, but rather to NS leadership38. 35

The jce-doctrine was first introduced in the Tadic case, Appeals Chamber Judgment, 15. 7. 1999 (IT-94-1-A), paragraph 172 et seq.; recently see, Prosecutor v. Gotovina et al., Trial Judgment 15. 4. 2011 (IT-06-90-T), paragraph 1950 et seq.; cf. Ambos, Kai: Internationales Strafrecht, 3rd ed., München (C.H. Beck), 2011, § 7, marginal numbers (mn.) 30 – 31, with references to the jurisprudence and case law. 36 Cf. Ambos, Kai: “Joint Criminal Enterprise and Command Responsibility”, in: JICJ 5 (2007), pp. 159 – 183; also Ambos, supra note 35, § 7, mn. 32, with further references. 37 Cf. “Lubanga Decision on the Confirmation of Charges”, ICC 01/04 – 01/06, Jan 27, 2007, para. 329, 334-5 (discussing jce under the ‘subjective approach’ and rejecting it); see also: Mbarushimana Decision on the Confirmation of Charges, ICC 01/04 – 01/10, Dec 16, 2011, para. 280-2 (referring to jce and generally stating that the ICTY modes of liability cannot be applied automatically before the ICC, yet applying the jce “significant contribution” standard). 38 Ambos, supra note 1, p. 604 (“Bei genauerer Betrachtung kann nämlich nicht bestritten werden, daß nur die Organisationsspitze, die regelmäßig als nationaler Verteidigungsrat, als Junta oder auch als bloße Regierung formal verfaßt ist, eine absolute Herrschaft mittels des ihr

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“One has therefore to say that the domination over the organisation can only be established, without any doubt, in relation to those state officials acting in the background whose command power and orders cannot simply be suspended or cancelled, i. e., in relation to those who, in that sense, can dominate and govern ‘without interference’. In line with what has been said, this only occurs with the formally constituted government, that is, the actual top of the organization, and, in exceptional cases, also with the leadership of the military and police security forces (‘Generals’) standing outside the civil government. We may also add that their capacity to dominate the organization can be assumed without further ado if they themselves are the government or belong to it”39. “In contrast, the perpetrators that do not belong to the top of the organization but, for example, to the mid-leadership-level, have, at best, domination over the organization within the apparatus with regard to their subordinates. They do not therefore control the whole apparatus, but, at most, part of it. This partial domination, in any case, justifies considering them as indirect perpetrators regarding that part of the events which is effectively under their control. On the other hand, the fact that they are dependent on the top of the organization appears to run counter to the possibility of indirect perpetration and rather in favour of co-perpetration based on the functional division of labour. Indeed, without that division of labour, the ‘Final Solution’ could never have been carried out. Nor could the extermination machine of a concentration camp like Auschwitz, specifically under the orders and supervision of the camp’s commander Höß, have ever functioned so efficiently”40. unterstehenden organisatorischen Machtapparates und über diesen ausüben kann. Außerdem vertritt diese Instanz in besonderer Weise den Staat und trägt die Verantwortung für mögliche Grundrechtseingriffe, auf deren Unterbleiben der Bürger gegenüber dem Staat einen Anspruch hat. Alle andere Macht ist nur abgeleitet und damit in ihrer Ausübung der Staatsführung zurechenbar. Nur die Herrschaft der Staatsführung kann nicht von oben blockiert oder in irgendeiner anderen Form gestört werden. Demgegenüber ist eine solche ‘Störung’ bei einem höheren oder mittleren Beamten wie Eichmann durchaus möglich: Seine Anordnungen der Judentransporte in Konzentrationslager hätte ja jederzeit von seinen Vorgesetzten aufgehoben oder rückgängig gemacht werden können. Ebenso hätte seine Befehlsgewalt über die unmittelbaren Ausführenden ohne weiteres durch seine Vorgesetzten überspielt werden können, denn die unmittelbar Ausführenden sind in letzter Instanz ja nicht Eichmann, sondern der NSFührungsspitze verantwortlich gewesen” [emphasis in the original; fn. omitted; this and the following quotes are free translation from the German original by the author]). 39 Ambos, supra note 1, p. 605 (“Man wird also sagen müssen, daß die Organisationsherrschaft nur für diejenigen staatlichen Hintermänner zweifelsfrei begründet werden kann, deren Befehlsgewalt und Anordnungen nicht ohne weiteres aufgehoben oder rückgängig gemacht werden können, die also in diesem Sinne ‘störungsfrei’ herrschen und beherrschen können. Dies ist nach dem Gesagten nur bei der formal verfaßten Regierung, also der Organisationsspitze selbst, und in Ausnahmefällen auch bei der außerhalb der zivilen Regierung stehenden Führung der militärischen oder polizeilichen Sicherheitskräfte (‘Generäle’) der Fall. Deren Fähigkeit zur Organisationsherrschaft ist überdies ohne weiteres anzunehmen, wenn sie selbst regieren oder der Regierung angehören” [emphasis in the original; fn. omitted]). 40 Ambos, supra note 1, p. 605 (“Demgegenüber besitzen Täter, die nicht der Organisationsspitze, aber etwa der mittleren Führungsebene angehören, allenfalls Organisationsherrschaft innerhalb des Apparats hinsichtlich ihrer Untergebenen. Sie herrschen also nicht über den gesamten, sondern allenfalls über einen Teil des Apparats. Diese Teilherrschaft rechtfertigt es, sie jedenfalls bezüglich des von ihnen beherrschten Teilgeschehens als mittelbare Täter zu betrachten. Andererseits scheint ihre Abhängigkeit von der Organisationsspitze gegen mittelbare Täterschaft und für Mittäterschaft aufgrund funktioneller Arbeitsteilung zu spre-

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In the more recent article I wrote celebrating Claus Roxin’s 80th birthday (on 15 May 2011), I stated: “Nevertheless, if one places it [the organization] at the centre of imputation of criminal responsibility and if one understands ‘Organisationsherrschaft’ as domination over or by means of the (entire) organization, partial domination, as occurs in the cases of those operating on the mid-level receiving and issuing orders, is not sufficient to establish ‘Organisationsherrschaft’. Those participants in macro-criminal activity with ‘partial domination’, who receive and issue orders at the same time, are therefore (at best) co-perpetrators; their possible lack of equivalence in relation to those receiving their orders (who may be the direct perpetrators) can be better accepted than their lack of domination in relation to the top of the organization, since the latter ultimately prevents their domination over the (entire) organization”41.

In any case, it seems obvious – and here the Jerusalem Court was right – that the common types of perpetration and participation may not simply be applied to acts committed in the macro-criminal context. As this criminality is characterized by a combination of individual and collective structures for attributing guilt42 and, besides this, by an organization that plans, coordinates and finally carries out the criminal

chen. Ohne eine solche Arbeitsteilung hätte die ‘Endlösung’ gar nicht durchgeführt werden können. Ebensowenig hätte die Vernichtungsmaschinerie eines KZ wie Auschwitz, im einzelnen angeordnet und überwacht vom Lagerkommandanten Höß, so effizient funktionieren können.” [emphasis in the original; fn. omitted]). – See also my earlier work, “Tatherrschaft durch Willensherrschaft kraft organisatorischer Machtapparate – Eine kritische Bestandsaufnahme und weiterführende Ansätze”, in: GA 145 (1998), pp. 226 – 245 (Spanish version published, inter alia, in: Revista de Derecho Penal y Criminologia, Universidad Nacional de Educación a Distancia. Facultad de Derecho, 2nd part, vol. 3, January 1999, pp. 133 – 165), where on p. 238, I abstained from going “much further than to the intermediary employee à la Eichmann”. For an analysis of the recent application of the doctrine with regard to the former Peruvian president Alberto Fujimori see Ambos, Kai: “The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus”, in: JICJ 9 (2011), pp. 137 – 158. For a three-tiered system of hierarchy with the respective domination/control see H. Vest, Völkerrechtsverbrecher verfolgen (2011), 393 – 437 (409 – 412, 414 – 35; helpful figures at 436 – 7), 439. 41 Ambos, Kai: “Zur ‘Organisation’ bei der Organisationsherrschaft”, in: Schünemann, Bernd et al. (eds.), Festschrift für Claus Roxin, Berlin (De Gruyter,) 2011, pp. 837 – 852, at 851 (“Stellt man diese aber in das Zentrum der strafrechtlichen Zurechnung und versteht Organisationsherrschaft als Herrschaft über oder durch die (gesamte) Organisation, kann eine Teilherrschaft, wie sie dem mittleren Befehlsempfänger/-geber zukommen mag, zur Begründung von Organisationsherrschaft nicht ausreichen. ‘Teilherrschende’ Beteiligte an Makrokriminalität, die zugleich Befehle empfangen und erteilen, sind damit (allenfalls) Mittäter, das eventuelle Gleichordnungsdefizit mit Blick auf ihre Befehlsempfänger (die u. U. die unmittelbaren Täter sind) ist insoweit eher in Kauf zu nehmen als ihr Herrschaftsdefizit gegenüber der Organisationsspitze, denn dieses verhindert letztlich ihre Beherrschung der (gesamten) Organisation.” [fn. omitted; this and the following quote are free translation from the German original by the author]). The work was also published in Spanish in InDret 3/2011, www.indret.com (accessed on 24. 1. 2012). 42 Cf. Ambos, supra note 35, § 7, mn. 10 et seq.

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acts, we should place the latter at the centre of our attention. As I stated in the Festschrift for Roxin: “The organized power apparatus is […] as a ‘formally constituted system of injustice’ at the same time part of and driving force of the ‘systems injustice’. Thus, it stands at the centre of the imputation and ‘collectivizes’ – in the sense of the dual (collective-individualistic) system of imputation recognized in international criminal law (‘principle of imputation of the global act’) – the classical individualistic perspective of criminal law. The top of the organization makes use of the functionality of the apparatus in order to bring about the ‘systems injustice’; it acts by means of the apparatus in conjunction with the direct perpetrators in order to achieve the organization’s supra-individual objectives, to which all members of the organization are ultimately subordinate”43.

A new perspective on the Organisationsherrschaft may thus arise. The gist of the issue to be further explored is whether this form of responsibility may be included in the ordinary system of modes of liability as a type of indirect perpetration, or whether it should be conceived as an autonomous, self-standing form of responsibility to be applied in cases of macro-criminality.

43 Ambos, supra note 41, at 847-8 (“Der organisatorische Machtapparat ist […] als ‘verfasstes Unrechtssystem’ zugleich Teil und Motor des ‘Systemunrechts’. Er steht damit im Mittelpunkt der strafrechtlichen Zurechnung und ‘kollektiviert’ – ganz im Sinne der im Völkerstrafrecht schon anerkannten doppelten (kollektiv-individualistischen) Zurechnung (‘Zurechnungsprinzip Gesamttat’ – die klassisch individualstrafrechtliche Sichtweise. Die Organisationsspitze bedient sich der Funktionalität des Apparats zur Verwirklichung von Systemunrecht, sie handelt vermittelt durch den Apparat zusammen mit den unmittelbaren Tätern zur Verwirklichung des supraindividuellen Organisationsziels, dem sich letztlich alle Organisationsmitglieder unterordnen” [fn. omitted]).

50 Years On Eichmann in Jerusalem: A Specific Mode of Criminal Law Retroactivity* Miguel Galvão Teles Introduction 1. In the epilogue of Eichmann in Jerusalem, Hannah Arendt states that “[t]he objections raised against the Eichmann’s trial were of three kinds. First there were those objections that had been raised against the Nuremberg Trials and were now repeated: Eichmann was tried under a retroactive law and appeared in the court of the victors. Second there were those objections that applied only to the Jerusalem court, in that they questioned either its competence as such or its failure to take into account the act of kidnapping. And finally, and most important, there were objections to the charge itself, that Eichmann had committed crimes ‘against the Jewish people’, instead of ‘against humanity,’ and hence to the law under which he was tried; and this objection led to the logical conclusion that the only proper court to try these crimes was an international tribunal”1. In this paper I shall consider in particular the first of these objections, and, within it, especially the one that refers to ‘retroactive application of criminal law’. Only incidentally, and not always from the same point of view as Hannah Arendt, shall I refer to the others. I shall take as starting points for reflection Israeli Act 5710 – 1950, under which Eichmann was tried2, and the proceedings against him started and developed3. Eichmann was convicted by the Jerusalem Court on December 11, 1961, the sentence having been confirmed by the Supreme Court on May 29, 1962. The death penalty was applied. * Thanks are due to Miguel Nogueira de Brito, a connoisseur of Hannah Arendt, who, together with António Araújo, co-operated in the Portuguese translation and edition of Eichmann in Jerusalem and with whom I had fruitful discussions. I thank also Ana Rita Duarte de Campos and Margarida Torres Gama for their collaboration. The first of these made good the limitation of my knowledge of criminal law and Footnote 7 is due to her. The second helped to gather material and Footnotes 6 and 8 are due to her. 1 Arendt, Hannah: Eichmann in Jerusalem. A Report on the Banality of Evil, New York (Penguin), 1977, p. 254. 2 An English translation can be seen at http://www.preventgenocide.org/il/law1950.htm. 3 The case and the decisions can be seen in The Nizkor Project (http://www.nizkor.org/ hweb/people/e/ eichmann-adolf/).

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2. In short, Act 5710 contains provisions that punish acts performed specifically against Jews (crimes against the Jewish people), including ‘belonging to an enemy organisation’, and then, generically, crimes against humanity, war crimes and genocide. The characterisation of crimes against humanity and of the war crimes is based on the Charter of the Nuremberg Tribunal and on the work of the International Law Commission on the formulation of the Nuremberg principles, though already with conceptual autonomy of the crimes against humanity with regard to situations of war. The characterisation of genocide was based on the 1948 Convention. With the exception of belonging to an enemy organisation, crimes against Jews are, at heart, crimes against humanity, lato sensu, in which Jews or the Jewish people are the victims. The incriminations are restricted to acts committed, during the Nazi regime or during the Second World War, in ‘enemy territory’ – defined as the territory of Germany during the Nazi period, of any State of the Axis during the war or also as any territory de facto under German authority or that of a state of the Axis, also during the war. By specifically incriminating the facts, the act implies assigning to Israeli courts competence to judge – and it was so understood by these courts. 3. Israeli Act 5710 is, to the best of my knowledge, the second (the first will have been the Australian War Crimes Act, of 1945) to establish universal jurisdiction (with the meaning of criminal jurisdiction of national courts, regardless of the place where the fact occurred and even of the nationality of the accused or of the victims). However, Israeli law is very particular. Universal jurisdiction concerning, let us say, acts against humanity has been justified by the international nature of the infringements to which it refers. In the Israeli case, this type of justification was implicitly excluded both by the Jerusalem Court and by the Supreme Court, even with regard to the domains in which it could be used, through reference to Nuremberg. In any case, the justification would not cover, as such, crimes against the Jews. In this point, the law will have established a sort of retroactive personal relationship between the State of Israel and standing as a Jew. However, the argument of the Israeli courts always consisted of the invocation that territorial sovereignty allowed judgement in accordance with the law of the State to which the territory belongs. On these grounds, they set aside the defence’s argument of incompetence of the courts. Ironically, today Israel protests in very lively manner against the universal jurisdiction claimed and put into practice by other States.

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I. The Question of Retroactivity of the Incriminations from the Standpoint of International Law at the Time 1. In substance, the main allegation of law brought by Eichmann’s defence referred to the retroactivity of the incriminations. The Israeli courts paid particular attention to it. Since Israel did not have a written, rigid Constitution, the argument of retroactivity was made with reference to International Law. The reply of the courts stood at two levels: first, International Law would only be internally applicable through incorporation and, to that extent, state law would prevail; second, in any case, although many legislations established it, the principle of nullum crimen nulla pœna sine lege prævia would have ethical value but would not constitute a principle of International Law. 2. Specifically with regard to the question of the nullum crimen nulla pœna sine lege prævia rule as a hypothetical principle of International Law, it could be considered in two ways: either taking the norm as an object of obligations of the States regarding each other, or invoking it as grounds for subjective legal situations of the individuals. The second of these ways assumes the international subjectivity of the individuals, which only began to be consolidated after the Second World War. Until international instruments in respect of human rights came into existence, the only thinkable grounds for conceiving the principle as an international principle would consist of what was then Article 38, 1(c) of the PCIJ Statute and of the provision bearing the same numbering of the ICJ Statute, in which the general principles of law accepted by ‘civilised nations’ are considered ‘sources’ of International Law. Now, not only does the provision not appear to legitimise the conversion of domestic regimes, even though widespread, into an international obligation to adopt them internally, but also there were serious exceptions to recognition of the principle of nullum crimen sine lege prævia: besides Nazi Germany and the Soviet Union, the United Kingdom itself – as was pointed out by the Israeli courts. On the other hand, the Nuremberg and Tokyo trials themselves excluded the international relevance of the principle. The first international instrument to make reference to it was the Universal Declaration of Human Rights of December 10th 1948 (Article 11.2). Israel was not yet a member of the United Nations. The European Convention on Human Rights (1950/1953) reaffirms the principle (Article 7), as does the American Convention (1969, Article 9). The norm had become widespread with the International Convention on Civil and Political Rights (Article 15), adopted by the United Nations in 1966. The international affirmation of the nullum crimen principle appears almost always with the proviso of criminalisation under International Law, and both the Covenant and the European Convention further state that “nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the Community of Nations”4. 4 As far as I have been able to determine, the Portuguese Constitution will have been the first to explicitly combine, at domestic level, the exclusion of unfavourable retroactivity of

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The formation of the international rule prohibiting criminal retroactivity was articulated with and subsequent to recognition of crimes under International Law. In any event, it would not appear that it could be said, at least until the second half of the 60 s, that the nullum crimen rule constituted a rule of International Law. And the acts performed by Eichmann were far earlier. II. Ethico-Legal Consideration of the Incriminations: Retroactivity Regarding Facts that Came to be Characterised, lato sensu, as Crimes Against Humanity 1. The analysis must rise to a higher legal-meta-positive level. This transition does not imply any natural-law theory. I am a relativist, in the strict meaning that empiric subjects have ethical autonomy and that no one can take their conceptions or assertions as the conceptions or assertions of all. But everyone may seek to assert their positions, as and where their nature so requires, perhaps in conflict with those of others. The conceptions are based on practical evaluative postulates that cannot be demonstrated, though they are monstrable. And at this level reasons may be weighed. For the time being, the matter here is precisely one of weighing reasons. This weighing refers, in the first place, to the matter of retroactivity. For there to be grounds for it more comments are required, taking again a legal-positive departure point. 2. Despite the strong limitation of my knowledge of criminal law, I would dare to say that genocide and crimes against humanity are what one might call complex crimes, in that their type involves facts that, of themselves, would be crimes under most legal systems and are consumed by the new type. By way of example, crimes against humanity may involve homicide, bodily harm, unlawful detention, kidnapping … What is special, in genocide, is a specific dolus (destruction, in whole or in part, of a national, ethnic, racial or religious group, as such) and, in crimes against humanity, insertion into a ‘widespread or systematic attack directed against any civilian population with knowledge of the attack’ (Rome Statute version); and, in both cases, there is an enlargement of the legal good that is protected. The foregoing is also valid for crimes against the Jewish people (save with regard to belonging to ‘enemy organisations’), in that they are crimes against humanity. 3. Let us forget Israeli law for a moment, and consider the legally more sensitive situation: Eichmann was being tried in Germany for facts ‘attributable’ to German territory. Let us accept that the German courts would not apply, as they did not,

criminal law with the safeguard of incrimination by International Law at the time of the facts (1976 Constitution, Articles 29.1 and 29.2).

