Three months later, on March 22, 1962, review proceedings were opened before the Court of Appeal, Israel's Supreme Court, before five judges presided over by Itzhak Olshan. Mr. Hausner appeared again, with four assistants, for the prosecution, and Dr. Servatius, with none, for the defense. Counsel for the defense repeated all the old arguments against the competence of the Israeli court, and since all his efforts to persuade the West German government to start extradition proceedings had been in vain, he now demanded that Israel offer extradition. He had brought with him a new list of witnesses, but there was not a single one among them who could conceivably have produced anything resembling “new evidence.” He had included in the list Dr. Hans Globke, whom Eichmann had never seen in his life and of whom he had probably heard for the first time in Jerusalem, and, even more startling, Dr. Chaim Weizmann, who had been dead for ten years. The plaidoyer was an incredible hodgepodge, full of errors (in one instance, the defense offered as new evidence the French translation of a document that had already been submitted by the prosecution, in two other cases it had simply misread the documents, and so on), its carelessness contrasted vividly with the rather careful introduction of certain remarks that were bound to be offensive to the court: gassing was again a “medical matter”; a Jewish court had no right to sit in judgment over the fate of the children from Lidice, since they were not Jewish; Israeli legal procedure ran counter to Continental procedure—to which Eichmann, because of his national origin, was entitled—in that it required the defendant to provide the evidence for his defense, and this the accused had been unable to do because neither witnesses nor defense documents were available in Israel. In short, the trial had been unfair, the judgment unjust.
The proceedings before the Court of Appeal lasted only a week, after which the court adjourned for two months. On May 29, 1962, the second judgment was read—somewhat less voluminous than the first, but still fifty-one single-spaced legal-sized pages. It ostensibly confirmed the District Court on all points, and to make this confirmation the judges would not have needed two months and fifty-one pages. The judgment of the Court of Appeal was actually a revision of the judgment of the lower court, although it did not say so. In conspicuous contrast to the original judgment, it was now found that “the appellant had received no ‘superior orders’ at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs”; he had, moreover, “eclipsed in importance all his superiors, including Müller.” And, in reply to the obvious argument of the defense that the Jews would have been no better off had Eichmann never existed, 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.
The same day, May 29, Itzhak Ben-Zvi, President of Israel, received Eichmann's plea for mercy, four handwritten pages, made “upon instructions of my counsel,” together with letters from his wife and his family in Linz. The President also received hundreds of letters and telegrams from all over the world, pleading for clemency; outstanding among the senders were the Central Conference of American Rabbis, the representative body of Reform Judaism in this country, and a group of professors from the Hebrew University in Jerusalem, headed by Martin Buber, who had been opposed to the trial from the start, and who now tried to persuade Ben-Gurion to intervene for clemency. Mr. Ben-Zvi rejected all pleas for mercy on May 31, two days after the Supreme Court had delivered its judgment, and a few hours later on that same day—it was a Thursday—shortly before midnight, Eichmann was hanged, his body was cremated, and the ashes were scattered in the Mediterranean outside Israeli waters.
The speed with which the death sentence was carried out was extraordinary, even if one takes into account that Thursday night was the last possible occasion before the following Mon-day, since Friday, Saturday, and Sunday are all religious holidays for one or another of the three denominations in the country. The execution took place less than two hours after Eichmann was informed of the rejection of his plea for mercy; there had not even been time for a last meal. The explanation may well be found in two last-minute attempts Dr. Servatius made to save his client—an application to a court in West Germany to force the government to demand Eichmann's extradition, even now, and a threat to invoke Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Neither Dr. Servatius nor his assistant was in Israel when Eichmann's plea was rejected, and the Israeli government probably wanted to close the case, which had been going on for two years, before the defense could even apply for a stay in the date of execution.
The death sentence had been expected, and there was hardly anyone to quarrel with it; but things were altogether different when it was learned that the Israelis had carried it out. The protests were short-lived, but they were widespread and they were voiced by people of influence and prestige. The most common argument was that Eichmann's deeds defied the possibility of human punishment, that it was pointless to impose the death sentence for crimes of such magnitude—which, of course, was true, in a sense, except that it could not conceivably mean that he who had murdered millions should for this very reason escape punishment. On a considerably lower level, the death sentence was called “unimaginative,” and very imaginative alternatives were proposed forthwith—Eichmann “should have spent the rest of his life at hard labor in the arid stretches of the Negev, helping with his sweat to reclaim the Jewish homeland,” a punishment he would probably not have survived for more than a single day, to say nothing of the fact that in Israel the desert of the south is hardly looked upon as a penal colony; or, in Madison Avenue style, Israel should have reached “divine heights,” rising above “the understandable, legal, political, and even human considerations,” by calling together “all those who took part in the capture, trial, and sentencing to a public ceremony, with Eichmann there in shackles, and with television cameras and radio to decorate them as the heroes of the century.”
