Those who are convinced that justice, and nothing else, is the end of law will be inclined to condone the kidnaping act, though not because of precedents but, on the contrary, as a desperate, unprecedented and no-precedent-setting act, necessitated by the unsatisfactory condition of international law. In this perspective, there existed but one real alternative to what Israel had done: instead of capturing Eichmann and flying him to Israel, the Israeli agents could have killed him right then and there, in the streets of Buenos Aires. This course of action was frequently mentioned in the debates on the case and, somewhat oddly, was recommended most fervently by those who were most shocked by the kidnaping. The notion was not without merit, because the facts of the case were beyond dispute, but those who proposed it forgot that he who takes the law into his own hands will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated. Two precedents in the recent past come immediately to mind. There was the case of Shalom Schwartzbard, who in Paris on May 25, 1926, shot and killed Simon Petlyura, former hetman of the Ukrainian armies and responsible for the pogroms during the Russian civil war that claimed about a hundred thousand victims between 1917 and 1920. And there was the case of the Armenian Tehlirian, who, in 1921, in the middle of Berlin, shot to death Talaat Bey, the great killer in the Armenian pogroms of 1915, in which it is estimated that a third (six hundred thousand) of the Armenian population in Turkey was massacred. The point is that neither of these assassins was satisfied with killing “his” criminal, but that both immediately gave themselves up to the police and insisted on being tried. Each used his trial to show the world through court procedure what crimes against his people had been committed and gone unpunished. In the Schwartzbard trial, especially, methods very similar to those in the Eichmann trial were used. There was the same stress on extensive documentation of the crimes, but that time it was prepared for the defense (by the Comité des Délégations Juives, under the chairmanship of the late Dr. Leo Motzkin, which needed a year and a half to collect the material and then published it in Les Pogromes en Ukraine sous les gouvernements ukrainiens 1917–1920, 1927), just as that time it was the accused and his lawyer who spoke in the name of the victims, and who, incidentally, even then raised the point about the Jews “who had never defended themselves.” (See the plaidoyer of Henri Torrès in his book Le Procès des Pogromes, 1928). Both men were acquitted, and in both cases it was felt that their gesture “signified that their race had finally decided to defend itself, to leave behind its moral abdication, to overcome its resignation in the face of insults,” as Georges Suarez admiringly put it in the case of Shalom Schwartzbard.
The advantages of this solution to the problem of legalities that stand in the way of justice are obvious. The trial, it is true, is again a “show” trial, and even a show, but its “hero,” the one in the center of the play, on whom all eyes are fastened, is now the true hero, while at the same time the trial character of the proceedings is safeguarded, because it is not “a spectacle with prearranged results” but contains that element of “irreducible risk” which, according to Kirchheimer, is an indispensable factor in all criminal trials. Also, the J'accuse, so indispensable from the viewpoint of the victim, sounds, of course, much more convincing in the mouth of a man who has been forced to take the law into his own hands than in the voice of a government-appointed agent who risks nothing. And yet—quite apart from practical considerations, such as that Buenos Aires in the sixties hardly offers either the same guarantees or the same publicity for the defendant that Paris and Berlin offered in the twenties—it is more than doubtful that this solution would have been justifiable in Eichmann's case, and it is obvious that it would have been altogether unjustifiable if carried out by government agents. The point in favor of Schwartzbard and Tehlirian was that each was a member of an ethnic group that did not possess its own state and legal system, that there was no tribunal in the world to which either group could have brought its victims. Schwartzbard, who died in 1938, more than ten years before the proclamation of the Jewish State, was not a Zionist, and not a nationalist of any sort; but there is no doubt that he would have welcomed the State of Israel enthusiastically, for no other reason than that it would have provided a tribunal for crimes that had so often gone unpunished. His sense of justice would have been satisfied. And when we read the letter he addressed from his prison in Paris to his brothers and sisters in Odessa—“Faites savoir dans les villes et dans les villages de Balta, Proskouro, Tzcherkass, Ouman, Jitomir…, portez-y le message édifiant: la colère juive a tiré sa vengeance! Le sang de l'assassin Petlioura, qui a jailli dans la ville mondiale, à Paris,… rappellera le crime féroce… commis envers le pauvre et abandonné peuple juif”—we recognize immediately not, perhaps, the language that Mr. Hausner actually spoke during the trial (Shalom Schwartz-bard's language was infinitely more dignified and more moving) but certainly the sentiments and the state of mind of Jews all over the world to which it was bound to appeal.
