Every morning, the words “Beth Hamishpath” (“The House of Justice”), shouted by the court usher at the top of his voice, make us jump to our feet as they announce the arrival of the three judges, who, bare-headed and in black robes, walk into the courtroom from a side entrance to take their seats on the highest tier of the raised platform at the front of the long hall. They sit at a long table, which is eventually to be covered with innumerable books and more than fifteen hundred documents. Immediately below the judges are the translators, whose services are needed for direct exchanges between the defendant or his counsel and the court; otherwise, Adolf Eichmann, the German-speaking accused party, like all the other foreigners in the courtroom, follows the Hebrew proceedings through the simultaneous radio transmission, which is excellent in French, bearable in English, and sheer comedy—frequently incomprehensible—in German. (In view of the scrupulous fairness of all the technical arrangements for the trial, it is among the minor mysteries of the new State of Israel that, with its high percentage of German-born people, it was unable to find an adequate translator into the only language the accused and his counsel could understand. The old prejudice against German Jews, once very pronounced in Israel, is no longer strong enough to account for it.) One tier below the translators are the glass booth of the accused and the witness box, facing each other. Finally, on the bottom tier, with their backs to the spectators, are the prosecutor, Attorney General Gideon Hausner, with his staff of four assistant attorneys, and Dr. Robert Servatius, counsel for the defense—a lawyer from Cologne, chosen by Eichmann and paid by the Israeli government (just as at the Nuremberg Trials all attorneys for the accused were paid by the tribunal of the victorious powers), who during the first weeks is accompanied by an assistant. Whoever planned this auditorium in the newly built House of the People, Beth Ha’am—now guarded from roof to cellar by heavily armed police, and surrounded by high fences, as well as by a wooden row of barracks in the front courtyard, in which all comers are expertly frisked—obviously had a theatre in mind, complete with orchestra and balcony, with proscenium and stage, and with side doors for the actors’ entrances.
At no time, however, is there anything theatrical in the conduct of the judges—Moshe Landau, the presiding judge, Judge Benjamin Halevi, and Judge Yitzhak Raveh. Their walk is unstudied; their sober and intense attention, visibly stiffening under the impact of grief as they listen to the tales of suffering, is natural; their impatience with the prosecutor’s attempt to drag out the hearings is spontaneous and refreshing; their attitude toward the defense is perhaps a shade over-polite, as though they had it always in mind that, to quote the judgment they handed down, “Dr. Servatius stood almost alone in this strenuous legal battle, in an unfamiliar environment;” their manner toward the accused is always beyond reproach. They are so evidently three good and honest men that one is not surprised to see that none of them yields to the greatest of all the temptations to play-act in this setting—that of pretending that they, all three born and educated in Germany, must wait for the Hebrew translation of anything said in German. Judge Landau hardly ever waits to give his answer until the translator has done his work, and he frequently interrupts the translation to correct and improve it, appearing grateful for this bit of distraction from the grim business at hand. In time, during the cross-examination of the accused, he even leads his colleagues to use their German mother tongue in the dialogue with Eichmann—a proof, if proof were still needed, of his remarkable independence of current public opinion in Israel.
There is no doubt from the very beginning that it is Judge Landau who sets the tone, and that he is doing his best—his very best—to prevent this trial from becoming a “show” trial under the direction of the prosecutor, whose love of showmanship is unmistakable. Among the reasons he cannot always succeed is the simple fact that the proceedings happen on a stage before an audience, with the usher’s marvellous shout at the beginning of each session producing the effect of a rising curtain. Clearly, this courtroom is well suited to the show trial that David Ben-Gurion, Prime Minister of Israel, had in mind when he decided to have Eichmann kidnapped in Argentina and brought to the District Court of Jerusalem to answer the charge that he had played a principal role in “the Final Solution of the Jewish question,” as the Nazis called their plan to exterminate the Jews. And Ben-Gurion, who has rightly been given the title of “architect of the state,” is the invisible stage manager of the proceedings. He does not attend a single one of the sessions; in the courtroom, he speaks with the voice of his Attorney General, who, representing the government, does his best—his very best—to obey his master. And if his best often turns out not to be good enough, the reason is that the trial is presided over by someone who serves Justice as faithfully as Mr. Hausner serves the State of Israel. Justice demands that the accused be prosecuted, defended, and judged, and that all the other questions, though they may seem to be of 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 to which the Allies shared the responsibility?,” of “How could the Jews, through their own leaders, coöperate 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, 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 turn to face the audience), and who desperately tries to maintain his self-control—and mostly succeeds, despite a 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.
And Justice turns out to be a much sterner master than the Prime Minister. The latter’s rule, as Mr. Hausner is not slow in demonstrating, is permissive; it permits the prosecutor to give press conferences and interviews for television during the trial (the American program, sponsored by the Glickman Corporation, is constantly interrupted—business as usual—by real-estate advertising), and even “spontaneous” outbursts to reporters in the court building (he is sick of cross-examining Eichmann, who answers all questions with lies); it permits frequent side glances into the audience, and the theatrics characteristic of a conspicuous vanity, which finally achieves its triumph in the White House with a compliment on “a job well done” by the President of the United States. Justice does not permit anything of the sort; it demands seclusion, it requires sorrow rather than anger, and it prescribes the most careful abstention from all the nice pleasures of putting oneself in the limelight.
