Arendt explains that the trial’s “irregularities and abnormalities” tended to make people forget “the central moral, political, and even legal problems” it created. Israel pursued “ulterior purposes” to the trial’s singular mission: “to render justice, and nothing else.” The court made this abundantly clear in its judgment. There were three kinds of objections to Eichmann’s trials: first, that (like the defendants at the Nuremberg Trials) “Eichmann was tried under a retroactive law and appeared in the court of the victors”; secondly, that the Jerusalem court was incompetent or Eichmann’s kidnapping illegal; and finally, that Eichmann was guilty not of “crimes against humanity” but merely of “crimes ‘against the Jewish people,’” so the law governing his trial was illegitimate—and he should have faced an international court instead of an Israeli one.
Despite the court’s best efforts, it seems that the prosecution’s attempt to divert the conversation around Eichmann’s trial successfully distracted the public from its only true purpose. Arendt still sees the trial as raising important questions about the nature of crime and punishment, though, so she has dedicated this Epilogue to addressing them. None of these objections question Eichmann’s guilt, but the first two were raised in a limited form by the defense. The third objection is curious, since one central justification for Israel’s jurisdiction over Eichmann was that he specifically committed crimes against Jews.
To the first kind of objection, the court responded that the Nuremberg Trials set the only valid precedent to Eichmann’s kind of unprecedented crime. Such laws “had to be” retroactive, but their adequacy was up for debate. Unlike the “crimes against peace” and “war crimes” outlined in the Nuremberg Trials’ Charter—of which the Allies were also guilty—“crimes against humanity” was a truly unprecedented category. While this category erroneously came to include many elements that properly belonged to “war crimes,” its true subject was the Nazis’ “policy of systematic murder to be continued in time of peace.”
The court worried about ruling on unprecedented grounds—perhaps in part because of public doubts about its legitimacy—but Arendt thinks the Nuremberg Trials also failed to set a sufficient precedent. This is particularly true of the “crimes against humanity” charge, which is doubly important because it appears to be the only grounds on which Israel could distinguish the Allies’ actions from the Nazis’ obviously worse crimes. Arendt’s discussion of the Nazi euthanasia program in the sixth chapter showed that the Holocaust was merely justified by the war, but conceptually distinct from it.
At the Nuremberg Trials, the judges were hesitant to convict Nazis of “crimes against humanity,” but reserved the worst punishments for those found guilty of them. And, while many observers celebrated the fact that Eichmann’s trial finally focused on Jewish suffering, this was precisely what had led to the new category of “crimes against humanity” at Nuremberg, and it took center stage in many other Nazi officials’ trials throughout Europe. Since Jews now had a state, however, Arendt thinks it just as appropriate that they try crimes committed intently against the Jewish people as it would be for Poland to try crimes against Polish people. It was also ridiculous to argue that Jewish judges could not be impartial to Eichmann—they may, in the prosecutor’s words, “hate the crime and yet be fair to the criminal.”
Much like Eichmann’s judges, the Nuremberg judges seemed conflicted about the terms of their convictions. They tacitly recognized that “crimes against humanity” were uniquely horrific, but failed to adequately define them. Notably, while she frequently criticizes the Israeli state’s desire to speak as the savior of all Jews after a long history of persecution, Arendt does think the Israeli legal system best represents the interests and will of the Jewish collective, so long as it sticks closely to justice. Yet she soon argues for an international court, and her careful wording implies that she may simply be arguing that this lines up with the precedent of European countries trying Nazis who operated in them.
The Jerusalem court based its jurisdiction on two irrelevant principles. The first was “passive-personality,” meaning only Israel could speak for Eichmann’s victims. Yet crimes do not primarily violate victims, but rather “the community,” which means the court does not speak for the victims but for “the general public order,” the law itself. The second principle was “universal jurisdiction,” which relies on a false comparison between piracy and “crimes against humanity.” Eichmann committed, and was on trial for, his crimes against Jews. Universal jurisdiction only applies to piracy because it happens on “the high seas,” where no law applies, and positions the criminal “outside all organized communities”—neither of which apply to Eichmann, whose crimes were “committed under a criminal law and by a criminal state.” The Genocide Convention even explicitly rejects the comparison between piracy and genocide.
