Because the scale and form of its crimes were so unprecedented, the Holocaust posed enormous legal problems for the international community. The Jerusalem court was accordingly faced with difficult questions about the character of Eichmann and his Nazi collaborators’ crimes: first, in what respect, and to what degree, were the Holocaust’s perpetrators responsible; and secondly, whose job was it to hold them accountable? Arendt was deeply critical of virtually all the postwar trials of Nazi officials, including the famous Nuremberg Trials, because they failed to come to terms with these new legal challenges. She sees one of the Eichmann trial’s greatest failures as its reluctance to develop a new vocabulary for distinguishing “crimes against humanity” from more conventional forms of evil, like murder. Yet she also considers one of its greatest successes the judges’ immunity to conceiving of Eichmann’s guilt in terms of legal precedent. She aims to show that the law must be subservient to universal morality, not vice-versa, especially when it comes to meting out justice in response to unprecedented crimes like state-sponsored genocide. And her own condemnation of Eichmann in the Epilogue shows how a novel account of “crimes against humanity” might allow the judges to solve both problems—intention and jurisdiction—while ensuring that the law can reshape itself in the image of morality whenever it faces unprecedented crimes like Eichmann’s.
The first problem the Holocaust posed to conventional legal mechanisms was that of intention and accountability: the indictment declared that Eichmann needed to have acted “on purpose” (which he admitted), “out of base motives” (which he denied), and “in full knowledge of the criminal nature of his deeds” (which he also denied, because he was carrying out the law). But none of these standards are fully adequate to prosecuting state-sponsored mass murder.
Eichmann insisted that he had no “base motives” and never killed anyone with his own hands, and so was guilty only of “aiding and abetting” murder. In order to prove intention and base motives, the prosecution repeatedly tried to show that Eichmann killed a Jew with his own hands—but there was no evidence supporting its theory. Instead, Arendt and the three judges, led by Moshe Landau, rejected the notion that this was necessary to prove Eichmann’s unique kind of crime: in fact, the further a Nazi official stood from on-the-ground killings, the greater their responsibility, because an enormous bureaucracy was implicated in the murder of each victim; as such, the traditional concept of murder could not grasp the gap between who decided that victims were to die and those who actually carried out the killing (in most instances, Jews themselves were forced to run the gas chambers at Auschwitz and the other extermination centers).
Eichmann’s attorney Robert Servatius also argued that the defendant’s deeds were not criminal because he was undertaking “acts of state,” carrying out the law rather than violating it. Of course, Arendt thought it would obviously be unjust for a man not to suffer for committing egregious crimes only because he’d held political power at the time, but she also examined the legal basis for the “acts of state” claim. This claim relies on the notion that a criminal “act of state” is necessary for the continuation of the entire legal system and, therefore, the predominance of non-criminal behavior in society. But because the Nazi state was founded precisely on criminality, it could not appeal to “acts of state;” it had already violated the jurisdiction of other nations and peoples by invading and slaughtering them, and so Servatius could not legitimately appeal to the purity of Germany’s jurisdiction.
While Arendt’s rebuttal to “acts of state” began to address the second problem, that of jurisdiction, there was also the question of whether (insofar as Eichmann had to be tried) Israel had a right to try him. While individual nations usually tried the Nazis who operated in their territory during World War Two, the Jewish people did not have a nation until the foundation of Israel, and so Arendt thinks it is legitimate, according to this precedent, for him to stand trial in Jerusalem. But Israel also kidnapped him illegally, violating Argentina’s sovereign jurisdiction just as the Nazis had done to so many European countries. Clearly, the legal framework around Eichmann’s trial—which still took assumptions of sovereignty as absolute on face value while violating them in myriad ways—was insufficient to deal with the fact that genocide and global war broke down the boundaries of sovereignty to begin with.
In her Epilogue, Arendt proposes a better way forward: an international tribune dedicated to trying crimes like Eichmann’s, which crucially fit a new category: crimes against humanity. By trying to destroy an entire group of people, she argues, he violated the very moral order of humanity by attacking human diversity (crime violates a community’s moral order and not just the victim, which is why criminal trials are always prosecuted by “the people” or “the state”). Accordingly, Israel alone is insufficient to try Eichmann—rather, an international court is the only way for perpetrators of genocide to answer for their crimes in front of the universal human community they have violated.
