The Morality of the Treatment of the Immoral: The Capture, Trial and Execution of

Stephen D. Kulla Gratz College

On May 28, 1960, a man returning home from work to his family of six was grabbed on the street by a group of foreigners, held captive for nine days and then flown half-way across the world, against his will, to a country he had never been to. He was thereafter tried and subsequently executed for crimes he was alleged to have committed 15 to 20 years earlier on another continent. Portions of the world rejoiced; portions gasped. This is the story of Adolf Eichmann, the notorious conceiver of the . This paper seeks to briefly detail the occurrences related to the capture, trial and execution of Eichmann, but focuses on the question of whether such actions were proper, moral, and legal, and if not, whether the extent of the crimes committed is a sufficient excuse for the end result.

In November, 1932, twenty-six-year-old Adolf Eichmann joined the Nazi’s elite organization. He quickly rose the ranks of hierarchy and by 1942 he was a participant in the Conference held near , where, per the words of Hermann Goring, plans were implemented for the “final solution of the .”1 At said conference, Eichmann was appointed to coordinate the identification, assembly and transportation of from Europe to the Nazi death camps where millions of Jews were killed.2 On November 17, 1942, Eichmann wrote to the Foreign Minister of the Third Reich that “[i]t is not the task of the German authorities to promote the of Jews, but to hinder it, or at least to undertake delaying actions.”3

After the defeat of the Nazis, Eichmann was initially arrested by American troops and held in a detention camp in Cham, , from which he fled via the use of fictitious identification papers.4 Eichman hid in until 1950, when, via a passport issued in the name of Ricardo Klement on , 1950, Eichmann sailed from Bolzano, Italy to .5 Over the succeeding 10 years, Eichmann worked and lived in the San Fernando section of , the city of Tucuman, which is situated 600 miles from Buenos Aires, and ultimately again in Buenos Aires.6 In 1952 he was joined in Argentina by his wife and three sons. A fourth was born in Argentina. Interestingly, only Eichmann himself disguised his true last name.

1 History.com “High-Ranking Nazi official Adolf Eichmann Captured” July 21, 2010. ​ 2 Ibid. ​ 3 Lippman, Matthew, “The Trial of Adolf Eichmann and the Protection of Universal Human Rights Under International Law”, Houston Journal ​ of​ International Law, Volume 5, No.1, (1982) p.3. ​ 4 Bascomb, Neal, Hunting Eichmann, Houghton Mifflin Harcourt, 2009. ​ ​ 5 ​Jewish Virtual Library, “ Military Intelligence: The Capture of Nazi Criminal Adolf Eichmann”. ​ 6 Ibid. ​ In 1956, Eichmann’s son Klaus dated a woman named Sylvia Herman, to whom he, not knowing she was Jewish, spewed Nazi hatred, as well as introducing her to his “uncle” Klement, whom he referred to as “father”.7 Suspicions aroused, Herman’s father passed the information up channels so that it eventually reached , the Public Prosecutor in , Germany. Bauer notified the Israeli Foreign Ministry who alerted , the leader of the Israeli in 1957.8 By 1960, after numerous efforts at confirmation, Israeli Prime Minister David Ben Gurion granted approval for , the capture of Eichmann.9 On , 1960, a covert team of not less than 30 Israeli operatives, each who had arrived separately in Argentina th to reputedly celebrate the 150 ​ anniversary of Argentina’s successful revolution from Spain, ​ coordinated and successful executed the capture of Eichmann as he exited his bus in front of his home at 14 Garibaldi Street in Buenos Aires. After secreting him in safe houses for 9 days, and gaining Eichmann’s “written permission”, a drugged Eichmann was boarded on an flight to Israel. On May 23, 1960, Ben-Gurion announced the capture to Israel and the world.10 Ben-Gurion also sent a letter to the government of Argentina asking that they overlook “this violation of its sovereignty given the ‘special significance’ of bringing to trial the man responsible for the murder of millions of Jewish People.”11

Despite Ben-Gurion’s request, Argentina immediately protested the violation of their sovereign rights to the United Nations Security Council,12 and temporarily expelled the Israeli Ambassador.13 The Eichmann family in Argentina sought answers and assistance through the Nazi community in Argentina but both the family and fellow German expatriates, likely out of fear of exposure, kept relatively silent.

