Some theorists have found support for this position by explicating the core idea of “humanity” contained in the term “crimes against humanity.” Already at Nuremberg we find jurists who parsed the term as referring to a collective ideal of humanity against those who understood it as referencing a basic notion of humaneness. This ambiguity found its way into official translations prepared by the IMT: German documents at times refer to Menschlichkeit (humaneness) and at others to Menschheit (humanity). Yet, since Nuremberg, the conceptual shift has been clear. Hannah Arendt famously parsed the crime against humanity as a vindication of the interests of Menschheit, understanding the crime as an assault on the human status as such. More recently, David Luban has attempted to identify the crime as, at its core, an attack on the human status as a political animal. Since Nuremberg, then, the trend has been to understand supranational crimes as protecting not the interests of nation-states but of humanity as a whole.

Our three supranational crimes – crimes against humanity, genocide, and war crimes – are extraordinary in another sense. It is no exaggeration to say that they explode law’s spatio-temporal coordinates. Most crimes tend to be controlled by a statute of limitations, but with the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity of 1968, the international legal community agreed that these supranational crimes should not be controlled by a prescriptive period. Thus, as was the case with Maurice Papon, the former Vichy official and French Minister of Finance who was convicted of complicity in crimes against humanity in 1998 (and who died earlier this year), prosecutors are authorized to pursue perpetrators a half century after the commission of their crimes.

More remarkable still is the spatial dimension. Recent conferences commemorating the sixtieth anniversary of the IMT trial champion Nuremberg as the great innovation in international criminal law; the Adolf Eichmann trial, by contrast, tends to be seen as an important social and cultural event, but not as a particularly important precedent in the development of international law. While fair in its general terms, this conventional wisdom presupposes a strict, and in my mind, untenable, separation between the legal and the cultural meaning of a trial. More to the point, it overlooks a crucial legal legacy of the Eichmann trial – its jurisdictional profile. The Eichmann court established jurisdiction over the accused through an extremely unorthodox reading of the principle of passive personality, the idea that a state can claim jurisdiction over criminal acts in which its nationals count among the victims. Here, the Israeli court claimed that the victims of the Holocaust were would-be citizens of Israel, an argument that overlooked the fact that the state might never have been established but for the horrific crime. More radically, the court relied on a theory of universal jurisdiction, that is, jurisdiction conferred exclusively by the nature of the crime. Here again, the idea is that supranational crimes are so extreme as to authorize any court, anywhere to sit in judgment on alleged perpetrators. In the decades following the Eichmann trial, universal jurisdiction seemed to be little more than a moribund juridical curiosity, only to experience a remarkable revival with the Pinochet affair, and with the prosecution of Serbs in Germany for atrocities in the Balkans and Rwandans in Belgium for genocide.

The Problem of Punishment

Law’s contact with atrocity has thus led to the articulation of supranational crimes that explode law’s spatio-temporal dimensions. These conceptual innovations have been matched by a remarkable commitment of institutional resources. The ICTY currently has a staff of 1,100 and an annual budget of a quarter of a billion US dollars. The fledgling International Criminal Court (ICC) has yet to stage a single trial, but already has a staff of 600 and an annual budget of 90 million Euros. But what is the purpose behind these extraordinary acts of the legal imagination and of institutional will? If the answer appears self-evident – to put an end to impunity for perpetrators of atrocity and to bring them to justice – then this response only begs the question. For what does it mean to bring a perpetrator of atrocity to justice? Again, the answer might appear obvious: justice demands placing a perpetrator on trial, and in cases in which guilt has been established beyond a reasonable doubt, putting the perpetrator in prison. But here I share the concerns of scholars, notably Mark Drumbl, who have located a troubling disconnect between the radical and creative efforts to gain legal dominion over acts of atrocity and the deeply conventional outcome of the process: incarceration. This disconnect becomes more troubling when we recall that the theory of penology does not defend incarceration as an end unto itself; it has certain instrumental justifications and is intended to serve broad societal purposes. How well do these purposes serve the ends of doing justice to crimes of atrocity?

American prisons are today referred to as correctional institutions and at least nominally, most institutions are designed to reform, rehabilitate, and correct. But however fanciful that goal may be in the case of common criminals, it plays virtually no role in the literature on the punishment of perpetrators of supranational crimes. Whatever we hope to gain by incarcerating perpetrators, it is not their reform. If taking them out of circulation were the only purpose, it is far from clear that a political solution like the one that sent Napoleon to his island retreat, or Idi Amin to Saudi Arabia, or Baby Doc Duvalier to the Cote d’Azur, would not be equally efficacious.

Then, of course, there is the goal of deterrence. Deterrence is specifically mentioned as a goal in the statute of the ICC as well as in the charters of the Yugoslav and Rwandan tribunals. Whether the trial and incarceration of perpetrators of supranational crimes serves the ends of deterrence remains, however, an open question. It seems dreadfully obvious that the Nuremberg and Eichmann trials did little to deter Pol Pot, and that the work of the ICTY and ICTR has done little to put a brake on genocide in Darfur. This might simply be a consequence of the fact that perpetrator prosecutions have until now been extremely rare and anomalous events, and as the institutions of supranational justice gain greater traction, the deterrent effects will become more visible. But even this seems highly questionable. Deterrence as a justification for punishment remains, then, almost entirely speculative and aspirational.