Yet no matter how consistently the judges shun the limelight, there they are, seated at the top of the platform, facing the audience as from a stage. The audience is supposed to represent the whole world, and in the first few weeks it indeed consisted chiefly of newspapermen and magazine writers who had flocked to Jerusalem from the four corners of the earth. They were to watch a spectacle as sensational as the Nuremberg Trials; only this time, Mr. Hausner noted, “the tragedy of Jewry as a whole was the central concern.” In fact, said Hausner, “if we charge him [Eichmann] also with crimes against non-Jews . . . this is” not because he committed them but, surprisingly, “because we make no ethnic distinctions.” That was certainly a remarkable sentence for a prosecutor to utter in his opening speech; it proved to be the key sentence in the case for the prosecution. For this case was built on what the Jews had suffered, not on what Eichmann had done. And, according to Mr. Hausner, that amounted to the same thing, because “there was only one man who had been concerned almost entirely with the Jews, whose business had been their destruction, whose role in the establishment of the iniquitous regime had been limited to them. That was Adolf Eichmann.” Was it not logical to bring before the court all the facts of Jewish suffering (which, of course, were never in dispute) and then look for evidence that, in one way or another, would connect Eichmann with what had happened? The Nuremberg Trials, where the defendants had been “indicted for crimes against members of many and various nations,” had left the Jewish tragedy out of account, Hausner said, for the simple reason that Eichmann had not been there. Did Hausner really believe the Nuremberg Trials would have paid greater attention to the fate of the Jews if Eichmann had been in the dock? Hardly. Like almost everybody else in Israel, he believed that only a Jewish court could render justice to Jews, and that it was the business of Jews to sit in judgment on their enemies.
If the audience was to be the world and the play was to be the huge panorama of Jewish suffering, the reality was falling short of expectations and failing to accomplish its purpose. The journalists remained faithful for no more than two weeks, and then the audience changed drastically. It was now supposed to consist of Israelis, and, specifically, of those who were too young to know the story or, as in the case of Oriental Jews, had never been told it. The trial was supposed to show them what it meant to live among non-Jews, to convince them that only in Israel could a Jew be safe and live an honorable life. (For correspondents, the lesson was spelled out in a little booklet on Israel’s legal system, which was handed to the press. Its author, Doris Lankin, cites a decision of Israel’s Supreme Court whereby two fathers who had “abducted their children and brought them to Israel” were directed to send them back to their mothers, living abroad, who had a legal right to their custody. This, says the author—no less proud of such strict legality than Hausner of his willingness to prosecute a murder charge even when the victims of the murder were non-Jews—“despite the fact that to send the children back to maternal custody and care would be committing them to waging an unequal struggle against the hostile elements in the Diaspora.”) But in actuality there were hardly any young people in the audience, and it did not consist of Israelis, as distinguished from Jews. It was filled with “survivors”—middle-aged and elderly people, immigrants from Europe, like myself—who knew by heart all that there was to know, and who were in no mood to learn any lessons and certainly did not need this trial to draw their own conclusions. As witness followed witness and horror was piled upon horror, they sat there and listened in public to stories they would hardly have been able to endure in private, when they would have had to face the storyteller. And the more “the calamity [in Hausner’s words] of the Jewish people in this generation” unfolded, and the more grandiose Hausner’s rhetoric became, the paler and more ghostlike became the figure in the glass booth, and no finger-wagging (“And there sits the monster responsible for all this”) could summon him back to life.
It was precisely the play aspect of the trial that collapsed under the weight of the hair-raising atrocities. A trial resembles a play in that both focus on the doer, not on the victim. A show trial, to be effective, needs even more urgently than an ordinary trial a limited and well-defined outline of what the doer did, and how. In the center of a trial can only be the one who did—in this respect, he is like the hero in the play—and if he suffers, he must suffer for what he has done, not for what he has caused others to suffer. No one knew this better than the presiding judge, before whose eyes the trial began to deteriorate into a bloody spectacle, or, as the judgment called it, “a rudderless ship tossed about by the waves.” But if his efforts to prevent this were often defeated, the defeat was, strangely, in part the fault of the defense, which hardly ever rose to challenge any testimony, no matter how irrelevant or immaterial it might be. Dr. Servatius (as everybody invariably addressed him) was a bit bolder when it came to the submission of documents, and the most impressive of his rare interventions occurred when the prosecution introduced as evidence the diaries of Hans Frank, wartime Governor General of Poland and one of the major war criminals hanged at Nuremberg. “I have only one question,” Dr. Servatius said. “Is the name Adolf Eichmann, the name of the accused, mentioned in those twenty-nine volumes [in fact, it was thirty-eight]? . . . The name Adolf Eichmann is not mentioned in all those twenty-nine volumes. . . . Thank you, no more questions.”