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the Nuremberg Charter. Eichmann would have been tried for crimes defined by the simple types. For simplicity’s sake, let us take homicide. Murder was a crime according to the German Criminal Code in force during the Nazi era. Let us imagine, although as a practical absurdity (no accusation would ever have been made), that Eichmann was being tried criminally in a court of the Third Reich. Or, to make things slightly less incredible, let us imagine that, still during the Third Reich, the child of a Jew killed in an extermination camp where he had been sent by Eichmann were to lodge proceedings for civil responsibility against Eichmann and the Reich under § 839 of the BGB, in conjunction with Article 173 of the Weimar Constitution. There could be no doubt that, should any such unimaginable situation occur, Eichmann and, if applicable, the Reich would be acquitted through the very simple affirmation, made more or less discretely, that the Führerprinzip imposed subordination to the determinations of the Führer, one of which was ‘extermination’ of the Jews. Furthermore, a judge that proceeded otherwise would have condemned himself to death5. But let us now think about a German court judging after the fall of Nazism (and, to simplify matters, after the end of the allied occupation). German authorities were not particularly zealous in bring criminal proceedings for facts that occurred during Nazism. However, there are several examples of trials and convictions, though with quite low penalties for those who were not the material authors of the infringements, characterised as accomplices on the basis of the (convenient) idea that there could not have been instigation of instigation6. Such an idea seemed to have been definitively set aside by Roxin’s research on mediate authorship7. But it apparently returned in the Demjanjuk first-instance trial8. 5 Nevertheless, in three cases Brazilian courts had the courage to convict a state (Paraná) or the Union for liability for torture or homicide (the Walter Picoits, Vladimir Herzog and Manuel Fiel Filho cases). See my article “State Responsibility and Defaults of the Past”, to be published by the T.M.C. Asser Instituut, in a collective work on The Hague Prize awarded to Dame Rosalyn Higgins. 6 Among others, the BGH rulings of 29. 01. 1952 [BGHSt 2, 234], of 12. 02. 1952 [BGHSt 2, 173], of 19. 12. 1952 [BGHSt, 3, 357], the decisions of the Berlin Landgericht of 8. 05. 1950, of the Frankfurt-am-Main Landgericht of 25. 08. 1950, of the Ulm Landgericht of 29. 08. 1958, of the München Landgericht of 21. 07. 1961, of the München Landgericht of 21. 01. 1965, of the Frankfurt-am-Main Landgericht of 19/20. 08. 1965 and of the Düsseldorf Landgericht of 3. 09. 1965. 7 In his thesis published in 1963 entitled Täterschaft und Tatherrschaft, Claus Roxin constructed a type of mediate authorship based on the existence of ‘organised-power apparatus’. In keeping with this construction, the way over the will of those who execute the punishable facts by the higher links of a hierarchic chain was based on the ‘automatic’ functioning of the organisation, which ensured the performance of the punishable fact regardless of who, specifically, came to carry it out. Claus Roxin deals in some detail with the Eichmann case, stating one of the arguments that had been invoked by his defence, on the grounds of a reasoning of virtual causality, to wit, had Eichmann refused to carry out the orders he was given, others would surely have done so. The observation came to be assumed by Roxin as an element characterising mediate authorship, by virtue of the existence of organised-power apparatus, an

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In any event, the Führer’s determinations were not taken into account as justification grounds or as excuses. The negation of the bindingness and of the full bindingness of the Führer’s determinations and orders constitutes a total subversion of the Nazi conception of Law. Here, however, there was no possibility of doing what the German courts and the European Court of Human Rights did in the case of the Berlin Wall cases: a ‘human-rights friendly’ interpretation of past law9. On a few occasions the courts justified such ‘subversion’ using the first part of the Radbruch formula, according to which prescriptions that are not directed at justice, and are unbearably unjust, are not law10. 4. I have sustained and sustain that, when there is total rupture in the legal process, giving rise to an appeal to original grounds of bindingness, when, as I am wont to say, a lex nova is introduced11, past law no longer has by itself authority to be applied at present, even with regard to past facts, that is, facts that occurred prior to the rupture. If the lex nova involves a negative judgement as to the legitimacy of the past power, there ist not even recognition of the preceding law as applicable to past facts: the new law must grant title sufficient for the bygone law to be taken into account. The grant of such title shall be based on the need to take into account both the effectiveness and the situations created. But selection is legitimate, allowing certain provisions to be

essential topic for distinction between this figure and that of instigation: whereas in the latter the decision as to the performance of the punishable facts requires a decision by the author who, in the final instance, has the power to decide whether or not to commit the crime, mediate authorship – by virtue of the existence of an organised-power apparatus – may waive this power of decision, its functioning and the fungibility of the agent constituting the reason for the imputation to the ‘men at the rear’ who know, in advance, that their order will be complied with, regardless of who, specifically, will carry it out. See Roxin, Claus: Täterschaft und Tatherrschaft, 8th ed. Hamburg (de Gruyter), 2006, p. 246 ff. 8 “Der Spiegel Online” (May 12, 2011), “Freigelassen, aber nicht freigesprochen”, consulted on October 25, 2011, http://www.spiegel.de/panorama/justiz/0,1518,762280,00.html; “Welt Online” (May 12, 2011), “John Demjanjuk zu fünf Jahren Haft verurteilt”, consulted on October 25, 2011, http://www.welt.de/politik/deutschland/article13367603/John-Demjanjukzu-fuenf-Jahren-Haft-verurteilt.html; “Frankfurter Allgemeine Zeitung” (May 12, 2011), “Demjanjuk zu fünf Jahren Haft verurteilt”, consulted on October 25, 2011, http://www.faz.net/ aktuell/politik/inland/ns-kriegsverbrecherprozess-demjanjuk-zu-fuenf-jahren-haft-verurteilt1639175.html. Up until the date of preparation of this article for publication (14. 11. 2011) the wording of the Munich Court’s sentence has not yet been found in those magazines in which it might normally be expected (NJW, Juristenzeitung …). 9 Galvão Teles, Miguel: Ex post justice, Legal Retrospection and Claim to Bindingness, in: Liber Amicorum José de Sousa Brito. Coimbra (Almedina), 2009, p. 440 ff. 10 Radbruch, Gustav: Gesetzliches Unrecht und übergesetzliches Recht, in: idem: Rechtsphilosophie, Studienausgabe (ed. by Dreier, Ralf/Paulson, Stanley L.). 2nd ed. Heidelberg (Müller), p. 211 ff. Rulings of the BGH of 29. 01. 1952 [BGHSt 2, 234] and of 12. 02. 1952 [BGHSt, 2, 173], and of the Ulm Landgericht of 29. 08. 1958. 11 In particular, my “Revolution, Lex Posterior, Lex Nova”, in: Attwooll, Elspeth (ed.): Shaping Revolution. Aberdeen (Aberdeen University Press), 1991, p. 69 ff.

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given title and not others12. Nazi law incriminated homicide and there is every reason to give relevance to this incrimination, – the more so in that subsequent law maintains it. On the other hand, Nazi law would consider as justification for the homicides the pursuit of the goal of extermination of the Jews in accordance with a ‘directive’ established by the Führer. There would exist a thousand reasons not to give title to this norm. And, in order not to take the norm into account, one does not have to fall back on Radbruch’s formula – precisely because the rule is considered as not binding in the past. Radbruch’s formula can be useful only for present law. I believe that this was what the German courts did, without saying as much, when they did not invoke the Radbruch formula. However, Eichmann did not commit only crimes that, in accordance with the respective laws, were located in Germany. Some were located in States of the Axis or in occupied territories where, following the liberation, the Führerprinzip purely and simply could not be invoked. 5. Were the persons punishable for crimes corresponding to simple types, the formation of the complex types could be relevant, from a standpoint of trust, insofar it could increase the penalty. The death penalty applied to Eichmann is barbarous no matter what the crime. Of itself, it warrants exclusion. That apart, the quantity of homicides attributed to Eichmann, were it not for the untenable theory of complicity, should always lead to the maximum penalty. It could be said that, even by not giving relevance to part of past law (the part regarding the extermination of jews), the trust of those that acted under it is called into question. It is, however, a structurally contingent confidence based on a system of oppression. Those who perform acts within this framework know, or ought to know, that their protection is, to some extent, artificial and depends on the duration of the system of oppression. And the evil that was done was radical or absolute evil13. 6. Invocation of ‘winners’ justice’ to diminish the authority of a judgement is a classical argument, used, for example, with regard to Nuremberg. Eichmann invoked it, particularly questioning Act 5710 – 1950 and the competence of the Israeli courts. I have maintained that when one, outside one system, questions the legitimacy and bindingness of norms, the situation becomes that of a second-degree state of nature14. In this case, we would be faced with an asymmetric state of nature. In a second-degree state of nature the claims for bindingness may involve the best and worst of reasons. For example, the grounds for the claims of the Pinochet regime 12

Galvão Teles (2009), p. 455 ff. See the remarkable book by Nino, Carlos Santiago: Radical Evil on Trial. New Haven (Yale University Press), 1996. 14 “Liberdade Jurídica, Constituição e Estado de Natureza de Segundo Grau”, for publication in Estudos em Homenagem ao Prof. Doutor Jorge Miranda. 13

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were the worst. In the case under appraisal, the mere fact that almost all legal systems already incriminated, at the time, the simple types involving the acts performed by Eichmann means that the argument intended to diminish the authority of the judgement characterising it as winner’s justice lead, in the final instance, to an attempt to affirm impunity.

Reflections Starting from Eichmann in Jerusalem

The Milgram Experiment and Criminal Liability: An Essay on the Banality of Evil Augusto Silva Dias I. The Milgram Experiment: Results and Impact Back in 1961 the University of Yale social psychologist, Stanley Milgram, organized and conducted one of the most surprising post-war experiments in order to discover the extent to which reasonably socialized people would be able to cause suffering to others after having voluntarily submitted themselves to the rules of an authority. Milgram was concerned with the phenomenon of obedience and the tragic consequences this had had in the recent history of Europe and the world. Between 1933 and 1945 gas chambers were built, death camps were established and millions of innocent people were systematically slaughtered in an organized fashion, all as a result of orders being carried out. According to Milgram, these inhumane measures “may have originated in the mind of a single person, but they could only be carried out on a massive scale if a very large number of persons obeyed orders”1. Although the scientific experiment began some months after the start of the Eichmann trial, there is no direct relation between the two, or indeed with the theory that Hannah Arendt developed based on that case. Milgram was familiar with some of Arendt’s works2 but her report on Eichmann’s trial3 was only published in The New Yorker in February and March 1963, approximately a year and a half after the famous experiment. Furthermore, as Milgram himself stated, his experiment “derives, in the first instance, from direct observation of a social fact; the individual who is commanded by a legitimate authority ordinarily obeys. Obedience comes easily and often. It is a ubiquitous and indispensable feature of social life”4. However, despite not knowing Arendt’s thesis, Milgram had the same underlying concern and eventually came to a similar conclu1

See Milgram, Stanley: “Behavioral study of obedience”, in: Journal of Abnormal and Social Psychology, 4 (1963), p. 371. 2 Milgram also cites a study by Arendt on authority published in 1958 – see Milgram (1963), pp. 372 and 378. 3 It is a report rather than a journalistic article because, although Arendt was acting as a journalist, she did not follow most of Eichmann’s trial, namely the questioning and testimony of the defendant. Therefore, the book Eichmann in Jerusalem is more of a historical, ethical/ philosophical and psychological analysis and reflection on the events and the defendant’s attitude towards them, than a journalistic article – on this subject, see Wieviorka, Annette: “Le procès qui fait entrer la Shoah dans l’histoire”, in: l’Histoire, no. 362 (March 2010), p. 46. 4 See Milgram (1963), p. 372.

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sion: when subjects are under the influence of an authority which they consider to be legitimate, averagely socialized individuals tend to submit themselves to that authority to the point of inflicting extreme harm on others. This is not to say that they do not hesitate or have doubts and internal conflicts, but the truth is that, despite this, they obey to the last. Milgram’s experiment provided solid empirical support to the subsequent philosophical theory of the banality of evil5. Since reports on the experiment have not always been identical with regard to the finer details, we shall refer to Milgram’s own description of the experiment, which he included in the article cited here. He explains how advertisements and direct mail solicitation were used to find volunteers to participate in a study on memory and learning to be carried out at Yale University. They were each to be paid US$4.50 to cover travel expenses and one hour of their time, this being the time considered necessary for each participant. 40 male volunteers6 between the ages of 20 and 50 were selected. They came from a range of social classes and professions and were told that the experiment was intended to test the effects of punishment on learning and memory and that some of them would therefore have to play the role of the teacher while others were learners. These roles were to be decided randomly by the drawing of lots. Before the session each pair of participants would draw a slip of paper from a hat in order to find out who would be the teacher and who would be the learner. In fact, what the participant from the group of selected volunteers (whom Milgram called the naïve participant) did not know was that his partner was an actor who had been trained for the role and that the word “Teacher” was written on both slips in the hat. The naïve participant’s role was predetermined, although he believed it had been allocated to him randomly. Following this, both participants were taken to a room containing an electric chair and the person responsible for the experiment (the experimenter) explained what it actually consisted of. The learner would sit in the chair and have his wrists attached to an electrode, the other end of which was attached to an electric panel located in an adjoining room. The panel contained 30 switches arranged in a horizontal line, each equivalent to 15 volts. Moving from left to right, each switch had an additional 15 volts to the previous one. The last switch in the line was equivalent to 450 volts. The instrument panel was particularly realistic in appearance so that the naïve participants would not suspect it was merely a simulation. The teacher was supposed to sit in front of the electric panel and 5

In this sense, see Lunt, Peter: Stanley Milgram: understanding obedience and its implications. Basingstoke (Palgrave Macmillan), 2009, pp. 59 ff. 6 One might think that the selection of only male subjects constitutes a limitation to Milgram’s experiment. On the contrary, there were several variations of the experiment and the eighth of these was conducted with female subjects and produced the same results: 65 % went to the end of the scale of shocks. See Milgram, Stanley: Obedience to authority: an experimental view. London (Pinter & Martin Ltd.), 1997, pp. 61, 63 f. and 78 ff. Thomas Blass found nine replicas of the experiment in the specialist literature in which both men and women participated. Eight of these found no gender differences, in line with Milgram’s findings. See Blass, Thomas: “The Milgram paradigm after 35 years: some things we now know about obedience to authority”, in: Journal of Applied Social Psycology, 5 (1999), pp. 968 f.

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read a series of word pairs to the learner. After that, he would read the first word of a pair together with four other words. The learner would indicate which of those four words made a pair with the first word and would communicate his answer by pressing one of four switches in front of him. Every time the learner gave an incorrect response the teacher was supposed to press a switch and administer an electric shock. He should begin with 15 volts and increase the intensity of the shock every time the learner gave the wrong answer. On reaching the bottom of the list, the teacher would repeat it and continue giving shocks until the learner could say all of the word pairs correctly. Meanwhile, the learner, that is to say the actor who was part of the experimenter’s team, would give three incorrect answers for every correct one. When the shocks reached 300 volts, he would pound on the wall of the room where he was attached to the electric chair, requesting that the experiment be interrupted immediately. After this protest, which would continue during the shocks administered immediately afterwards, the learner would remain silent. This was a crucial point, since most of the teachers questioned the experimenter about the sense of the experiment and expressed their reservations about continuing with it. The experimenter encouraged the teacher to consider the lack of an answer as being the same as an incorrect answer and to increase the intensity of the shock each time the learner failed to respond. The attitude of the experimenter, in this case Milgram himself, was fundamental since, dressed in his white coat, he represented authority in that situation; an authority conferred on him by science, but, in any case, as a debate on this point shows7, an authority which was understood and recognized by the participants as being legitimate authority. Any hesitation, complacency or duplicity on his part might destroy the expectations regarding the obedience of the naïve participants and, consequently, the experiment itself. His answers to the participants’ questions had to be unequivocal, firm and clear. The experimenter would reply to questions about the learner by saying “Although the shocks may be painful there is no permanent tissue damage, so please go on”8. If the participant said that the learner did not want to go on, the experimenter would say: “whether the learner likes it or not, you must go on until he has learned all the word pairs correctly. So please go on”9. The results obtained were truly surprising. None of the participants withdrew before 300 volts, which was described on the panel itself as “intense shock”. Many of them showed signs of nervousness, agitation and stress, but up to that level none of them refused to continue. Of the 40, 5 of them refused to go beyond 300 volts, 4 stopped at 315, another 2 at 330, 1 at 345, 1 at 360 and 1 at 375 volts, which was labelled on the panel as “Danger: severe shock”10. Thus, 26 naïve participants, or 65 % of the total, obeyed the experimenter’s orders to the end, inflicting on the learner the most

7

On this debate, see Blass (1999), pp. 959 ff. See Milgram (1963), p. 374. 9 See Milgram (1963), p. 374. 10 See Milgram (1963), p. 376, table 2. 8

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powerful shock produced from the panel. Milgram explains11 that although the obedient participants continued to administer shocks, few “remained calm throughout the experiment, and displayed only minimal signs of tension from beginning to end”. The Milgram experiment had a huge impact in the decades that followed, in all fields of knowledge, including philosophy, military psychology, economics, law and the arts12. Despite the use of different methodologies and variations in the results, the subsequent repeat experiments confirmed the theory that Milgram had put forward: when placed within an authority system, normal, average people, who are simply doing their “job”, are, by and large, capable of causing suffering to their peers while having no kind of personal animosity to them13. Behaviour which causes harm to others and which is unthinkable when a person is acting in isolation, on his own behalf, becomes a reality when he is part of an authority system and carrying out orders. Thus, one might say that banal evil is a socially constructed reality. In addition to this inference, which is certainly the main one, other more specific inferences can be drawn from Milgram’s experiment and those that followed it14. Two of these are of particular interest: the inverse relationship between the willingness to inflict suffering and the physical proximity of the victim and the loss of the sense of responsibility that is produced by obedience to the authority. When they were standing next to the electric panel switches with the victim out of sight, the participants appeared less reluctant to induce the shocks and more prepared to obey the authority than when they could see the causal relationship between their action and the victim’s suffering. Witnessing this causal relationship gives the idea of “being caught in the act”, making it clear that they are responsible for the suffering caused to the other and hindering the development of neutralization and acquittal strategies15. This conclu11

See Milgram (1963), p. 376. A description of this impact can be seen in Blass (1999), pp. 955 ff.; Welzer, Harald: Les executeurs: des hommes normaux aux meurtriers de masse. Paris (Gallimard), 2007, pp. 118 f.; Lunt (2009), pp. 40 ff. The adaptation of the experiment to the television scenario sponsored by the France 2 channel became famous for its spectacular nature and results – See Nick, Christophe/Eltchaninoff, Michel: L’Expérience extrême. Paris (Don Quichotte), 2010. This television production was the subject of the special dossier of two renowned French magazines on scientific matters: Sciences Humaines no. 213 (March 2010, “L’énigme de la soumission”) and Philosophie Magazine, no. 37 (March 2010, “La télé nous rend-elle mauvais?”). 13 This conclusion is expressly formulated in Milgram (2009), pp. 123 f. Welzer (2007), pp. 27 ff. analyzes the interview given by Franz Stangl, the commander of Treblinka, to the journalist Gitta Sereny in 1971, in which the interviewee systematically seeks to avoid the repugnant aspects of his duty, instead highlighting that he personally had nothing against the Jews and recounting episodes in which he had protected the Jews from “incorrect behaviour”. 14 A systematic exposition of these inferences can be seen in Bauman, Zygmunt: Modernity and the Holocaust. Ithaca, N.Y. (Cornell University Press), 1989, pp. 155 ff. 15 The difficulty increases when there is some kind of personal relationship between the executor and the victim. Welzer states that the Nazis had scruples in fulfilling their “duty” in these situations and therefore sought to standardize and depersonalize the victims: “it is not a coincidence that the mechanical killing in the extermination camps placed the greatest social 12

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sion, which can be drawn from the third and fourth variations of the experiment16, was in line with an old notion of human nature, which had mainly been explored in literature17, but it now received the seal of scientific experiment. Of course the teachers were able to hear the learners’ screams of protest and their requests to stop the experiment when the shocks started to become more intense, but as the experiment shows, and as Zygmunt Bauman18 highlighted, “it is difficult to harm a person we touch. It is somewhat easier to inflict pain upon a person we only see at a distance. It is still easier in the case of a person we only hear. It is quite easy to be cruel towards a person we neither see nor hear”. Bauman concluded: “it seems we feel mostly through the eyes”. The other inference, as we suggested, is related to the loss of the sense of responsibility as a result of the obedience. The participants, and above all those who continued to the last switch in the series, distanced themselves from responsibility for what had happened and accredited the experimenter with this responsibility. When asked after the experiment about the reasons that had led them to continue despite some hesitation and doubts, some of them replied that they had only acted because they were requested to continue and told that the success of the experiment depended on their cooperation. Neutralization techniques are a common mechanism for the psychological adaptation that is necessary when acting within the framework of authority systems19. They soften moral scruples and create a moral distance in relation to the actions, immunizing those who perform them against their own censure and that of others, particularly in the case of actions that may be highly destructive. In the Nuremberg trials many of the defendants explained their participation in the Holdistance possible between the executors and the victims: the work in front of and behind the gas chambers was entrusted to special commands composed of prisoners; the throwing of Zyklon B into the pipe located above the gas chamber was an action that was operated at a distance, with no physical contact between the victims and the executors” – see Welzer (2007), p. 278. 16 See Milgram (2009), pp. 34 ff. and 46 ff. 17 E.g. The Mandarin by Eça de Queiroz. Teodoro only had to ring a bell to reduce the old Mandarin in deepest China to a corpse and receive the large compensatory reward. As he was told by the mysterious instigator, dressed in black and wearing a tall hat, “… And think: all you have to do is pick up the bell and ring it. I’m no barbarian; I understand a gentleman’s repugnance at the thought of killing a contemporary: the spilling of blood soils the hands with shame and the death throes of a human body are horrible to see. But in this case there will be no such disgusting scenes … It’s just like someone summoning a servant …”. 18 See Bauman (1989), pp. 155 f.; in this sense, see also Stella, Federico: La giustizia e le ingiustizie. Bologna (Il Mulino), 2006, pp. 34 f. 19 On neutralization techniques see the classic by Sykes, Gresham/Matza, David: “Techniques of neutralisation”, in: American Sociological Review, 6 (1957), pp. 664 ff.; see also Jäger, Herbert: Makrokriminalität: Studien zur Kriminologie kollektiver Gewalt. Frankfurt/M. (Suhrkamp), 1989, pp. 187 ff., analysing common neutralization techniques in macrocriminality, namely the dehumanization of the victim, the “anomy of the distant social space” (the lack of an ethic of the effects in distance) and the distancing of personal responsibility for the actions undertaken.

