The Eichmann Trial

by Deborah E. Lipstadt

  By the 1960s, the number of Jews and Jewish organizations in the Diaspora who thought that the existence of a Jewish state would compromise their own status as citizens of the countries in which they lived had diminished markedly. In the intervening years since the creation of the state, they had grasped that the existence of Israel did not threaten their political status. Nonetheless, some Diaspora Jews were still sensitive to any Israeli actions that might suggest to non-Jews that Israel was acting or speaking on behalf of Jews who were not its citizens. Eichmann’s capture and, even more so, Ben-Gurion’s comments to The New York Times left them uneasy. Not surprisingly, some of the most vituperative criticism came from Jews who had found a comfortable home in the highest reaches of the non-Jewish world. Harvard professor Oscar Handlin was an expert on immigration who had written a book on Jews in America—a topic not generally addressed by Harvard faculty in the 1950s. In a speech at Harvard and in subsequent articles, he lashed out at Israel’s actions, denigrating the forthcoming trial as an “act of revenge in satisfaction of the private offense.” Ignoring the fact that Eichmann had escaped from a POW camp, entered Argentina under an alias, and lived clandestinely in the country, he accused Israel of violating Eichmann’s “right of refuge” with its “underhand[ed] kidnapping.” For over a century, Handlin contended, Western liberal societies had opposed pogroms and attacks on Jews because they believed Jews shared with them “a common stake in human decency.” This principle, which animated Jewish life in the West, was threatened by the kidnapping. There were certainly legal problems associated with Israel’s kidnapping, but Handlin’s juxtaposition of Eichmann’s “right of refuge” with Israel’s “underhand[ed]” actions and description of the Holocaust as a “private offense” are astonishing. More stupefying, however, is that, but fifteen years after millions of Jews had been murdered when most Western nations had barred them entry, he waxed rhapsodic about the West’s conviction that it shared with Jews a “common stake in human decency.” Handlin seemed oblivious that during the war, as Saul Friedländer has observed, “not one social group, not one religious community, no scholarly institution or professional association in Germany and throughout Europe declared its solidarity with the Jews.” Predictably, Rabbi Elmer Berger, the leader of the anti-Zionist American Council for Judaism, described the trial as a “Zionist declaration of war” against American Jews’ claim to equal citizenship. Psychologist and anti-Zionist Erich Fromm, writing in the anti-Zionist Jewish Newsletter, seemed to have lost any sense of perspective when he claimed that Israel’s action was an “act of lawlessness of exactly the type of which the Nazis themselves … have been guilty.”15

  These anti-Zionist reactions were predictable. The reactions by some Zionists were less so. Nahum Goldmann, the president of the World Zionist Organization, suggested that an Israeli chief judge preside but that foreign jurists serve on the tribunal. Ben-Gurion considered Goldmann’s critique a public slap at Israel’s sovereignty and its judges’ impartiality. Leveling the criticism the prime minister so often used when Jews questioned Israel’s actions, he accused Goldmann of having “an inferiority complex.” One must place this particular spat within its context. These men, both with oversized egos, had long sparred with each other. Ben-Gurion considered Goldmann a hypocrite for leading a Zionist organization but not settling in Israel. Goldmann resented Ben-Gurion’s attempt as prime minister of Israel to speak for all the Jewish people.