The United Nations Security Council attempted to find a compromise solution. Perhaps as a way of making its point but distancing itself from Eichmann, Argentina argued that allowing Eichmann to not be subject to repatriation to Argentina would allow for possible repetition (and) endanger the maintenance of peace and international security. Argentina argued that the abduction could be used as precedent to justify future violations of the sovereignty of states.14 Argentina was joined in its position by Ecuador and Ceylon. The former argued “it was contradictory for Israel to claim the privileges and benefits of international law when it did not respect its rules.”15 The Ceylonese delegate argued that “moral norms are relative and uncertain and should not be used by Israel to justify the abrogation of positive international law.”16 Israel, by its representative , argued that the “isolated” violation of Argentine law “must be seen in the light of the exceptional and unique character of the crimes attributed to Eichmann.”17 Israel was joined in its position by the Soviet Union and Poland, who argued that Argentina had

7 Lipstadt, Deborah, The , Random House, 2011, p. 12. ​ ​ ​ 8 Jewish Virtual Library, “Israel Military Intelligence: The Capture of Nazi Criminal Adolf Eichmann”. ​ 9 Ibid. ​ 10 History.com “High-Ranking Nazi official Adolf Eichmann Captured” July 21, 2010. ​ 11 Lippman, p. 7, citing UN Doc S/4342. ​ 12 The United States Memorial Museum, Holocaust Encyclopedia, “Eichmann Trial”. ​ 13 Jewish Virtual Library, “Israel Military Intelligence: The Capture of Nazi Criminal Adolf Eichmann”. ​ 14 Lippman, p. 9. ​ 15 Ibid. ​ 16 Ibid. ​ 17 Ibid. ​ contravened its legal responsibly under the Nuremberg Agreement, by facilitating Eichmann’s’ safekeeping and not proactively working to apprehend, punish or extradite him.18 Thereafter, the issue was resolved by a proposal tendered by Henry Cabot Lodge on behalf of the United States and approved unanimously by the Security Council. Israel issued a mere apology.19 On August 3, 1961, the two governments issued a joint communique in which they announced their decisions to “regard as closed the incident that arose out of the action taken by Israeli nationals which infringed fundamental rights of the State of Argentina.”20 Eichmann remained in Israeli custody.

In Israel, Attorney General issued a Bill of Indictment charging Eichmann with fifteen counts of criminal conduct including “ and crimes against the Jewish people.21

Commencing on April 11, 1961, Eichmann was tried before three Israeli Judges: , Benjamin Halery, and Yitzhak Raveh. Eichmann was allowed foreign German counsel. In contrast to the , the majority of the testimony offered against Eichmann came directly from the mouths of victims and co-conspirators. Depositions were, however, used over the objections of defense counsel due to the latter’s inability to engage in cross-examination.22 Oddly, Hauser’s response to the “hearsay objections” was that to cause the co-conspirators to travel to Israel would have resulted in their arrest, a retort that ignored Hauser’s ability to grant testimonial immunity. On December 12, 1961, the Court convicted Eichmann of all but two of the crimes charged, and he was sentenced to death. On May 29, 1962, the Israeli Supreme Court upheld the convictions.23

On the same day as the Supreme Court’s ruling, Eichmann appealed to Israeli President Yitzhak-Zvi for clemency in a handwritten letter. Herein Eichmann stated:

The Judges made a fundamental mistake in that they were not able to ​ empathize with the time and situation in which I found myself during the war years.