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ocaust by saying they were merely following orders or that they were simply doing their duty. Connection to an authority system leads to the kind of action that may be characterized as being “bound to the system”20. As Milgram stated21, obedience “is the psychological mechanism … the dispositional cement that binds men to systems of authority”. The superior is the “highest moral authority” who polarizes all the subordinates’ concerns and pushes aside all competing moral considerations, above all “ethical issues foreign to the self-reproductory preoccupations of the authority system”22. Strictly speaking, the responsibility does not disappear, but rather shifts from the content of the actions carried out to the authority that orders them: it ceases to be responsibility for the actions and becomes responsibility before the authority23. Moreover, the more monolithic, imperative and unequivocal that authority is, the lower the autonomy of the subordinates in the decision and the action and the greater the readiness to obey and moral blindness to the content of the actions. This aspect is of paramount importance, as we shall see below. II. The Banality of Evil and Crimes Committed in Obedience to Authority: Organized Power Apparatus Contemporary criminal law theory has not been immune to the influence of Milgram’s experiment (and others)24. This study does not seek to analyze the full extent of this influence but will focus on an analysis of its implications for certain situations of attributing criminal liability, mainly those in which subordination to authority is at issue. The situation or figure that we have chosen as the basis for our reflection is responsibility for acting within the framework of an illegal organization or, to use a well-established expression, an “organized power structure”. This choice is a consequence of the proximity with historical episodes which demonstrate the exacerbation of evil and the production of superfluous beings, principally the Holocaust. It was the ingenuity and wisdom of Claus Roxin that gave notoriety to the concept of perpetration through an organized power structure, to such an extent that it is today regarded by most national and international legal theory and legal practice as a typical situation of perpetration by means (mittelbare Täterschaft) like those where the 20

In this sense, see Kargl, Walter: Die Funktion des Strafrechts in rechtstheoretischer Sicht. Heidelberg (C.F. Müller), 1995, p. 13. 21 See Milgram (1963), p. 371. 22 In this sense, see Bauman (1989), p. 160. 23 In this sense, see Milgram (2009), pp. 147 ff.; on the displacement of responsibility see also Bauman (1989), p. 162, who states that the Milgram experiment confirmed that what is decisive is the responsibility before the authority and not regarding the administering of electric shocks. 24 See the previously cited works by Walter Kargl (1995) and Federico Stella (2006) and also Martín Gomez: “El experimento (Das Experiment): algunas reflexiones sobre la película y el Stanford Prison Experiment que la inspiró”, in: Revista Electronica de Derecho Penal y Criminologia, 2006, passim (available at http://criminet.ugr.es/recpc).

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material perpetrator is used as a tool, either because he is misled or because advantage is taken of his state of lack of guilt. In his 1963 Habilitationsschrift25, Roxin draws on the cases brought against Eichmann and Staschynski to put forward his theory that in cases of this type the person who holds a position of authority in the hierarchy of the illegal organization has at his disposal machinery which guarantees that an order he gives will be obeyed by any subordinate: “an organization thus develops a life which is independent from the interchangeable existence of its members. It functions ‘automatically’, and the individual executor of the act does not matter”26. It is the authoritarian, hierarchical and monolithic structure of the organization and the fungibility of the executor that explain here the control of the will and the perpetration by means of the background man. He is at the controls of the structure and operates these by means of the criminal order, sure in the knowledge that an “anonymous and replaceable” subordinate will obey this order. According to Roxin, perpetration by means via control of the organization (Organisationsherrschaft) is based on the fungibility or “unlimited replaceability” of the front man more than on the organization’s hierarchical character and its lack of connection to the Law. For this author, fungibility has always been “the decisive factor for establishing the grounds for control of the will in such cases”27, since “it guarantees the background man performance of the act and allows him to dominate the event”28. This does not prevent the person who commits the crime while obeying orders from being punished as the direct perpetrator, since his disposable condition within the organization does not remove his responsibility for his actions, but it does take away from him the role of the “main figure in the event”, which is now taken on by the background man who gives the order and is at the controls of the apparatus, “regardless of his position in the hierarchy”29. To illustrate this latter aspect, Roxin gives the example of Eichmann, an intermediate link in the hierarchical chain of the national-socialist State. In fact, Eichmann was not only an executor but he also issued orders to subordinates, and therefore, depending on the case, the criteria for establishing liability as direct perpetrator or perpetrator by means were applicable to him. Regarding this classification, what is decisive is “the fact that he can manage part of the organization subordinate to him without having to leave it up to others to carry out the crime”30. In the process that begins with the planning up until the carrying out of the crime, each structure in the apparatus works like a gear which coordinates and controls the part of the chain emanating from it. The chained and 25 See Roxin, Claus: Täterschaft und Tatherrschaft. 8th ed. Hamburg (Walter de Gruyter), 2006. For a discussion see also the paper of Kai Ambos in this volume. 26 See Roxin (2006), p. 245. 27 See Roxin (2006), p. 245. 28 See Roxin, Claus: Strafrecht. Allgemeiner Teil. Band II. München (C. H. Beck), 2003, § 25 no. 107. 29 See Roxin (2003), § 25 no. 106. 30 See Roxin (2006), p. 248.

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oiled operation of the machinery ensures the success of the final execution of the crime. Roxin applies his construction not only to the mechanisms of totalitarian states, which may also be characterized as organizations disconnected from the Law in the sense that they are erected and develop beyond the ideas of the Rule of Law31, but also to clandestine movements, secret organizations and criminal associations. The fact is that they comply with the model “of a rigid organization, regardless of the variation of the actual members”, the aims of which are generally contrary to the state legal order32. Roxin explains that “when an apparatus is structured in this way the characteristic criterion of control of the organization also appears: the initiative set in motion by the background man is carried out regardless of who actually performs the act”33. For this Professor from Munich, the situation described may not be applied to the categories of co-perpetration (Mittäterschaft) or instigation (Anstiftung)34. Although the intentional (vorsätzlich) responsibility of the executor still remains – which does not occur in the other types of perpetration by means –, the background man, who controls the instruments of power, uses the subordinate (whoever he may be) as a tool, by means of the illegal organization, to carry out the criminal order. In fact, he thus manipulates the front man’s inclination towards obedience and he may therefore be said to dominate his will. The Milgram experiment and those that followed it, in our opinion, confirm the soundness of Roxin’s intuition. Authority systems, of which organized power structures are the most extreme form, being structured as they are on the basis of the alignment of authority/obedience, provide the leaders with the power of command and enable the heavy psychological dependence of the subordinates, which makes them manageable. Joining the organization causes the subordinate to grant legitimacy to the orders of his superiors so that, when these are issued, the tendency, enhanced by the pressure of the apparatus, is to obey them. This does not exclude the possibility of him being hesitant or of having doubts and reservations regarding those orders but, as Milgram’s experiment proved, the weight of the authority system leads to a tendency to proceed. If this is what happens in laboratory experiments, the tendency to obey will be even more accentuated in real life in illegal organizations. On the one hand, the individuals’ links with these organizations will be longer-lasting and more permanent than in Milgram’s experiment, which lasted only an hour, according to the advertisement. Group dynamics will be able to develop, rooted in such factors as loyal practices, obedience routines, solidarity among members, etc. and authority can be ex31

See Roxin (2006), p. 250. Roxin explains that the leaders of totalitarian states are guided by the law created by the State but not by the “fundamental values which are common to all civilized peoples”. 32 See Roxin (2006), p. 250. 33 See Roxin (2006), p. 250. 34 See Roxin (2003), § 25 no. 121 ff.

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pected to have a greater impact35. On the other hand, the authority that emanates from an illegal organization is more oppressive than the authority which is concentrated in a single person whom the subordinate has to deal with face to face. As Bauman notes, the readiness to obey “is most likely to appear inside an organization which brooks no opposition and tolerates no autonomy and in which linear hierarchy of subordination knows no exception”36. While it is clear that Milgram’s experiment supports and provides an empirical basis for Roxin’s theory, it is also clear that it requires that certain adjustments be made to that theory. As we saw before, despite requiring that there be a hierarchical and rigid organized power structure that, as a whole, is disconnected from the legal order, Roxin places the greatest emphasis for the control of the organization on the fungibility of the front man. This is the characteristic that truly supports the dogmatic construction of the notion, and the other requirements, related to the nature of the organization, serve to provide the necessary conditions for the existence of this fungibility of the executor37. The central position that this element holds within Roxin’s thinking becomes particularly clear when he agrees with the observation made by Friedrich-Christian Schroeder, Georg Freund and Kai Ambos that, logically speaking, he would have to reject perpetration by means through control of the organization if the front man was a specialist. Roxin accepts that “if the secret service of a criminal regime or the head of a terrorist organization chooses somebody for an attack (Anschlag) who has exclusive know-how needed to perform the task or who is the only one with access to the victim, there is not perpetration by means but rather instigation, provided that the background man does not use coercive means in the sense of § 35 of the StGB”38. In the light of the conclusions of Milgram’s experiment – and those that followed it – it does not seem correct to state that perpetration by means is based on the replaceability or changeability of the front man in the control of a hierarchical and rigid bureaucratic apparatus or simply in the control of an organization. 1. The first point can be clarified with two arguments. Firstly, it is not the fungibility that characterizes the organization but the opposite. An example given by Rotsch39 allows us to see that there may be fungibility beyond the context of an illegal organization: if a corrupt and unscrupulous politician P incites 500 supporters who 35 In this sense see Bauman (1989), pp. 164 f. who considers that the impact of authority which was so convincingly proven by Milgram would have been greater if the participants had been convinced of the permanence of their connection to the organization; Welzer (2007), p. 123. 36 See Bauman (1989), p. 165 – Zygmunt Bauman has in mind organizations such as the armed forces, penitenciaries, totalitarian parties and movements and some sects. 37 For a clear explanation in this sense, see Valdágua, Conceição: “Autoria mediata em virtude do domínio da organização”, in: Liber discipulorum para Jorge de Figueiredo Dias. Coimbra (Coimbra Editora), 2003, p. 656. 38 See Roxin (2003), § 25 no. 118. 39 See Rotsch, Thomas: “Neues zur Organisationsherrschaft”, in: NStZ, 1 (2005), p. 14.

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are attending a rally to kill his opponent X by promising a million dollars to whoever does this, we would not say that, although any of those present can accept the challenge, P is the perpetrator by means through control of the illegal organization, for the simple reason that there is no illegal organization. In our opinion, the fungibility that is important is that which is produced by the illegal organization, although with a different meaning from Roxin’s. It is the authority system which creates the superior/subordinate relationship rather than any special skill or personality trait of the individuals. If the participants in the experiment had reversed their roles the result certainly would not have been different. As Bauman states40, “what mattered was the existence of a polarity and not who was allocated to its respective sides”. Secondly, it is not clear what changes when the front man, who is part of the mechanism of the organization, is a specialist, possessing special knowledge or skills. If we imagine that the organization plans to carry out a particular criminal task that can only be carried out by one subordinate who has special qualifications for that purpose and that this subordinate offers to carry out the task, does this change the authority/ subordination relationship and, by extension, the organization control, because he is not a layman? What is the difference between this and a situation where a subordinate without special skills carries out the order? A counterargument could be offered that the difference is not when the executor obeys, but when he does not obey, since in this case, if he is a specialist, the criminal plan will fail. However, this difference is not obvious to us. Firstly, we can imagine cases in which the criminal plan fails because the task is urgent (such as the assassination of a politician who is about to pass through a particular location) and the only subordinate available refuses to obey the order, arguing that he is no specialist in murders. Secondly, whether or not he is a specialist, if the subordinate decides not to obey the order and not to carry out the designated task, there is no authority/subordination relationship and, therefore, the perpetration by means of the background man fails. The control of the organization simply did not work because it did not trigger within the subordinate the psychological mechanisms of obedience regarding the practice of the ordered action. It is of little importance whether or not the organization has substitutes, specialists or otherwise, who are willing to carry out the act in the near future. What really matters is that in that case the authority/subordination alignment did not occur and so the control of the organization did not work, since the execution of the act did not even begin41. If the organization has substitutes – specialists or laymen – in its ranks to carry out that act and if the superior decides to order one, who is less rebellious, to do it, in terms of the action being carried out, with this new order there is a renewal

40

See Bauman (1989), p. 167. Where the execution of the act planned by the front man is not begun, as a rule, there is no liability of the subjects involved. However, we analyze the argument with the aim of deconstructing it. There may, however, be criminal liability for one of the crimes of criminal association – there are many in Portuguese law – based on the illegality of the organization and on guilt by membership. 41

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of the relationship of authority and, therefore, a new criminal context42. In short, the factor that triggers the psychological mechanisms of obedience is voluntary membership of an organization with the aforementioned characteristics and not whether the individual is a specialist or layman, either alone or in large numbers. In a more recent study43 Roxin complements the fungibility requirement with a new requirement for the concept of organization control, which he had previously rejected: the front man’s “great readiness to act”44. This requirement cannot be seen in an isolated or autonomous manner but as a “specific mode of operation of a criminal organization”, that is, in the meaning of belonging to an illegal organization that operates on the basis of the alignment of authority/obedience. Roxin claims that membership of an organization that is not bound by the law immediately gives rise to a tendency to adapt. The members are expected to join in and take on their roles. Their commitment to performing, whether due to careerism, a desire to gain notoriety, ideological blindness or criminal impulses, helps to create a feeling of impunity in the members45. Besides this, the executor fears that refusal will lead to a loss of his position, the contempt of his colleagues and other social disadvantages. Although this aspect does not establish the grounds for control of the act or for coercion by the background man, it does come close. Lastly, even the more resistant members eventually participate with the resigned attitude, which is typical of their fungible nature, that “if I do not do it, others will”46. Roxin concluded that all these factors, while they may not combine to exclude or simply attenuate the responsibility of the immediate agent, do however lead to “a readiness of the members to act, conditioned by the organization, which, together with their replaceability, constitutes an essential element in guaranteeing the background men that they can trust that their orders will be carried out”47.

42 Thomas Rotsch: “Neues zur Organisationsherrschaft”, in: NStZ, no. 1, 2005, p. 15, is right when he states that the domination of the background man may not be based on the argument that the front man is replaceable, since the perpetration of the crime by another front man no longer constitutes the same material act. When we state that the use of another front man corresponds to another criminal context, we are obviously referring to the individual responsibility of the participants involved in the act carried out and not to the constitution of the illegal organization since this is another act and all those who belong to the criminal organization commit it. 43 Roxin, Claus: “Organisationsherrschaft als eigenständige Form mittelbarer Täterschaft”, in: ZStrR, 1 (2007), pp. 1 ff.; see in the same sense the more recent study idem: “Bemerkungen zum Fujimori-Urteil des Obersten Gerichtshofs in Peru”, in: ZIS, 11 (2009), pp. 565 f. 44 New to Roxin’s thinking, this element is similar, as the author himself recognizes, to the concepts that Friedrich-Christian Schroeder, Manfred Heinrich and the BGH itself use to explain perpetration by means within the scope of criminal organizations – see Roxin (2007), p. 15. 45 See Roxin (2007), p. 16. 46 See Roxin (2007), p. 16. 47 See Roxin (2007), pp. 16 f.

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The requirement of “great readiness to act”, thus conceived, is in line with our concerns since it expresses an accentuated tendency of the subordinate to obey as a result of being part of the organics and the dynamics of an authority system. For the reasons discussed, this element is essential for a correct understanding of the control of the organization that underlies this type of perpetration by means. It remains to be seen how this requirement combines with that of fungibility, particularly in cases where there is only one front man available with great readiness to act or where intermediary members in the illegal organization are involved. Will Roxin maintain the solution of rejecting perpetration by means in these cases? His most recent writings suggest he will, since he sees “the executor’s great readiness to act” not as an autonomous requirement but as being “inferred from the other requirements of the organization control” and therefore conceptually dependent on and aligned with fungibility48. 2. The model of organization that Roxin adopts is, as we have seen, a power apparatus supported by a rigid and hierarchical structure, and it is this model that we have used as the basis for our reflection, as have many authors who have considered this subject. The state organization of the Third Reich and of the former GDR and the mafias are the basic phenomena of this notion. Yet, is it only this model of organization that can constitute the type of perpetration by means we are discussing? The Milgram experiment and the one conducted by France 2 would seem to suggest the opposite. The authority systems in both of those experiments are very different to the aforementioned model. Indeed, the impact of the scientist and of television on the participants in no way corresponds to the influence of the actual command of a rigid bureaucracy. The theory of International Criminal Law has also criticized Roxin’s model as lacking. Mark Osiel49, one of the contemporary voices in this area of Criminal Law, claims that this model stems from the ideal Weberian bureaucracy as the most effective method of organizational control of modernity and that it leaves out of perpetration by means through control of the organization many of the ethnic cleansing and mass atrocity situations that have overshadowed us in recent times. Instead of a rigid formal bureaucracy, the collective actors in such situations simultaneously reveal both premodern and postmodern elements: the former are reflected in ethnic and fundamentalist motivations; the latter in the use of a sophisticated net48 In this sense, see Roxin (2009), p. 567, where he labels the first three requirements as “fundamental pillars of the organization control”; for a critique of the predominance of fungibility, taking as an example the trusted men of Fujimori who acted as intermediate links in the dictator’s chain of command and who, since they are trustworthy, are anything but fungible, see Schroeder, Friedrich-Christian: “Tatbereitschaft gegen Fungibilität”, in: ZIS, 11 (2009), p. 570. 49 See Osiel, Mark: Making sense of mass atrocity, New York (Cambridge University Press), 2009, pp. 97 ff.; in the same sense, and echoing Osiel’s criticisms, see Ambos, Kai: “Sobre la ‘organizacion’ en el domínio de la organizacion”, in: InDret – Revista para el análisis del derecho, 3 (2011), pp. 8 ff.

