This factor of gratuitous brutality was a valid criterion for determining what, under the circumstances, constituted a war crime. It was not valid for, but was unfortunately introduced into the fumbling definitions of, the only entirely new crime, the “crime against humanity,” which the Charter (in Article 6-c) defined as an “inhuman act”—as though this crime, too, were a matter of criminal excess in the pursuit of war and victory. However, it was by no means this sort of well-known offense that had prompted the Allies to declare, in the words of Churchill, that “punishment of war criminals [was] one of the principal war aims” but, on the contrary, reports of unheard-of atrocities, the blotting out of whole peoples, the “clearance” of whole regions of their native population, that is, not only crimes that “no conception of military necessity could sustain” but crimes that were in fact independent of the war and that announced a policy of systematic murder to be continued in time of peace. This crime was indeed not covered by international or municipal law, and, moreover, it was the only crime to which the tu-quoque argument did not apply. And yet there was no other crime in the face of which the Nuremberg judges felt so uncomfortable, and which they left in a more tantalizing state of ambiguity. It is perfectly true that—in the words of the French judge at Nuremberg, Donnedieu de Vabres, to whom we owe one of the best analyses of the trial (Le Procès de Nuremberg, 1947)—“the category of crimes against humanity which the Charter had let enter by a very small door evaporated by virtue of the Tribunal's judgment.” The judges, however, were as little consistent as the Charter itself, for although they preferred to convict, as Kirchheimer says, “on the war crime charge, which embraced all the traditional common crimes, while underemphasizing as much as possible the charges of crimes against humanity, when it came to pronouncing sentence, they revealed their true sentiment by meting out their most severe punishment, the death penalty, only to those who had been found guilty of those quite uncommon atrocities that actually constituted a “crime against humanity,” or, as the French prosecutor François de Menthon called it, with greater accuracy, a “crime against the human status.” The notion that aggression is “the supreme international crime” was silently abandoned when a number of men were sentenced to death who had never been convicted of a “conspiracy” against peace.
In justification of the Eichmann trial, it has frequently been maintained that although the greatest crime committed during the last war had been against the Jews, the Jews had been only bystanders in Nuremberg, and the judgment of the Jerusalem court made the point that now, for the first time, the Jewish catastrophe “occupied the central place in the court proceedings, and [that] it was this fact which distinguished this trial from those which preceded it,” at Nuremberg and elsewhere. But this is, at best, a half-truth. It was precisely the Jewish catastrophe that prompted the Allies to conceive of a “crime against humanity” in the first place, because, Julius Stone has written, in Legal Controls of International Conflict (1954), “the mass murder of the Jews, if they were Germany's own nationals, could only be reached by the humanity count.” And what had prevented the Nuremberg Tribunal from doing full justice to this crime was not that its victims were Jews but that the Charter demanded that this crime, which had so little to do with war that its commission actually conflicted with and hindered the war's conduct, was to be tied up with the other crimes. How deeply the Nuremberg judges were aware of the outrage perpetrated against the Jews may perhaps best be gauged by the fact that the only defendant to be condemned to death on a crime-against-humanity charge alone was Julius Streicher, whose specialty had been anti-Semitic obscenities. In this instance, the judges disregarded all other considerations.
What distinguished the trial in Jerusalem from those that preceded it was not that the Jewish people now occupied the central place. In this respect, on the contrary, the trial resembled the postwar trials in Poland and Hungary, in Yugoslavia and Greece, in Soviet Russia and France, in short, in all formerly Nazi-occupied countries. The International Military Tribunal at Nuremberg had been established for war criminals whose crimes could not be localized, all others were delivered to the countries where they had committed their crimes. Only the “major war criminals” had acted without territorial limitations, and Eichmann certainly was not one of them. (This—and not, as was frequently maintained, his disappearance—was the reason he was not accused at Nuremberg; Martin Bormann, for instance, was accused, tried, and condemned to death in absentia.) If Eichmann's activities had spread all over occupied Europe, this was so not because he was so important that territorial limits did not apply to him but because it was in the nature of his task, the collection and deportation of all Jews, that he and his men had to roam the continent. It was the territorial dispersion of the Jews that made the crime against them an “international” concern in the limited, legal sense of the Nuremberg Charter. Once the Jews had a territory of their own, the State in Israel, they obviously had as much right to sit in judgment on the crimes committed against their people as the Poles had to judge crimes committed in Poland. All objections raised against the Jerusalem trial on the ground of the principle of territorial jurisdiction were legalistic in the extreme, and although the court spent a number of sessions discussing all these objections, they were actually of no great relevance. There was not the slightest doubt that Jews had been killed qua Jews, irrespective of their nationalities at the time, and though it is true that the Nazis killed many Jews who had chosen to deny their ethnic origin, and would perhaps have preferred to be killed as Frenchmen or as Germans, justice could be done even in these cases only if one took the intent and the purpose of the criminals into account.
