Chancellor Adenauer had foreseen embarrassment and voiced his apprehension that the trial would “stir up again all the horrors” and produce a new wave of anti-German feeling throughout the world, as indeed it did. During the ten months that Israel needed to prepare the trial, Germany was busy bracing herself against its predictable results by showing an unprecedented zeal for searching out and prosecuting Nazi criminals within the country. But at no time did either the German authorities or any significant segment of public opinion demand Eichmann's extradition, which seemed the obvious move, since every sovereign state is jealous of its right to sit in judgment on its own offenders. (The official position of the Adenauer government that this was not possible because there existed no extradition treaty between Israel and Germany is not valid; that meant only that Israel could not have been forced to extradite. Fritz Bauer, Attorney General of Hessen, saw the point and applied to the federal government in Bonn to start extradition proceedings. But Mr. Bauer's feelings in this matter were the feelings of a German Jew, and they were not shared by German public opinion; his application was not only refused by Bonn, it was hardly noticed and remained totally unsupported. Another argument against extradition, offered by the observers the West German government sent to Jerusalem, was that Germany had abolished capital punishment and hence was unable to mete out the sentence Eichmann deserved. In view of the leniency shown by German courts to Nazi mass murderers, it is difficult not to suspect bad faith in this objection. Surely, the greatest political hazard of an Eichmann trial in Germany would have been acquittal for lack of mens rea, as J. J. Jansen pointed out in the Rheinischer Merkur [August 11, 1961].)
There is another, more delicate, and politically more relevant, side to this matter. It is one thing to ferret out criminals and murderers from their hiding places, and it is another thing to find them prominent and flourishing in the public realm—to encounter innumerable men in the federal and state administrations and, generally, in public office whose careers had bloomed under the Hitler regime. True, if the Adenauer administration had been too sensitive about employing officials with a compromising Nazi past, there might have been no administration at all. For the truth is, of course, the exact opposite of Dr. Adenauer's assertion that only “a relatively small percentage” of Germans had been Nazis, and that a “great majority [had been] happy to help their Jewish fellow-citizens when they could.” (At least one German newspaper, the Frankfurter Rundschau, asked itself the obvious question, long overdue—why so many people who must have known, for instance, the record of the chief prosecutor had kept silent—and then came up with the even more obvious answer: “Because they themselves) The logic of the Eichmann trial, as Ben-Gurion conceived of it, with its stress on general issues to the detriment of legal niceties, would have demanded exposure of the complicity of all German offices and authorities in the Final Solution—of all civil servants in the state ministries, of the regular armed forces, with their General Staff, of the judiciary, and of the business world. But although the prosecution as conducted by Mr. Hausner went as far afield as to put witness after witness on the stand who testified to things that, while gruesome and true enough, had no or only the slightest connection with the deeds of the accused, it carefully avoided touching upon this highly explosive matter—upon the almost ubiquitous complicity, which had stretched far beyond the ranks of Party membership. (There were widespread rumors prior to the trial that Eichmann had named “several hundred prominent personalities of the Federal Republic as his accomplices,” but these rumors were not true. In his opening speech, Mr. Hausner mentioned Eichmann's “accomplices in the crime who were neither gangsters nor men of the underworld,” and promised that we should “encounter them—doctors and lawyers, scholars, bankers, and economists—in those councils that resolved to exterminate the Jews.” This promise was not kept, nor could it have been kept in the form in which it was made. For there never existed a “council that resolved” anything, and the “robed dignitaries with academic degrees” never decided on the extermination of the Jews, they only came together to plan the necessary steps in carrying out an order given by Hitler.) Still, one such case was brought to the attention of the court, that of Dr. Hans Globke, one of Adenauer's closest advisers, who, more than twenty-five years ago, was co-author of an infamous commentary on the Nuremberg Laws and, somewhat later, author of the brilliant idea of compelling all German Jews to take “Israel” or “Sarah” as a middle name. But Mr. Globke's name—and only his name—was inserted into the District Court proceedings by the defense, and probably only in the hope of “persuading” the Adenauer government to start extradition proceedings. At any rate, the former Ministerialrat of the Interior and present Staatssekretär in Adenauer's Chancellery doubtless had more right than the ex-Mufti of Jerusalem to figure in the history of what the Jews had actually suffered from the Nazis.
