“The East” was divided into four territories: the annexed regions of Western Poland, the Baltic States, “the rather indefinite area of White Russia,” and the Ukraine. The prosecution testifies about these areas first, but the judgment addresses them last, for while it “was the central scene of Jewish suffering,” there was little evidence that Eichmann had any power in the region. Indeed, for 23 of the trial’s 121 sessions, 56 “sufferings-of-the-Jewish-people witnesses” for the prosecution testify about their experiences in Eastern camps, although the judges throw out much of their testimony because it was uncorroborated.
Arendt’s treatment of “the East” in this chapter is strategic: like the judges, she has put this region last because Eichmann had the least involvement there. While she has covered the horrors and death tolls in almost every country in Central, Western, and Southern Europe (since Eichmann was involved in them all), she deliberately does not do so here, because the prosecution used victims’ testimony about “the East” to push Israel’s propagandistic narrative that Eichmann was responsible for suffering everywhere.
The judges have “a highly unpleasant dilemma.” Servatius attacks the possibility that Jewish judges can be impartial, and they declare that they are professional and obligated to treat the case in a balanced manner. Yet Hausner’s “‘tragic multitude’ of sufferers” feel they deserve the chance to testify about their experiences. Eichmann is also clearly presumed guilty—otherwise Israel never would have kidnapped him or been able to justify illegally doing so, even though he turned out to be much less responsible for the Holocaust than even he liked to claim. The court’s dilemma, then, is that because the prosecution so exaggerated Eichmann’s role, the judges end up having to defend him, even though this has no bearing on the judgment or his sentence.
The judges’ “unpleasant” but necessary decision to defend Eichmann with regard to the prosecution’s allegations about “the East” reflects that, despite Hausner and Ben-Gurion’s best efforts, the judges managed to put justice before politics and prove that the legal system can remain a legitimate domain for necessary moral judgments even when it faces the most evil kind of criminal. Eichmann’s obvious guilt meant the prosecution could have offered a simple, straightforward moral condemnation instead of its political theatrics; without a doubt, Arendt thinks this would have been a more effective and honest response to the Holocaust than its ultimate decision to offer witnesses unlimited time to testify about events unrelated to Eichmann.
Even though much of their judgment is simply “a rewriting of the prosecution’s case” by putting the East last, the judges declare that “they intended to concentrate on what had been done instead of on what the Jews had suffered.” They also confirm that much of the testimony on the East was irrelevant and “a matter for ‘great authors and poets,’” not a court. Yet the prosecution’s case would have been entirely destroyed “if the judges had not found reason to charge Eichmann with some responsibility for the crimes in the East,” although obviously his main crime was knowingly sending people to their deaths.
The judgment’s structure, according to Arendt, reveals the judges’ investment in clearly defining the legal system’s role—and limits—when it comes to addressing Nazi crimes. Arendt suggests that the prosecution’s case is so divorced from Eichmann’s actual crimes that it ended up relying on showing him guilty in the one place where he actually did not commit crimes.
There are four points in question. The first involves Eichmann’s role in the Einsatzgruppen’s mass murders. He was present at the planning meeting but not even connected to the command structures that ordered and carried them out; he received documentation about them, as did dozens of other officials, and although one Nazi declared at the Nuremberg Trials that Eichmann ran the whole operation, the judges reasonably throw this claim out, since no other evidence of any sort corroborated it.
While the judges clearly see past the prosecution’s circumstantial evidence, Hausner’s attempt to connect Eichmann to Einsatzgruppen massacres reveals the prosecution’s damaging insistence on going beyond the (completely sufficient) facts. Other Nazi officials blamed Eichmann because he was still in hiding during the Nuremberg Trials.
The second point involves Eichmann’s role in deportations from Polish ghettos to extermination camps. While his main job was transportation, this did not fall under his purview, even if he did ship Jews from other parts of Europe to Auschwitz. Yet without any discernible evidence, the court rules “in dubio contra reum” (in doubt, against the accused).
For the first time, Arendt accuses the judges of a legal error: inverting the presumption of innocence in order to appease the prosecution. This point is complicated and confusing but ultimately irrelevant to Eichmann’s guilt, since he was still sending Jews from the rest of Europe to a more-or-less certain death.
The third question involves Eichmann’s responsibility for the camps themselves; despite the prosecution’s claims that “he had enjoyed great authority” in them, the judges throw out this claim and show “their true understanding of the whole situation.” They explain that Eichmann knew that the vast majority of the people he was transporting would be killed, but he did not choose who among them lived and died; still, the prosecution focuses on proving that he personally killed someone, for it was “unable to understand a mass murderer who had never killed.”
Arendt’s claim that Eichmann was “a mass murderer who had never killed” captures the central problem with the prosecution’s mindset and the law under which Eichmann was tried: he was guilty despite never killing anyone personally, and his guilt should lead to a new, adequate concept of criminality rather than attempts to make his actions fit a conventional, inadequate one.
The final question is about Eichmann’s authority over the ghettos’ horrible conditions and ultimate liquidation. “Again,” Arendt explains, “Eichmann had been fully informed, but none of this had anything to do with his job.” While he occasionally made decisions about foreign Jews in Poland and transmitted orders for superiors, he had no real authority in the ghettos.
The prosecution again unrealistically inflates Eichmann’s authority—just like he did for years after the war—and confuses the very straightforward fact that he was guilty simply because he knowingly sent people to their deaths. According to Arendt, no further justification or explanation is necessary.
And so “the truth of the matter was even worse than the court in Jerusalem assumed.” According to the court’s judgment, Heydrich was in charge of the Final Solution; Eichmann was “his chief deputy in the field” and so responsible everywhere. But, in fact, the East was not under the purview of the Final Solution because killings there had started two years earlier, in 1939, and in fact targeted native Poles as well as Jews in its attempt to create “empty space” for Germans to take over. All the documentary evidence showed that Eichmann’s role in the East was only transportation-related. There were no exceptions, even for prominent Jews, in the East; all were murdered, and this decision was made independently of Eichmann.
While the court decided that Eichmann was guilty for crimes in the East because of his role in the Nazi hierarchy, Arendt reminds the reader that guilt is about what he did, not where he stood in the regime. The “truth of the matter was even worse than the court in Jerusalem assumed” because in the East, the Nazis never bothered to use the normal mechanisms of the Final Solution—negotiating with local authorities to “purify” regional populations. Instead, it ignored existing systems of governance and just massacred people outright.
If Eichmann were cleared on these charges, Arendt concludes, he still would have been found guilty and sentenced to death—but the prosecution’s case would have been completely destroyed.
Arendt explicitly shows the enormous gulf between the prosecution’s case and the true grounds for condemning Eichmann, as well as completing the transition into her examination of the judgment, which comprises the remainder of the book.