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working structure50. Many of the cases of mass atrocity that have emerged on the international scene and come before the international criminal courts are committed by groups that have a fluid organizational structure, dynamics based on loyalty, and tactical and technical autonomy of those who execute the crimes. In fact, paramilitary groups and insurgents, who have acted to commit genocides and other crimes against humanity, are far from the image of the bureaucratic and hierarchical organization that is typical of Roxin’s model. Furthermore, they also function as an essential element in the manipulation of the lower-level members so that the latter carry out mass atrocities. These groups are characterized by a certain informality and by the loyalty among their members, developed through years of living together, often in the same community. The high level of camaraderie between them makes it unnecessary to have a bureaucratic structure issuing orders from the top down and this does not impede the group’s capacity to function. The decision of the ICC’s Pre-Trial Chamber in the Katanga case stated that “attributes of the organisation – other than the replaceability of subordinates – may also enable automatic compliance with the senior authority’s orders. An alternative means by which a leader secures automatic compliance via his control of the apparatus may be through intensive, strict, and violent training regimens. For example, abducting minors and subjecting them to punishing training regimens in which they are taught to shoot, pillage, rape, and kill, may be an effective means for ensuring automatic compliance with leaders’ orders to commit such acts”51. Control of the organization as a type of perpetration by means is not limited to organizations within the bureaucratic Weberian model, but may be applied to various organizational configurations. This brings us back to an authority system based on three pillars: the power of command, a culture of obedience and an anonymous relationship with the executors of the acts52. However, it is not enough for the chain of command to be activated, as in Osiel’s metaphorical example of the village watchmaker53 who constructs a little clock, winds it up, attaches it to a bomb and then walks away without looking back. As was required in the Pre-Trial Chamber’s decision in the Katanga case, the superior must exercise “effective control” over the organization and the activity it carries out, and, in our opinion, this control is not compatible with the idea of automatism that comes from Osiel’s metaphor. It is true that effective control, which expresses the power of command, does not mean that the superior must be present at every action of the organization or even give specific orders regarding how these should be carried out, but it does require that, during the course of those actions, he keeps hold of the organization’s reigns and that he has relatively detailed knowledge of the actions, the possibility to interrupt them and an influence over the subordinates which causes them to act in line with the organization’s purposes. If the 50

See Osiel (2009), p. 99. Excerpt from the decision reproduced by Osiel (2009), p. 103. 52 In this sense, see Ambos (2011), pp. 15 f. 53 See Osiel (2009), p. 105.

51

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subordinates take advantage of the organization to pursue the aims of promotion, personal revenge or illegal enrichment – and it is not always easy to make this distinction in practice – then they are acting on their own behalf and not under the control of the organization exercised by the leaders. In such a context, those leaders will not have to answer the charge of being perpetrators by means in the act. 3. Lastly, we may claim that perpetration by means does not simply consist of organization control. As we have argued elsewhere, control of the organization may also be grounds for co-perpetration in the case of crimes committed within the scope of the operations of modern companies54. These are complex organizations, whose modus operandi is based on a strategy of development and which are divided internally in order to pursue that development. However, not only do they not act, as a whole, outside the legal order, but they also do not correspond to the model of the organization of the authority system outlined above. Although there are relationships between the superior and the subordinate in modern companies and instructions may be issued which, when complied with, lead to a crime being committed (for example, against the environment or consumers’ interests), the context in which these relationships and orders exist is not that of an organization based on a hierarchy and a culture of obedience, but rather on a heterarchy55 or strategic division of labour and a sense of solidarity between the different functional levels towards a common goal. Besides this, the control of the act (Tatherrschaft) which is characteristic of co-perpetration is different to the control of the act which is typical of perpetration by means: in the former what rules is functional control or “condominium”, while in the latter it is control of the will. Therefore, the position of the perpetrator behind the perpetrator and distance in relation to the act are lacking in the actual control of the organization in co-perpetration: here we have a “control of the organization for the execution of the criminal act” which only the middle management, or more precisely, those responsible for the sector of the organization in which the act takes place, are able to exercise56. Through the section of the organization that they manage, the middle management dominate an essential part of the execution of the act, since without their order, supervision, collusion, etc. it would not take place. Control of the organization by the intermediate superior falls precisely within that solidarity in the practicing of the act, which is a very different scenario to the authority system tested by Milgram’s experiment. 54 See Silva Dias, Augusto: Ramos emergentes do Direito Penal relacionados com a protecção do futuro. Coimbra (Coimbra Editora), 2008, pp. 216 ff. 55 In this sense, see Gomez-Jara Diez, Carlos: “Responsabilidad penal de los directivos de empresa en virtud de su dominio de la organización? Algunas consideraciones críticas”, in: Cuadernos de Política Criminal, 88 (2006), p. 146 s.; idem: “La coautoria como fundamento de la responsabilidad penal de los órganos de dirección de la empresa por delitos cometidos por los subordinados?”, in: Maroto Villarejo, Julio (ed.): Derecho y justicia penal en el siglo XXI: liber amicorum en homenage al Prof. González-Cuellár Garcia. Madrid (Colex), 2006, p. 203; Heine, Günther: Strafrechtliche Verantwortlichkeit von Unternehmen, Baden-Baden (Nomos), 1995, pp. 35 ff. 56 In this sense, see Silva Dias (2008), p. 224.

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In our opinion, only in a system of authority can the actual control of the organization be accepted as perpetration by means. As Bauman reminds us, this system is fuelled by a “moral of technology” which removes the moral significance of aspects which have nothing to do with the life of the organization and with loyalty to the authority: “It is the technology of action, not its substance, which is subject to assessment as good or bad, proper or improper, right or wrong”57. Besides this, it promotes a “state of heteronomy” which favours the dissipation of the sense of responsibility for one’s own actions, by means of transferring responsibility to within the scope of the actual organization: “One can say that the organization as a whole is an instrument to obliterate responsibility”58. The functional logic of the illegal organization favours considering the crime to be carried out as a task to be performed for collective benefit, somewhat similarly to a technical activity, the performance of a role which is necessary to achieve an objective59, and creating within the executor ethical distance from the action which makes it appear as being “socially appropriate”. The “moral technology” of the organization allows for the appearance of two complementary psychological phenomena: the dulling of moral scruples regarding the action and the development of neutralization techniques based on the authority/obedience alignment. Only a system of authority with these characteristics and which generates psycho-social effects of this kind can trigger an “extremely heavy psychological dependence of the front man on the background man” as Figueiredo Dias60 notes, which is capable of producing a control of the will equivalent to that which occurs in the other configurations of perpetration by means.

57 See Bauman (1989), p. 160, who labels the actor’s conscience as “replacement conscience”. 58 See Bauman (1989), p. 163. 59 Referring to the perceptions and interpretations of the Nazi executors, Welzer (2007), p. 279, highlights the “practical conception according to which the destruction of human beings is a job and, as such, constantly perfectible”. 60 Figueiredo Dias, Jorge: Direito Penal. Parte Geral. Vol. I, 2nd ed. Coimbra (Coimbra Editora), 2007, p. 31 § 27.

Can Absolute Evil Be Brought to Justice?* Cristina García Pascual Introduction How do we live with evil? How do we deal with it? These are the questions Carlos Nino asks at the start of his book Radical Evil on Trial, published in 1996. In it, the Argentinean jurist follows an ancient philosophical tradition: reflection on the complex question of the nature of evil – for some, our first theoretical problem – which he subjects to the demands of legal reasoning. Nino was obviously not thinking in terms of just any old evil, but in what has been called, after the bloody history of the 20th century, absolute evil: “offenses against human dignity so widespread, persistent, and organized that normal moral assessment seems inappropriate”1. Following in the footsteps of Nino I want to raise these questions again here: how to confront evil, how to respond to massive human rights violations. How to do so when they are committed by the state or by those who have the consent and tolerance of governments, aware from the outset that we will not find answers easily. The years pass and still the Nazi extermination camps, the rape camps in the former Yugoslavia, the Stalinist purges, the Srebrenica massacre, the crimes of Francoism and the Rwandan genocide challenge us morally, at the same time as questioning our most established legal and political categories. When we raise the question of how we can or should face the above events, we are at the same time recognizing that with many of them there is something that causes us to doubt the mechanisms through which the State has traditionally dealt with illegality. Perhaps it is the magnitude of the evil, the number of victims or the number of perpetrators; perhaps it is intensity of the evil or the intentions of those who were its agents, but its horror strikes us as something unprecedented in human history. Because traditional categories of thought no longer serve to deal with such realities, when faced with absolute evil we find ourselves trapped by an irresolvable problem, an impasse between the inappropriateness of traditional moral, legal and political categories by which to grasp the reality of evil, and the urgent need to somehow understand it.

* This work forms part of the Consolider-Ingenio Project 2010 “El tiempo de los derechos” (CSD2008 – 0007), funded by the Spanish Ministry for Education and Science. 1 Cf. Nino, Carlos: Radical evil on trial. New Haven (Yale University Press), 1996, p. vii.

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In the words of Richard Bernstein “There is […] something about evil that resists and defies any final comprehension”2 and yet we want and need to comprehend. As Hannah Arendt says, it means “examining and bearing consciously the burden which our century has placed on us – neither denying their existence nor submitting meekly to their weight”3. This then is the paradox presented by absolute evil: its unfathomable nature set before our imperative to get to the bottom of it, to know the facts, to condemn its agents, to relieve the victims and in time to avoid the repetition of such horrors. To not respond to evil would be tantamount to succumbing to it. In pursuit of this understanding, we must tread a difficult path; one where we must first try to grasp the reality of absolute evil and then assess the challenges that evil poses for contemporary moral, political and legal thinking. I. What Is Absolute Evil? 1. Conceptualisation Philosophers, political scientists and especially jurists are uncomfortable with the term “evil”. It seems more appropriate to speak of injustice, the violation of human rights and what is immoral and unethical, than of evil4. Evil doesn’t sound like a legal expression. We like to say that a trial judges not people but their actions, to the extent that these are violations of legal norms. The word “evil” without further qualification creates discomfort and concern, and categories of evil or declensions of it do not provide any greater peace of mind. As we know, it was Kant who, in his Religion within the Bounds of Bare Reason, used the expression “radical evil” to designate an innate human propensity to evil or to refer to a propensity of the will to disregard the moral imperatives of reason.5 This concept of evil, radical in that it has its roots in human nature, is, however, insufficient to account for the horrors of events in the twentieth century. In the light of the atrocities of totalitarian regimes, evil takes on a new and terrible significance. Philosophers and thinkers now talk of absolute evil, or of radical evil in the sense 2 Bernstein, Richard J.: Radical evil, a philosophical interrogation, Cambridge (Polity Press), 2002, p. 7. 3 Arendt continues: “Comprehension, in short means the unpremeditated, attentive facing up to, and resisting of, reality – whatever it may be or might have been.” Arendt, Hannah: The Origins of Totalitarianism. Introduction by Samantha Power. New York (Schocken Books), 2004, p. 7. 4 Cf. Bernstein (2002), p. 2. In a later work however, Bernstein denounces the abuse of the word evil in the language used by politicians and the media following the attacks of September 11, 2001. Discomfort in the use of the word is replaced by abuse of it. Cf. Bernstein, Richard J.: The Abuse of Evil: The Corruption of Politics and Religion since 9/11. Cambridge (Polity Press), 2005. 5 Cf. Kant, Immanuel: Die Religion innerhalb der Grenzen der blossen Vernunft. Hamburg (Meiner), 1990, p. 33, p. 39.

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of extreme evil, and also, as we know, of banal evil. It is difficult to say exactly what is new about this reality of evil6. For Emmanuel Levinas, the novelty lies in its enormity. The evil of Auschwitz (using Auschwitz as a representation of gratuitous suffering7) is the very essence of excess and in this sense it escapes, as Bernstein says, the possibility of “synthesis”8. The aporia of evil is for Levinas the basis for affirming that the difference between good and evil precedes any ontological difference. The transcendence of evil leads us to recognize that the first metaphysical question is not why there is something and not nothing, but why there is evil and not good. The ethical has priority over the ontological; the ontological presupposes the ethical9. For Hans Jonas, the novelty lies in the connection between evil and new technologies and their possibilities. The horrors of totalitarianism require a new ethics, in that for the first time in history we have been able to see new technologies transforming nature and the effects of human action; the destruction of the planet and human life is a possibility. New technologies mean that often the consequences of our acts exceed what we foresee. Hans Jonas formulates a new categorical imperative: “Act so that the effects of your action are compatible with the permanence of genuine human life”10. Faced with an evil that goes beyond philosophical categories, that places ethics before ontology or that requires the formulation of a new categorical imperative, the concept of responsibility would also seem to be inadequate. Levinas declares the infinite responsibility of each one of us for the unjustifiable suffering of others, a responsibility that puts the life of another before our own, and does not expect any reciprocity. A demanding concept of responsibility that has a clearly supererogatory dimension, i. e. it exceeds all moral categories and, above all, all legal categories. But can we demand sainthood? Levinas simply says, “we cannot not admire […] the person who in his being is more attached to the being of the other than to his own. I believe, he says, that it is in saintliness that the human begins; not in the accomplishment of saintliness but in the value: It is the first value, an undeniable value”11.

6 I broadly follow Bernstein’s interpretation of the work of Emmanuel Levinas, Hans Jonas and Hannah Arendt in relation to the idea of evil. 7 Cf. Levinas, Emmanuel: Entre nous. Essais sur le penser-a-l’autre. Paris (Grasset), 1991, p. 108. 8 Cf. Bernstein (2002), p. 174 and Levinas, Emmanuel: “Trascendance et mal” in: idem: De Dieu qui vient à l’idee. Paris (Vrin), 1992, p. 158. 9 Levinas (1992), p. 160. 10 Jonas, Hans: The Imperative of Responsibility. In Search of an Ethics for the Technological Age (translated by Jonas, Hans and Herr, David), Chicago & London (University of Chicago Press), 1984, p. 11. 11 Levinas, Emmanuel: “The paradox of Morality: An Interview with Emmanuel Levinas”, in: Bernasconi, Robert/Wood, David (eds.): The Provocation of Levinas: Rethinking the Other. London (Routledge), 1988, pp. 172 – 173.

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According to Levinas, absolute evil generates infinite responsibility. Similarly, though from different suppositions, Hans Jonas confronts us with an overwhelming responsibility. The magnitude of “God’s silence” regarding Auschwitz is directly proportional to the magnitude of man’s responsibility. We are therefore faced with an unlimited responsibility, imposed upon us by virtue of our own human condition. If we cannot escape evil, neither can we rid ourselves of our responsibility12. The thoughts of Emmanuel Levinas and Hans Jonas, and many other thinkers who are faced with the problem of evil as the most important philosophical problem of our time, perplex us. Though they take us forward in our unavoidable effort toward understanding history, they also place us in a position of impotence. We need to comprehend the incomprehensible, think the unthinkable, but we also need guidelines for action, guidelines for action after the disaster. The appeal of Levinas and Jonas to infinite responsibility is presented as a means to prevent certain actions being repeated. But we need to not only understand evil, to not only try to avoid it, but also to face its consequences: What happens to the victims? What do the perpetrators deserve? How should the political community deal with the ocean of suffering present in our reality? It is here that the work of Hannah Arendt is fundamental. Like other thinkers, Arendt wants to understand the link between evil and the human condition, and so looks to the origins of totalitarianism. But Arendt also looks at the legal-political problem of dealing with the consequences of horror. Compared to Jonas or Levinas, Arendt thinks about evil at the limits of the judicial process and in the context of the rule of law. Her theoretical endeavours bridge the philosophical demands of reflecting on evil with the demands of law. 2. An Evil Without Depth Like many others, Hannah Arendt describes the evil that marks the 20th century as an evil without precedents. It is an evil that is sometimes described as radical, in a different sense from Kant, and at other times extreme or banal. The radical evil that Arendt describes is that which is born from totalitarianism, and which manifests as a systematic plan for the destruction of the human. In concentration camps, men and women undergo a process of dehumanisation that makes their lives superfluous. Firstly, prisoners are denied legal status13 and the sanctions or punishments inflicted on victims are no longer the consequence of their actions. In a concentration camp there are no rights, but neither is there crime nor punishment. It is a space outside the criminal law system where “the perpetrator does not justify their treatment of the victim, for if they admitted that the damage they cause is just, then they would be ap-

12 13

Cf. Bernstein (2002), p. 204. Cf. Arendt (2004), p. 577.

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pealing to a shared framework of values and norms”14. Where the principle of responsibility for one’s actions is not recognised there is no legal order. Secondly, concentration camps seek the destruction of the moral personality, the preparation of living corpses15, by quashing the ability to choose between good and evil: “The victim of totalitarian power can not choose between good and evil, because the only alternative for avoiding an evil is to commit another: to collaborate with the executioner so as to avoid one’s own death, or suicide so as not to harm others”16. Thus a totalitarian system destroys the capacity for moral judgement, corrupting all human solidarity. To do good becomes impossible: “the consciously organized complicity of all men in the crimes of totalitarian regimes is extended to the victims and thus made really total”17. Lastly, the destruction of personal individuality is sought through the denial of spontaneity, “man’s power to begin something new out of his own resources, something that cannot be explained on the basis of reactions to environment and events”18. The clearest manifestation of the destruction of individuality occurs when man is reduced to a ghostly doll (a living corpse), whose behaviour is nothing but a bundle of reactions, the last of which is to go robot-like to his own death in the gas chamber. “Erasing the border between the probable and the improbable, so that absolutely anything can be expected. This is one way of expressing the totalitarian ideal of the denial of the individuality of man […]”19 and therefore of the plurality of humanity. The project of making human beings dispensable realities or superfluous defines the idea of genocide. The will to annihilate a people, a group, presupposes considering its members to be superfluous. The genocidal person considers that certain groups of people should disappear from the face of the earth, that the world can do without them, that their presence on earth is entirely superfluous. For this reason, a project to exterminate a people or group of people goes transcends the victims. It has effects on an understanding of what humanity is and is an affront to humanity itself. Indeed, the novelty of evil under totalitarianism was not just limited to the terrible fruition of the project to destroy what is human, but included the motivations and intentions of those who participated in the project. To speak of evil inevitably leads us to speak of intention or of culpability. The intention of the agents of evil varies. In some cases, Arendt identifies terrible but human feelings, such as resentment, sadism, humiliation, greed or lust for power.

14 Marrades, Julián: “La radicalidad del mal banal”, in: Logos. Anales del Seminario de Metafísica, 35 (2002), p. 82. 15 Cf. Arendt (2004), p. 82. 16 Marrades (2002), p. 83. 17 Arendt (2004), p. 583. 18 Arendt (2004), p. 586. 19 Marrades (2002), p. 83.

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In other cases, the evil inflicted is the result of blind adherence to a particular ideology. For Arendt in the history of Nazi crimes a change takes place: “In the first Nazi concentration camps and in the cellars of the Gestapo [there was] a torture irrational and sadistic. Behind it often lay a deep hatred and resentment against all those who were socially, intellectually, or physically better off than themselves […] This resentment, which never died out entirely in the camps, strikes us as a last remnant of humanly understandable feeling. The real horror began, however, when the SS took over the administration of the camps. The old spontaneous bestiality gave way to an absolutely cold and systematic destruction of human bodies, calculated to destroy human dignity; death was avoided or postponed indefinitely. The camps were no longer amusement parks for beast in human form, that is, for men who really belonged in mental institutions and prisons; the reverse became true: they were turned into ‘drill grounds’ on which perfectly normal men were trained to be full-fledged members of the SS”20.

In the second case, death or suffering of the victims is not a means to an end and, therefore, the guards are not guilty of violating, in this sense, Kant’s categorical imperative. Furthermore, if doing evil is something to train in it loses one of its traditional defining qualities, as it is no longer a temptation. As Arendt herself goes on to say, we are talking about crimes that “are not provided for in the Ten Commandments”21. Ten years after the reflections on evil developed in her work The Origins of Totalitarianism, Hannah Arendt added her thoughts on the trial of Adolf Eichmann in Jerusalem22. In her endeavour to understand what evil is, Arendt adds further reflections on the possibility of bringing evil to justice or of applying procedural rules. Arendt clearly understands that in the Eichmann trial judges faced a new type of crime that offends humanity, and a new type of criminal who is actually a hostis humani generis. Eichmann’s trial would show that the crimes of Nazism do not reflect just moral perversions, psychopathic individuals, hate, uncontrolled passions or ideological fanaticism, but primarily “perfectly normal men” acting on the basis of low or extremely shallow or banal interests.

