Then there is the retributive function of punishment. But here again we run into problems that have vexed all perpetrator trials. At the time of the Nuremberg trial, Hannah Arendt wrote to Karl Jaspers, “For these crimes, no punishment is severe enough.” If retribution is anchored in some notion of proportionality, no punishment would seem proportional to crimes of atrocity. This identical concern surfaced at the time of the Eichmann trial. In his summation before the court, Israeli Attorney General and lead prosecutor Gideon Hausner openly acknowledged the inadequacy of even the most extreme punishment for Eichmann’s atrocities, conceding, “It is not always possible to apply a punishment which fits the enormity of the crime.” If these issues plagued debates about the imposition of the death penalty, they apply with only greater vigor in the case of the ICC whose maximum sanction is generally set at thirty years imprisonment. Actors associated with the ICTY have likewise expressed concerns about the unseemliness of sentencing a convicted perpetrator of crimes against humanity to, say, eleven years in prison. This is not to say that the death penalty would better satisfy the retributive goals of perpetrator prosecutions, but it does drive home the notion that no matter how severe the penalty, retribution necessarily provides a weak justification for the prosecution of perpetrators of extreme atrocities.

Expressive Punishment and the Didactic Trial

This then leaves the expressive purpose of punishment. In my mind, this is the most compelling and perhaps the most under-theorized reason to punish supranational crimes. The expressive function implicitly recognizes that punishing perpetrators is in the first instance a symbolic, declarative act, one that is closely associated with the didactic purpose of the perpetrator trial. As I argue in my book The Memory of Judgment , the perpetrator trial can serve two central didactic ends: First, it can serve as a tool of political-legal legitimation by making visible the sober operation of the rule of law. Second, it can serve the ends of history and memory. In this latter respect, it can play a powerful role in clarifying a history of horror often obscured in rumor, denial, and silence; it can establish a baseline account that may serve the interests of transition; and it can confer public recognition upon the memories of survivors and honor upon the memory of victims. Certainly, my defense of the didactic trial is not uncontroversial. But if we agree that the punishment of perpetrators bears an uncertain relationship to correction, retribution, and deterrence, then we might be all the more prepared to accept the trial as an expressive, didactic exercise. Indeed, we might go further still and insist that legal didactics are a necessary feature of the justificatory logic of any jurisprudence of atrocity.

My position challenges the views of those, such as Arendt and Luban, who understand the prosecution of supranational crimes as vindicating the interests of humanity writ large. In the last pages of Eichmann in Jerusalem, Arendt clearly locates a universalist message in the punishment of the condemned SS officer. In my view, however, the trial of perpetrators of atrocity should push in precisely the opposite direction. By using the prosecution of perpetrators as a tool for clarifying contested history and defining the terms of collective memory, the didactic trial ties the crimes of atrocity to the experiences of specific communities. Seen in this light, prosecuting supranational crimes attends less to the interests of abstract humanity than it seeks to contribute to the repair of the violated bodies and spirits of members of definable groups and communities.

Moreover, I would insist that my defense of trial didactics is faithful to the underlying theory of the supranational crime. Here I take issue with those theorists who parse crimes against humanity and genocide as offenses against the human status (pace Arendt) or against the political animal (pace Luban). Against these universalists, I would insist that supranational crimes are, in their essence, crimes against plurality, directed against identifiable groups and communities. This is clearest in the crime of genocide, which, by definition, criminalizes behavior directed toward the destruction of a group qua group. But a similar observation may be made about crimes against humanity. Certainly, that subset of crimes against humanity which deals with persecution-type offenses presupposes that those crimes will be directed against persons by virtue of their inclusion in groups or communities, be they defined in terms of race, ethnicity, religion, or political beliefs.

Having located a basic affinity between the nature of the supranational crime – as a foundational attack on collective existence of groups and communities – and the expressive function of the trial as a didactic tool in the service of history and memory, we may ask what turns on this insight. Given her belief that Eichmann’s crimes were an affront to humanity writ large, Arendt understandably insisted that Eichmann’s trial should have been removed to an international court. Indeed, the failure to try Eichmann before an international tribunal constituted in Arendt’s mind the greatest shortcoming of the Jerusalem trial. Yet, history has surely proven her wrong. If anything, the Eichmann trial powerfully succeeded as a didactic event precisely because it was staged in Israel. The intimate connections between perpetrator, place, and public that made the Eichmann proceeding such a powerful didactic drama—not simply in Israel, but in Germany, the United States, and across the globe—would surely have been lost in an international trial. This is not meant to indict the work of international courts. Yet, it does support the jurisprudential theory that undergirds the ICC, a theory that sits uncomfortably with universalists such as Arendt: that international courts should function as courts of last resort. In the crucial effort to submit acts of atrocity to legal judgment, the international law should strive to respect the intimate connections between proceeding, place and public that give legal judgments potency and meaning.