Eichmann further stated:

There is a need to draw a line between the leaders responsible and the ​ people like me forced to serve as mere instruments in the hand of leaders.24

Eichmann’s lawyer, , furthered the plea by arguing that “the actions of the condemned did not stem from Anti-Semitic conviction but from bureaucratic coercion.”25

18 Ibid. p. 10. ​ 19 Ibid. ​ 20 Ibid. p. 11. ​ 21 The United States Holocaust Memorial Museum, Holocaust Encyclopedia, “Eichmann Trial”. ​ 22 Birn, Ruth Bettina, “Fifty Years After: A Critical Look at the Eichmann Trial”, Case W. Res.J.Int’L L. Vol 44:443 (2011), p. 464. ​ ​ ​ 23 Weitz, Yechiam, “We Have to Carry Out the Sentence”; , July 26, 2007. ​ ​ ​ 24 I-24 News, “Holocaust Organizer Sought Clemency, saying he was ‘mere instrument’”, January 27, 2016. ​ 25 Ibid. ​ According to Abraham Burg, whose father Yosef was a member of the Israeli government at the time, the government held a special meeting on the day Eichmann proffered his plea for clemency. The transcript of the meeting was later released by State Archivist Dr. Yehoshua Freundlich. Among the statements and discussions held included Prime Minister David Ben-Gurion noting that Austrian philosopher suggested that executing Eichmann “will engender a new legend of an anti-Christ for generations, perhaps not this year and not in two years, but the legend will be created and there will be troubles for the Jewish people.”26 Reference is given to the reading of a letter from Princeton Professor Walter Kaufmann who suggested “announcing that no punishment is too great for Eichmann, but because we are not bloodthirsty, to let him go.”27 Kaufmann suggested this solution would “demonstrate the Jewish genius in Israel.”28

In support of carrying out the sentence imposed, Attorney General Gideon Hausner argued the legal position that if Eichmann had been tried in Nuremberg his punishment would have been the death sentence. Hausner compared Eichmann’s situation to that of Nazi . Per Hausner, Streicher’s sin was “propaganda (and) hatred ...and not a single action, but nevertheless they sentenced him to death and executed him.”29

Another who opined on the matter was Justice Minister Dr. Dov Yosef. In justifying the execution Yosef stated:

At Nuremberg there were 77 judgments…that were carried out, and people were executed. Nobody said a word, countries large or small, but all of a sudden when the Jewish people comes to do the same thing, this is illegitimate. In my opinion this is untenable. We have a law and we have to carry out the sentence.30

Foreign Minister Golda Meir noted that the Poles and Czechs had tried and executed Nazis as well. In view of this she stated:

Nobody said to them they have to show some sort of supreme sensitivity. This is only being demanded of us, because the world has not yet become accustomed to seeing the Jewish people acting like all other nations.31

26 Weitz, Yechiam, “We Have to Carry Out the Sentence”, Haaretz, July 26, 2007. ​ ​ ​ ​ 27 Ibid. ​ 28 Ibid. ​ 29 Ibid. ​ 30 Ibid. ​ 31 Ibid. ​ One additional statement of importance was made by Minister of Labor Yigal Allon. Allon stated:

I regret that Eichmann is continuing to torture us even now and is forcing us to carry out a death sentence, but there is no getting around it, this is someone who has committed . The punishment has to be clear and decisive.32

By a vote of 11 to 2 the clemency petition was denied. Ben-Gurion, citing to 1 Samuel 15:33, wrote “As thy sword made women childless, so shall my mother be childless among women.”33 On May 31, 1962, Adolf Eichmann was hanged at Ramle Prison. His ashes were scattered at sea, within the territorial waters of Israel.

The issue of the appropriateness and legality of the Eichmann trial has been debated, argued and legally briefed for over 50 years. In the March 24, 1961 edition of the Harvard ​ Crimson, the position of Harvard Professor and historian Oscar Handlin, as first articulated in the ​ August issue of Commentary, was set forth. Here it was noted that Handlin claimed: ​ ​ That the case has been conducted ‘as if espionage and invasion of another state’s sovereignty were irrelevant to the cleanliness of hands of those who presume to sit as judges in the case.’ He calls attention to the long fight, partly waged by the Jews, for the rights of refugees against enforced extradition. Handlin goes on to challenged Israel’s jurisdiction over Eichmann, as ‘a majority of the world’s Jews do not wish Israel to speak for them.’