  Even more troublesome for Ben-Gurion was the response of certain American Jews. He knew he could depend on American Zionists to support any decision he made. The group he had to woo was the American Jewish Committee (AJC). Ben-Gurion believed the AJC, with its wealthy, establishment members, was best positioned to influence American foreign policy. Though not a Zionist organization, it considered Israel a Jewish cultural, historical, and spiritual entity. It had become a proponent of a Jewish state during World War II, when it saw Jews abandoned to their fate. Nonetheless the AJC remained wary about any action on Israel’s part that might raise doubts about Jews’ loyalty to America. In 1948, when AJC leaders saw a proposed draft of the Israeli declaration of independence, they urged that references to “the Jewish State” be replaced by “the State of Israel.” (They were not replaced.) In 1950, AJC president Jacob Blaustein, in an effort to assuage growing tensions between AJC leaders and the new state, flew to Israel to meet Ben-Gurion. In an exchange of letters, they agreed that “the people of Israel have no desire and no intention to interfere in any way in the internal affairs of Jewish communities abroad,” and that the Israeli government would not in any way “undermine the sense of security and stability of American Jewry.” Despite this agreement, differences continued to percolate. They had surfaced a few months before Eichmann’s capture, during a rash of anti-Semitic incidents in Europe and the Americas. Israel’s Foreign Ministry sent notes to its counterparts, including the United States State Department, describing itself as “sensitive and alert to anything that affects our brethren.” The AJC condemned this as interference in American Jews’ domestic matters. They pointedly informed Israel that they felt entirely capable of handling this issue without its intervention. But this was not the only development that troubled AJC leaders. In March 1960, General Moshe Dayan had stated in a speech in Canada that Israel represented the rights of “all Jews.” A few weeks thereafter, Golda Meir told a delegation of the Anglo-Jewish Association that Israel would “continue to speak for Jewry.”16

  Now, with Ben-Gurion justifying Israel’s right to try Eichmann because it was the Jewish state, the question “Who speaks for the Jewish people?” assumed newfound relevance. With a trial in the offing, this debate might well be played out on an international stage, something Diaspora Jewish leaders feared greatly. Joseph Proskauer, a former AJC president, sent Ben-Gurion a private letter articulating these concerns. He urged Ben-Gurion to turn Eichmann over to Germany or an international tribunal. Ben-Gurion responded by drawing a direct line between the Holocaust and the State of Israel. Acknowledging that while Israel could not speak in the name of all Jews, he argued that it must speak for the victims of the Holocaust because they believed “with every fiber of their being that they belonged to a Jewish people.” In truth, many of the victims believed no such thing. For Ben-Gurion, however, this was utterly immaterial. To buttress his argument, Proskauer had sent Ben-Gurion The Washington Post editorial that attacked Israel’s claim that it could “act in the name of some imaginary Jewish ethnic identity.” Ben-Gurion knew that the paper’s former owner, Eugene Meyer, had been an ardent anti-Zionist. His daughter, Katharine, was unaware that her father was Jewish until her classmates at Vassar asked her about having “Jewish blood.” Who, Ben-Gurion wondered, gave the Post the authority to determine whether there was a Jewish ethnic identity?17

  As part of their continuing effort to stop Israel from holding the trial, AJC leaders met with Golda Meir to inform her that they had “arrived at a consensus” that the trial should not be in Israel. Though they did not doubt that Eichmann would get a fair trial, they feared that an Israeli trial would obscure the fact that Nazism was the enemy of mankind, and that Eichmann had committed “unspeakable crimes against humanity, not only against Jews.” This objection was sure to win no sympathy from Ben-Gurion, Meir, or other Israeli leaders. Meir dismissed their objections by recalling the world’s indifference to Jewish suffering during the Holocaust and its lack of interest in finding the criminals afterward. Still hoping to effect a change in Israel’s plans, the AJC convened a group of prominent judges and lawyers. They suggested that Israel conduct the investigation and then hand Eichmann and any evidence it had gathered to an international tribunal. Israel summarily rejected this idea.18 As the complaints mounted, Ben-Gurion’s patience—never his strong suit—grew short, as was evidenced in an interview he gave to E. A. Bayne of the American Universities Field Staff. Bayne suggested that it might be best if Eichmann was not tried in Israel. Ben-Gurion exploded: “You think that we should
not try Eichmann? You are a Jew? An American Jew?” When Bayne indicated he was not, Ben-Gurion continued: “I thought only an American Jew would question our right to try Eichmann.…”19