This clearly resolves the problem of jurisdiction, for the international court would have the right to try people from any nation, especially if they carried out their atrocities through the government; it also resolves the problem of intention, because Eichmann violated the moral order whether he acted in “base motives” or not. Ultimately, then, Arendt concludes that other Germans’ complicity, Eichmann’s middling role in the Nazi bureaucracy, and Israel’s questionable jurisdiction do not change the fact that Eichmann merits punishment for supporting genocide. The court’s attempt to judge Eichmann’s crimes in the same terms it used to judge individual acts of murder, or one-off violations of jurisdiction within a context of otherwise stable sovereignty, reflects that it has not truly come to terms with the precedent-shattering nature of the Nazi crimes. Eichmann’s guilt is fundamentally a moral matter and, even if its procedures were illegitimate, Israel did mete out just punishment by giving Eichmann the death sentence.
Arendt saw Eichmann’s trial as a watershed moment in the history of international law because it put legal actors in a difficult bind: they recognized the moral necessity of punishing perpetrators of genocide, but also could not reasonably prove why they themselves, of all people, should have the authority to do so. While the moral justifications for hanging Eichmann were sufficient to ultimately make the legal minutiae of intention and jurisdiction inconsequential for Arendt—she sees the law’s job as fundamentally providing justice rather than blindly carrying out whatever is on the books (which was precisely what led Eichmann to support a policy of mass murder)—she also proposes a bold way forward by arguing that the only way to address unprecedented crimes is with unprecedented forms of justice: an international procedure for trying crimes against humanity.
Justice and Legal Responsibility ThemeTracker
Justice and Legal Responsibility Quotes in Eichmann in Jerusalem
Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions of seemingly greater import—of “How could it happen?” and “Why did it happen?,” of “Why the Jews?” and “Why the Germans?,” of “What was the role of other nations?” and “What was the extent of co-responsibility on the side of the Allies?,” of “How could the Jews through their own leaders cooperate in their own destruction?” and “Why did they go to their death like lambs to the slaughter?”—be left in abeyance. Justice insists on the importance of Adolf Eichmann, son of Karl Adolf Eichmann, the man in the glass booth built for his protection: medium-sized, slender, middle-aged, with receding hair, ill-fitting teeth, and nearsighted eyes, who throughout the trial keeps craning his scraggy neck toward the bench (not once does he face the audience), and who desperately and for the most part successfully maintains his self-control despite the nervous tic to which his mouth must have become subject long before this trial started. On trial are his deeds, not the sufferings of the Jews, not the German people or mankind, not even anti Semitism and racism.
Alas, nobody believed him. The prosecutor did not believe him, because that was not his job. Counsel for the defense paid no attention because he, unlike Eichmann, was, to all appearances, not interested in questions of conscience. And the judges did not believe him, because they were too good, and perhaps also too conscious of the very foundations of their profession, to admit that an average, “normal” person, neither feeble-minded nor indoctrinated nor cynical, could be perfectly incapable of telling right from wrong. They preferred to conclude from occasional lies that he was a liar—and missed the greatest moral and even legal challenge of the whole case. Their case rested on the assumption that the defendant, like all “normal persons,” must have been aware of the criminal nature of his acts, and Eichmann was indeed normal insofar as he was “no exception within the Nazi regime.” However, under the conditions of the Third Reich only “exceptions” could be expected to react “normally.” This simple truth of the matter created a dilemma for the judges which they could neither resolve nor escape.
In his mind, there was no contradiction between “I will jump into my grave laughing,” appropriate for the end of the war, and “I shall gladly hang myself in public as a warning example for all anti-Semites on this earth,” which now, under vastly different circumstances, fulfilled exactly the same function of giving him a lift.
Thus, we are perhaps in a position to answer Judge Landau’s question—the question uppermost in the minds of nearly everyone who followed the trial—of whether the accused had a conscience: yes, he had a conscience, and his conscience functioned in the expected way for about four weeks, whereupon it began to function the other way around.
Eichmann, much less intelligent and without any education to speak of, at least dimly realized that it was not an order but a law which had turned them all into criminals. The distinction between an order and the Führer’s word was that the latter’s validity was not limited in time and space, which is the outstanding characteristic of the former. This is also the true reason why the Führer’s order for the Final Solution was followed by a huge shower of regulations and directives, all drafted by expert lawyers and legal advisers, not by mere administrators; this order, in contrast to ordinary orders, was treated as a law.