20

Arendt (2004), pp. 584 – 585. This is how Arendt explained the radicality of an evil that no longer responds to the vice of selfishness, or to sins or to humanly understandable weaknesses, in a letter to Karl Jaspers. Cf. Kohler, Lotte/Saner, Hans (eds.): Hannah Arendt Karl Jaspers. Correspondence 1926 – 1969. San Diego (Harcourt Brace), 1992, p. 166. 22 Ten years after the publication of The Origins of Totalitarianism in 1961, Hannah Arendt was commissioned to inform readers of the New Yorker about the trial of Adolf Eichmann, to be held in Jerusalem. As a reporter, her observation of the process, the accused’s movements, the role of the media and the testimonies of victims would lead Arendt to rethink some of her earlier reflections on evil. 1962 would see the publication of the first edition of her famous work “Eichmann in Jerusalem: A Report on the Banality of Evil”, New York (Viking Press), 1962. I quote this work from its revised version, Eichmann in Jerusalem: A Report on the Banality of Evil, Dallas (Penguin), 1977. 21

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When Arendt observed Eichmann, whose actions led to the death of thousands, she did not see an evil monster but rather a grey official with no particular ideological convictions and with no fervent anti-Semitism. The personality of Eichmann, who never killed anyone with his own hands, contains a key to the understanding of genocide or crimes against humanity. They are processes in which thousands of people contribute, to a greater or lesser degree, to the death and torture of thousands of others. How do we account for normal citizens joining the ranks of betrayal, collaboration, complicity or direct responsibility? Many of them, Arendt shows, acted banally and the terrible evil that they created and inflicted was made possible simply by the thoughtlessness of their decisions, by the suspension of their own judgement, by renouncing, here too, a defining element of being human. When we talk about genocide or mass violations of human rights, numbers is a defining element. A large number of victims requires a large number of perpetrators. People who lived peacefully until yesterday, today wake up united against a group and in collaboration with the authorities, willing to negate others. If it is not really plausible to imagine people, who until recently lived a normal life, becoming psychopaths in their hundreds, then we must reason that the Eichmann case has greater explanatory power than that confined to his person and actions. The banality of evil means denying it any depth. It is not epic or great, there is no place in it for the mythical or for superhuman feats. We are not dealing with demonic individuals, but with human beings whom we might describe as “normal” and at the same time agents of absolute evil. Persons in whose actions we see evil separated, terribly, from culpability or intent. Recognising that absolute evil is a large-scale denial of humanity, made possible through the collaboration of hundreds of people, many of whom are moved by superficial ends, does not help of course with the task of dealing with the consequences of that evil with the rule of law. II. Coping with Absolute Evil Following the scheme of Carlos S. Nino, thinking about how to deal with absolute evil confronts us with three types of problems: political, moral and legal. The separation between these three orders is somewhat forced and impossible to maintain strictly. However, I think it is useful as a means of ordering the multitude of issues that arise here. 1. Political Problems After the sort of reality described by Hannah Arendt, after a genocide, after a war or a process of change in political regime built on mass human rights violations, the trail of pain and violence is unbearable. It seems unavoidable to remember the victims, to recall events, analyze the past, punish the guilty, to develop a public accounting of the events, to descend into the details so as to understand and overcome such

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terrible moments in history. Yet as we all know, societies damaged by these processes have, as political communities, paradoxically often embraced the ideal of simply forgetting as the best way to overcome evil. The ability to respond to evil seems to decline as its severity increases. The history of extreme evil is the history of political amnesia and legal impunity. So when we think about dealing with evil we need to first solve the political dilemma around remembering and forgetting. As a community, as a collective, do we really want to try to remember? Should we remember? Or will remembering prevent social peace and push us back into an escalation of violence? Obviously, different elements play a part of this assessment, and these have been studied and analyzed. It is not the same dealing with a political transition that at least some of the agents of rights violations support, allowing the shift to a democratic system, as it is dealing with a regime that collapses (as in Argentina), a restoration as in Austria, or devastation like that suffered in Germany. We are faced with a different scenario when the damage is caused with large-scale involvement of the population, to when it is caused by foreign armies or by guerrillas. Numbers are also crucial, as are of course the cruelty of events. We can try to reconstruct memory through political initiatives for the reconstruction of events, with respect and a public recognition of the victims or through truth commissions. However, nothing can replace the court when trying to nail down individual responsibilities and punish the guilty. When the expectations of justice are reduced to legal proceedings, inevitably they end up carrying the hopes not only for individual justice but also for collective justice. Collective responsibility and individual responsibility seem to become the same thing. But too much is asked of Justice Administration. The State uses the powerful symbolism of the trial for purposes that are not merely punitive or deterrent. The trial, as claimed by Martti Koskenniemi, takes on a religious meaning, and through it, the state acts as a moral agent. It is the symbolism of the trial that allows the community to assert its principles and become a viable moral community23. If the trial is international, it is the international community that is affirmed as a moral community. Furthermore, the victims expect the trial to be a form of collective memory, an opportunity to be heard publicly, an official recognition of their pain. They do not seek only the defendant’s conviction, but the public recognition of the evil that has been inflicted. What they hope from the trial is all that perhaps could have been better achieved, or should have been achieved, by a truth commission (reconstruction of the events or a space to hear the victims’ stories) or by active government policies regarding victims. 23 See Koskenniemi, Martti: La politique du droit International, Paris (Editions A. Pedone), 2007, p. 236.

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Reconstructing the memory, or asserting the moral values, of the community by means only of a trial has its dangers. As Koskeniemi reminds us, the reconstruction of the truth in the trial can not rely on the defendant’s docile cooperation. For the trial to be legitimate, the accused must express themself to some extent. But this may call into question the version of the truth presented by the prosecutor and relativize the guilt imputed24. Giving the floor to the defendant means having to sometimes hear revisionist theories or reaffirmation of the ideals of violence. To convey clear historical truth to the hearing, the trial should silence the defendant. Doing so, it becomes a show trial. Justice is seen to be victors’ justice and the sentence lacks universal moral worth. Understanding criminal justice as an instrument for truth and memory, for dissemination, is important for reasons that have nothing to do with convicting the individual. We can speak of a duty to remember, but memory is not something that can be established in an authoritarian manner by a legal trial25. It is excessive to want the trial to work in this way and promotes confusion between individual responsibility, which is the only one that may be substantiated in a trial, and collective responsibility. It suggests that collective guilt is possible, when guilt is individual only. In the international arena, realists have always pointed to the weakness of legal proceedings that cannot grasp the scale of events in international politics26. For the realist Hans Morgenthau, for example, the trial throws light on only one aspect of a conflict, so deforming it. A trial is individual and the conflict is global, and it is therefore counterproductive to the initial aim, that of reconciliation and truth. Putting the emphasis on individuals provides an alibi to exculpate the people of their responsibility27. Morgenthau’s reflection also reminds us of positions such as that of Carl Schmitt who, as we know, is reluctant to admit that a war might be considered a violation of rights and that those responsible could go on trial.28 Or that of Tony Judt, from an opposite ideological position: “Precisely because the personal guilt of the Nazi leadership, beginning with Hitler himself, was so fully and carefully establish24 Koskenniemi gives the example of the Klaus Barbie trial, in which the defence presented by the lawyer Jacques Vergès is based on the reporting of crimes of the French state in Algeria, using the technique called by the Finnish professor “tu quoque”, with “un effet public maximal, de démontrer, qu’en fin de compte, il n’y avait pas de différence essentielle entre les agissements de Barbie à Lyon et le racisme français durant l’ère coloniale”(Koskenniemi (2007), p. 257). 25 Cf. Koskenniemi (2007), p. 261. 26 Cf. Koskenniemi, Martti: The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870 – 1960. Cambridge (Cambridge University Press), 2002, pp. 440 – 445. 27 Cf. Morgenthau, Hans: The Decline of Democratic Politics. Chicago (University of Chicago Press), 1969, p. 432. Cf. see also the same author, Morgenthau, Hans: Politics Among Nations: The Struggle for Power and Peace, Chicago (University of Chicago Press), 1946. 28 Cf. Schmitt, Carl: Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum. Cologne (Greven Verlag), 1950.

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ed, many Germans felt licensed to believe that the rest of the nation was innocent, that Germans in the collective were as much passive victims of Nazism as anyone else”29. Other jurists have also rated negatively the role of criminal justice in relation to rebuilding a democratic system. Samuel Huntington believes that retroactive judicial proceedings should be managed exclusively by politics, since the price of criminal prosecution exceeds the moral benefit. Democracy is based on reconciliation and leaving behind divisions, and amnesties create a solid foundation for democracy30. Similarly, though from a very different supposition, Bruce Ackerman reminds us that the assignment of responsibilities, or retroactive justice, can breed resentment, creating deep divisions between various sectors of society and inevitably exacerbate the inherent difficulties involved in ensuring retroactive justice31. Contrary to both of these, Nino sees trials for human rights violations committed in the past as magnificent opportunities for social deliberation and a collective examination of the moral values that underpin public institutions32.“All depends on what makes democracy self-sustainable. […] While there may circumstances in which the trials and investigation of human rights abuses undermine the stability of democracy, it may also be that the stability achieved by forgoing retroactive justice may undermine the moral values underlying democracy”33. In the end, relinquishment of judicial means can only be defended from a pragmatic, or consequentialist, position. No substantial argument can justify such impunity. In my opinion, the problem perhaps lies in pinning all hopes for justice on criminal proceedings or in assuming the false alternative of having to choose between political measures and legal action, as if they were mutually exclusive procedures. We deal with mass violation of human rights or with judicial action or with political action, the latter often being an excuse for inaction and impunity. Actually though, we are not faced with a dilemma, but rather by procedures that should really be complementary. We can recognize some truth in the words of Morgenthau and assert that collective responsibility cannot be substantiated in a trial. A tragedy may be so great that punishing an individual is never an appropriate response. But this assertion should not

29 Judt, Tony: Postwar. A History of Europe since 1945, New York (Penguin Press), 2005, p. 54. 30 Cf. Huntington, Samuel: The Third Wave: Democratization in the Late twentieth Century. Norman (University of Oklahoma Press), 1991, p. 221. 31 See Ackerman, Bruce: The Future of Liberal Revolution. New Haven (Yale University Press), 1992, pp. 72 – 73. 32 “When massive human rights abuses are investigated and tried, provoking public deliberation, the social dynamics responsible for such violations become the object of public discussion and collective criticism. What is being discussed is the value of democracy itself.” (Nino [1996], pp. 132 – 133). 33 Nino (1996), p. 134.

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lead us to relent in our efforts to establish individual responsibilities. Because at the end of the day, as Hannah Arendt argues, “where all are guilty, no one is”34. So we should admit that there is such a thing as collective responsibility and that it is this that drives our desire to educate people and help them comprehend historical truths. We accept some presuppositions from realistic theories: the need to take into account the context or to view conflicts as something not strictly individual. However, we should also admit that if responsibility can be collective, guilt can never be; that this is purely individual35 and that it is the responsibility that generates what should be required and substantiated in a trial. We accept the presupposition of realism but deny its conclusion, i. e. we deny the idea that law has nothing to say about the most serious crimes imaginable. 2. Moral Problems The dilemma between memory and forgetfulness is itself an affront to the victims. A community can perhaps pragmatically relinquish an account of events, can turn its back on its history, refuse to recognise victims, to assume a collective responsibility. But is it morally permissible for a society not to prosecute, not to punish human rights violations? Can the rule of law deny legal protection to victims of crime? Can the administration of justice deny protection to victims of crimes against humanity and yet prosecute thieves or those who evade the tax system? When we renounce criminal proceedings in pursuit of peace or collective forgiveness, when we discard legal proceedings to substantiate responsibilities for the sake of reconciliation, is the State not making decisions that actually correspond to the individual? Can the State force victims’ individuality to be dissolved into society? The words of Jean Améry come to mind when he wrote: “loudly proclaimed readiness for reconciliation by Nazi victims can only be either insanity and indifference to life or the masochistic conversion of a suppressed genuine demand for revenge. Whoever submerges his individuality in society and is able to comprehend himself only as a function of the social, that is, the insensitive and indifferent person, really does forgive”36. If we thus decide that criminal proceedings are essential in a transitional justice process, we must admit, nonetheless, that we have begun to tread a difficult path. If we are talking about thousands of deaths, if the culprits are also in their thousands, if there is no possible correlation between the action to be judged and the sanctions available to us, doubts about the adequacy of criminal means reappear. The relevant 34 Arendt, Hannah: Responsibility and Judgment. New York (Schocken Books), 2003, p. 28. 35 Arendt (2003), p. 29. 36 Améry, Jean: At the Mind’s Limits. Contemplations by a Survivor of Auschwitz and Its Realities, (Engl. transl. by Sidney Rosenfield and Stella P. Rosenfield). Bloomington (Indiana University Press), 1980, p. 71.

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question is now not about the ability of the judicial process to create social peace or to serve the stability of democracy, but about the real possibility of individualization of responsibility in regard to mass human rights violations. An enormous sense of helplessness overwhelms us here, one that for Nino is closely related to the idea that the goals that justify punishment are difficult to achieve in the case of genocide or crimes against humanity37. Firstly, one doubts the possibility of achieving the aim of widespread prevention. If, says Koskeniemi, crimes against humanity result from an evil that surpasses the boundaries of instrumental rationality and that has no purpose beyond itself, calculations of the likelihood of future punishment do not, by definition, come into it. There is simply no calculation38. In the same sense as Koskeniemi, Hannah Arendt argues “it is in the very nature of things human that every act that has once made its appearance and has been recorded in the history of mankind stays with mankind as a potentiality long after its actuality has become a thing of the past. No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been”39. As regards special prevention, on the one hand it is difficult to imagine social reintegration of participants in genocide, or that they can be reformed by imprisonment. On the other hand, it is unreasonable to assume that they will commit new crimes. Society has no need to protect itself from them.40 It is also doubtful whether possible penalties imposed for these crimes can actually achieve retribution. We cannot talk of retribution, we are told, if facts and punishment are not proportional. How can we distinguish punishment of these events from that of an ordinary crime? It seems clear that the conviction or not of Milosevic is not an ‘adequate’ response to the death of 200,000 people41. Some jurists and political scientists believe then that in the case of absolute evil the punishment is bereft of any theory that can justify it. If there be no retribution, nor prevention, why should we punish? However, I think that before answering this question we should question some of the ideas that underpin it. (1) Statements about the impossibility of punishment deterring or acting as a means of widespread prevention, though persuasive, are untestable or impossible to verify. All we know in retrospect is that the worst crimes went unpunished and 37

Cf. Nino (1996), p. 201. Cf. Koskenniemi (2007), p. 234. 39 Arendt (1977), p. 273. 40 Cf. Arendt (2003), p. 26. 41 Cf. Koskeniemi (2007), p. 229. 38

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that if any of them be repeated in our days the means we have at our disposal still do not allow us to move beyond widespread impunity. We also know that the public nature of many of these crimes suggests that their authors considered present and future punishment unlikely. It is difficult not to think that this marked feeling of impunity plays a decisive role in determining the position of so many collaborators in mass human rights violations. We also need to take into account the different contexts and criminal personalities that we are dealing with. Again, it is not the same when talking about the crimes of Nazism or, for example, when talking about Argentine. (2) Moreover, it is worth noting that the sense of impotence generated by the difficulty of sentences in trials for mass violations of human rights achieving their aims, we also feel with other types of crimes that could be considered lesser or ordinary. On numerous occasions widespread punishment fails to deter the commitment of certain illegalities. In some cases, punishment can only be justified as retribution42 in which no sense of proportion is possible. Obviously, to answer the question of why we should punish involves admitting that in all criminal sanction there remains an element of retribution (with varying degrees of proportionality) and that the inability to achieve other objectives does not mean relinquishing it. It may be that in the case of extreme evil the law’s response appears inadequate or inappropriate, but we should remember that we have no better or alternative means. The problem thrown up by the punishment of evil is, in short, none other than the perennial problem of punishment and its aims. We judge because it seems better to proceed against the agents of rights violations than to remain inactive; punishment seems better than impunity. Because, in short, we affirm the law and its moral assumptions. If there was no law in the Lager, if victims were denied any recognition of legal status, if their sufferings were not the result of action but of arbitrariness, then a trial offers the possibility of reversing this, given that, again quoting Hannah Arendt, “the law presupposes precisely that we have a common humanity with those whom we accuse and judge and condemn”43. 3. Legal Problems If we focus now strictly on legal problems, undoubtedly the first is the issue of the non-retroactivity of punitive law. Every jurist knows that a punitive law cannot be applied retroactively. This prohibition is based on the idea that it would not be right for a person to be convicted for an act that, at the time it was committed, was not a crime under the legal system to which that person was subject. 42

Nino tries to circumvent this problem by developing his own theory for the justification of punishment: the consensual theory. Cf. Nino, Carlos: Fundamentos de Derecho Penal. Barcelona (Gedisa), 2009. 43 Arendt (1977), p. 251.

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The principle of the non-retroactivity of criminal law is an expression of the rule of law, of the reasonableness of law and of the ideal of legal certainty. For Lon Fuller it was one of the elements that made up what he called procedural natural law. Retroactivity cannot be a feature of law because, by nature, law is the opposite of arbitrariness. The non-retroactivity of punitive laws thus constitutes an obstacle to prosecuting and convicting those involved in mass human rights violations where these have been committed with the support of a legal system, of the State administration or with their cooperation. The problem of non-retroactivity, though alleviated with the development of international criminal law, persists in most prosecutions for mass human rights violations. Is criminal non-retroactivity an immovable principle or can there be exceptions when faced with the reality of unjust law? Many answers have been given to this problem. For Judith Sklar, when faced with the dilemma of making justice or the law prevail, we should weigh up maintaining the law with the benefits that such trials produce in terms of awakening legal awareness44. If we are not satisfied by a consequentialist response such as Sklar’s, then inevitably we must enter into a deeper reflection; one that involves the conception of law, the justification of the duty of obedience to law and, once again, the purposes of punishment. Hans Kelsen in 1947, assessing the work done at the Nuremberg trials, addresses the problem of the retroactivity of criminal law in a somewhat surprising way. First Kelsen relativizes the rule of non-retroactivity. The rule is not an absolute, coexisting in our legal systems with other to some extent contrary rules, such as that which holds that “ignorance of the law does not excuse from its compliance.” The rule of non-retroactivity is based on the principle that the law should not apply to a person who does not know it. However, ignorance of the law does not relieve individuals of their legal duties. From the psychological point of view of the subject to which legal requirements are addressed, there is no difference between a rule that is applied retrospectively or a rule, unknown to him, that is applied non-retroactively. However, if we do not accept a consequentialist answer to the problem of retroactive law, neither we can accept a response based on the merely psychological or subjective. Therefore, secondly, Hans Kelsen goes further and holds that the rule that establishes the non-retroactivity of punitive laws is based on a principle of justice that conflicts with other principles of law. From a rule-based argument he turns to an argument based on principles, elements that are clearly foreign to Pure Theory of Law. In the case of two postulates of justice being in conflict with each other, the older or highest, says the Austrian jurist, should prevail. Punishing those who were morally responsible for international crimes during World War II can be considered, without doubt, more important than applying the rule against ex post facto 44 Cf. Sklar, Judith: Legalism: Law, Morals, and Political Trials. Cambridge (Harvard University Press), 1986.