  A few months later, AJC leaders, aware that they had lost the battle over the trial’s venue, tried to get Israeli officials at least to reformulate their statements about the Final Solution. They traveled to Jerusalem, where they told government leaders that Israel’s public comments about the trial should stress that not only Jews but also Germans had suffered severely because of Eichmann and the Nazis’ actions. The AJC leaders also suggested that Israel cast its comments about the Holocaust in universal terms. The Americans explained that when synagogues were bombed they spoke to the press in “broader terms” and referred to them as “houses of worship” in order to overcome non-Jews’ indifference. Israel should do the same and stop “harping constantly on the identity of the deceased Jews.”20 One can imagine Ben-Gurion’s reaction. These Jews trumpeted their complete acceptance into American society, but when their synagogues were bombed precisely because they were Jewish institutions, they fell back on the generic “houses of worship” and avoided identifying the victims as Jews. In fact, one need not imagine Ben-Gurion’s reaction. He expressed it quite explicitly at the meeting of the World Zionist Congress. Ben-Gurion, still bristling at the American Jewish leaders’ suggestions that he downplay Jewish suffering during the Final Solution, declared that the “Judaism of Jews of the United States is losing all meaning and only a blind man can fail to see the day of its extinction.” Jews living outside of Israel faced “the kiss of death and the slow … decline into the abyss of assimilation.” All Jews, he announced, belonged in Israel. As a result of his comments, the already shaky relations between Israel and American non-Zionists almost imploded. The AJC immediately charged him with violating the Blaustein understanding. Eventually, in an attempt to keep relations from completely disintegrating, Blaustein met with Ben-Gurion and convinced him to offer “strong official reaffirmation” of their agreement that Israel did not see itself as speaking for or acting on behalf of all Jews.21

  Long before the court was called to order, it was evident that, in addition to Adolf Eichmann’s crimes, many other issues would be in the docket.

  3

  Israel needed to consider far more than the anxieties of American Jews in preparing the trial. There remained essential practical issues that needed to be resolved. Who would judge, prosecute, and defend Eichmann? These constituted far more than just administrative hurdles. Given the extensive critique of its actions, Israel had to demonstrate that it could guarantee Eichmann a fair hearing.

  Gideon Hausner, an accomplished commercial lawyer with no expertise in criminal law or courtroom procedure, had recently become attorney general. Though many Israelis hoped he would appoint an experienced prosecutor, he insisted on taking the job. Finding a defense attorney was far trickier. Unless Eichmann had good legal representation, Israel could not affirm that this trial was just. Yet could an Israeli defend a man who had a distinct role in the murder of millions of his fellow Jews? Many Israeli lawyers thought they could not. It would be wrong, one Israeli observed, to appoint an attorney who preferred to be prosecutor. But some Israeli lawyers, in the interests of ensuring that the accused received a fair hearing, volunteered to take the task. Officials at the Ministry of Justice feared that Israeli lawyers who defended Eichmann would be placing themselves in danger. Israeli officials worried that someone, particularly a person who had lost family members, might find it exceptionally difficult to differentiate between the accused and the person defending him. Foreign lawyers also volunteered. Most, however, were either neo-Nazis, incompetent, or both. Matters seemed to be at a standstill until the Eichmann family recommended Robert Servatius, who had been a defense attorney at Nuremberg but had never joined the Nazi Party. Servatius was not a member of the Israeli bar and could not therefore participate in a legal proceeding. The Knesset resolved this by passing a law authorizing a lawyer who was not a member of the Israeli bar to participate in a capital trial. Then the Eichmann family claimed it could not afford Servatius’s fee, which was the equivalent of thirty thousand dollars. Generally West Germany paid the defense costs of its citizens who were tried for war crimes in foreign courts. This time it refused, ostensibly because Eichmann had fled Germany and hidden from prosecution. By so doing, Germany reasoned, he had renounced his right to call upon the country for assistance. In all likelihood, it also refused because it was anxious to keep this defendant at the longest arm’s length possible. A German subvention of Eichmann’s legal costs might have suggested that his homeland supported him. Facing an impasse, Israel agreed to pay Servatius’s fees.