Thus, the trial never became a play, but the show that Ben-Gurion had had in mind did take place—or, rather, the “lessons” he thought should be offered to Israelis and Arabs, to Jews and Gentiles; that is, to the whole world. These lessons to be drawn from an identical show were meant to be different for the different recipients. Ben-Gurion had outlined them before the trial started, in a number of articles that were designed to explain why Israel had kidnapped the accused. There was the lesson to the non-Jewish world: “I want to establish before the nations of the world how millions of people, because they happened to be Jews, and one million babies, because they happened to be Jewish babies, were murdered by the Nazis.” Or, in the words of Davar, the organ of Ben-Gurion’s Mapai party: “Let world opinion know this, that not Nazi Germany alone was responsible for the destruction of six million Jews of Europe.” Hence, again in Ben-Gurion’s own words, “We want the nations of the world to know . . . and they should be ashamed.” The Jews in the Diaspora were to remember how “four-thousand-year-old Judaism, with its spiritual creations, its ethical strivings, its Messianic aspirations, had always faced a hostile world,” how the Jews had degenerated until they went to their death like sheep, and how only the establishment of a Jewish state had enabled Jews to hit back, as Israelis had done in the War of Independence, in the Suez adventure, and in the almost daily incidents on Israel’s unhappy borders. And if the Jews outside Israel had to be shown the difference between Israeli heroism and Jewish submissive meekness, there was a complementary lesson for the Israelis; for “the generation of Israelis who have grown up since the holocaust” were in danger of losing their ties with the Jewish people and, by implication, with their own history. “It is necessary that our youth remember what happened to the Jewish people. We want them to know the most tragic facts in our history.” Finally, one of the motives in bringing Eichmann to trial was “to ferret out other Nazis—for example, the connection between the Nazis and some Arab rulers.”
If these had been the only justifications for bringing Adolf Eichmann to the District Court of Jerusalem, the trial would have been a failure on most counts. In some respects, the lessons were superfluous, and in others they were positively misleading. Thanks to Hitler, anti-Semitism has been discredited, perhaps not forever but certainly for the time being, and this is not because the Jews have become more popular all of a sudden but because not only Ben-Gurion but most people have “realized that in our day the gas chamber and the soap factory are what anti-Semitism may lead to.” Equally superfluous was the lesson to the Jews in the Diaspora, who hardly needed a great catastrophe in which a third of their people perished to be convinced of the world’s hostility. Not only has their conviction of the eternal and ubiquitous nature of anti-Semitism been the most potent ideological factor in the Zionist involvement since the Dreyfus Affair; it must also have been the cause of the otherwise inexplicable readiness of the German-Jewish community to negotiate with the Nazi authorities during the early stages of the regime. This conviction produced a fatal inability to distinguish between friend and foe; the German Jews underestimated their enemies because they somehow thought that all Gentiles were alike.
The contrast between Israeli heroism and the submissive meekness with which Jews went to their death—arriving on time at the transportation points, walking under their own power to the places of execution, digging their own graves, undressing and making neat piles of their clothing, and lying down side by side to be shot—seemed a telling point, and the prosecutor, asking witness after witness, “Why did you not protest?,” “Why did you board the train?,” “Fifteen thousand people were standing there and hundreds of guards facing you—why didn’t you revolt and charge and attack these guards?,” harped on it for all it was worth. But the sad truth of the matter is that the point was ill taken, for no non-Jewish group or non-Jewish people had behaved differently. Sixteen years ago, while still under the direct impact of the events, a former French inmate of Buchenwald, David Rousset, described, in “Les Jours de Notre Mort,” the logic that obtained in all concentration camps: “The triumph of the S.S. demands that the tortured victim allow himself to be led to the noose without protesting, that he renounce and abandon himself to the point of ceasing to affirm his identity. And it is not for nothing. It is not gratuitously, out of sheer sadism, that the S.S. men desire his defeat. They know that the system which succeeds in destroying its victim before he mounts the scaffold . . . is incomparably the best for keeping a whole people in slavery. In submission. Nothing is more terrible than these processions of human beings going like dummies to their death.” The court received no answer to this cruel and silly question, but one could easily have found an answer had he permitted his imagination to dwell for a few minutes on the fate of those Dutch Jews who in 1941, in the old Jewish quarter of Amsterdam, dared to attack a German security police detachment. Four hundred and thirty Jews were arrested in reprisal, and they were literally tortured to death, being sent first to Buchenwald and then to the Austrian camp of Mauthausen. Month after month, they died a thousand deaths, and every single one of them would have envied his brethren in Auschwitz had he known about them. There exist many things considerably worse than death, and the S.S. saw to it that none of them was ever very far from the mind and imagination of their victims. In this respect, perhaps even more significantly than in others, the deliberate attempt in Jerusalem to tell only the Jewish side of the story distorted the truth, even the Jewish truth. The glory of the uprising in the Warsaw ghetto and the heroism of the few others who fought back lay precisely in their having refused the comparatively easy death that the Nazis offered them—before the firing squad or in the gas chamber. And the witnesses in Jerusalem who testified to resistance and rebellion, to “the small place the uprising had in this history of the holocaust,” confirmed the known fact that only the very young had been capable of taking the “decision that we cannot go and be slaughtered like sheep.”