For it was history that, as far as the prosecution was concerned, stood in the center of the trial. “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.” This was the tone set by Ben-Gurion and faithfully followed by Mr. Hausner, who began his opening address (which lasted through three sessions) with Pharaoh in Egypt and Haman's decree “to destroy, to slay, and to cause them to perish.” He then proceeded to quote Ezekiel: “And when I [the Lord] passed by thee, and saw thee polluted in thine own blood, I said unto thee: In thy blood, live,” explaining that these words must be understood as “the imperative that has confronted this nation ever since its first appearance on the stage of history.” 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. A few sessions later, when Professor Salo W. Baron of Columbia University had testified to the more recent history of Eastern European Jewry, Dr. Servatius could no longer resist temptation and asked the obvious questions: “Why did all this bad luck fall upon the Jewish people?” and “Don't you think that irrational motives are at the basis of the fate of this people? Beyond the understanding of a human being?” Is not there perhaps something like “the spirit of history, which brings history forward… without the influence of men?” Is not Mr. Hausner basically in agreement with “the school of historical law”—an allusion to Hegel—and has he not shown that what “the leaders do will not always lead to the aim and destination they wanted?… Here the intention was to destroy the Jewish people and the objective was not reached and a new flourishing State came into being.” The argument of the defense had now come perilously close to the newest anti-Semitic notion about the Elders of Zion, set forth in all seriousness a few weeks earlier in the Egyptian National Assembly by Deputy Foreign Minister Hussain Zulficar Sabri: Hitler was innocent of the slaughter of the Jews; he was a victim of the Zionists, who had “compelled him to perpetrate crimes that would eventually enable them to achieve their aim—the creation of the State of Israel.” Except that Dr. Servatius, following the philosophy of history expounded by the prosecutor, had put History in the place usually reserved for the Elders of Zion.
Despite the intentions of Ben-Gurion and all the efforts of the prosecution, there remained an individual in the dock, a person of flesh and blood; and if Ben-Gurion did “not care what verdict is delivered against Eichmann,” it was undeniably the sole task of the Jerusalem court to deliver one.
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II: The Accused
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Otto Adolf, son of Karl Adolf Eichmann and Maria née Schefferling, caught in a suburb of Buenos Aires on the evening of May 11, 1960, flown to Israel nine days later, brought to trial in the District Court in Jerusalem on April 11, 1961, stood accused on fifteen counts: “together with others” he had committed crimes again
st the Jewish people, crimes against humanity, and war crimes during the whole period of the Nazi regime and especially during the period of the Second World War. The Nazis and Nazi Collaborators (Punishment) Law of 1950, under which he was tried, provides that “a person who has committed one of these… offenses… is liable to the death penalty.” To each count Eichmann pleaded: “Not guilty in the sense of the indictment.”
In what sense then did he think he was guilty? In the long cross-examination of the accused, according to him “the longest ever known,” neither the defense nor the prosecution nor, finally, any of the three judges ever bothered to ask him this obvious question. His lawyer, Robert Servatius of Cologne, hired by Eichmann and paid by the Israeli government (following the precedent set at the Nuremberg Trials, where all attorneys for the defense were paid by the Tribunal of the victorious powers), answered the question in a press interview: “Eichmann feels guilty before God, not before the law,” but this answer remained without confirmation from the accused himself. The defense would apparently have preferred him to plead not guilty on the grounds that under the then existing Nazi legal system he had not done anything wrong, that what he was accused of were not crimes but “acts of state,” over which no other state has jurisdiction (par in parem imperium non habet), that it had been his duty to obey and that, in Servatius' words, he had committed acts “for which you are decorated if you win and go to the gallows if you lose.” (Thus Goebbels had declared in 1943: “We will go down in history as the greatest statesmen of all times or as their greatest criminals.”) Outside Israel (at a meeting of the Catholic Academy in Bavaria, devoted to what the Rheinischer Merkur called “the ticklish problem” of the “possibilities and limits in the coping with historical and political guilt through criminal proceedings”), Servatius went a step farther, and declared that “the only legitimate criminal problem of the Eichmann trial lies in pronouncing judgment against his Israeli captors, which so far has not been done”—a statement, incidentally, that is somewhat difficult to reconcile with his repeated and widely publicized utterances in Israel, in which he called the conduct of the trial “a great, spiritual achievement,” comparing it favorably with the Nuremberg Trials.