Martin Buber called the execution a “mistake of historical dimensions,” as it might “serve to expiate the guilt felt by many young persons in Germany”—an argument that oddly echoed Eichmann's own ideas on the matter, though Buber hardly knew that he had wanted to hang himself in public in order to lift the burden of guilt from the shoulders of German youngsters. (It is strange that Buber, a man not only of eminence but of very great intelligence, should not see how spurious these much publicized guilt feelings necessarily are. It is quite gratifying to feel guilty if you haven't done anything wrong: how noble! Whereas it is rather hard and certainly depressing to admit guilt and to repent. The youth of Germany is surrounded, on all sides and in all walks of life, by men in positions of authority and in public office who are very guilty indeed but who feel nothing of the sort. The normal reaction to this state of affairs should be indignation, but indignation would be quite risky—not a danger to life and limb but definitely a handicap in a career. Those young German men and women who every once in a while—on the occasion of all the Diary of Anne Frank hubbub and of the Eichmann trial—treat us to hysterical outbreaks of guilt feelings are not staggering under the burden of the past, their fathers' guilt; rather, they are trying to escape from the pressure of very present and actual problems into a cheap sentimentality.) Professor Buber went on to say that he felt “no pity at all” for Eichmann, because he could feel pity “only for those whose actions I understand in my heart,” and he stressed what he had said many years ago in Germany that he had “only in a formal sense a common humanity with those who took part” in the acts of the Third Reich. This lofty attitude was, of course, more of a luxury than those who had to try Eichmann could afford, since the law presupposes precisely that we have a common humanity with those whom we accuse and judge and condemn. As far as I know, Buber was the only philosopher to g
o on public record on the subject of Eichmann's execution (shortly before the trial started, Karl Jaspers had given a radio interview in Basel, later published in Der Monat, in which he argued the case for an international tribunal); it was disappointing to find him dodging, on the highest possible level, the very problem Eichmann and his deeds had posed.
Least of all was heard from those who were against the death penalty on principle, unconditionally; their arguments would have remained valid, since they would not have needed to specify them for this particular case. They seem to have felt— rightly, I think—that this was not a very promising case on which to fight.
Adolf Eichmann went to the gallows with great dignity. He had asked for a bottle of red wine and had drunk half of it. He refused the help of the Protestant minister, the Reverend William Hull, who offered to read the Bible with him: he had only two more hours to live, and therefore no “time to waste.” He walked the fifty yards from his cell to the execution chamber calm and erect, with his hands bound behind him. When the guards tied his ankles and knees, he asked them to loosen the bonds so that he could stand straight. “I don't need that,” he said when the black hood was offered him. He was in complete command of himself, nay, he was more: he was completely himself. Nothing could have demonstrated this more convincingly than the grotesque silliness of his last words. He began by stating emphatically that he was a Gottgläubiger, to express in common Nazi fashion that he was no Christian and did not believe in life after death. He then proceeded: “After a short while, gentlemen, we shall all meet again. Such is the fate of all men. Long live Germany, long live Argentina, long live Austria. I shall not forget them.” In the face of death, he had found the cliché used in funeral oratory. Under the gallows, his memory played him the last trick; he was “elated” and he forgot that this was his own funeral.
It was as though in those last minutes he was summing up the lesson that this long course in human wickedness had taught us—the lesson of the fearsome, word-and-thought-defying banality of evil.
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Epilogue
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The irregularities and abnormalities of the trial in Jerusalem were so many, so varied, and of such legal complexity that they overshadowed during the trial, as they have in the surprisingly small amount of post-trial literature, the central moral, political, and even legal problems that the trial inevitably posed. Israel herself, through the pre-trial statements of Prime Minister Ben-Gurion and through the way the accusation was framed by the prosecutor, confused the issues further by listing a great number of purposes the trial was supposed to achieve, all of which were ulterior purposes with respect to the law and to courtroom procedure. The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes—“the making of a record of the Hitler regime which would withstand the test of history,” as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials—can only detract from the law's main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.
The judgment in the Eichmann case, whose first two sections were written in reply to the higher-purpose theory as it was expounded both inside and outside the courtroom, could not have been clearer in this respect and more to the point: All attempts to widen the range of the trial had to be resisted, because the court could not “allow itself to be enticed into provinces which are outside its sphere…. the judicial process has ways of its own, which are laid down by law, and which do not change, whatever the subject of the trial may be.” The court, moreover, could not overstep these limits without ending “in complete failure.” Not only does it not have at its disposal “the tools required for the investigation of general questions,” it speaks with an authority whose very weight depends upon its limitation. “No one has made us judges” of matters outside the realm of law, and “no greater weight is to be attached to our opinion on them than to that of any person devoting study and thought” to them. Hence, to the question most commonly asked about the Eichmann trial: What good does it do?, there is but one possible answer: It will do justice.