In one respect, Ben-Gurion’s expectations for the trial were not altogether disappointed, for it did indeed become an important instrument for ferreting out other Nazis and criminals—but not in the Arab countries, which had openly offered refuge to hundreds of them. The wartime relationship between the Grand Mufti of Jerusalem and the Nazis was no secret; he had hoped they would help him in the implementation of some “Final Solution” of the Jewish question in the Near East. Hence, newspapers in Damascus and Beirut, in Cairo and Amman, did not hide their sympathy for Eichmann or their regret that he had not “finished the job;” a broadcast from Cairo on the day the trial opened went as far as to inject a slightly anti-German note into its comments, complaining that there was not “a single incident in which one German plane flew over one Jewish settlement [in Palestine] and dropped one bomb on it throughout the last world war.” That Arab nationalists have been in sympathy with Nazism is notorious, and neither Ben-Gurion nor this trial was needed “to ferret them out;” they were never in hiding. The trial revealed only that all rumors about Eichmann’s connection with Haj Amin el Husseini, the wartime Mufti of Jerusalem, were unfounded. (Along with other departmental heads, he had once been introduced to the Mufti during a reception at an S.S. office in Berlin.) Documents produced by the prosecution showed that the Mufti had been in close contact with the German Foreign Office and with Himmler, but this was nothing new. But if Ben-Gurion’s remark about “the connection between the Nazis and some Arab rulers” was pointless, his failure to mention present-day West Germany in this context was surprising. Of course, it was reassuring to hear that Israel “does not hold Adenauer responsible for Hitler,” and that “for us a decent German, although he belongs to the same nation that twenty years ago helped to murder millions of Jews, is a decent human being.” (There was no mention of decent Arabs.) While the German Federal Republic has not yet recognized the State of Israel—presumably out of fear that the Arab countries might thereupon recognize Ulbricht’s Germany—it has paid seven hundred and thirty-seven million dollars in reparation to Israel during the last ten years; the reparation payments will soon come to an end, and Israel is now trying to arrange with West Germany for a long-term loan. Hence, the relationship between the two countries, and particularly the personal relationship between Ben-Gurion and Adenauer, has been quite good, and if, as an aftermath of the trial, some deputies in the Knesset, the Israeli Parliament, succeeded in imposing certain restraints on the cultural-exchange program with West Germany, this certainly was not hoped for, or even foreseen, by Ben-Gurion. It is more noteworthy that he did not foresee, or did not care to mention, the fact that Eichmann’s capture would trigger the first serious effort made by West Germans to bring to trial at least those war criminals who were directly implicated in murder. The Central Agency for the Investigation of Nazi Crimes, which was belatedly set up by the eleven West German states in 1958 (barely two years before—in May, 1960—the West German statute of limitations wiped out all offenses except first-degree murder, for which the time limit is twenty years), and of which Prosecutor Erwin Schüle is the head, had run into all kinds of difficulties, caused partly by the unwillingness of German witnesses to coöperate and partly by the unwillingness of the local courts to prosecute on the basis of material sent to them from the Central Agency. It was not that the trial in Jerusalem produced any important new evidence of the kind needed for the discovery of Eichmann’s associates but that the news of Eichmann’s sensational capture and the prospect of his trial had an impact strong enough to persuade the local courts to use Mr. Schüle’s findings and to overcome the native reluctance to do anything about the “murderers in our midst” by the time-honored expedient of posting rewards for the capture of well-known criminals.