The passive-personality argument again relies on a view of the law as an institution for revenge on victims’ behalf—but the proper centrality of “the community” explains why trials should be about the defendant and not the victim. The universal jurisdiction argument fails for the same reason that Servatius can argue “acts of state”—Eichmann was part of a legal community and in fact, he was carrying out the law. While the “acts of state” defense requires that government agents act out of necessity to preserve peace and order in their community, the universal jurisdiction claim requires that the defendant lie outside all communities whatsoever, i.e. be stateless and have committed a crime under no state’s particular jurisdiction.
Israel could have created an international court or tried to redefine territorial jurisdiction in order to claim the right to try Eichmann—but it did neither, for it was remarkably afraid to “break fresh ground and act without precedents.” It could have redefined territory as a cultural and political rather than only geographical concept, but instead spent 53 sections in its judgment listing off various precedents.
The court’s refusal to “break fresh ground” was perhaps its greatest failure, precisely because this was the only way to address Eichmann’s groundbreaking crimes. Ironically, Arendt’s argument that territory can be a cultural category fits perfectly with Israel’s actual motivation for holding Eichmann’s trial in Jerusalem: it believed that it alone could speak for the Jewish nation.
Ultimately, Eichmann’s trial was no different than the other trials that were modeled after the Nuremberg Trials and followed the war, except that his kidnapping was “a clear violation of international law.” But there was also no legal way to bring him to justice given Argentina’s laws and persistent refusals to extradite Nazi criminals. And so, in the name of justice, the kidnapping might be defended “as a desperate, unprecedented and no-precedent-setting act.” The Israelis could have killed Eichmann on the spot—in two similar cases, people assassinated genocide perpetrators, presented themselves for trial, and were acquitted after proving their victim’s horrible deeds. But in these cases, unlike in Eichmann’s, the assassins had no recourse besides taking the law into their own hands.
Unfortunately, by failing to set new precedents, the Jerusalem trial wasted its opportunity to set clear prohibitions against future state-sponsored genocides. Arendt’s insistence on setting precedents may make her treatment of the kidnapping look hypocritical, but she is appealing to the ultimate supremacy of morality over social codes, justice over the existing law. Eichmann’s kidnapping was acceptable only because it was necessary for justice, and the only precedent this would set is that kidnapping (like anything else) is permitted when there is no better way to achieve justice.
Jews were largely unwilling to see Eichmann’s crime as unprecedented, for they see the Holocaust as another version of “the oldest crime they knew and remembered.” “This misunderstanding,” Arendt argues, is responsible for all the problems with the Eichmann trial. Namely, Jews failed to see the difference between the early forms of discrimination and the ultimate turn to mass murder. The Nuremberg Laws surely violated Jews’ due rights within Germany, but they were not yet a crime in the eyes of the international community. Expulsion, on the other hand, was an international crime because it forced other countries to deal with refugees. Neither was unprecedented.
Arendt does not mean to deny the storied history of anti-Semitic persecution, but only to make a crucial and much-needed distinction between all the Jews’ prior sufferings and the unique, unprecedented cruelty of the Nazis’ concentration and extermination policies. The prosecution’s emphasis on history showed how integral the apparent continuity between past and present anti-Semitism was to Israel’s narrative about its own apparently unprecedented role for Jews.
The unprecedented “crime against humanity” began when the Nazis determined “to make the entire Jewish people disappear from the face of the earth.” This is a “crime ‘against the human status,’ or against the very nature of mankind,” and not merely against other countries. If the court had grasped this fact, then it would have been able to see the attempted extermination of a whole population as “a crime against humanity, perpetrated upon the body of the Jewish people.” While the Jerusalem court could legitimately try Eichmann’s “crimes against the Jewish people,” only an international court could fairly address his “crimes against humanity.”
While certain groups of Jews had certainly faced limited political rights and expulsion campaigns before, the Nazis were trying to destroy all Jews everywhere, and this attempt at eliminating an entire facet of human diversity is genocide’s characteristic condition. If attacking individual Jews violates the Jewish community, then attacking an individual population violates the whole human community—and can therefore only be tried before representatives of this whole community, for (as Arendt has established) Israel cannot speak on behalf of human diversity as such.
The philosopher Karl Jaspers called for the court to publically declare this after hearing its evidence, and to show the United Nations that it absolutely needed to create a new “permanent international criminal court.” This could create a counterweight to future genocides; indeed, as Jaspers argued, trying the genocide in a single state “minimized” its horrors and scale. The other (much worse) arguments for an international court met impassioned resistance from Israel, which felt that “for the first time […] Jews were able to sit in judgment on crimes committed against their own people.” Along these lines, Ben-Gurion refused “the protection of an International Court.”
