It is essentially for this reason: that the unprecedented, once it has appeared, may become a precedent for the future, that all trials touching upon “crimes against humanity” must be judged according to a standard that is today still an “ideal.” If genocide is an actual possibility of the future, then no people on earth—least of all, of course, the Jewish people, in Israel or elsewhere—can feel reasonably sure of its continued existence without the help and the protection of international law. Success or failure in dealing with the hitherto unprecedented can lie only in the extent to which this dealing may serve as a valid precedent on the road to international penal law. And this demand, addressed to the judges in such trials, does not overshoot the mark and ask for more than can reasonably be expected. International law, Justice Jackson pointed out at Nuremberg, “is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act…. Our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law.” What Justice Jackson failed to point out is that, in consequence of this yet unfinished nature of international law, it has become the task of ordinary trial judges to render justice without the help of, or beyond the limitation set upon them through, positive, posited laws. For the judge, this may be a predicament, and he is only too likely to protest that the “single act” demanded of him is not his to perform but is the business of the legislator.
And, indeed, before we come to any conclusion about the success or failure of the Jerusalem court, we must stress the judges' firm belief that they had no right to become legislators, that they had to conduct their business within the limits of Israeli law, on the one side, and of accepted legal opinion, on the other. It must be admitted furthermore that their failures were neither in kind nor in degree greater than the failures of the Nuremberg Trials or the Successor trials in other European countries. On the contrary, part of the failure of the Jerusalem court was due to its all too eager adherence to the Nuremberg precedent wherever possible.
In sum, the failure of the Jerusalem court consisted in its not coming to grips with three fundamental issues, all of which have been sufficiently well known and widely discussed since the establishment of the Nuremberg Tribunal: the problem of impaired justice in the court of the victors; a valid definition of the “crime against humanity”; and a clear recognition of the new criminal who commits this crime.
As to the first of these, justice was more seriously impaired in Jerusalem than it was at Nuremberg, because the court did not admit witnesses for the defense. In terms of the traditional requirements for fair and due process of law, this was the most serious flaw in the Jerusalem proceedings. Moreover, while judgment in the court of the victors was perhaps inevitable at the close of the war (to Justice Jackson's argument in Nuremberg: “Either the victors must judge the vanquished or we must leave the defeated to judge should be added the understandable feeling on the part of the Allies that they “who had risked everything could not admit neutrals” [Vabres]), it was not the same sixteen years later, and under circumstances in which the argument against the admission of neutral countries did not make sense.
As to the second issue, the findings of the Jerusalem court were incomparably better than those at Nuremberg. I have mentioned before the Nuremberg Charter's definition of “crimes against humanity” as “inhuman acts,” which were translated into German as Verbrechen gegen die Menschlichkeit—as though the Nazis had simply been lacking in human kindness, certainly the understatement of the century. To be sure, had the conduct of the Jerusalem trial depended entirely upon the prosecution, the basic misunderstanding would have been even worse than at Nuremberg. But the judgment refused to let the basic character of the crime be swallowed up in a flood of atrocities, and it did not fall into the trap of equating this crime with ordinary war crimes. What had been mentioned at Nuremberg only occasionally and, as it were, marginally—that “the evidence shows that… the mass murders and cruelties were not committed solely for the purpose of stamping out opposition” but were “part of a plan to get rid of whole native populations”—was in the center of the Jerusalem proceedings, for the obvious reason that Eichmann stood accused of a crime against the Jewish people, a crime that could not be explained by any utilitarian purpose; Jews had been murdered all over Europe, not only in the East, and their annihilation was not due to any desire to gain territory that “could be used for colonization by Germans.” It was the great advantage of a trial centered on the crime against the Jewish people that not only did the difference between war crimes, such as shooting of partisans and killing of hostages, and “inhuman acts,” such as “expulsion and annihilation” of native populations to permit colonization by an invader, emerge with sufficient clarity to become part of a future international penal code, but also that the difference between “inhuman acts” (which were undertaken for some known, though criminal, purpose, such as expansion through colonization) and the “crime against humanity,” whose intent and purpose were unprecedented, was clarified. At no point, however, either in the proceedings or in the judgment, did the Jerusalem trial ever mention even the possibility that extermination of whole ethnic groups—the Jews, or the Poles, or the Gypsies—might be more than a crime against the Jewish or the Polish or the Gypsy people, that the international order, and mankind in its entirety, might have been grievously hurt and endangered.