Eichmann's own attitude was different. First of all, the indictment for murder was wrong: “With the killing of Jews I had nothing to do. I never killed a Jew, or a non-Jew, for that matter —I never killed any human being. I never gave an order to kill either a Jew or a non-Jew; I just did not do it,” or, as he was later to qualify this statement, “It so happened… that I had not once to do it”—for he left no doubt that he would have killed his own father if he had received an order to that effect. Hence he repeated over and over (what he had already stated in the so-called Sassen documents, the interview that he had given in 1955 in Argentina to the Dutch journalist Sassen, a former S.S. man who was also a fugitive from justice, and that, after Eichmann's capture, had been published in part by Life in this country and by Der Stern in Germany) that he could be accused only of “aiding and abetting” the annihilation of the Jews, which he declared in Jerusalem to have been “one of the greatest crimes in the history of Humanity.” The defense paid no attention to Eichmann's own theory, but the prosecution wasted much time in an unsuccessful effort to prove that Eichmann had once, at least, killed with his own hands (a Jewish boy in Hungary), and it spent even more time, and more successfully, on a note that Franz Rademacher, the Jewish expert in the German Foreign Office, had scribbled on one of the documents dealing with Yugoslavia during a telephone conversation, which read: “Eichmann proposes shooting.” This turned out to be the only “order to kill,” if that is what it was, for which there existed even a shred of evidence.
The evidence was more questionable than it appeared to be during the trial, at which the judges accepted the prosecutor's version against Eichmann's categorical denial—a denial that was very ineffective, since he had forgotten the “brief incident [a mere eight thousand people] which was not so striking,” as Servatius put it. The incident took place in the autumn of 1941, six months after Germany had occupied the Serbian part of Yugoslavia. The Army had been plagued by partisan warfare ever since, and it was the military authorities who decided to solve two problems at a stroke by shooting a hundred Jews and Gypsies as hostages for every dead German soldier. To be sure, neither Jews nor Gypsies were partisans, but, in the words of the responsible civilian officer in the military government, a certain Staatsrat Harald Turner, “the Jews we had in the camps [anyhow]; after all, they too are Serb nationals, and besides, they have to disappear” (quoted by Raul Hilberg in The Destruction of the European Jews, 1961). The camps had been set up by General Franz Böhme, military governor of the region, and they housed Jewish males only. Neither General Böhme nor Staatsrat Turner waited for Eichmann's approval before starting to shoot Jews and Gypsies by the thousand. The trouble began when Böhme, without consulting the appropriate police and S.S. authorities, decided to deport all his Jews, probably in order to show that no special troops, operating under a different command, were required to make Serbia judenrein. Eichmann was informed, since it was a matter of deportation, and he refused approval because the move would interfere with other plans; but it was not Eichmann but Martin Luther, of the Foreign Office, who reminded General Bohme that “In other territories [meaning Russia] other military commanders have taken care of considerably greater numbers of Jews without even mentioning it.” In any event, if Eichmann actually did “propose shooting,” he told the military only that they should go on doing what they had done all along, and that the question of hostages was entirely in their own competence. Obviously, this was an Army affair, since only males were involved. The implementation of the Final Solution in Serbia started about six months later, when women and children were rounded up and disposed of in mobile gas vans. During cross-examination, Eichmann, as usual, chose the most complicated and least likely explanation: Rademacher had needed the support of the Head Office for Reich Security, Eichmann's outfit, for his own stand on the matter in the Foreign Office, and therefore had forged the document. (Rademacher himself explained the incident much more reasonably at his own trial, before a West German court in 1952: “The Army was responsible for order in Serbia and had to kill rebellious Jews by shooting.” This sounded more plausible but was a lie, for we know—from Nazi sources—that the Jews were not “rebellious.”) If it was difficult to interpret a remark made over the phone as an order, it was more difficult to believe that Eichmann had been in a position to give orders to the generals of the Army.
Would he then have pleaded guilty if he had been indicted as an accessory to murder? Perhaps, but he would have made important qualifications. What he had done was a crime only in retrospect, and he had always been a law-abiding citizen, because Hitler's orders, which he had certainly executed to the best of his ability, had possessed “the force of law” in the Third Reich. (The defense could have quoted in support of Eichmann's thesis the testimony of one of the best-known experts on constitutional law in the Third Reich, Theodor Maunz, currently Minister of Education and Culture in Bavaria, who stated in 1943 [in Gestalt und Recht der Polizei]: “The command of the Führer… is the absolute center of the present legal order.”) Those who today told Eichmann that he could have acted differently simply did not know, or had forgotten, how things had been. He did not want to be one of those who now pretended that “they had always been against it,” whereas in fact they had been very eager to do what they were told to do. However, times change, and he, like Professor Maunz, had “arrived at different insights.” What he had done he had done, he did not want to deny it; rather, he proposed “to hang myself in public as a warning example for all anti-Semites on this earth.” By this he did not mean to say that he regretted anything: “Repentance is for little children.” (Sic!)
Eichmann in Jerusalem: A Report on the Banality of Evil Page 5