The results were amazing. Seven months after Eichmann’s arrival in Jerusalem—and four months before the opening of the trial—Richard Baer, successor to Rudolf Höss as commandant of Auschwitz, was finally arrested. Then, in rapid succession, most of the members of the so-called Eichmann Commando—Franz Novak, Eichmann’s transportation officer, who had been living as a printer in Austria; Dr. Otto Hunsche, his legal expert and his assistant in Hungary, who had settled as a lawyer in West Germany; Hermann Krumey, Eichmann’s second in command in Hungary, who had become a druggist; Gustav Richter, former “Jewish adviser” in Rumania; and Dr. Günther Zöpf, who had filled the same post in Amsterdam—were arrested, too. (Although evidence against these five had been published in Germany years before, in books and magazine articles, not one of them had found it necessary to live under an assumed name.) For the first time since the close of the war, German newspapers were full of stories about trials of Nazi criminals—all of them mass murderers—and the reluctance of the local courts to prosecute these crimes still showed itself in the fantastically lenient sentences meted out to those convicted. (Thus, Dr. Hunsche, who was personally responsible for a last-minute deportation of some twelve hundred Hungarian Jews, of whom at least six hundred were killed, received a sentence of five years of hard labor; Dr. Otto Bradfisch, of the Einsatzgruppen, the mobile killing units of the S.S. in the East, was sentenced to ten years of hard labor for the killing of fifteen thousand Jews; and Joseph Lechthaler, who had “liquidated” the Jewish inhabitants of Slutsk and Smolevichi, in Russia, was sentenced to three years and six months.) Among the new arrests were people of great prominence under the Nazis, most of whom had already been denazified by the German courts. One was S.S. Obergruppenführer Karl Wolff, former chief of Himmler’s personal staff, who, according to a document submitted in 1946 at Nuremberg, had greeted “with particular joy” the news that “for two weeks now a train has been carrying, every day, five thousand members of the Chosen People” from Warsaw to Treblinka, one of the Eastern killing centers. He still awaits trial. The trial of Wilhelm Koppe, who had at first managed the gassing of Jews in Chelmno and then become the successor of Friedrich-Wilhelm Krüger in Poland, in a high post in the S.S. whose duties included making Poland judenrein (Jew-clean)—in postwar West Germany, he was the director of a chocolate factory—has not yet taken place. Occasional harsh sentences were even less reassuring, for they were meted out to offenders like Erich von dem Bach-Zelewski, a former S.S. Obergruppenführer. He was tried in 1961 for his participation in the Röhm rebellion in 1934, was sentenced to four and a half years, and then was indicted again in 1962 for the killing of six German Communists in 1933, tried before a jury in Nuremberg, and sentenced to life. Neither indictment mentioned that Bach-Zelewski had been anti-partisan chief on the Russian front or that he had participated in the Jewish massacres at Minsk and Mogilev, in White Russia. Should a German court, on the pretext that war crimes are no crimes, make “ethnic distinctions”? And is it possible that what was an unusually harsh sentence (for a German postwar court) was arrived at because Bach-Zelewski was among the very few Nazi leaders who had tried to protect Jews from the Einsatzgruppen, suffered a nervous breakdown after the mass killings, and testified for the prosecution in Nuremberg? (He was also the only such leader who in 1952 had denounced himself publicly for mass murder, but he was never prosecuted for it.) There is little hope that things will change now, even though the Adenauer administration has been forced to weed out of the judiciary a hundred and forty-odd judges and prosecutors, along with many police officers, with a more than ordinarily compromising past, and to dismiss the chief prosecutor of the Federal Supreme Court, Wolfgang Immerwahr Fränkel, because, his middle name notwithstanding, he had been less than candid when he was asked about his Nazi past. It has been estimated that of the eleven thousand five hundred judges in the Bundesrepublik, five thousand were active in the courts under the Hitler regime. In November, 1962, shortly after the purging of the judiciary and six months after Eichmann’s name had disappeared from the news, the long awaited trial of Martin Fellenz took place at Flensburg in an almost empty courtroom. The former Higher S.S. and Police Leader, who had been a prominent member of the Free Democratic Party in Adenauer’s Germany, was arrested in June, 1960, a few weeks after Eichmann’s capture. He was accused of participation in, and partial responsibility for, the murder of forty thousand Jews in Poland. After more than six weeks of detailed testimony, the prosecutor demanded the maximum penalty—a life sentence, to be served at hard labor. And the court sentenced him to four years, two and a half of which he had already served while waiting in jail.
Nevertheless, there can be no doubt that the Eichmann trial had its deepest and most far-reaching consequences in Germany. The attitude of the German people toward their own past, which all experts on the German question had puzzled over for fifteen years, could hardly have been more clearly demonstrated: they themselves did not care much about it one way or the other, and did not particularly mind the presence of murderers at large in the country, since none of these particular murderers were likely to commit murder now, of their own free will; however, if world opinion—or, rather, what the Germans call das Ausland, collecting all countries outside Germany into a singular noun—became obstinate and demanded that these people be punished, they were perfectly willing to oblige, at least up to a point. When Eichmann was captured, Chancellor Adenauer had foreseen embarrassment and had voiced a fear that the trial would “stir up again all the horrors” and produce a new wave of anti-German feeling throughout the world—as it did. During the ten months that Israel needed to prepare the trial, Germany was busy bracing herself against its predictable results by showing an unprecedented zeal for searching out and prosecuting Nazi criminals within the country. At no time, however, did either the German authorities or any significant segment of public opinion demand Eichmann’s extradition, which seemed the obvious move, since every sovereign state is jealous of its right to sit in judgment on its own offenders. (The official objection of the Adenauer government that such a move was not possible because there existed no extradition treaty between Israel and West Germany is not valid; it meant only that Israel could not have been forced to extradite. Fritz Bauer, Attorney General of Hessen, applied to the federal government in Bonn to start extradition proceedings. But Mr. Bauer’s feelings in this matter were the feelings of a German Jew, and they were not shared by German public opinion. His application was not only refused by Bonn, it was hardly noticed and remained totally unsupported. Another argument against extradition, offered by the observers the West German government sent to Jerusalem, was that Germany had abolished capital punishment and hence was unable to mete out the sentence Eichmann deserved. In view of the leniency shown by German courts to Nazi murderers, it was difficult not to suspect that this objection was made in bad faith. Surely, the greatest political hazard of an Eichmann trial in Germany would have been that a German court might not have given him the maximum penalty under German law.)