Jaspers offers a more intuitive version of this argument: genocide is so unparalleled that the entire human community, rather than merely the survivors of the targeted group, should take part in condemning perpetrators and restoring justice to humanity. Here, he and Arendt are both primarily concerned with preventing future atrocities in the future by setting a precedent for a court representing the human community, but Israel was simply too excited to set the precedent of a court representing the Jewish people.
In fact, Israel tried Eichmann under an erroneous law: genocide is not like murder, because in genocide “an altogether different order is broken and an altogether different community is violated.” But Ben-Gurion lashed out against Israel’s critics, and so the Eichmann trial threw away its opportunity to set a valid precedent to fight “the rather uncomfortable but hardly deniable possibility that similar crimes may be committed in the future.” Between the inevitable failure of deterrence and improvements in technology, this possibility “should be enough to make us tremble.” Heretofore unprecedented, genocide can now become a precedent, and the legal community needs to set its own precedent for addressing genocide as a counterweight.
By seeing crime as about violating a community and not just a victim, Arendt clearly distinguishes murder from genocide and avoids the question of intention on which the prosecution remained so fruitlessly fixated. An unprecedented legal body and ruling would have been justified simply because the crime was unprecedented; Arendt envisions a law with universal jurisdiction to counter attacks on universal human rights.
This requires that judges act as legislators, however, and the Eichmann trial’s judges refused to do this just like numerous other Successor trials’ judges before them. The Jerusalem trial was no greater failure than the Nuremberg Trials, but its central failures were threefold. The first was that Jerusalem provided imperfect justice because it tried Eichmann in “the court of the victors.” It failed to admit defense witnesses or neutral countries into the proceedings.
Beyond the biases raised in the “court of the victors,” the issue of jurisdiction can now be understood on another level: only a universal, international criminal court representing all of humanity would have jurisdiction over Germans as well as Jews, trying a violation of the order to which the victim and perpetrator alike belonged.
The Jerusalem court’s second failure lay in its shortsighted concept of “crimes against humanity.” It improved significantly on the Nuremberg Charter’s definition of such crimes as “inhuman acts,” in no meaningful way different from war crimes, because it finally focused on the Nazis’ attempts to destroy the Jewish people as a whole. But it did not understand this as a crime against the entirety of humankind.
The Jerusalem court’s concept of the “crime against humanity” is still closer to that of a crime against a certain human group; it does not recognize the scale of the human community violated. Victims do not judge or prosecute trials against their perpetrators because all justice systems are founded on the authority of a community to which both parties belong.
The court’s third failure was its inability to conceptualize the new kind of criminal who committed these “crimes against humanity.” While it would have been comfortable to think Eichmann “the most abnormal monster the world had ever seen,” like the prosecution portrayed him, in fact he and most of the other Nazi criminals were “terribly and terrifyingly normal,” simply unable to “know or feel that he [was] doing wrong.” This crushes the conventional assumption that a crime requires the “intent to do wrong.” Rather, jurisprudence must return to the ostensibly “barbaric,” “long-forgotten” notion that Eichmann was a criminal simply because he violated the moral order of the world; he openly tried “to eliminate forever certain ‘races’ from the surface of the earth,” and so in turn “he had to be eliminated.”
Beyond failing to see genocide as anything more than large-scale murder directed at a people (rather than an attack on human diversity), the court also failed to see the perpetrators of genocide as anything more than perpetrators of many murders. State-sponsored genocide requires a new kind of organization that distributes power in order to engender a horrifying new kind of blind evil, entirely unrelated to questions of intent and increasingly likely to materialize in the future.
In closing, Arendt suggests what justice would have required the judges to have said to Eichmann: that he admitted his participation in “the greatest crime in recorded history” and that, even if he had no “base motives” and merely fell into his role by accident, his guilt has nothing to do with those of his co-conspirators or countrymen, but merely comes from the actual matter of fact that he “carried out, and therefore actively supported, a policy of mass murder.” Because he refused to “share the earth with the Jewish people and the people of a number of other nations,” she declares, “no one […] can be expected to want to share the earth” with Eichmann, and so he must hang.
In her own version of the judgment, Arendt emphasizes all the theoretical innovations she has introduced in the book’s final chapters and Epilogue: that Eichmann’s guilt is entirely about his deliberate actions and not at all his character or potentially innocent intentions; that responsibility for genocide is shared equally, not diffused, among perpetrators; and that Eichmann’s great crime was not merely leading to people’s deaths but in fact supporting the planned extermination of an entire people and their way of life.