  That left the choice of the judicial tribunal to preside over the trial. According to Israeli law, the selection of judges should have been in the hands of Benjamin Halevi, the president of the Jerusalem district court, since that was where the trial would be held. Halevi, however, had presided in 1954 at the trial of Israel Kasztner, the Hungarian Jew who had negotiated with Eichmann to exchange Jews for trucks. This 1944 negotiation, known as “blood for goods,” resulted in the release of a trainful of seventeen hundred Jews. Some of its passengers were Kasztner’s relatives or wealthy Jews who had paid handsomely to secure a place on the train. Others were orphans, Satmar Hasidim, or people chosen by Hungarian authorities. Kasztner had also managed to have a large group of Jews sent to a labor camp, rather than Auschwitz, thereby saving many of them. After the war, some Hungarian Jews condemned Kasztner as an opportunist who had saved his family and lived a privileged life under the Nazis, but failed to alert Hungarian Jews to their fate. They charged that he knew what awaited those who boarded the trains to Auschwitz. Others, particularly those who had been on the Kasztner train, considered him a hero who had tried to alert Hungarian Jews and who managed to save more Jews than anyone else, including the much-lauded Oskar Schindler. After the war, he came to Israel, affiliated with the leading political party, Mapai, served as a government spokesman, and lived a relatively modest life. Then an elderly eccentric pamphleteer set his sights on him. Malchiel Gruenwald, a Hungarian Jew who immigrated to Palestine in 1938, regularly issued mimeographed diatribes attacking Israeli leaders, primarily those associated with Ben-Gurion and Mapai. In one of these sheets he described Kasztner as the “vicarious murderer” of five hundred thousand Hungarian Jews, including the fifty-eight members of his immediate family. He also condemned the Zionist leadership in the Yishuv, the pre-state Palestinian Jewish community, for failing to rescue Jews during the war. The government sued Gruenwald for libeling one of its employees. Gruenwald hired Shmuel Tamir, who during that period had been a member of the Irgun, Menachem Begin’s resistance group. Ben-Gurion and Begin were and remained arch enemies. Despite the fact that Gruenwald was the defendant, Tamir deftly turned the tables by claiming that Kasztner and the Jewish Councils, which were created by the Nazis to administer Jewish life in the ghettos, were guilty of collaboration. He also attacked Ben-Gurion and his associates who constituted the Zionist leadership in Palestine, accusing them of failing to rescue Hungarian Jewry. It became not a libel trial, but a trial of the victims. Rather than explicate what had happened during the Holocaust and give the public a sense of the overwhelming odds Jews had faced, the trial and Halevi’s judgment were condemnations of the victims, or at least one segment of them, for failing to save their fellow Jews. In essence, it reinforced a long-standing Israeli perception that Holocaust survivors had done something untoward in order to preserve their lives. Judge Halevi promoted that view when his judgment exonerated Gruenwald and declared that Kasztner, by negotiating with Eichmann, had “sold his soul to the devil.” Halevi’s decision was eventually reversed by the Supreme Court, but not before Kasztner was assassinated outside his Tel Aviv home.

  The possibility that the presiding judge in Eichmann’s trial would be someone who had already declared him Satan worried many people. The proceedings might appea
r to be tainted from the outset. Many jurists and politicians, including the chief justice of the High Court of Justice, implored Halevi to step aside. Halevi refused, on the grounds that the opposition against him was rooted not in his statements about Eichmann, but in the government leaders’ fears that he might allow the trial to become a forum for renewed criticism of their behavior during the war.1 Once again the Knesset stepped in with a compromise law that stipulated that in capital cases a High Court judge should preside. That judge would be joined by two district-court judges, both of whom would be appointed by the president of the district court in which the trial was to be held. This allowed Halevi to participate but not to preside. High Court Judge Moshe Landau was named presiding judge. Halevi named himself and Judge Yitzhak Raveh as the two other members of the tribunal. All three were German Jews who had received their law degrees in Europe prior to immigrating to Palestine. Despite the controversy surrounding their appointment, they would win almost universal acclaim, even from the trial’s severest critics.