The Harvard Crimson article further cites Handlin as positively referencing the Jewish ​ ​ people’s traditional adherence to law, and that if Eichmann is suddenly more important than the law, that tradition has been violated.34

The article additional offered commentary by Robert G. McCloskey, Harvard Professor of Government, who is referred to as a “specialist in American Constitutional Law.” A statement and question attributed to McCloskey included that David Ben Gurion was “perhaps mixing a great deal of immorality into a moral lesson” and respectively, “Can you make a moral point by immoral means?”35

A contrary position is offered in one of the first scholarly pieces written on the topic which was written prior to the trial by Duke University Associate Professor Hans W. Baade.36 Baade raised four questions: The legality of the trial under Israeli law; likewise under

32 Ibid. ​ 33 Ibid. ​ 34 Ibid. ​ 35 Ibid. ​ 36 Baade, Hans, “The Eichmann, Trial: Some Legal Aspects”, Duke Law Journal, Vol 1961:400. ​ ​ ​ international law; whether it was legal to try Eichmann under laws enacted after the commission of his crimes; and lastly whether it was legal to try Eichmann, a non-Israeli, in Israel.

Addressing the first issue, Baade noted that Eichmann was tried under an enacted law, the Nazis and Nazi Collaborators (Punishment) Law adopted by the Knesseth on August 1, 1950.37 Said act provided in section one “that any person who has done, during the period of the Nazi regime, in an enemy country, an act constituting a crime against humanity or an act constituting a is liable to the death penalty.”38 Baade, however, pointed out that as of the time of trial that Israel had neither a written constitution nor a bill of rights, resulting in a scenario where the “will (of the Knesseth) is supreme.”39 It is noted that some judicial review of the law had occurred. On March 23, 1953, the District Court of Tel Aviv acknowledged that the “law is fundamentally different in its characteristics” but same was a “special consequence of the Nazi regime and its persecutions”40 As for the issue of whether Eichmann could be tried in Israel when his presence there was the result of what could be declared a kidnapping, Baade cited to British law which by and an opinion by a Justice of the United States Supreme Court. As to the former, Baade noted that per article forty-six of the Palestine Order-in-Council of 1922, the courts of Israel “have the same powers vested in…courts of justice…in England.”41 Consequently, under British law, Baade noted that courts “have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here.”42 Similarly, Baade cited to the non-binding commentary of U.S. Supreme Court Justice Hugo Black, offered in 1952. Black stated, while referring to the U.S. law, “there is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”43 Baade offered no commentary on whether under the British law Eichmann was “in lawful custody.”

Addressing the issue of the legality of the trial under international law, Baade again focused on the “abduction” of Eichmann, as well as the ex-post-facto implementation of law, and finally jurisdiction in Israel as a whole. As to whether the “abduction” precluded the legal prosecution, Baade offered two counterpositions. Baade suggested that should Eichmann have been kidnapped by agents of Israel, then capture was a violation of international tort law however, if the participants were acting as bona fide volunteers without the previous knowledge of the government, then no such application existed. Baade concluded, as most facts suggest, that the first scenario existed. However, Baade determined that Argentina exercised its right of protest by bringing the matter to the United Nations Security Council, who suggested the remedy of a public apology. Baade stated that the acceptance of same by Argentina was a valid renouncement of any claim for the return of Eichmann and thus could “no longer affect the

37 Ibid. 401. ​ 38 Ibid. ​ 39 Ibid. 402. ​ 40 Ibid. ​ 41 Ibid. 403. ​ 42 Ibid. 404. ​ 43 Ibid. ​ legality of the trial of Eichmann by an Israeli Court.”44 It is somewhat perplexing that Baade seemed to focus on the rights of Argentina and not of Eichmann.