Equally unfounded, I think, was the even more frequent argument against the possible partiality of Jewish judges—that they, especially if they were citizens of a Jewish State, were judging in their own cause. It is difficult to see how the Jewish judges differed in this respect from their colleagues in any of the other Successor trials, where Polish judges pronounced sentence for crimes against the Polish people, or Czech judges sat in judgment on what had happened in Prague and in Bratislava. (Mr. Hausner, in the last of his articles in the Saturday Evening Post, unwittingly added new fuel to this argument: he said that the prosecution realized at once that Eichmann could not be defended by an Israeli lawyer, because there would be a conflict between “professional duties” and “national emotions.” Well, this conflict constituted the gist of all the objections to Jewish judges, and Mr. Hausner's argument in their favor, that a judge may hate the crime and yet be fair to the criminal, applies to the defense counsel as well: the lawyer who defends a murderer does not defend murder. The truth of the matter is that pressures outside the courtroom made it inadvisable, to put it mildly, to charge an Israeli citizen with the defense of Eichmann.) Finally, the argument that no Jewish State had existed at the time when the crime was committed is surely so formalistic, so out of tune with reality and with all demands that justice must be done, that we may safely leave it to the learned debates of the experts. In the interest of justice (as distinguished from the concern with certain procedures which, important in its own right, can never be permitted to overrule justice, the law's chief concern), the court, to justify its competence, would have needed to invoke neither the principle of passive personality—that the victims were Jews and that only Israel was entitled to speak in their names—nor the principle of universal jurisdiction, applying to Eichmann because he was hostis generis humani the rules that are applicable to piracy. Both theories, discussed at length inside and outside the Jerusalem courtroom, actually blurred the issues and obscured the obvious similarity between the Jerusalem trial and the trials that had preceded it in other countries where special legislation had likewise been enacted to ensure the punishment of the Nazis or their collaborators.
The passive-personality principle, which in Jerusalem was based upon the learned opinion of P. N. Drost, in Crime of State (1959), that under certain circumstances “the forum patriae vi
ctimae may be competent to try the case,” unfortunately implies that criminal proceedings are initiated by the government in the name of the victims, who are assumed to have a right to revenge. This was indeed the position of the prosecution, and Mr. Hausner opened his address with the following words: “When I stand before you, judges of Israel, in this court, to accuse Adolf Eichmann, I do not stand alone. Here with me at this moment stand six million prosecutors. But alas, they cannot rise to level the finger of accusation in the direction of the glass dock and cry out J‘accuse against the man who sits there… Their blood cries to Heaven, but their voice cannot be heard. Thus it falls to me to be their mouthpiece and to deliver the heinous accusation in their name.” With such rhetoric the prosecution gave substance to the chief argument against the trial, that it was established not in order to satisfy the demands of justice but to still the victims’ desire for and, perhaps, right to vengeance. Criminal proceedings, since they are mandatory and thus initiated even if the victim would prefer to forgive and forget, rest on laws whose “essence”—to quote Telford Taylor, writing in the New York Times Magazine— “is that a crime is not committed only against the victim but primarily against the community whose law is violated.” The wrongdoer is brought to justice because his act has disturbed and gravely endangered the community as a whole, and not because, as in civil suits, damage has been done to individuals who are entitled to reparation. The reparation effected in criminal cases is of an altogether different nature; it is the body politic itself that stands in need of being “repaired,” and it is the general public order that has been thrown out of gear and must be restored, as it were. It is, in other words, the law, not the plaintiff, that must prevail.
Even less justifiable than the prosecution's effort to rest its case on the passive-personality principle was the inclination of the court to claim competence in the name of universal jurisdiction, for it was in flagrant conflict with the conduct of the trial as well as with the law under which Eichmann was tried. The principle of universal jurisdiction, it was said, was applicable because crimes against humanity are similar to the old crime of piracy, and who commits them has become, like the pirate in traditional international law, hostis humani generis. Eichmann, however, was accused chiefly of crimes against the Jewish people, and his capture, which the theory of universal jurisdiction was meant to excuse, was certainly not due to his also having committed crimes against humanity but exclusively to his role in the Final Solution of the Jewish problem.
Yet even if Israel had kidnaped Eichmann solely because he was hostis humani generis and not because he was hostis Judaeorum, it would have been difficult to justify the legality of his arrest. The pirate's exception to the territorial principle—which, in the absence of an international penal code, remains the only valid legal principle—is made not because he is the enemy of all, and hence can be judged by all, but because his crime is committed on the high seas, and the high seas are no man's land. The pirate, moreover, “in defiance of all law, acknowledging obedience to no flag whatsoever” (H. Zeisel, Britannica Book of the Year, 1962), is, by definition, in business entirely for himself; he is an outlaw because he has chosen to put himself outside all organized communities, and it is for this reason that he has become “the enemy of all alike.” Surely, no one will maintain that Eichmann was in business for himself or that he acknowledged obedience to no flag whatsoever. In this respect, the piracy theory served only to dodge one of the fundamental problems posed by crimes of this kind, namely, that they were, and could only be, committed under a criminal law and by a criminal state.