Closely connected with this failure was the conspicuous helplessness the judges experienced when they were confronted with the task they could least escape, the task of understanding the criminal whom they had come to judge. Clearly, it was not enough that they did not follow the prosecution in its obviously mistaken description of the accused as a “perverted sadist,” nor would it have been enough if they had gone one step further and shown the inconsistency of the case for the prosecution, in which Mr. Hausner wanted to try the most abnormal monster the world had ever seen and, at the same time, try in him “many like him,” even the “whole Nazi movement and anti-Semitism at large.” They knew, of course, that it would have been very comforting indeed to believe that Eichmann was a monster, even though if he had been Israel's case against him would have collapsed or, at the very least, lost all interest. Surely, one can hardly call upon the whole world and gather correspondents from the four corners of the earth in order to display Bluebeard in the dock. The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal. From the viewpoint of our legal institutions and of our moral standards of judgment, this normality was much more terrifying than all the atrocities put together, for it implied—as had been said at Nuremberg over and over again by the defendants and their counsels—that this new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong. In this respect, the evidence in the Eichmann case was even more convincing than the evidence presented in the trial of the major war criminals, whose pleas of a clear conscience could be dismissed more easily because they combined with the argument of obedience to “superior orders” various boasts about occasional disobedience. But although the bad faith of the defendants was manifest, the only ground on which guilty conscience could actually be proved was the fact that the Nazis, and especially the criminal organizations to which Eichmann belonged, had been so very busy destroying the evidence of their crimes during the last months of the war. And this ground was rather shaky. It proved no more than recognition that the law of mass murder, because of its novelty, was not yet accepted by other nations; or, in the language of the Nazis, that they had lost their fight to “liberate” mankind from the “rule of subhumans,” especially from the domination of the Elders of Zion; or, in ordinary language, it proved no more than the admission of defeat. Would any one of them have suf
fered from a guilty conscience if they had won?
Foremost among the larger issues at stake in the Eichmann trial was the assumption current in all modern legal systems that intent to do wrong is necessary for the commission of a crime. On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed. We refuse, and consider as barbaric, the propositions “that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal” (Yosal Rogat). And yet I think it is undeniable that it was precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with, and that they were, in fact, the supreme justification for the death penalty. Because he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate forever certain “races” from the surface of the earth, he had to be eliminated. And if it is true that “justice must not only be done but must be seen to be done,” the justice of what was done in Jerusalem would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms:
“You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it. But you said you had never acted from base motives, that you had never had any inclination to kill anybody, that you had never hated Jews, and still that you could not have acted otherwise and that you did not feel guilty. We find this difficult, though not altogether impossible, to believe; there is some, though not very much, evidence against you in this matter of motivation and conscience that could be proved beyond reasonable doubt. You also said that your role in the Final Solution was an accident and that almost anybody could have taken your place, so that potentially almost all Germans are equally guilty. What you meant to say was that where all, or almost all, are guilty, nobody is. This is an indeed quite common conclusion, but one we are not willing to grant you. And if you don't understand our objection, we would recommend to your attention the story of Sodom and Gomorrah, two neighboring cities in the Bible, which were destroyed by fire from Heaven because all the people in them had become equally guilty. This, incidentally, has nothing to do with the newfangled notion of ‘collective guilt,’ according to which people supposedly are guilty of, or feel guilty about, things done in their name but not by them—things in which they did not participate and from which they did not profit. In other words, guilt and innocence before the law are of an objective nature, and even if eighty million Germans had done as you did, this would not have been an excuse for you.
“Luckily, we don't have to go that far. You yourself claimed not the actuality but only the potentiality of equal guilt on the part of all who lived in a state whose main political purpose had become the commission of unheard-of crimes. And no matter through what accidents of exterior or interior circumstances you were pushed onto the road of becoming a criminal, there is an abyss between the actuality of what you did and the potentiality of what others might have done. We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives or with the criminal potentialities of those around you. You told your story in terms of a hard-luck story, and, knowing the circumstances, we are, up to a point, willing to grant you that under more favorable circumstances it is highly unlikely that you would ever have come before us or before any other criminal court. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations—as though you and your superiors had any right to determine who should and who should not inhabit the world—we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.”