Another aspect of the matter was at once more delicate and more relevant to the political situation in Germany. It was one thing to ferret out mass murderers and other criminals from their hiding places, and it was another thing to find them prominent and active in the public realm—to encounter innumerable men in the federal and state administrations whose careers had bloomed under the Hitler regime. To be sure, if the Adenauer administration had been too sensitive in employing officials with a compromising Nazi past, there might have been no administration at all. For the truth is, of course, the exact opposite of what Dr. Adenauer asserted it to be when he said that only “a relatively small percentage” of Germans had been Nazis, and that “a great majority were happy to help their Jewish fellow-citizens when they could.” (At least one West German newspaper, the Frankfurter Rundschau, asked itself the obvious question, long overdue—why so many people who must have known, for instance, the record of Wolfgang Immerwahr Frankel had kept silent—and then came up with the even more obvious answer: “Because they themselves felt incriminated.”) The logic of the Eichmann trial, as Ben-Gurion conceived of it—a trial stressing general issues, to the detriment of legal niceties—would have demanded exposure of the complicity of all German bureaus and authorities in the so-called Final Solution of the Jewish question; of all civil servants in the state ministries; of the regular armed forces, with their General Staff; of the judiciary; and of the business world. But although the prosecution went as far afield as to put witness after witness on the stand who testified to things that, while gruesome and true enough, had only the slightest connection, or none, with the deeds of the accused, it carefully avoided touching upon this highly explosive matter—upon the almost ubiquitous complicity, stretching far beyond the ranks of the Party membership. (There were widespread rumors prior to the trial that Eichmann had named “several hundred prominent personalities of the Federal Republic as his accomplices,” but these rumors were not true In his opening speech, Mr. Hausner still mentioned Eichmann’s “accomplices in the crime [who] were neither gangsters nor men of the underworld,” and promised that we should “encounter them—the doctors and lawyers, scholars, bankers, and economists—in those councils that resolved to exterminate the Jews.” This promise was not kept—nor could it have been kept in the form in which it was made, for in the Nazi regime there were no “councils that resolved” anything, and the “robed dignitaries with academic degrees” made no decision to exterminate the Jews; they came together only to plan the necessary steps in carrying out an order given by Hitler.) Still, one case of complicity was brought to the attention of the court—that of Dr. Hans Globke, who, more than twenty-five years ago, was co-author of an infamous commentary on the Nuremberg Laws and, somewhat later, author of the brilliant idea of compelling all German Jews to take “Israel” or “Sarah” as a middle name, and who is today one of Adenauer’s closest advisers. And Globke’s name—and only his name—was inserted into the proceedings by the defense, and probably only in the hope of “persuading” the Adenauer government to start proceedings to extradite Eichmann. Still, former Ministry Official and present Undersecretary of State Globke doubtless had more right than the former Mufti of Jerusalem to figure in the history of what the Jews had actually suffered at the hands of the Nazis.
And it was history that, as far as the prosecution was concerned, stood at the center of the trial. “It is not an individual that is in the dock at this historic trial, and not the Nazi regime alone,” Ben-Gurion said, “but anti-Semitism throughout history.” The tone set by Ben-Gurion was faithfully followed by Hausner. He began his opening address (which lasted through three sessions) with Pharaoh In Egypt and Haman’s decree “to destroy, to slay, and to cause them [the Jews] to perish.” He then proceeded to quote from Ezekiel’s words “And when I passed by thee, and saw thee polluted in thine own blood, I said unto thee: ‘In thy blood, live!,’ ” explaining that they must be understood as “the imperative that has confronted this nation ever since its first appearance on the stage of history.” It was bad history and cheap rhetoric; worse, it was clearly at cross-purposes with putting Eichmann on trial at all, since it suggested that perhaps he was only an innocent executor of some mysteriously foreordained destiny, or even, for that matter, of anti-Semitism, which had been necessary to blaze the trail of “the bloodstained road travelled by this people” to fulfill its destiny. A few sessions later, after Salo W. Baron, Professor of Jewish History at Columbia University, had testified to the more recent history of Eastern European Jewry, Dr. Servatius could no longer resist temptation and asked the obvious questions: “Why did all this bad luck fall upon the Jewish people?” and “Don’t you think that irrational motives are at the basis of the fate of this people? Beyond the understanding of a human being?” Is not there perhaps something like “the spirit of history, which brings history forward . . . without the influence of men?” Is not Mr. Hausner basically in agreement with “the school of historical law”—an allusion to Hegel—and has he not shown that what “the leaders do will not always lead to the aim and destination they wanted?” And Dr. Servatius added, “Here the intention was to destroy the Jewish people and the objective was not reached and a new flourishing state came into being.” The argument of the defense had now come perilously close to the newest anti-Semitic theory about the Elders of Zion, which had been set forth in all seriousness a few weeks earlier in the old Egyptian National Assembly by Hussain Zulficar Sabri, Nasser’s Deputy Foreign Minister: Hitler was innocent of the slaughter of the Jews; he was a victim of the Zionists, who had compelled “Hitler to perpetrate crimes and to create the legend that would eventually enable them to achieve their aim—the creation of the State of Israel.” Except that Dr. Servatius, following the philosophy of history expounded by the prosecutor, had put History in the place of the Elders of Zion.