The analogy between genocide and piracy is not new, and it is therefore of some importance to note that the Genocide Convention, whose resolutions were adopted by the United Nations General Assembly on December 9, 1948, expressly rejected the claim to universal jurisdiction and provided instead that “persons charged with genocide… shall be tried by a competent tribunal of the States in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction.” In accordance with this Convention, of which Israel was a signatory, the court should have either sought to establish an international tribunal or tried to reformulate the territorial principle in such a way that it applied to Israel. Both alternatives lay definitely within the realm of possibility and within the court's competence. The possibility of establishing an international tribunal was cursorily dismissed by the court for reasons which we shall discuss later, but the reason no meaningful redefinition of the territorial principle was sought— so that the court finally claimed jurisdiction on the ground of all three principles: territorial as well as passive-personality and universal-jurisdiction, as though merely adding together three entirely different legal principles would result in a valid claim—was certainly closely connected with the extreme reluctance of all concerned to break fresh ground and act without precedents. Israel could easily have claimed territorial jurisdiction if she had only explained that “territory,” as the law understands it, is a political and a legal concept, and not merely a geographical term. It relates not so much, and not primarily, to a piece of land as to the space between individuals in a group whose members are bound to, and at the same time separated and protected from, each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws. Such relationships become spatially manifest insofar as they themselves constitute the space wherein the different members of a group relate to and have intercourse with each other. No State of Israel would ever have come into being if the Jewish people had not created and maintained its own specific in-between space throughout the long centuries of dispersion, that is, prior to the seizure of its old territory. The court, however, never rose to the challenge of the unprecedented, not even in regard to the unprecedented nature of the origins of the Israel state, which certainly was closest to its heart and thought. Instead, it buried the proceedings under a flood of precedents—during the sessions of the first week of the trial, to which the first fifty-three sections of the judgment correspond—many of which sounded, at least to the layman's ear, like elaborate sophisms.
The Eichmann trial, then, was in actual fact no more, but also no less, than the last of the numerous Successor trials which followed the Nuremberg Trials. And the indictment quite properly carried in an appendix the official interpretation of the Law of 1950 by Pinhas Rosen, then Minister of Justice, which could not be clearer and less equivocal: “While other peoples passed suitable legislation for the punishment of the Nazis and their collaborators soon after the end of the war, and some even before it was over, the Jewish people… had no political authority to bring the Nazi criminals and their collaborators to justice until the establishment of the State.” Hence, the Eichmann trial differed from the Successor trials only in one respect—the defendant had not been duly arrested and extradited to Israel; on the contrary, a clear violation of international law had been committed in order to bring him to justice. We mentioned before that only Eichmann's de facto statelessness enabled Israel to get away with kidnaping him, and it is understandable that despite the innumerable precedents cited in Jerusalem to justify the act of kidnaping, the only relevant one, the capture of Berthold Jakob, a Leftist German Jewish journalist, in Switzerland by Gestapo agents in 1935, was never mentioned. (None of the other precedents applied, because they invariably concerned a fugitive from justice who was brought back not only to the place of his crimes but to a court that had issued, or could have issued, a valid warrant of arrest—conditions that Israel could not have fulfilled.) In this instance, Israel had indeed violated the territorial principle, whose great significance lies in the fact that the earth is inhabited by many peoples and that these peoples are ruled by many different laws, so that every extension of one territory's law beyond the borders and limitations of its validity will bring it into immediate conflict with the law of another territory.
This, unhappily, was the only almost unprecedented feature in the who
le Eichmann trial, and certainly it was the least entitled ever to become a valid precedent. (What are we going to say if tomorrow it occurs to some African state to send its agents into Mississippi and to kidnap one of the leaders of the segregationist movement there? And what are we going to reply if a court in Ghana or the Congo quotes the Eichmann case as a precedent?) Its justification was the unprecedentedness of the crime and the coming into existence of a Jewish State. There were, moreover, important mitigating circumstances in that there hardly existed a true alternative if one indeed wished to bring Eichmann to justice. Argentina had an impressive record for not extraditing Nazi criminals; even if there had been an extradition treaty between Israel and Argentina, an extradition request would almost certainly not have been honored. Nor would it have helped to hand Eichmann over to the Argentine police for extradition to West Germany; for the Bonn government had earlier sought extradition from Argentina of such well-known Nazi criminals as Karl Klingenfuss and Dr. Josef Mengele (the latter implicated in the most horrifying medical experiments at Auschwitz and in charge of the “selection”) without any success. In the case of Eichmann, such a request would have been doubly hopeless, since, according to Argentine law, all offenses connected with the last war had fallen under the statute of limitation fifteen years after the end of the war, so that after May 7, 1960, Eichmann could not have been legally extradited anyway. In short, the realm of legality offered no alternative to kidnaping.