Though it is not universally agreed that a person cannot be prosecuted for violation of a law that was enacted after the alleged criminal activity occurred, same was and remains the plurality opinion in international law. The latter view, if accepted, would have prohibited the prosecution of Eichmann for his actions in the 1940s via a law passed in 1950. Baade, however, argued otherwise. He argued that the crimes against humanity provisions of the 1950 law were “virtually taken from the charter of the International Military Tribunal created by the London Agreement between the United States, the Soviet Union, Great Britain and France on August 8, 1945.” He also cited to a similar definition in the Allied Control Council Law #10 of December of 1945. Baade concluded that by such, the Occupying Powers Control Council Law “was effective as a German statute,’ and, therefore, Eichmann, a German, was subject to its provisions at the time of his actions.45 Baade’s argument, however, failed to address certain crimes for which Eichmann was prosecuted, ie: Crimes against the Jewish people, which were arguably not delineated in the Allied Control Powers Council Law.

The last issue raised by Baade surrounded Eichmann’s not being a “National of Israel”, being tried for crimes that occurred outside of Israel. Baade cited the Convention on which expressly provides in Article Six that a person charged with genocide “shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction…”46 Despite the definitive and clear language of the Convention, Baade argued its inapplicability on the grounds that the jurisdictional provisions are “permissive and not exclusive.”47 He further justified the prosecution in Israel based on the position that “all states are interested in bringing alleged criminals to justice” and where extradition is cumbersome, and in this situation where Baade opines “Germany cannot {under applicable German law} fairly object to Israel’s claim to jurisdiction to try a German Eichmann for offenses committed in Germany”,48 enforcement of criminal law “by proxy” is appropriate.49 It appears that Baade determined his desired position and thereafter sought authority to support same, rather than utilizing the contrary, and more likely, correct methodology.

L.C. Green, Professor of International Law and Vice Dean of the Faculty of the University of Singapore wrote an article addressing the Eichmann trial in the Tulane Law Review ​ in 1963.50 The article, titled “Legal Issues on the Eichmann Trial” addressed many of the matters discussed by Baade and others as well. On the issue of Eichmann’s “abduction”, Green suggested that Argentina, in having no extradition treaty with Israel, had no right to demand Eichmann’s return, nor to object to the institution of criminal proceedings against Eichmann.51

44 Ibid. 408. ​ 45 Ibid. 414. ​ 46 Ibid. 418. ​ 47 Ibid. ​ 48 Ibid. 419. ​ 49 Ibid. ​ 50 Green, L.C. “Legal Issues of the Eichmann Trial”, 37 Tul L. Rev. , (1963), 641, 654. ​ ​ ​ 51 Ibid p. 645 ​ Green also expanded upon the United Nations Security Council’s decision to deny Argentina’s objections. Green clearly implied some political motivation in said decision by suggesting that there was an awareness that a trial before an international tribunal, instead of an Israeli court, would “be used to make political capital for the eastern side in the and to mount a bitter attack upon the way in which former Nazis retained positions of authority in the Federal Republic of Germany.” Green suggested that “the whole nature and purpose of the trial would have changed.”52

Green brought the jurisdiction issue one step farther than Baade and addressed the issue that Eichmann’s personal position on the matter may not have been settled simply by the issues related to Israel and Argentina, as he “can not be presumed” to have joined either’s view. Nevertheless, Green adopted the position articulated by Justice Black, as referenced above, in citing to a decision issued in the British case of Ex parte Elliott of 1941, that “the circumstances ​ ​ in which the applicant may have been arrested … are of no concern to this court.”53

Green, like Baade, also discussed the issue of the use of secondary evidence, evidence that is not of testimonial nature, as well as the imposition of criminal law retroactively. On the former issue, Green cited to Attorney General Hausner’s argument that to have insisted on verbal evidence only, would have meant in many circumstances that no evidence of any kind was possible, and furthermore that by demanding same it would have meant “unnecessarily reopening of old wounds and torture of the survivors.”54 Like Baede, Green failed to fully address Eichmann’s inherent rights to confront witnesses against him, and instead he cited to the fact that the issue had previously been decided in the Nuremberg Trials and by the fact that the Eichmann court “was expressly enjoined to place on record the reasons which promoted it to allow any deviation from the normal Israeli law of evidence, and that such deviations were allowed to both the defense and the prosecution.”55