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laws, a rule which is relative and open to so many exceptions45. When Kelsen assesses the work of the judges at the Nuremberg trials, he finds many reasons for criticism but none of them has to do with the violation of the principle of non-retroactivity of criminal law. Indeed, only from a more radical positivism than that of Hans Kelsen, only from an ideological positivism, can it be understood that any prescription issued by a body that wields the monopoly of force in a society contains within itself the reasons that justify the action. From any other position we need admit that legal rules alone do not constitute operational reasons for justifying actions or decisions. The weakness of ideological positivism leads us to seek grounds for the duty of obedience based on moral principles; we know that the law can only produce reasons for obedience if it is supported by moral principles. Now we face a different problem: the paradox of the superfluous nature of law. If laws depend on moral principles for obeying them, do we need the governance of laws? Carlos Nino deals with this paradox asserting the superiority of democracy and of law, brought about through a deliberative process under the principle of majority. That is, although the rules cannot justify by themselves reasons for action or decisions, these rules are not superfluous when they have a democratic origin. In this case we can assume that the moral principles on which they are based justify the action. Democratic laws presume greater moral validity. Of course it is only a presumption, he says, but sufficient to offer a moral reason for observe it. “Otherwise we would undermine the effectiveness of the democratic process, which is generally more reliable than individual reflection”46. So the superiority of the democratic system over other political systems could be said to lead to the presumption of the justice of the rules that emanate from this system. In the rare event that this is not so, the duty of obedience would remain simply because the collective deliberative process deserves more confidence than the process of individual reflection. If we apply Nino’s thesis to the reality of the major processes of mass human rights violations, in the context of a war or not, we see that indeed unjust law does not have a democratic origin, and is not supported by a process of deliberative decision making with its inherent tendency to impartiality. Although the National Socialist system, legal norms during the Franco regime or regulations under the Argentine military regime were duly positivised and were socially effective, they certainly did not have a democratic origin. Using them as reasons to justify an action amounts to equating the legitimacy of democracy and dictatorship.

45 Cf. Kelsen, Hans: “Will the judgment in the Nuremberg trial constitute a precedent in International law?”, in: The International Law Quarterly, 2 (1947), p. 15. 46 Nino (1996), pp. 158 – 159.

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When democratic legality is broken and a dictatorial regime is established, it does not seem acceptable that atrocities committed under the regime be judged by the standards the regime itself produced. However, we know that the presumption of moral validity of democratic norms is just that, a presumption. We should also consider the possibility of a legal regulation being immoral or unjust even though it has been created with due deliberative process. Nino seems to assert that even then we should obey, for the sake of the stability of the democratic system, or because of the difficulty in being clear about what is just and the preference for collective decisions over individual. It is precisely in regard to the hypothesis of unjust law regardless of its genesis that the famous “Radbruch formula” was created. It represents a very different way of dealing with unjust law, and in some ways is more articulate than Kelsen’s position. Based on the famous theory of Gustav Rabruch, positive law loses its validity (Geltung) when “the discrepancy between the positive law and justice reaches a level so unbearable that the statute has to make way for justice because it has to be considered ‘erroneous law’ (unrichtiges Recht)”47. In summary we can say that the formula simply says, “extremely unjust law is not law.” As noted by Robert Alexy, what is special about the Radbruch formula is that it posits a necessary connection between law and morality, but without attempting a total overlap between the two48. “For reasons of legal certainty, positivised and effective law is still law, even if it has disproportionate or unjust content. The Formula simply introduces an exceptional limit into the concept of law”49. But together with the issues around the non-retroactive principle, criminal proceedings for crimes of genocide, crimes against humanity or mass violations of human rights present, legally speaking, many other problems derived precisely from these categories of the exceptional, extreme or unbearable. I will just mention them here. If we are talking about hundreds of victims, but above all if we are talking about hundreds of perpetrators, the process of individualization of responsibility seems titanic. It is difficult to determine direct responsibility when crimes are committed based on the bureaucracy of the State or when criminal action is the result of a long chain of command and many individuals can be considered responsible. Thus, it may happen that the executor or factual murderer is not the one who holds greatest responsibility for carrying out the action. Quite the opposite, in many of these crimes, as written in 47 Radbruch, Gustav: Gesetzliches Unrecht und übergesetzliches Recht, in: Kaufmann, Arthur (ed.): G. Radbruch, Gesamtausgabe. Heidelberg (C. F. Müller), 1990, vol. 3, p. 89. 48 That is, in a conflict between justice and legal certainty positive law should prevail even when unjust, unless the contradiction between positive law and justice reaches such an intolerable level that the law must give way as ‘unjust law’ to justice. 49 Alexy, Robert: Der Beschluss des Bundesverfassungsgerichts zu den Tötungen an der innerdeutschen Grenze vom 24. Oktober 1996. Göttingen (Vandenhoeck & Ruprecht), 1997, p. 30.

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the sentence that condemned Eichmann, “the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands”50. It is also particularly problematic assessing the subjective elements of the crime: the voluntariness of the behaviour, awareness of its consequences, personal motivation or the influence of the socio-cultural context on the executioners. Some scholars have denounced, furthermore, that in prosecutions for mass violations there is something like a selection process of the accused. That is, if there are multiple perpetrators of the violations it is not possible to prosecute all but a few of them, which produces a certain comparative disadvantage among them. Danilo Zolo is particularly critical of this situation, since he considers that the defendants in these processes are not selected on legally defined criteria, so going against the principle of equality before the law and in his view delegitimising the legal proceedings51. We are obviously faced with a set of problems to do with the ability of a particular justice administration to acquire sufficient personal and institutional resources to deal with an exceptional situation. These problems also have to do with the political will of governments to support this and to prioritize prosecutions over silence or forgetting. So although we should keep alive the expectation of an effective criminal justice and not accept the reality of impunity as inevitable, we see that numbers often overwhelm the infrastructures and we have to acknowledge that the possibility of prosecuting all those involved is (or was) physically impossible. In many other cases, however, we can clearly identify inaction or simple, and often culpable, lack of political will in the prosecution of crimes. I think that Zolo’s criticism again confuses the collective dimension with the individual dimension of responsibility. Is it true that if you do not judge all of the accused the whole proceeding loses legitimacy? An affirmative answer to this question would be equivalent to saying that there is the right to not be prosecuted for a crime unless all of the perpetrators are prosecuted52. Perhaps some degree of impunity is inevitable in mass violations of rights, but it is entirely misleading to assume that we must prosecute all the perpetrators of violations or none. At the end of the day, we should remember, the goal of proceedings is to do justice and nothing else. Justice in the individual and objective sense; assess the evidence, listen to statements by witnesses or victims, hear the accused, the prosecution and the

50 As the sentence itself says “in such an enormous and complicated crime as the one we are now considering, wherein many people participated, on various levels and in various modes of activity – the planners, the organizers, and those executing the deeds, according to their various ranks – there is not much point in using the ordinary concepts of counselling and soliciting to commit a crime”; cf. Arendt, (1977), pp. 246 – 247. 51 V. Zolo, Danilo: La giustizia dei vincitori. Da Norimberga a Baghdad. Roma-Bari (Editori Laterza), 2006. 52 For Carlos Nino “nobody has a right that certain persons be punished and, consequently, no body has a right non to be punished because others are not” (Nino [1996], p. 185).

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defence, and all that on specific events independently of whether there are other crimes that are not prosecuted or other criminals who will never be judged.53 An Uncertain Conclusion Absolute evil is incomprehensible to us, yet we cannot relent in our effort to understand. Similarly, the project of doing justice, of prosecuting genocide or agents of extreme evil is at times an unattainable goal replete with obstacles, yet we cannot give in to them. The idea of evil beyond human passions overwhelms us. It is too much for us, and the legal instruments offered by the rule of law seem inadequate, too modest or futile to cope. Abandoning ourselves to forgetting, to betraying memory, is not allowed and so we return again and again to retelling the story, to seeking further explanations, to rethinking what others tried to think through before. In the same way, we try to redirect the terrible manifestations of absolute evil to legal channels; sometimes with despair, with impotence, but also with the clear knowledge that to give up on doing justice would be to surrender to evil, or to participate in it. There is no better way to conclude then than with the words of Hannah Arendt: “And yet, though none of the reasons for punishment which we usually invoke is valid, our sense of justice would find it intolerable to forego punishment and let those who murdered thousands and hundreds of thousands and millions go scot-free. If this were nothing but a desire for revenge, it would be ridiculous, quite apart from the fact that the law and the punishment it metes out appeared on earth in order to break the unending vicious circle of vengeance. Thus, here we are, demanding and meting out punishment in accordance with our sense of justice, while, on the other hand, this same sense of justice informs us that all our previous notions about punishment and its justifications have failed us”54.

53

Expressed in the words that Hannah Arendt directs to Eichmann: “[…] 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 for you” (Arendt [1977], p. 278). 54 Arendt (2003), p. 26.

Contemporary Experiences of Transitional Justice

Truth Commissions and the Reconstruction of the Past in the Post-Dictatorial Southern Cone: Concerning the Limitations for Understanding Evil* Pablo Galain Palermo and Álvaro Garreaud Introduction 1. The dictatorships of the Southern Cone – influenced by the ideology of Charles Maurras’ Action Française and based on the doctrine of national security, which was the anti-subversive strategy, or “containment,” promoted and financed in this region by the U.S. Department of State – attempted to secure, ultimately through terror regimes, the establishment of a neoliberal model to function on behalf of the internationalized bourgeoisie (whose motto was “Security for Development” in Uruguay)1. These fascist governments extolled private property, rejected any form of state interventionism, and pursued an “internal enemy” (either seditious or subversive)2 under the pretext of national defense to confront the advance of Marxism, communism and “Judeo-Masonic” ideas3. Of the three cases, the most extreme was the Argentine dictatorship, which included the persecution of internal enemies for the purpose of their annihilation, in what could be categorized as “genocide”4. The state terrorists of the * We thank Prof. Dr. Anabelle Contreras for her insightful comments on this article. 1 As it is known, this doctrine, perfected during the Brazilian dictatorship (1964 – 1984), implies the programmed transformation of the role that the armed forces had played in Latin American societies. In effect, as part of a counterrevolutionary strategy, the traditional model in which the armed forces served to guarantee external security and defended territorial sovereignty was transitioned to one in which the enemy was found within each nation. See Tapia, Jorge, La Doctrina de la Seguridad Nacional en el Cono Sur. El terrorismo de Estado. Mexico (Nueva Imagen/Nueva Sociedad), 1980. 2 See Centro Militar/Centro de Oficiales Retirados de las FF.AA: 1960 – 1980. La lucha contra el terrorismo: Nuestra Verdad. Montevideo (Artemisa), 2007, pp. 222 f.; Lessa, Alfonso: Estado de Guerra. De la gestación del golpe del 73 a la caída de Bordaberry, Montevideo (Fin de Siglo), 2007, pp. 93 f.; Sanguinetti, Julio Maria: La Agonía de una democracia. Proceso de la caída de las instituciones en el Uruguay (1963 – 1973). Montevideo (Taurus), 2008, p. 318. 3 See Rojas Mix, Miguel: El dios de Pinochet. Fisonomía del fascismo iberoamericano. Buenos Aires (Prometeo Libros), 2007, p. 71. 4 The crimes committed during the dictatorship were considered by some Argentinean jurisprudence as a “genocide”. See Sala I de la Cámara Nacional de Casación Penal, Causa n.8 9517: Von Wernich, Christian Federico s/recurso de casación, Sentence of March 27, 2009; . In a trial the judges referred to a “political gen-

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Southern Cone were united in this manner by an “ideological community” and a “common plan of operations” (Plan Condor)5. In the Southern Cone6, the “dirty war” against guerrilla groups, persons and groups identified as internal enemies, brought about terror states with de facto governments that brutally violated the human rights of dissidents and opponents of the regime and systematically violated the civil rights of all the citizens7. Material and ideological opponents alike were persecuted, secretly detained, tortured, executed, condemned by military courts, and many were forcibly made to disappear8. The forced disappearance of people is the ocide” which took place in Argentina during the years of the dictatorship. The court has not convicted any state criminal for this crime. Although the Argentinean justice has referred to the crimes committed during the dictatorships as political genocide, non-judicial proceeding has started under the configuration of genocide. See . As Arendt sustains, State terrorism tries to root out all forms of opposition (political), including in its methodology the disappearance of the human element itself by means of specific criminal practices (i. e., the forced disappearance of individuals). See Arendt, Hannah: Los orígenes del totalitarismo. Madrid (Taurus), 2004, pp. 552 ff. There are those who link this practice of forced disappearances to the Armenian genocide based on the similarity between the denials of genocide by the Turkish state and the silence of the Argentinean state in relation to its disappearances. The nexus between these two is found in the effects they each left upon the surviving family members, because of the ‘impossibility for mourning’. See http://www. swissinfo.ch/spa/sociedad/Ser_sobreviviente_significa_el_fracaso_del_plan_genocida. html?cid=30816834 (consulted on 26. 01. 2012). 5 See Calloni, Stella: “Los Archivos del Horror del Operativo Cóndor”, in: Covertaction Quarterly, 50 (1994), pp. 7 ff.; idem: Los años del lobo. Operación Cóndor. Buenos Aires (Continente), 1999; Nilson, Mariano: Operación Cóndor. Terrorismo de Estado en el Cono Sur. Buenos Aires (Lohlé-Lumen), 1998; Eichner, Klaus: Operation Condor. Eine Internationale des Terrors. Berlin (Wiljo Heinen), 2009; Blixen, Samuel: Operación Cóndor. Del archivo del Terror y el asesinato de Letelier al caso Berríos. Barcelona (Virus), 1998. 6 Treating the “Southern Cone” as simply a geographical concept without any attempt to unify the contexts and complexities that the dictatorships of these three countries presented. 7 For more on this subject, cf. Sancinetti, Marcelo/Ferrante, Marcelo: “Argentinien”, in: Eser, Albin/Arnold, Jörg (eds.): Strafrecht in Reaktion auf Systemunrecht. Vergleichende Einblicke in Transitionsprozesse. Vol. 3 Argentinien. Freiburg (Iuscrim), 2002; Eser, Albin/ Sieber, Ulrich/Arnold, Jörg (Hrsg.), Strafrecht in Reaktion auf Systemunrecht. Vergleichende Einblicke in Transitionsprozesse, Chile (Salvador Millaleo) und Uruguay (Gonzalo Fernández), Teilband 11, Berlin: Duncker & Humblot, 2007; Galain Palermo, Pablo: “La justicia de transición en Uruguay: un conflicto sin resolución”, in: Revista de Derecho Penal y Criminología, 3, 6 (2011,) pp. 221 – 270; idem: “Transitional Justice in Uruguay: Different Mechanisms used by Uruguay as a reaction against Crimes Committed in the Past”, in: Academic Papers. Istanbul University, 2011, pp. 141 – 151. 8 Officially, it is said there were approximately 9.000 disappearances in Argentina, 3.000 in Chile and 200 in Uruguay. ; ; , (consulted on 01. 02. 2012). However, definitive official figures concerning the total number of disappearances in the Southern Cone do not exist, but some sources put the number at close to 50,000, counting both assassinations and disappearances. Cf. Calloni (1999), p. 16.

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crime that has provoked the majority of outrage from victims in the three countries mentioned due to two reasons. On one hand forced disappearance is a crime that has perpetuated silence, uncertainty, fear, pain, and memories of barbarism. On the other hand, the relatives of the victims of the crime are in a permanent state of expectation. This feeling of permanent expectation stems from their hope to know the whereabouts of their relatives and also the truth related to their disappearances. This crime, which characterized the dictatorships of the Southern Cone9, from the standpoint of penal law it is typically constituted as a type of injustice that denotes permanence and punishes a lack of information, which is to say, a crime that in some way requires telling the “truth”, although this imperils constitutional and/or criminal premises such as nemo tenetur se ipso accusare10. And this lack of information, the permanent “not knowing” of the “truth” is a form of ongoing torture for the victims, considering the victims to be not only the ones disappeared but also their immediate families11. The forced disappearance of people, on the one hand, is a crime that exemplifies the Evil committed by the totalitarian states of the Southern Cone, and on the other hand, was one of the principal causes for the creation of a new mechanism for confronting the past: the Truth Commissions12. 9

Each manifestation of State terrorism follows the characteristics of each individual political and social process, while the Uruguayan form was characterized by political imprisonment and inhuman conditions, the Chilean form stood out due to its extrajudicial executions, and the Argentinean form by forced disappearances of individuals and the secrecy of its repressions. See Abramovich, Victor/Guembe, María José: “Argentina”, in: Arnold, Jörg/ Simon, Jan/Woischnick, Jan (eds.): Estado de Derecho y delincuencia de Estado en América Latina. Mexico (UNAM), 2006, p. 52. 10 About this theme, Galain Palermo, Pablo: “El tipo penal de la desaparición forzada de personas como un acto aislado: consideraciones críticas”, in: Muñoz Conde, Francisco/Salgado, José Lorenzo/Ferré Olivé, Juan Carlos/Cortes Bechiarelli, Emilio/Nuñez Paz, Miguel Ángel (eds.): Un derecho penal comprometido. Libro Homenaje al Profesor Dr. Gerando Landrove Díaz. Valencia (Tirant lo Blanch), 2011, pp. 419 – 448; Galain Palermo, Pablo: “Uruguay”, in: Ambos, Kai (ed.): Desaparición forzada de personas. Análisis Comparado e Internacional. Bogotá (Temis), 2009, pp. 133 – 175. There it is said: “The penal law regarding the forced disappearances of individuals sets out to break institutional silence before that of individuals. The individual who carries out this kind penal law acts as a link in the chain of a criminal apparatus that offers impunity while maintaining its silence, an institutionalized silence of the State that has been perverted into the fulfilment of its essential functions, to the point of becoming ‘terrorist’ once more” (own translation). 11 See for all, Inter-American Court of Human Rights (CIDH) Case Velasquez Rodríguez vs. Honduras, Sentence 29. 7. 1998, § 165; Case Anzualdo Castro vs. Perú, Sentence 22. 9. 2009, § 113. 12 About this subject, Minow, Martha/Crocker, David/Mani, Rama: Justicia transicional. Bogotá (Siglo del Hombre), 2011; Villa-Vicencio, Charles/Verwoerd, Wilhelm (eds.): Looking Back, Reaching Forward. Cape Town/London (University of Cape Town/Zed Books), 2000; Minow, Martha: Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston (Beacon Press), 1998; Hayner, Priscilla, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study“, in: Human Rights Quarterly 16, 4 (1994), pp. 597 – 654; Castillejo-Cuéllar, Alejandro: “Domesticating the Word: Truth, Endemic Silence and the Articulations of a Violent Past”, Workshop “Domesticating the Word”, Humboldt University, Berlin, 2011 (work in progress); see also idem: “La globalización del testimonio: Historia,

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2. Returning to some aspects of the political and philosophical thought of Hannah Arendt – one of the few intellectuals who seriously set out to formulate a theoretical and political response to the horror of the Holocaust of the totalitarian regimes that occurred in the Twentieth Century – this article inquires into the relationship between the knowledge of the truth, the possibility or impossibility of comprehension (its limits), and the reconstruction of the past. Within this framework, of all the mechanisms utilized in the Southern Cone in the judicial processes of transition in Argentina, Chile and Uruguay, we limit ourselves to what are known as “Truth Commissions”, both for being institutionalized mechanisms for reacting to past crimes and the historical reconstruction imposed on the international agenda as for being a basic tool of transitional justice13. On the one hand, from the functional point of view, these commissions permit the attainment of such objectives as truth, justice and reparations; and contrarily, they contribute to the reconstruction of the past. Nonetheless, as has been noted, these Truth Commissions – as means of historical reconstruction that take the responsibility for defining, compiling and producing an institutionally legitimate understanding about past violence – create a particular image of the past (one version) which may be described as official or hegemonic (derived from a an interpretive model linked to the present needs of reconciliation or transition)14. As such it can be concluded that they determine – selectively – the image of “truth” that citizens and future generations will read as history. This crystallized truth includes issues as meaningful as historical causality, the effects of such crimes on society as a whole, and the fixing of responsibility on the actors involved, among others. Herein lies its political importance as well as its polemical character, given that – paraphrasing Arendt – it dramatizes the secular conflict between truth and politics15. In short, we ask ourselves with what scale and under what conditions do Truth Commissions serve to understand, recount, and eventually judge the Evil perpetrated by dictatorial regimes and if this comprehension contributes to the goal that it not be repeated. With these deliberative intentions, the text revisits some of the central questions that Arendt formulated with respect to the historical significance of Nazi terror: On what basis can such an unprecedented action begin to be understood? Do we need – as the author seems to argue – to understand what happened in order to confront and judge it (which is to say, to avoid its rejustification and its repetition)? But at the same time, while trying to understand these atrocious crimes – for example from the standsilencio endémico y los usos de la palabra”, in: Antípoda – Revista de Antropología y Arqeuología, 4 (2007), pp. 76 – 99. 13 See Roth-Arriaza, Naomi: “The new landscape of transitional justice”, in: Roth-Arriaza, Naomi/Mariezcurrena, Javier (eds.): Transitional Justice in the Twenty-First Century. Beyond Truth versus Justice. Cambridge (Cambridge Univ. Press), 2006, pp. 4 ff. 14 This interpretive model is intimately related to a transnational series of theories, mechanisms, specialists, advisers, consultants observers, publishers, study programs, etc., known under the heading of ‘Transitional Justice’. 15 See Arendt, Hannah, “Truth and Politics”, first published in: The New Yorker, February 25, 1967, p. 49 (cf. also idem, in: Between Past and Future. New York [Viking Press], 1969, p. 245).