Despite the intentions of Ben-Gurion and the efforts of the prosecution, there remained an individual in the dock, a person of flesh and blood, and even if Ben-Gurion, as he claimed, did not “care what verdict is delivered against Eichmann,” it was undeniably the sole task of the Jerusalem court to deliver one.
Otto Adolf, son of Karl Adolf Eichmann and Maria née Schefferling, caught in a suburb of Buenos Aires on the evening of May 11, 1960, flown to Israel nine days later, brought to trial in the District Court of Jerusalem on April 1, 1961, stood accused on fifteen counts; “together with others,” he had committed crimes against the Jewish people, crimes against humanity, and war crimes during the whole period of the Nazi regime and especially during the period of the Second World War. The Israeli Nazis and Nazi Collaborators (Punishment) Law of 1950, under which he was tried, provides that “a person who has committed one of the . . . [three] offenses . . . is liable to the death penalty.” To each count Eichmann pleaded, “In the sense of the indictment, not guilty.” In which sense, then, did he think he was guilty? During the long cross-examination of the accused—Eichmann asserted that it was “the longest ever known”—neither the defense nor the prosecution nor any of the three judges ever bothered to ask him this obvious question. Dr. Servatius answered the question in a press interview—“Eichmann feels guilty before God, not before the law”—but this answer was never confirmed by the accused himself. The defense would apparently have preferred him to plead not guilty on other grounds: that under the Nazi legal system he had not done anything wrong; that the deeds he was accused of were not crimes but “acts of state,” over which no other state has jurisdiction (par in parem imperium non habet); that it had been his duty to obey; and that, in Dr. Servatius’ words, he had committed acts “for which you are decorated if you win and go to the gallows if you lose.” In Germany (at a meeting of the Catholic Academy in Bavaria that was devoted to “the ticklish problem” of “the possibilities and limits of coping with historical and political guilt through criminal proceedings”), Dr. Servatius went a step further, and declared that “the only legitimate criminal problem of the Eichmann trial lies in pronouncing judgment against his Israeli captors, which so far has not been done”—a statement, incidentally, that is somewhat difficult to reconcile with certain of his most often repeated and most widely publicized utterances in Israel, in which he called the conduct of the trial “a great spiritual achievement” and compared it favorably with the Nuremberg Trials.
Eichmann’s own attitude, it appeared, was different. First of all, the indictment for murder was wrong: “But I had nothing to do with the killing of the Jews. I never killed a Jew, or, for that matter, I never killed a non-Jew—I never killed any human being. I never gave an order to kill a Jew nor an order to kill a non-Jew; I just did not do it.” Or, as he was later to qualify this statement, “It so happened . . . that I had not once to do it”—for he said explicitly that he would have killed his own father if he had received an order to that effect. Thus, he repeated over and over a statement that he had first made in the so-called Sassen documents—an interview that he had given in 1955 in Argentina to the Dutch journalist Willem S. Sassen, a former S.S. man who was also a fugitive from justice, and that, after Eichmann’s capture, was published, in part, by Life in this country and by Der Stern in West Germany. He said that he could be accused only of “aiding and abetting” the almost successful annihilation of the Jews, and in Jerusalem he declared this annihilation to have been “one of the greatest crimes in the history of humanity.” The defense paid no attention to Eichmann’s own theory, but the prosecution wasted much time on an unsuccessful effort to prove that Eichmann had once, at least, killed with his own hands (he was supposed to have beaten to death a Jewish boy in Hungary). It spent more time, more successfully, on a note that Franz Rademacher, the Jewish expert in the German Foreign Office, had scribbled on a document dealing with Yugoslavia, made during a telephone conversation, which read, “Eichmann proposes shooting.” This turned out to be the only “order to kill,” if that is what it was, for which there existed a shred of evidence.