As for the issue of the application of criminal law in a retroactive fashion, Green justifiedits usage by arguing that the Nazi Collaborators Law did not create new offenses, but to the contrary “introduce(d) a new nomenclature for long recognized offenses.”56 Green stated “it is not creating a new offense to describe mass murders of persons who are Jewish as crimes against the Jewish people.”57 Green offered an on-point citation to the Netherlands Special Court of Cassation, which stated that:

The principle that no act is punishable except in virtue of a legal penal provision which had preceded it, aims at creating a guarantee of legal security and individual liberty…however, there is nothing absolute about that principle. Its operation may be affected by other principles whose recognition concern equally important interest of justice. These latter interests do not permit that extremely serious violations of

52 Ibid p. 646 ​ 53 Ibid. p. 653. ​ 54 Ibid. p. 657. ​ 55 Ibid. p. 658. ​ 56 Ibid. p. 667. ​ 57 Ibid. p. 668. ​ the generally accepted principles of international law should not be considered punishable solely on the ground that a threat of punishment was absent.58

Green additionally addressed the impartiality of the judicial panel. Green referenced Eichmann’s counsel’s objection that Eichmann could never receive a fair trial in Israel due to the “emotional and political overtones attached to it and that the judges themselves might be prejudiced for the same reasons.”59 Green rejected this argument stating that the Eichmann trial was not “the first time that (judges) have (had to be) aware of the danger that national sentiment might color their judicial approach.”60

In 1982, Matthew Lippman, Assistant Professor of Political Science at the University of Denver, published an article in the Houston Journal of International Law, titled “The Trial of ​ ​ Adolf Eichmann and the Protection of Universal Human Rights Under International Law.”61 Lippman’s article once again addressed the issues discussed by Baede and Green, supra; however, it is noteworthy for its conclusions. Lippman wrote that “{v}irtually all legal commentators agree that Eichmann’s trial and Israeli Courts’ rulings were in accordance with international law.62 Yet, Lippman suggests that “international law provided the Israeli Courts with various principles and fictions with which to legally excuse or justify the abduction and facilitate the trial. International laws was thus used as a vehicle for intellectual legitimization of the self interest acts of the State of Israel.”63

Leora Bilsky, a Professor of Law and Director of the Minerva Center for Human Rights at Tel Aviv University, discussed this matter further in a book chapter titled “The Eichmann Trial and the Legacy of Jurisdiction.”64 Herein Bilsky lauded the Nuremberg trials as a “milestone for the international community.” She additionally attributed to the Eichmann trial , with significant hesitation, as being “an important precursor to current notions of .”65 Bilsky acknowledged that the Israeli Court had to provide justification for its jurisdiction. She suggested that they did so based on the doctrine of “passive personality” which exists when “a national court acquires jurisdiction over crimes committed outside its territory when it can show a special connection to the victim of the crime.”66 Bilsky concluded that this “new theory of universal jurisdiction allowed the court to circumvent the barrier of territorial sovereignty.”67 Bilsky postulated that the Eichmann court introduced the doctrine of universal jurisdiction for crimes against humanity “without elaborating any conditions for its legitimate

58 Ibid. p. 663. ​ 59 Ibid. p. 649. ​ 60 Ibid. p. 650. ​ 61 Lippman, Matthew, “The Trial of Adolf Eichmann and the Protection of Universal Human Rights Under International Law”, Houston Journal ​ of I​ nternational Law, Volume 5, No.1, 1982. ​ 62 Ibid. p. 33. ​ 63 Ibid. ​ 64 Bilsky, Leora, Politics in the Dark Times; ed. Seyla Benhabib, Chapter 8: “The Eichmann Trial and the Legacy of Jurisdiction”, Cambridge ​ ​ Un​ iversity Press. 65 Ibid. p. 201. ​ 66 Ibid. p.202. ​ 67 Ibid. ​ use,” which, per Bilsky, “introduces many dangers for politicization.”68 Bilsky spent a significant portion of her chapter discussing the position of , which is addressed further in this paper.