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point of obedience to a political-bureaucratic hierarchy, or through the hermeneutics of “collective guilt”, do we not perhaps add value to that which we combat? And then, with this desire for comprehension, do we not run the risk of understanding leading to rationalization, stripping the crime of its radical nature? I. From Radicality to the Banality of Evil 1. The central problem confronted by Arendt while undertaking her work concerning totalitarianism was the impossibility of comprehending it. Such an impossibility may be, at first glance, linked to a contemporary political problem: How to write (or initiate an understanding) about a problem you want to eradicate? Just as the author herself recognizes – in her response to the criticism directed by Voegelin at her book on totalitarianism16 – her main problem was how to write historically about that which you do not want to preserve; but rather, much to the contrary, which you feel called to destroy17. She manifests in this confession, in one sense, the problem of objectivity in historical science (when a phenomenon is written about in which the writer is still involved) and, in another (the determining factor for our objective), the fact that totalitarianism (the Evil, the horror of this system) questions, harms and destroys our forms of thought and judgment18. As such, it merits consideration that when the author categorizes the Nazi regime (totalitarian power) as “radically evil” it means that this malevolence is unprecedented in human history, but to the contrary, is something “original”, something peculiar to the Twentieth Century. Moreover, it presents the challenge of how to comprehend and punish an Evil (collective) previously unknown, that as such is “absolutely unpunishable and unforgivable, that cannot be understood or explained by the evil motives of self-interest, sordidness, resentment, the thirst for power or cowardice”19.

16 Voegelin, Eric: “The Origins of Totalitarianism”, in: The Review of Politics, 15, 1 (1953), pp. 69 – 85. 17 Arendt, Hannah: Über den Totalitarismus: Texte Hannah Arendts aus den Jahren 1951 und 1953. Dresden (Hannah-Arendt-Institut f. Totalitarismusforschung/TU Dresden), 1998, p. 43 (own translation). 18 Arendt, Hannah: Verstehen und Politik, in: “Zwischen Vergangenheit und Zukunft: Übungen im politischen Denken I”, (ed. by Ursula Ludz), München/Zürich (Piper), 1994, p. 122. 19 Arendt, Hannah: Los orígenes del totalitarismo. 3, Totalitarismo, Madrid (Alianza), 1999, p. 680. A fragment of the letter that Arendt sent to Jasper in 1951, It is also worth mentioning here: “I don’t know what radical evil is exactly, but it seems to me that in some way it has to do with the following phenomena: to make human beings non-essential as human beings (this does not have to do with using them as some means, which would leave their human condition intact and only violate their human dignity, but instead with making them unnecessary as humans). This occurs by the suppression of all unpredictability, which corresponds to spontaneity on the part of human beings.” See Arendt, Hannah: Lo que quiero es comprender. Sobre mi vida y mi obra, Madrid (Trotta), 2010, p. 209 (own translation).

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2. As in the dictatorships of the Southern Cone, the Evil that resulted, in many aspects, was worse than anything expected, a matter that compels Arendt to pose two questions: Where does this Evil come from, and what consequences and meanings can we attribute to it? To clarify the first question, Arendt turns to Kant and his notion of radical Evil. As is widely known, Kant places this radical Evil in the realm of humanity’s free will in which the will is abandoned – as a contingent tendency – to be determined by motives different from unconditional duty and the dictates of reason (the moral Good)20. If Good consists of free subjugation, which implies subjugating love to itself in respect for the law, Evil would consist of inverting this principle and subordinating the rational imperative to the sentimental imperative, that is to say, that radical Evil is not the will to “want” in a manner contrary to moral law, but rather to omit purity of intent and then subordinate oneself to laws that are not moral21. In the face of this rationalized explanation of Evil (the malevolent perverted will), Arendt alleges that Kant is not overly radical, since he attempts to explicate Evil by means of understandable motives, accessible to reason, while the Evil that totalitarian power assumes is outside all processes of understanding, since radical Evil is unintelligible, not rationalizable22. However, as to the second problem, the question of what this radicalness of Evil means or implies, Arendt basically refers us to the concentration camp, to the Lager, as a hologramatic institution and a laboratory of totalitarian power, whose purpose would be to destroy the legal status, moral conscience and personal individuality of all members of the totalitarian society23. In the same way as the practice of forced disappearances, the violence that is exercised over the population confined to the concentration camps is possible thanks to that status of exception that meant the temporary suspension of the normal legal order. However, what happens as a consequence of this inclusive exclusion is that this status of exception itself, no longer a “special” temporality, is incorporated as a permanent and normal “place”. During the Third Reich the concentration camp was separated from exceptional (temporary) status to be established as a permanent space, outside

20

Kant, Immanuel: La religión dentro de los límites de la mera razón. Madrid (Alianza), 1986. 21 See the clear and harmonized explanation made about this point by Marrades, Jorge: “La radicalidad del mal banal”, in: LOGOS. Anales del Seminario de metafísica, 35 (2002), Madrid (Universidad Complutense), pp. 79 – 103. 22 With reference to Kant’s lack of radicality, who refused to accept as evil the idea of unconditional duty, an absolute character equivalent to Good, see Safransky, Rüdiger: El mal o el drama de la libertad (transl. by Raúl Gabás), Barcelona (Tustquest), 2000. There the author, taking the Kantian principal to the extreme, says: “Evil belongs to the drama of human freedom, because it is the price we must pay to have freedom”, p. 13 (own translation). 23 The position of Agamben is worth brief consideration here, in his celebrated book about the ties between sovereign power and bare life (cf. Agamben, Giorgio: Homo Sacer. Valencia (Pre-Textos), 2003). There he says: “Sovereignty is the sphere in which killing can be done without committing murder and without solemnizing a sacrifice; and sacred, which is to say, exposed to being put to death, but unsacrificable, is the life that has been kindled in this environment”, p. 109 (own translation).

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the normal legal order, and thus the differences between deeds and rights, and the parameters separating justice and injustice, or legality and illegality were ended. 3. This diffusion or suspension of the line between what is probable and what is not, between deeds and rights, would constitute the absolutely unparalleled, original core of Nazi totalitarianism and would have been instituted, according to Arendt, the moment that officials of the SS took charge of the camps and when “an ancient and spontaneous bestiality brought about the absolutely cold and systematic destruction of human bodies, calculated to destroy human dignity”24. Arendt considers that the expression “everything is possible” conveys the central trait of totalitarian nihilism since it would be a corollary of the theory that there is no normative order, no necessary structure. Totalitarian nihilism can envision the total destruction of real human beings, and it would even be possible to “produce another kind of human”25, given that no normative framework exists. For Arendt, what Kant termed radical Evil is expressed within the central characteristic of the totalitarian program and is manifested by something to which there is no known reference, an Evil that involves the destruction of human beings, making its inherent qualities extraneous. This is precisely the difficulty in explaining and understanding these crimes (today referred to as crimes against humanity), which can result in their being classified as monstrous, diabolical or bestial; in other words, to situate them beyond the threshold of humanness and all possibilities for being understood. In effect, the act of demonizing the criminals who committed the terrible violations of Human Rights (torture, forced disappearances, executions, etc.) during the dictatorships of the Southern Cone stems from the same incomprehension that Arendt confronted in her time; and furthermore, this classification inherently denies any possibility of understanding. Upon separating the terrible deeds from their causes or ideological justifications that could somehow make them comprehensible, classification in an absolute sense produces a paralyzing effect. If our actions have no causes, we are not responsible for them; and if Evil as an entity has no relation to anything but itself: Does it not result in the same condition that is condemning us also being that which is redeeming us?26 4. This difficult situation, (related to the understanding of the incomprehensible), moves Arendt to change her mind regarding how to address the crimes of the Nazis27. 24

Arendt (1999), pp. 673 ff. (own translation). See Malamud Gotti, Jaime: “Traición, Heroísmo y el Sentido de la Existencia: Pensando en Borges y el Mal”, in: Anitua, Gabriel I./Tedesco, Ignacio: La Cultura penal. Homenaje al Profesor Edmundo S. Hendler. Buenos Aires (Editores del Puerto), 2009, pp. 413 – 435. 26 See the reflection about how this developed by Terry Eagleton in his On Evil, New Haven (Yale University Press), 2010. The question makes much sense for penal law, since it bears a strict relationship to being found guilty. 27 Just as the well-known letter to Gerhard Scholem expresses: “Nowadays I really think that evil is always just extreme, but never radical; that it has no depth, nor anything demonic. It can devastate the world precisely because it is like a mushroom, which proliferates on the surface. Only Good can be always radical and profound” (Arendt, Hannah, in: Neue Zürcher Zeitung, October 19, 1963). 25

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During the trial of the Nazi official Adolf Eichmann (1961), Arendt is focused on the human aspect of the crimes in which he took part. Eichmann, who claimed to have acted under orders, could not be classified as a monster, nor a sadist, nor a pervert, but instead as an absolutely normal person, a functionary of the State who carried out an objective which was part of a rational plan of human destruction28. As Arendt says in one part of her “coverage” of the trial: “He never hated the Jews, and never desired the death of one human being. His guilt came from his obedience and obedience is a highly-praised virtue”29. And so against the majority of public opinion (which saw him as a perverse monster) and also against the court’s finding (which considered him a cheat and a liar), Arendt contends that Eichmann’s guilt was due to his complete lack of judgment, to his absolute temerity, and to his inability to distinguish Good from Evil30. The key to this opinion is an implied reference to another of Kant’s works, Critique of Judgment, in which the philosopher Königsberg maintains that aesthetic judgment is not based on concepts or rules about what could be perceived as beautiful or ugly, but instead on a shared sense of objectivity in reference to the inter-subjective maxims of the reflexive process31. Extending this application to the moral and political realm, Arendt refuses to accept that social norms and customs may be constructed with moral behavior as their source, but instead, on the contrary, maintains that they should be based on an act of independent thought, by taking a position of freedom. Relating to this latter point, we should consider that one of the most astounding, and most disturbing, phenomena of Nazi totalitarianism – shared to some degree by the Southern Cone dictatorships – was its ability to carry out a rapid and violent transformation of the existing moral system, taking full value of the power and fear of official propaganda. In Nazi Germany, the overturning of values coupled with the use of propaganda to contest certain norms of coexistence achieved, with massive support of the citizenry, the substitution of the principle of “you shall not kill” by the principle of “you should kill” (the Jews), in such a way that for these people – lacking independent thought in political and moral affairs – the elimination of those who “threatened” the German people came to be regarded a duty32. It is precisely this culpable neglect of his capacity to judge, his absolute temerity, his refusal to acknowledge the world of others, which Arendt sees as entrenched in Eichmann and for which she coins the term the banality of Evil. As such, the banality of Evil is neither a contribution to, an addition to, or a refutation of the theory of radical Evil, but rather a means to try to understand the harm that the 28 From the point of view of penal justice, see Amelung, Knut (ed.): Individuelle Verantwortung und Beteiligungsverhältnisse bei Straftaten in bürokratischen Organisationen des Staates, der Wirtschaft und der Gesellschaft. Sinzheim (Pro Universitate), 2000. 29 Arendt, Hannah: Eichmann en Jerusalém. Un estudio sobre la banalidad del Mal, Barcelona: Lumen, 1999, p. 375 (own translation). 30 Idem, p. 434. 31 I.e. to think for oneself; to consider the place of each one of the others; to think always in agreement with oneself. 32 Idem, p. 226.

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abdication of the faculty of judgment can mean, both at the individual and collective levels. The harm done by Eichmann was monstrous, but what causes even more harm is that Evil had no roots in the motivations of the criminal. And what is really banal are not the Nazi crimes (as horrendous and radical as they were), but instead the fact that they were not fundamentally inherent in the agent that carried them out. Eichmann is not radically malevolent, in reality he can be categorized as a “common man” or, even as a clown. From the point of view of penal law, Eichmann can be held accountable for his actions, although from the ethical-political viewpoint he acted irresponsibly. The banal character of the author or participant in the crimes which were committed by following the orders of a totalitarian regime’s hierarchy does not exempt the actors who committed them from individual responsibility33. Although unprecedented, the crimes of the Holocaust occurred in the midst of human society, not on an island or on the moon. This means that no human act, including the cruelest and most ruthless torture, could be perpetrated without the simultaneous occurrence of a significant number of social skills and interests. Only because we live in a world that influences and shapes us can we speak of liberty. Precisely because of this collective character, which implies dealings with other persons or social groups, can we speak of political action, and therefore of moral conduct, liberty and responsibility for our actions34. The moral principle that we may take from Arendt’s stance is that to be responsible does not mean to be bereft of either influences or temptations, but rather to face them in a free manner, always exercising the faculty of judgment (even within an organized power structure or totalitarian society). II. Toward an Understanding of Crimes Committed in the Southern Cone One of the most important problems in defining the present day political mapping of the countries of the Latin American Southern Cone is the ways in which they have assumed the political, socioeconomic and cultural legacy left by two decades of military regimes (1973 – 1990). In particular, one of most contested and unresolved questions has been the manner by which the democratization processes of these three nations has addressed, recognized and eventually judged the Human Rights violations (crimes against humanity) which occurred under the de facto governments. In one sense, according to the predominant doxa, these processes of political democratization have been contextualized, and in part domesticated, by defining them within the framework of what has come to be known as Transitional Justice, which establishes and gives preference to a curious blending of truth, justice, and reconciliation, gov-

33

Idem, pp. 444 ff. Arendt, Hannah: La condición humana. Barcelona (Paidós), 2005 (especially chap. 5: “Action”). 34

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erned predominantly by what is realistically possible35. It is within this context that the Truth Commissions have come into being as mechanisms to assimilate and react to the past. These commissions of truth present a problem of “impossible” resolution: the imperative of grieving, which demands or presupposes the ability to tell a story about the past and, simultaneously, the difficulty, if not the impossibility, of narrating what took place and being touched by its terror, which causes the experience to be irreducible, lost and incommunicable, and as a consequence, de-historicized. It is here where we believe that Arendt’s work about the Evil of totalitarianism may contain valuable elements for understanding the value of these commissions, as well as stages of comprehension. Arendtian comprehension (Verstehen) may be summarized by 5 central points: a) comprehension is an unending activity that finds itself in continuous change or transformation, it is not brought to an end; b) not having an end, it produces no definitive results; c) comprehending is the human way of being in the world and of reconciling oneself to it; d) the result of comprehending is the sense that we are constructing collective experience, as measured by how we reconcile ourselves to what we do and to what others do; e) comprehending and knowing are not the same thing, but comprehending assumes knowing even a fragment or glimpse of the truth. It is in the context of silence and impunity that the absolute demands for justice on the part of victims are understood, victims who have maintained the certainty that no reconciliation is possible if such reconciliation is expected to be based on impunity, which is to say, if the truth of what took place remains hidden, and if justice is not meted out in a manner commensurate with this truth. The continuous action of these movements has been of great political revelation, although the truth is with unequal results. During almost thirty years victims have insisted that in all political agendas and all institutional changes it is necessary to include respect for human rights and a campaign against impunity; they have “obligated” governments to create forums to address human rights violations in the past and assure their observance in the present. From the ground up they have promoted the creation of national commissions to investigate forced disappearances, torture and political imprisonment, have fought tirelessly to bring perpetrators and accomplices to justice for human rights violations; and lastly, they have kept alive the memory of the pain and indignities brought on by assassinations, disappearances and exiles36. Thus, these movements have socialized and made public the process of grieving37; but in addition they have legitimated, 35

Transitional justice, in effect, at least in the South American version (but not only), has emphasized its realistic character, since it has limited measures of penal prosecutions in order to increase the possibilities of learning the truth, and securing reparations and forgiveness. See Oettler, Anika: “Mehrdimensionale Aufarbeitung: Wahrheitskommissionen in Lateinamerika”, in: Lateinamerika Analysen 14, 2 (2006) pp. 113 – 139, and Teitel, Ruti: “Transitional Justice Genealogy”, in: Harvard Human Rights Journal, 16 (2003), pp. 69 – 94. 36 Regarding this theme see Lessa, Francesca/Druliolle, Vincent (eds.): The memory of State Terrorism in the Southern Cone: Argentina, Chile and Uruguay. New York (Palgrave MacMillan), 2011. 37 See Butler, Judith: Marcos de guerra. Vidas lloradas. Madrid (Paidós), 2009.

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from the political and discursive points of view, the challenges that confront a Truth Commission. At stake is the value of truth and whether that value can permeate an institutional body, such as the so-called truth commission. III. Mechanisms of Intervention for the Comprehension and Resolution of Past Crimes 1. The forced disappearance of individuals was one of the most atrocious crimes committed by the dictatorships of the Southern Cone. The permanent state of the victims’ disappearance and the unawareness of their whereabouts is a current form of torture that can only be alleviated by the knowledge of how, when and why these deeds were carried out. The urgent need for information (the truth) surfaced during the transitional justice process in Argentina with the formation of an institutional mechanism charged with the task of collecting such information on the dictatorial past. The absence of information about what had happened to persons who had disappeared (Where are they?) and the need to know “the truth” were the driving factors behind the creation of the Argentinean Truth Commission (Spanish acronym CONADEP, Comisión Nacional sobre la Desaparición de Personas), the transitional justice system that may be considered among the principal contributors to the resolution of past crimes regarding any form of transitional justice38. Thus, the commissions formed to verify the truth, had their inception as non-judicial tools intended to search for information and to put together an official registry to explain, clarify and recognize deeds still undiscovered. Their function to document the past later served as the basis for subsequent penal investigations targeting individuals primarily responsible for the human rights violations. Thus in the Argentinean case, the Truth Commission sought to find some sort of accountability which contributed to the setting up of judicial proceedings. Following the Argentinean Truth commission, in Chile, the Retting commission came into being. This commission was highly influenced by the hegemonic military power and its implementation led to a gradual and limited democratic institutionalization of the transition. To a certain degree the commission was a means to prosecute the state criminals who had committed gross Human Rights violations. However, the political intention to prosecute the former dictators lacked transparency, as shown by the commission’s motto: “prosecutions will take place only when the cases permit it”. As a result, in the Chilean case, the knowledge of the truth was given the important significance of leading the country to achieving a national “reconciliation”. Reprehensible is that the knowledge of the truth was subject to the achievement of the reconciliation. It goes without saying that by favoring truth over accountability and prosecutions, the promises of declaring the nullity of self amnesty laws passed by the military government of 1979 (DL 2191) along 38 See Parenti, Pablo: “La persecuzione penale di gravi violazioni dei diritti umani in Argentina”, in: Fronza, Emanuela/Fornasari, Gabriele (eds.): Il superamentodel passato e il superamento del presente. La punizione delle violazioni sistematiche dei diritti umani nell‘esperienza argentina e colombiana. Trento (Università degli studi di Trento), 2009, pp. 15 ff.