I have insisted on the similarities between the Schwartzbard trial in 1927 in Paris and the Eichmann trial in 1961 in Jerusalem because they demonstrate how little Israel, like the Jewish people in general, was prepared to recognize, in the crimes that Eichmann was accused of, an unprecedented crime, and precisely how difficult such a recognition must have been for the Jewish people. 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.
The Nuremberg Laws of 1935 legalized the discrimination practiced before that by the German majority against the Jewish minority. According to international law, it was the privilege of the sovereign German nation to declare to be a national minority whatever part of its population it saw fit, as long as its minority laws conformed to the rights and guarantees established by inter-nationally recognized minority treaties and agreements. International Jewish organizations therefore promptly tried to obtain for this newest minority the same rights and guarantees that minorities in Eastern and Southeastern Europe had been granted at Geneva. But even though this protection was not granted, the Nuremberg Laws were generally recognized by other nations as part of German law, so that it was impossible for a German national to enter into a “mixed marriage” in Holland, for instance. The crime of the Nuremberg Laws was a national crime; it violated national, constitutional rights and liberties, but it was of no concern to the comity of nations. “Enforced emigration,” however, or expulsion, which became official policy after 1938, did concern the international community, for the simple reason that those who were expelled appeared at the frontiers of other countries, which were forced either to accept the uninvited guests or to smuggle them into another country, equally unwilling to accept them. Expulsion of nationals, in other words, is already an offense against humanity, if by “humanity” we understand no more than the comity of nations. Neither the national crime of legalized discrimination, which amounted to persecution by law, nor the international crime of expulsio
n was unprecedented, even in the modern age. Legalized discrimination had been practiced by all Balkan countries, and expulsion on a mass scale had occurred after many revolutions. It was when the Nazi regime declared that the German people not only were unwilling to have any Jews in Germany but wished to make the entire Jewish people disappear from the face of the earth that the new crime, the crime against humanity—in the sense of a crime “against the human status,” or against the very nature of mankind— appeared. Expulsion and genocide, though both are international offenses, must remain distinct; the former is an offense against fellow-nations, whereas the latter is an attack upon human diversity as such, that is, upon a characteristic of the “human status” without which the very words “mankind” or “humanity” would be devoid of meaning.
Had the court in Jerusalem understood that there were distinctions between discrimination, expulsion, and genocide, it would immediately have become clear that the supreme crime it was confronted with, the physical extermination of the Jewish people, was a crime against humanity, perpetrated upon the body of the Jewish people, and that only the choice of victims, not the nature of the crime, could be derived from the long history of Jew-hatred and anti-Semitism. Insofar as the victims were Jews, it was right and proper that a Jewish court should sit in judgment; but insofar as the crime was a crime against humanity, it needed an international tribunal to do justice to it. (The failure of the court to draw this distinction was surprising, because it had actually been made before by the former Israeli Minister of Justice, Mr. Rosen, who in 1950 had insisted on “a distinction between this bill [for crimes against the Jewish people] and the Law for the Prevention and Punishment of Genocide,” which was discussed but not passed by the Israeli Parliament. Obviously, the court felt it had no right to overstep the limits of municipal law, so that genocide, not being covered by an Israeli law, could not properly enter into its considerations.) Among the numerous and highly qualified voices that raised objections to the court in Jerusalem and were in favor of an international tribunal, only one, that of Karl Jaspers, stated clearly and unequivocally—in a radio interview held before the trial began and later published in Der Monat—that “the crime against the Jews was also a crime against mankind,” and that “consequently the verdict can be handed down only by a court of justice representing all mankind.” Jaspers proposed that the court in Jerusalem, after hearing the factual evidence, “waive” the right to pass sentence, declaring itself “incompetent” to do so, because the legal nature of the crime in question was still open to dispute, as was the subsequent question of who would be competent to pass sentence on a crime which had been committed on government orders. Jaspers stated further that one thing alone was certain: “This crime is both more and less than common murder,” and though it was not a “war crime,” either, there was no doubt that “mankind would certainly be destroyed if states were permitted to perpetrate such crimes.”
Jaspers' proposal, which no one in Israel even bothered to discuss, would, in this form, presumably have been impracticable from a purely technical point of view. The question of a court's jurisdiction must be decided before the trial begins; and once a court has been declared competent, it must also pass judgment. However, these purely formalistic objections could easily have been met if Jaspers had called not upon the court, but rather upon the state of Israel to waive its right to carry out the sentence once it had been handed down, in view of the unprecedented nature of the court's findings. Israel might then have had recourse to the United Nations and demonstrated, with all the evidence at hand, that the need for an international criminal court was imperative, in view of these new crimes committed against mankind as a whole. It would then have been in Israel's power to make trouble, to “create a wholesome disturbance,” by asking again and again just what it should do with this man whom it was holding prisoner; constant repetition would have impressed on worldwide public opinion the need for a permanent international criminal court. Only by creating, in this way, an “embarrassing situation” of concern to the representatives of all nations would it be possible to prevent “mankind from setting its mind at ease” and “massacre of the Jews… from becoming a model for crimes to come, perhaps the small-scale and quite paltry example of future genocide.” The very monstrousness of the events is “minimized” before a tribunal that represents one nation only.