The objections raised against the Eichmann trial were of three kinds. First, there were those objections that had been raised against the Nuremberg Trials and were now repeated: Eichmann was tried under a retroactive law and appeared in the court of the victors. Second, there were those objections that applied only to the Jerusalem court, in that they questioned either its competence as such or its failure to take into account the act of kidnaping. And, finally, and most important, there were objections to the charge itself, that Eichmann had committed crimes “against the Jewish people,” instead of “against humanity,” and hence to the law under which he was tried; and this objection led to the logical conclusion that the only proper court to try these crimes was an international tribunal.
The court's reply to the first set of objections was simple: the Nuremberg Trials were cited in Jerusalem as valid precedent, and, acting under municipal law, the judges could hardly have done otherwise, since the Nazis and Nazi Collaborators (Punishment) Law of 1950 was itself based on this precedent. “This particular legislation,” the judgment pointed out, “is totally different from any other legislation usual in criminal codes,” and the reason for its difference lies in the nature of the crimes it deals with. Its retroactivity, one may add, violates only formally, not substantially, the principle nullum crimen, nulla poena sine lege, since this applies meaningfully only to acts known to the legislator; if a crime unknown before, such as genocide, suddenly makes its appearance, justice itself demands a judgment according to a new law; in the case of Nuremberg, this new law was the Charter (the London Agreement of 1945), in the case of Israel, it was the Law of 1950. The question is not whether these laws were retroactive, which, of course, they had to be, but whether they were adequate, that is, whether they applied only to crimes previously unknown. This prerequisite for retroactive legislation had been seriously marred in the Charter that provided for the establishment of the International Military Tribunal at Nuremberg, and it may be for this reason that the discussion of these matters has remained somewhat confused.
The Charter accorded jurisdiction over three sorts of crimes: “crimes against peace,” which the Tribunal called the “supreme international crime… in that it contains within itself the accumulated evil of the whole”; “war crimes”; and “crimes against humanity.” Of these, only the last, the crime against humanity, was new and unprecedented. Aggressive warfare is at least as old as recorded history, and while it had been denounced as “criminal” many times before, it had never been recognized as such in any formal sense. (None of the current justifications of the Nuremberg court's jurisdiction over this matter has much to commend it. It is true that Wilhelm II had beeen cited before a tribunal of the Allied powers after the First World War, but the crime the former German Kaiser had been charged with was not war but breach of treaties—and specifically, the violation of Belgium's neutrality. It is also true that the Briand-Kellogg pact of August, 1928, had ruled out war as an instrument of national policy, but the pact contained neither a criterion of aggression nor a mention of sanctions—quite apart from the fact that the security system that the pact was meant to bring about had collapsed prior to the outbreak of war.) Moreover, one of the judging countries, namely, Soviet Russia, was open to the tu-quoque argument. Hadn't the Russians attacked Finland and divided Poland in 1939 with complete impunity? “War crimes,” on the other hand, surely no more unprecedented than the “crimes against peace,” were coverd by international law. The Hague and Geneva Conventions had defined these “violations of the laws or customs of war”; they consisted chiefly of ill-treatment of prisoners and of warlike acts against civilian populations. No new law with retroactive force was needed here, and the main difficulty at Nuremberg lay in the indisputable fact that here, again, the tu-quoque argument applied: Russia, which had n
ever signed the Hague Convention (IItaly, incidentally, had not ratified it either), was more than suspected of mistreatment of prisoners, and, according to recent investigations, the Russians also seem to be responsible for the murder of fifteen thousand Polish officers whose bodies were found at Katyn Forest (in the neighborhood of Smolensk, in Russia). Worse, the saturation bombing of open cities and, above all, the dropping of atomic bombs on Hiroshima and Nagasaki clearly constituted war crimes in the sense of the Hague Convention. And while the bombing of German cities had been provoked by the enemy, by the bombing of London and Coventry and Rotterdam, the same cannot be said of the use of an entirely new and overwhelmingly powerful weapon, whose existence could have been announced and demonstrated in many other ways. To be sure, the most obvious reason that the violations of the Hague Convention committed by the Allies were never even discussed in legal terms was that the International Military Tribunals were international in name only, that they were in fact the courts of the victors, and the authority of their judgment, doubtful in any case, was not enhanced when the coalition that had won the war and then undertaken this joint enterprise broke up, to quote Otto Kirchheimer, “before the ink on the Nuremberg judgments had time to dry.” But this most obvious reason is neither the only nor, perhaps, the most potent reason that no Allied war crimes, in the sense of the Hague Convention, were cited and prosecuted, and it is only fair to add, that the Nuremberg Tribunal was at least very cautious about convicting the German defendants on charges that were open to the tu-quoque argument. For the truth of the matter was that by the end of the Second World War everybody knew that technical developments in the instruments of violence had made the adoption of “criminal” warfare inevitable. It was precisely the distinction between soldier and civilian, between army and home population, between military targets and open cities, upon which the Hague Convention's definitions of war crimes rested, that had become obsolete. Hence, it was felt that under these new conditions war crimes were only those outside all military necessities, where a deliberate inhuman purpose could be demonstrated.