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with the message of deterrence made by presidential candidate Aylwin were bypassed39. Many years later the Uruguayan Commission for Peace (Comisión para la Paz) came about. The aim of the commission was to find the truth, and thus pave the way for national peace and reconciliation. Similar to the Chilean commission, the scope the Uruguayan truth seeking institution was limited, and it focused only on cases of forcibly disappeared persons40. Truth commissions, in addition to clarifying the deeds and identifying their authors (truth and justice), pursue the objectives of tending to the needs of the victims (reparation) and establishing a final report41 which determines institutional responsibility and pertinent reforms in the public sphere42. In any case, these mechanisms for transitional justice have confirmed that reconciliation is not possible without getting to the truth, but they have also confirmed that there can be no justice without the recognition of the commission of crimes and reparations to the victims. As such, the broad concept of justice is not limited to penal justice (retributive justice), but rather it includes other processes that serve to satisfy the objectives of reacting to the past and clarifying it, including statements of the criminals and the victims (restorative justice)43. The transitional processes of the Southern Cone have made the right to the truth a fundamental and autonomous right. As a right, truth seems to be more inclusive than criminal justice, as regards 39

See Millaleo, Salvador A: “Chile”, in: Arnold, Jörg/Simon, Jan/Woischnick, Jan (eds.): Estado de derecho y delincuencia de Estado. Mexico (UNAM), 2006, pp. 172 ff.; id.: “Chile”, in: Eser, Albin/Sieber, Ulrich/Arnold, Jörg: Strafrecht in Reaktion auf Systemunrecht. Teilband 11. Berlin (Duncker & Humblot), 2007, pp. 282 ff.; Guzman Dálbora, José Luis: “Chile”, in: Ambos, Kai/Malarino, Ezequiel/Elsner, Gisela (eds.): Justicia de transición. Con informes de América Latina, Alemania, Italia y España. Montevideo (Konrad-AdenauerStiftung/Universität Göttingen), 2009, pp. 211 ff. 40 See Fernández, Gonzalo: “Uruguay”, in: Arnold, Jörg/Simon, Jan/Woischnick, Jan (eds.): Estado de derecho y delincuencia de Estado. Mexico (UNAM), 2006, pp. 172 ff. 41 The expression ‘final report’ is used when the work of the commission comes to an end is representative of its limited character. This limitation is absolutely not superfluous. For a timely critique on Truth Commissions, see Castillejo-Cuéllar, Alejandro: “La globalización del testimonio: historia, silencio endémico y los usos de la palabra”, in: Antípoda. Revista de Antropología y Arqueología, 4 (2007), pp. 75 – 99. 42 Cf. Hayner, Priscilla: Unspeakable Truths. Facing the Challenge of Truth Commissions. London (Routledge), 2002, pp. 24 ff. 43 About this topic, cf. Zehr, Howard: The Little Book of Restorative Justice. Intercourse/ PA (Good Books), 2002; Perry, John G. (ed.): Repairing communities through restorative justice. Lanham (American Correctional Association), 2002; Roche, Declan (ed.): Restorative Justice. Aldershot (Ashgate/Dartmouth), 2003; Dignan, James, Understanding Victims and restorative justice. Berkshire (Open University Press), 2005; Johnstone/Van Ness (eds.), Handbook of Restorative Justice. Cullompton (Willan Publishing), 2007; von Hirsch, Andrew/ Roberts, Julian V./Bottoms, Anthony E./Roach, Kent/Schiff, Mara (eds.): Restorative Justice and Criminal Justice. Competing or Reconcilable Paradigms?, Oxford/Portland (Hart Publishing), 2003.

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to the massive and systematic violations against human rights44. It is in this vein that we contend that, truth commissions are a means to gather documentation and statements that also serve to fight against the silence, the impunity and the perpetuation of the invisibility of the victims’ complaints45. However, Truth Commissions cannot be dependant of a particular government neither be a response to the institutional interests of the state. 2. The Inter-American Court of Human Rights (Spanish: CIDH, Corte Interamericana de Derechos Humanos) has taken on the problem of confronting past crimes to further the objectives of truth, justice and reparations on various occasions. In this sense, the CIDH – although it has been accused of undertaking a punitive mission46 – has been essential in the fight against impunity and the defense of human rights47. The problem is that in its jurisprudence the need to know the truth seems to proceed from the right to justice (penal), when the right to the truth (or to receive reliable information) is much broader than the objectives of the penal process48. Furthermore, 44 See Hayner, Priscilla: Unspeakable Truths. Confronting State Terror and Atrocity. New York/London (Routledge), 2001, pp. 24 ff. 45 Concerning the topics of silence and the construction of “collective memory” when the human rights violations are denied by penal justice (legal amnesia), see Henry, Nicola: “Silence as Collective Memory. Sexual Violence and the Tokyo Trial”, in: Tanaka, Yuki/ McCormack, Tim/Simpson, Gerry (eds.): Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited. Leiden-Boston (Martinus Nijhoff Publishers), 2011, pp. 263 ff. 46 Cf. Malarino, Ezequiel: “Activismo judicial, punitivización y nacionalización. Tendencias antidemocráticas y antiliberales de la Corte Interamericana de Derechos Humanos”, in: Ambos, Kai/Malarino, Ezequiel/Elsner, Gisela (eds.): Sistema interamericano de protección de los Derechos Humanos y Derecho Penal Internacional. Montevideo (Konrad-AdenauerStiftung/Universität Göttingen), 2010, pp. 25 ff. Some authors see a punitive and anti-guarantistic calling that defines all international penal law, see Pastor, Daniel: El poder penal internacional. Una aproximación jurídica crítica a los fundamentos del Estatuto de Roma. Barcelona (Atelier), 2006, pp. 75 ff. 47 The constant jurisprudence of the CIDH maintains that the publication of the judicial sentence is an act of symbolic reparation for the victim. See Olásolo, Héctor/Galain Palermo, Pablo: “La influencia en la Corte Penal Internacional de la jurisprudencia de la Corte Interamericana de derechos humanos en materia de acceso, participación y reparación de las víctimas”, in: Ambos/Malarino/Elsner (eds.), Sistema interamericano de protección de los Derechos Humanos y Derecho Penal Internacional. Montevideo (Konrad-Adenauer-Stiftung/ Universität Göttingen), 2010, pp. 379 – 425; Nash Rojas, Claudio (ed.): Las reparaciones ante la Corte Interamericana de Derechos Humanos. Santiago (Centro de Derechos Humanos de la Facultad de Derecho de la Universidad de Chile), 2009 (2nd ed.), pp. 379 ff., http://www. estadodederechocdh.uchile.cl/media/publications/documentos/Reparaciones_CNR.pdf; Herencia, Salvador, Las reparaciones en la jurisprudencia de la Corte Interamericana de Derechos Humanos, in: Ambos et al. (eds.): Sistema Interamericano de protección de los Derechos Humanos y Derecho Penal Internacional, Tomo II. Montevideo (Konrad Adenauer Stiftung/ Georg-August-Universität-Göttingen), 2011, pp. 371 – 392; Galain Palermo, Pablo: La reparación del daño a la víctima del delito. Valencia (Tirant lo Blanch), 2010, p. 334. 48 See Galain Palermo, Pablo: “Relaciones entre el ‘derecho a la verdad’ y el proceso penal. Análisis de la jurisprudencia de la Corte Interamericana de Derechos Humanos”, in: Ambos et al. (eds.): Sistema interamericano de protección de los Derechos Humanos y Derecho Penal Internacional, Tomo II, 2011, pp. 250 – 282.

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when the right to know the truth is interpreted as proceeding from the right to justice, the truth becomes subordinated to the private actions of the victims (their demands for justice), to the secrecy of the penal justice system (inquisitive), and to any impediments to the penal process (for example, amnesty laws), which is what happened during the first stage of the Chilean and Uruguayan transitional processes49. In Arendt’s opinion (Truth and Politics), the truth is a product of a developmental process based on the premise that the deeds to be investigated go beyond the questions of individuals, beyond agreements and consensuses. The truth being sought must be as impartial as possible and be free from private interests, so that it may be closest to the truth that comes from reason and enhances human understanding. Given the requirement to make rational investigations into the truth, penal procedures are set to one side (which Arendt accepts in the final stage of Eichmann’s trial), since they are incapable of getting to the material truth, as are the processes of investigation and elaboration by institutions in their investigations and findings, because they are limited by the “exclusion of evidence”, the rights of the accused, and the res judicata50. Moreover, as Arendt recognizes, a penal process against a criminals of the State is (also) a spectacle, a show trial in which the statements of the criminal are much more important than those of the victims51. Penal law and its restrictive procedures are necessary to obtain the information that can be converted into incriminating evidence against the responsible parties, and only in this respect do they contribute to the “knowledge of the facts”. But in addition, the principle of opportunity (which also applies to international crimes) suggests that justice may go well beyond retributive penal law52. In the case of a State crime, the victim has the right that the State (of Law) may not continue to manipulate information, keep silent, or write an “official story” which is imposed as “official truth”53. The victim also has the right whereby the State must make public 49 See Ruiz, Marisa: “Justicia y Verdad en el Uruguay de transición: algunas consecuencias de esa herencia”, in: Fried, Gabriela/Lessa, Francesca (eds.): Luchas contra la impunidad. Uruguay 1985 – 2011. Montevideo (Trilce), 2011, p. 63. The situation becomes more complicated when faced with the lack of independence of Judicial Power due to the institutional configuration of justice. See Skaar, Elin: “Impunidad versus responsabilidad jurídica: el rol de la Ley de Caducidad en Uruguay”, in: idem, pp. 138 ff. 50 See Hassemer, Winfried: Fundamentos del Derecho Penal. Barcelona (Bosch), 1984, pp. 85 ff.; Galain Palermo (2011), pp. 263 ff. 51 See Arendt, Hannah, Eichmann em Jerusalém. Uma reportagem sobre a banalidade do mal. Coimbra: Tenacitas (2nd ed.), 2004, p. 61. In the transational justice process the account of the victim is indespensible and receives greater precedence than that of the victimizer. See Zizek, Slavoj: Arriesgar lo imposible. Conversaciones con Glyn Daly. Madrid (Trotta), 2004, pp. 135 ff. 52 See McEvoy, Kieran: “Letting Go of Legalism: Developing a ‘Thicker’ Version of Transitional Justice”, in: McEvoy, Kieran/McGregor, Lorna (eds.): Transitional Justice from Below. Grassroots Activism and the Struggle for Change. Oxford (Hart), 2008, pp. 24 ff.; Findlay, Mark/Henham, Ralph: Beyond Punishment: Achieving International Criminal Justice. Basingstoke (Palgrave Macmillan), 2010. 53 However, the succeeding governments that aspire to react against crimes of the past may not “impose” an “official truth”, because historical truth is a permanent process of probing and gathering information (evidence, testimony, etc.), about the basis for hypotheses and assess-

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the content of the information that it has under its power and recognize its responsibility (without diminishing the punishment meted out to individuals who participated in crimes of the State)54. The quest for truth should be inclusive and serve as a complement to criminal justice. Truth is a right to all society that should be guaranteed by distinct democratic mechanisms situated that may differ from those attributed to the executive power of the state. The public acknowledgment of the facts (the truth) and the official recognition of responsibility are ways to satisfy the victims’ rights to truth, justice and reparation. The job of clarifying the truth implies the victim’s moral right to accuse and to receive reparations, and similarly, providing reparations is assumed to be doing justice55. When during a regime of terror (dictatorial, despotic) human rights were violated, the new State under the rule of law has to react (as much as possible and within the limits of political opportunity) and obtain truth, reparation and justice, and thereby restore the citizens’ confidence in the rules and that there will be not repetition (prevention, punitive terms)56. When the political circumstances are not propitious or do not permit intervention by means of penal law, other avenues must remain open. But even when factual circumstances permit the investigation and punishment of the most serious cases, this cannot be the only tool used for reacting to the past and achieving resolution57. As such, “the victim’s rights are neither exhausted nor exclument. As Stolleis says, a process in which much is lacking and much may be silenced. For more, see, Stolleis, Michael: “Der Historiker als Richter – der Richter als Historiker”, in: Frei, Norbert/van Laak, Dirk/Stolleis, Michael (eds.): Geschichte vor Gericht. Historiker, Richter und die Suche nach Gerechtigkeit. München (Beck), 2000, p. 178. Nevertheless, the impossibility of establishing and official truth does not mean that the State has no obligation to make public any information that it has or to make a public recognition of its responsibility in such deeds. From a historical point of view, setting out objections and taking precautions, see Hunt, Tristam: “Whose Truth? Objective Truth and a challenge for History”, in: Schabas, William A./Darcy, Shane (eds.): Truth Comissions and Courts. The Tension Between Criminal Justice and the Search for Truth. The Hague (Kluwer Academic Publishers), 2004, pp. 193 ff. 54 It is much more difficult to accept that the victim has the right the right to punish the guilty. About this subject see Reemtsma, Jan Philipp: Das Recht des Opfers auf die Bestrafung des Täters – als Problem. Vortrag gehalten von der Juristischen Studiengesellschaft Regensburg am 20. 1. 1998. München (Beck), 1999, pp. 26 ff.; Hassemer, Winfried/Reemtsma, Jan Philipp: Verbrechensopfer. Gesetz und Gerechtigkeit. München (Beck), 2002, pp. 136 ff. 55 See Crocker, David: “Truth Commissions, Transitional Justice, and Civil Society”, in: Rotberg, Robert I./Thompson, Dennis (eds.): Truth v. Justice. The Morality of Truth Commissions. Princeton-Oxford (Princeton University Press), 2002, pp. 99 – 121. 56 See Tamarit Sumalla, Josep: “Justicia penal, justicia reparadora y Comisiones de la Verdad”, in: idem (ed.): Justicia de transición, justicia penal internacional y justicia universal. Barcelona (Atelier), 2010, p. 65. 57 Tamarit holds that together with the triad of truth, reparation and justice it would be necessary to add two concepts that have to relate well to one another: reproach (foe the guilty) and reintegration into the social lives of the victims and victimizers. In his opinion, criminal punishment may be set aside without giving up on justice for the victims (truth and reparation), but there cannot be justice without reproach.

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sively satisfied by means of the penal process”58. Democratized Truth commissions (Comisiones de la Verdad democratizadas) should be a mechanism or a tool for confronting institutionalized narratives that stem from State terrorism and an antidote to the politics of “forgive and forget”59. By the same token, they should remain open to society, in order to consolidate, and become they are to be an authentic contribution to the transitional justice processes of the Southern Cone for responding to crimes committed in the past and developing a better understanding of them60. IV. Conclusions Hannah Arendt left an open path plagued by questions that may well justify the mechanisms used in the search for “truth” or for information that has remained hidden. At the same time, she accepted the judgment and the imposition of the death penalty against one of the “maximum” offenders as a way to satisfy justice, although this would have not been the only way possible. In this manner, as is also happening in the processes of transitional justice in the Southern Cone, the punishment of the principal civil rights offenders has become necessary61. Nonetheless, this “act of justice” does not satisfy all the objectives of the transitional justice process (truth, justice and reparation), nor is it sufficient for revealing all that had taken place. The truth commissions are a consequence of the “secrecy” that permeated the “terrorist State”, of the crimes of state officials, missing information, institutionalized 58

See Galain Palermo (2011), p. 271. See, Bottinelli, María: La impunidad como crimen de lesa humanidad, Atención integral a las victimas de tortura en procesos de litigio. Aportes psicosociales, Instituto Interamericano de Derechos Humanos (San José), 2007, p. 204. There are those, however, who maintain with a critical view that a Truth Commission loses its essence as a means to seek the truth when it is tied to the institutions inherited from the dictatorial regime. See Cuadros Garland, Daniela: “La Comisión Rettig o la fábrica de un relato consensuado sobre crímenes de Estado en Chile. Actores y controversias”, in: Santamaría, Ángela/Vecchioli, Virginia (eds.): Derechos humanos en América Latina. Mundialización y circulación internacional del conocimiento experto jurídico. Bogotá (CEPI), 2008, pp. 68 ff. 60 The doctrine holds that reconciliation is not possible without clarification of the truth and recognition of the injustices committed. About this subject, cf. Werle, Gerhard: “Die juristische Aufarbeitung der Vergangenheit: Strafe, Amnestie oder Wahrheitskommission?”, in: Muñoz Conde, Francisco/Vormbaum, Thomas (eds.): Transformation von Diktaturen in Demokratien und Aufarbeitung der Vergangenheit. Humboldt-Kolleg an der Universidad Pablo de Olavide Sevilla, 7. – 9. Februar 2008. Berlin (De Gruyter), 2010, pp. 16 ff. All the inconveniences related to investigating violations of human rights for penal purposes must be recognized, not just the amnesty laws: (Punto Final, Obediencia Debida in Argentina, Ley de Autoamnistía in Chile and Ley de Caducidad de la Pretensión Punitiva del Estado en Uruguay), but rather the complicity of the Chilean Judicial Power with the impunity of the state’s terrorists. See Parenti, Pablo: “La persecuzione dei crimini internazionali in Argentina”, in: Fornasari/Fronza (2009), pp. 264 ff.; Galain Palermo, Pablo: “La giustizia di transizione in Uruguay. Un conflitto senza soluzione”, in: idem, pp. 179 ff.; Millaleo (2006), pp. 138 ff. 61 Although, in contrast to what resulted from the Eichmann trial, without accepting the death penalty. 59

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lies, impunity, feelings of injustice, the demands to learn the truth, the victims’ demands for reparations, but principally, of all the consequences derived from the forced disappearances of individuals. To address the gravest violations against human rights, the Truth Commission is an ideal complement to penal justice, insofar as it allows a broader comprehension of penal justice, and includes reparations for the victims, which presents the possibility of finding agreements between victims and victimizers. A Truth Commission permits standardizing the venue for communication and understanding, without giving up Arendt’s insistence on the necessity to determine the specifics of the deeds objectively62. In this light, and relating to the fundamental question of this article, we argue that it is not politically appropriate, on the one hand, to apply the concept of radical Evil to the totalitarian states of the Southern Cone for the reasons given by Arendt63. On the other hand, the Truth Commission, as a means to knowledge and to deal with the past, should contribute to a moral justice against the offenders and offers a real basis (historical, contextualized) for establishing a kind of justice that may result in a guarantee that such actions will not be repeated. As earlier stated, only if they remain open to society, and their institutional setting is not affected by political convenience, Truth Commissions may enable societies to transition towards a democratic space in which, individual responsibility might be recognized. The recognition of individual liberty may lead to the creation of a common world in the future. In sum, it will be this individual responsibility based on human (political) liberty that may permit that “starting over again” demanded by Arendt in the origins of totalitarianism.

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But note that a Truth Commission may not give a result in the form of a unique version or an official version. 63 In the first place, because, as we have explained, absolute evil is not defined by anything except itself, and it thwarts any effort to understand it, and in addition, to deny all context or conditioning impedes the fixing of responsibilities. Finally, from a strictly Kantian perspective, radical evil may not be attributed to the criminals of the Southern Cone for the simple reason that they always suggest to a logical perversion of the supreme Good: even the most atrocious crimes were carried out in defense of the homeland or nation, which is to say in opposition to the Kantian notion of unconditional duty as an exercise of autonomy.

List of Contributors Ambos, Kai: Professor at the Institute for Criminal Law and Criminal Justice of the University of Göttingen and Judge at the State Court Göttingen. Araújo, António de: Teaching Assistant Professor at the Faculty of Law of the University of Lisbon and Consultant in Political Matters at the Civil Office of the Cabinet of the President of the Republic. Galain Palermo, Pablo: Senior Researcher at the Max Planck Institute for Foreign and International Criminal Law in Freiburg. Galvão Teles, Miguel: Lawyer and member of the Permanent Court of Arbitration at The Hague. García Pascual, Cristina: Professor at the Institute of Human Rights of the University of Valencia. Garreaud, Álvaro: Marie Curie Fellow at the Max Planck Institute for Foreign and International Criminal Law in Freiburg. Guerra da Fonseca, Rui: Professor at the Faculty of Law of the University of Lisbon. La Torre, Massimo: Professor at the Faculty of Law of the University of Catanzaro and Visiting Professor at the School of Law of the University of Hull. Nogueira de Brito, Miguel: Professor at the Faculty of Law of the University of Lisbon and lawyer. Otero, Paulo: Professor at the Faculty of Law of the University of Lisbon. Palma, Maria Fernanda: Professor at the Faculty of Law of the University of Lisbon. Pereira Coutinho, Luís: Professor at the Faculty of Law of the University of Lisbon. Sá, Alexandre Franco de: Professor at the Faculty of Humanities of the University of Coimbra. Silva Dias, Augusto: Professor at the Faculty of Law of the University of Lisbon. Sousa Mendes, Paulo de: Professor at the Faculty of Law of the University of Lisbon and Head of the Legal Department of the Portuguese Competition Authority.