Eichmann himself, after “consulting Poliakoff and Reitlinger,” produced seventeen multicolored charts, which contributed little to a better understanding of the intricate bureaucratic machinery of the Third Reich, although his general description—“everything was always in a state of continuous flux, a steady stream”—sounded plausible to the student of totalitarianism, who knows that the monolithic quality of this form of government is a myth.
It quickly turned out that Israel was the only country in the world where defense witnesses could not be heard, and where certain witnesses for the prosecution, those who had given affidavits in previous trials, could not be cross-examined by the defense. And this was all the more serious as the accused and his lawyer were indeed not “in a position to obtain their own defense documents.”
In other words, and despite pages and pages of legal argument, based on so many precedents that one finally got the impression that kidnaping was among the most frequent modes of arrest, it was Eichmann’s de facto statelessness, and nothing else, that enabled the Jerusalem court to sit in judgment on him. Eichmann, though no legal expert, should have been able to appreciate that, for he knew from his own career that one could do as one pleased only with stateless people; the Jews had had to lose their nationality before they could be exterminated.
“I, the undersigned, Adolf Eichmann, hereby declare out of my own free will that since now my true identity has been revealed, I see clearly that it is useless to try and escape judgment any longer. I hereby express my readiness to travel to Israel to face a court of judgment, an authorized court of law. It is clear and understood that I shall be given legal advice [thus far, he probably copied], and I shall try to write down the facts of my last years of public activities in Germany, without any embellishments, in order that future generations will have a true picture. This declaration I declare out of my own free will, not for promises given and not because of threats. I wish to be at peace with myself at last. Since I cannot remember all the details, and since I seem to mix up facts, I request assistance by putting at my disposal documents and affidavits to help me in my effort to seek the truth.” Signed: “Adolf Eichmann, Buenos Aires, May 1960.”
“Expressing his activities in terms of Section 23 of our Criminal Code Ordinance, we should say that they were mainly those of a person soliciting by giving counsel or advice to others and of one who enabled or aided others in [the criminal] act.” But “in such an enormous and complicated crime as the one we are now considering, wherein many people participated, on various levels and in various modes of activity—the planners, the organizers, and those executing the deeds, according to their various ranks—there is not much point in using the ordinary concepts of counseling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands.”
The judges now stated that “the idea of the Final Solution would never have assumed the infernal forms of the flayed skin and tortured flesh of millions of Jews without the fanatical zeal and the unquenchable blood thirst of the appellant and his accomplices.” Israel’s Supreme Court had not only accepted the arguments of the prosecution, it had adopted its very language.
In the eyes of the Jews, thinking exclusively in terms of their own history, the catastrophe that had befallen them under Hitler, in which a third of the people perished, appeared not as the most recent of crimes, the unprecedented crime of genocide, but, on the contrary, as the oldest crime they knew and remembered. This misunderstanding, almost inevitable if we consider not only the facts of Jewish history but also, and more important, the current Jewish historical self-understanding, is actually at the root of all the failures and shortcomings of the Jerusalem trial. None of the participants ever arrived at a clear understanding of the actual horror of Auschwitz, which is of a different nature from all the atrocities of the past, because it appeared to prosecution and judges alike as not much more than the most horrible pogrom in Jewish history. They therefore believed that a direct line existed from the early anti-Semitism of the Nazi Party to the Nuremberg Laws and from there to the expulsion of Jews from the Reich and, finally, to the gas chambers. Politically and legally, however, these were “crimes” different not only in degree of seriousness but in essence.
Just as a murderer is prosecuted because he has violated the law of the community, and not because he has deprived the Smith family of its husband, father, and breadwinner, so these modern, state-employed mass murderers must be prosecuted because they violated the order of mankind, and not because they killed millions of people. Nothing is more pernicious to an understanding of these new crimes, or stands more in the way of the emergence of an international penal code that could take care of them, than the common illusion that the crime of murder and the crime of genocide are essentially the same, and that the latter therefore is “no new crime properly speaking.” The point of the latter is that an altogether different order is broken and an altogether different community is violated.
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 international penal law.
“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.”