This argument in favor of an international tribunal was unfortunately confused with other proposals based on different and considerably less weighty considerations. Many friends of Israel, both Jews and non-Jews, feared that the trial would harm Israel's prestige and give rise to a reaction against Jews the world over. It was thought that Jews did not have the right to appear as judges in their own case, but could act only as accusers; Israel should therefore hold Eichmann prisoner until a special tribunal could be created by the United Nations to judge him. Quite apart from the fact that Israel, in the proceedings against Eichmann, was doing no more than what all the countries which had been occupied by Germany had long since done, and that justice was at stake here, not the prestige of Israel or of the Jewish people, all these proposals had one flaw in common: they could too easily be countered by Israel. They were indeed quite unrealistic in view of the fact that the U.N. General Assembly had “twice rejected proposals to consider the establishment of a permanent international criminal court” (A.D.L. Bulletin). But another, more practical proposition, which usually is not mentioned precisely because it was feasible, was made by Dr. Nahum Goldmann, president of the World Jewish Congress. Goldmann called upon Ben-Gurion to set up an international court in Jerusalem, with judges from each of the countries that had suffered under Nazi occupation. This would not have been enough; it would have been only an enlargement of the Successor trials, and the chief impairment of justice, that it was being rendered in the court of the victors, would not have been cured. But it would have been a practical step in the right direction.
Israel, as may be remembered, reacted against all these proposals with great violence. And while it is true, as has been pointed out by Yosal Rogat (in The Eichmann Trial and the Rule of Law, published by the Center for the Study of Democratic Institutions, Santa Barbara, California, 1962), that Ben-Gurion always “seemed to misunderstand completely when asked, ‘Why should he not be tried before an international court?,’” it is also true that those who asked the question did not understand that for Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man—rights which, as no one knew better than they, were claimed only by people who were too weak to defend their “rights of Englishmen” and to enforce their own laws. (The very fact that Israel had her own law under which such a trial could be held had been called, long before the Eichmann trial, an expression of “a revolutionary transformation that has taken place in the political position of the Jewish people”—by Mr. Rosen on the occasion of the First Reading of the Law of 1950 in the Knesset.) It was against the background of these very vivid experiences and aspirations that Ben-Gurion said: “Israel does not need the protection of an International Court.”
Moreover, the argument that the crime against the Jewish people was first of all a crime against mankind, upon which the valid proposals for an international tribunal rested, stood in flagrant contradiction to the law under which Eichmann was tried. Hence, those who proposed that Israel give up her prisoner should have gone one step further and declared: The Nazis and Nazi Collaborators (Punishment) Law of 1950 is wrong, it is in contradiction to what actually happened, it does not cover the facts. And this would indeed have been quite true. For 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. And, indeed, it was because Ben-Gurion knew quite well that the whole discussion actually concerned the validity of the Israeli law that he finally reacted nastily, and not just with violence, against the critics of Israeli procedures: Whatever these “so-called experts” had to say, their arguments were “sophisms,” inspired either by anti-Semitism, or, in the case of Jews, by inferiority complexes. “Let the world understand: We shall not give up our prisoner.”
It is only fair to say that this was by no means the tone in which the trial was conducted in Jerusalem. But I think it is safe to predict that this last of the Successor trials will no more, and perhaps even less than its predecessors, serve as a valid precedent for future trials of such crimes. This might be of little import in view of the fact that its main purpose—to prosecute and to defend, to judge and to punish Adolf Eichmann—was achieved, if it were not for the rather uncomfortable but hardly deniable possibility that similar crimes may be committed in the future. The reasons for this sinister potentiality are general as well as particular. It is in the very nature of things human that every act that has once made its appearance and has been recorded in the history of mankind stays with mankind as a potentiality long after its actuality has become a thing of the past. No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been. The particular reasons that speak for the possibility of a repetition of the crimes committed by the Nazis are even more plausible. The frightening coincidence of the modern population explosion with the discovery of technical devices that, through automation, will make large sections of the population “superfluous” even in terms of labor, and that, through nuclear energy, make it possible to deal with this twofold threat by the use of instruments beside which Hitler's gassing installations look like an evil child's fumbling toys, should be enough to make us tremble.