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Postscript
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This book contains a trial report, and its main source is the transcript of the trial proceedings which was distributed to the press in Jerusalem. Save for the opening speech of the prosecution, and the general plea of the defense, the record of the trial has not been published and is not easily accessible. The language of the courtroom was Hebrew; the materials handed to the press were stated to be “an unedited and unrevised transcript of the simultaneous translation” that “should not be regarded as stylistically perfect or devoid of linguistic errors.” I have used the English version throughout except in those instances when the proceedings were conducted in German; when the German transcript contained the original wording I felt free to use my own translation.
Except for the prosecutor's introductory speech and for the final verdict, the translations of which were prepared outside the courtroom, independently of the simultaneous translation, none of these records can be regarded as absolutely reliable. The only authoritative version is the official record in Hebrew, which I have not used. Nevertheless, all this material was officially given to the reporters for their use, and, so far as I know, no significant discrepancies between the official Hebrew record and the translation have yet been pointed out. The German simultaneous translation was very poor, but it may be assumed that the English and French translations are trustworthy.
No such doubts about the dependability of the sources arise in connection with the following courtroom materials, which— with one exception—were also given to the press by the Jerusalem authorities:
1) The transcript in German of Eichmann's interrogation by the police, recorded on tape, then typed, and the typescript presented to Eichmann, who corrected it in his own hand. Along with the transcript of the courtroom proceedings, this is the most important of the documents.
2) The documents submitted by the prosecution, and the “legal material” made available by the prosecution.
3) The sixteen sworn affidavits by witnesses originally called by the defense, although part of their testimony was subsequently used by the prosecution. These witnesses were: Erich von dem Bach-Zelewski, Richard Baer, Kurt Becher, Horst Grell, Dr. Wilhelm Höttl, Walter Huppenkothen, Hans Jüttner, Herbert Kappler, Hermann Krumey, Franz Novak, Alfred Josef Slawik, Dr. Max Merten, Professor Alfred Six, Dr. Eberhard von Thadden, Dr. Edmund Veesenmayer, Otto Winkelmann.
4) Finally, I also had at my disposal a manuscript of seventy typewritten pages written by Eichmann himself. It was submitted as evidence by the prosecution and accepted by the court, but not made available to the press. Its heading reads in translation: “Re: My comments on the matter of ‘Jewish questions and measures of the National Socialist Government of the German Reich with regard to solution of this matter during the years 1933 to 1945.’” This manuscript contains notes made by Eichmann in Argentina in preparation for the Sassen interview (see Bibliography).
The Bibliography lists only the material I actually used, not the innumerable books, articles, and newspaper stories I read and collected during the two years between Eichmann's kidnaping and his execution. I regret this incompleteness only in regard to the reports of correspondents in the German, Swiss, French, English, and American press, since these were often on a far higher level than the more pretentious treatments of the subject in books and magazines, but it would have been a disproportionately large task to fill this gap. I have therefore contented myself with adding to the Bibliography of this revised edition a selected numb
er of books and magazine articles which appeared after the publication of my book, if they contained more than a rehashed version of the case for the prosecution. Among them are two accounts of the trial that often come to conclusions astonishingly similar to my own, and a study of the prominent figures in the Third Reich, which I have now added to my sources for background material. These are Robert Pendorf's Möder und Ermordete. Eichmann und die Judenpolitik des Dritten Reiches, which also takes into account the role of the Jewish Councils in the Final Solution; Strafsache 40/61 by the Dutch correspondent Harry Mulisch (I used the German translation), who is almost the only writer on the subject to put the person of the defendant at the center of his report and whose evaluation of Eichmann coincides with my own on some essential points; and finally the excellent, recently published portraits of leading Nazis by T. C. Fest in his Das Gesicht des Dritten Reiches; Fest is very knowledgeable and his judgments are on a remarkably high level.
Eichmann in Jerusalem: A Report on the Banality of Evil Page 35
