Mens Rea in International Criminal Law: A Look at Eichmann’s Responsibility in the Light of Kant and Arendt

This chapter engages with the question of mens rea, one of the two constitutive elements of responsibility (next to actus reus) in international criminal law, analysing it in light of the philosophies of Immanuel Kant and Hannah Arendt, with a specific focus on the case of Adolf Eichmann, the Nazi criminal who orchestrated the deportations to concentration and extermination camps during the Second World War. On the one hand, from the perspective of Kant’s philosophy, we are considered responsible for our choices when they are freely made. According to Kant, our choices are free when we have the capacity to choose between moral and immoral incentives. This chapter understands this principle as meaning that the higher the proportion of immoral to moral incentives, the lower our capacity for free choice, and thus the lesser our responsibility. On the other hand, Arendt, in her Eichmann in Jerusalem: A Report on the Banality of Evil, claims Eichmann had no motives at all and that he never realised what he was doing. She argues that “it was sheer thoughtlessness” (Arendt, Eichmann in Jerusalem: a report on the banality of evil. Penguin Books, New York, 2006, p. 287). In light of this argument, she justifies his condemnation based solely on what he did, the actus reus. The aims of this chapter are threefold. First, it looks for complementarities between Kant and Arendt that can enhance our understanding of the concept of “responsibility.” Kant’s philosophy can shed light on the grounds on which we hold someone responsible, while Arendt’s approach can justify exempting someone from responsibility if he/she is considered “thoughtless.” Second, based on the vast amount of literature on this topic, the chapter highlights different perspectives on Eichmann’s responsibility, ranging from those who, with Arendt, argue he was “thoughtless” to those who consider that he did realise the wrongfulness of his acts. The chapter then advances an interpretation that takes into account the requirements of both mens rea and actus reus. The third aim of this chapter is to outline some avenues for future research in light of the challenges we face with mens rea in international criminal law today, in particular the difficulties in assessing responsibilities in cultural heritage destruction cases.