The evidence that he had “proposed shooting” was more questionable than it appeared to be during the trial, when the judges accepted the prosecutor’s version as against Eichmann’s categorical denial that he had ever killed or given an order to kill—a denial that was very ineffective, since it involved an implication that he had forgotten, as Dr. Servatius put it, “a brief incident [the killing of a mere eight thousand people], which was not so striking.” The incident took place in the autumn of 1941. The German Army had occupied the Serbian part of Yugoslavia six months earlier, and had been plagued by partisan warfare ever since. At length, the military authorities had decided to solve two problems at a stroke by shooting a hundred Jews and Gypsies as hostages for every dead German soldier. To be sure, neither Jews nor Gypsies were partisans, but, in the words of the responsible civilian officer in the military government, a certain Staatsrat Harald Turner, “the Jews we had in the camps [anyhow]; after all, they too are Serb nationals, and besides, they have to disappear.” The camps had been set up by General Franz Böhme, military governor of the region, and housed Jewish males only; neither General Böhme nor Staatsrat Turner had sought Eichmann’s approval before starting to shoot Jews—or Gypsies, for that matter—by the thousand. The trouble began when Böhme, without consulting the appropriate police and S.S. authorities, decided to deport all his Jews, probably in order to show that no special troops, under a different command, were required to make Serbia judenrein. Eichmann was informed, since it was a matter of deportation, and this was precisely his job. He refused to coöperate, because it interfered with other plans of the S.S. outfit to which he belonged, the Head Office for Reich Security, or R.S.H.A. (the Reichssicherheitshauptamt), but it was not Eichmann, it was a man named Martin Luther, of the Foreign Office, who reminded General Böhme that “in other territories [meaning Russia] other military commanders have taken care of considerably greater numbers of Jews without even mentioning it.” In any event, if Eichmann actually did “propose shooting,” he was only telling the military that they should go on doing what they had been doing all along, implying that questions of hostages were entirely in their own competence. This was an Army affair, obviously, since only males were involved. (In Serbia, the implementation of the Final Solution started about six months later, when women and children were rounded up and disposed of in mobile gas vans.) During cross-examination, Eichmann, characteristically, chose the most complicated and least likely explanation: Rademacher had needed the support of the Head Office for Reich Security for his own stand on the matter, and had therefore forged the document. Rademacher himself explained the incident much more reasonably at his own trial, before a West German court in 1952: “The Army was responsible for order in Serbia and had to kill rebellious Jews by shooting.” (This sounded more plausible but was a lie, for we know—from Nazi sources—that the Jews were not “rebellious.”) If it was difficult to interpret a remark made over the phone as an order, it was more difficult to believe that Eichmann had been in a position to give orders to Army generals.
Would Eichmann, then, have pleaded guilty if he had been indicted as an accessory to murder? Perhaps, but with certain important qualifications. What he had done was a crime only in retrospect, and he had always been a law-abiding citizen, because Hitler’s orders, which he had certainly executed to the best of his ability, had possessed “the force of law” in the Third Reich. (The defense could have quoted in support of Eichmann’s thesis the testimony of one of the best-known experts on constitutional law in the Third Reich, Theodor Maunz, who is currently Minister of Education and Culture in Bavaria. In 1943, in “Gestalt und Recht der Polizei,” he stated, “The command of the Führer . . . is absolutely the center of the present legal order.”) Those who today told him that he could have acted differently simply did not know, or had forgotten, how things had been. He did not want to be one of those who now pretended that they “had always been against it,” whereas in fact they had been very eager to do what they were told to do. However, times change, and he, like Professor Maunz, had “arrived at different insights.” What he had done he had done; he did not want to deny it. Rather, he proposed to “hang myself in public as a warning example for all anti-Semites on this earth.” By this he did not mean to say that he regretted anything. “Repentance is for little children.”
Even under considerable pressure from his lawyer, Eichmann did not change this position. During a discussion of the offer Heinrich Himmler had made to Zionist representatives in Hungary, in 1944, to exchange a million Jews for ten thousand trucks, and of Eichmann’s role in this plan, Dr. Servatius asked, “Mr. Witness, in the negotiations with your superiors, did you express any pity for the Jews and did you say there was room to help them?” Eichmann replied, “I am here under oath and must speak the truth. Not out of mercy did I launch this transaction”—which would have been acceptable, except that it was not Eichmann who “launched” it. He then continued, quite truthfully, “The reasons which made me think of this transaction I explained this morning.” They were as follows: Himmler had sent his own man to Budapest to deal with matters of Jewish
The capture of SS Lieutenant Colonel Adolf Eichmann by Israeli agents in Argentina in May of 1960 and his subsequent trial in Jerusalem by an Israeli court electrified the world. The public debate it sparked on where, how, and by whom Nazi war criminals should be brought to justice, and the international media coverage of the trial itself, was a watershed moment in how theThe capture of SS Lieutenant Colonel Adolf Eichmann by Israeli agents in Argentina in May of 1960 and his subsequent trial in Jerusalem by an Israeli court electrified the world. The public debate it sparked on where, how, and by whom Nazi war criminals should be brought to justice, and the international media coverage of the trial itself, was a watershed moment in how the civilized world in general and Holocaust survivors in particular found the means to deal with the legacy of genocide on a scale that had never been seen before.
Award-winning historian Deborah E. Lipstadt gives us an overview of the trial and analyzes the dramatic effect that the survivors’ courtroom testimony—which was itself not without controversy—had on a world that had until then regularly commemorated the Holocaust but never fully understood what the millions who died and the hundreds of thousands who managed to survive had actually experienced.
As the world continues to confront the ongoing reality of genocide and ponder the fate of those who survive it, this trial of the century, which has become a touchstone for judicial proceedings throughout the world, offers a legal, moral, and political framework for coming to terms with unfathomable evil. Lipstadt infuses a gripping narrative with historical perspective and contemporary urgency.
NATIONAL JEWISH BOOK AWARD FINALIST (2012)
Part of the Jewish Encounter series...more
Hardcover, 272 pages
Published March 15th 2011 by Schocken (first published March 4th 2011)