Additional scholarly papers address the Eichmann trial. Ruth Bettina Birn, former Chief Historian of the War and Crimes Section of the Canadian Department of Justice, published an article in the 2011 edition of the Case Western Journal of International Law.69 Herein, Birn ​ discussed the “political factor” in the prosecution, based on “findings of Israeli historians” which she opined “offers a new dimension to our knowledge” as to the trial.70 Birn suggested that from the outset “the Israeli government invested a lot to give the trial as much media prominence as possible”71 and that the “trial was only a medium…the real purpose of the trial was to give voice to the Jewish people.”72 Birn, however, stated that what was not initially known was the extent of political interference in the prosecution of the case in its effort to “create a full narrative of ”, and contrarily by the Federal Republic of Germany in seeking to limit the political fallout of the trial, and even by the Soviet Union who wanted to “delegitimize the West.”73 Birn suggested interference ranged from “preventing the defense from scrutinizing evidence”74 and inappropriate reliance on affidavits, to hyperbolic statements such as that Eichmann’s conduct has been “more extreme even than that evil man Hitler himself,”75 as well as in relation to the selection of witnesses.

Of most significant implication, Birn argued that the Israeli government’s interference, which she suggested led to the prosecution of “the Holocaust in general”, caused a “discrepancy between Eichmann’s real role and the exaggerated image created by (Prosecutor) Hausner.”76 As evidence to support her position Birn referred to the cross-examination of Eichmann, where, per Birn, Hausner made unfounded allegations that Eichmann easily refuted, which Birn suggested “have a continuing impact to this day” in the nature of newly formed (or recalled) memories of atrocities which Birn noted could be due either to suppressed or contrarily false memory.77

Two noteworthy counter positions have been written as to the Eichmann trial which any paper such as this would be remiss not to address. The pieces were written by Hannah Arendt, a German American political theorist, and by renowned historian , respectively. In an article first published in on February 8, 1963, titled “Eichmann in ​ ​ ”,78 and in a subsequently published interview, Arendt,79 opined on the Eichmann trial, though she addressed fewer of the legal machinations and focused more on the morality of trying Eichmann less as the person and more as the symbolism of all Nazi misdoings, crimes and evil.

68 Ibid. p.213. ​ 69 Ibid., ​ 70 Ibid., p. 444. ​ 71 Ibid., p. 445. ​ 72 Ibid., p. 444. ​ 73 Ibid., p. 447. ​ 74 Ibid., p. 463. ​ 75 Ibid., p. 454. ​ 76 Ibid., p. 471. ​ 77 Ibid., p. 472. ​ 78 Arendt, Hannah, “”, The New Yorker, February 8, 1963. ​ ​ ​ 79 Arendt, Hannah, Eichmann was Outrageously Stupid: The Last Interview and Other Conversations, Melville House, November 9, 1964. ​ ​ ​ Among many points, Arendt theorized that Eichmann was neither a fanatic or a sociopath, but ​ instead an extremely average and mundane person who relied on cliché defenses rather than thinking for himself. Arendt suggested that Eichmann was motivated by professional promotion rather than ideology. Her conclusion was that banality, a term she coined in reference to the Holocaust, in this sense, did not mean that Eichmann's actions were in any way ordinary, or even that there is a potential Eichmann in all of us, but that his actions were motivated by a sort of stupidity which was wholly unexceptional.80 Arendt further argued that prosecutor, Hausner, ​ followed the tone set by Prime Minister Ben-Gurion, who stated “It is not an individual nor the Nazi regime on trial but Anti-Semitism throughout history.” Arendt claimed that Hausner’s opening remarks suggested that Eichmann was no criminal, but the 'innocent executor of some foreordained destiny.” She also charged that Hausner’s opening statements, which heavily ​ ​ referenced biblical passages, was 'bad history and cheap rhetoric.”81

Arendt’s work was highly criticized. American social psychologist wrote that "Arendt became the object of considerable scorn, even calumny" because she highlighted Eichmann's "banality" and "normalcy", and accepted Eichmann's claim that he did not have evil intents or motives to commit such horrors; nor did he have a thought to the immorality and evil of his actions, or indeed, display, as the prosecution depicted, that he was a sadistic "monster".82

In The Eichmann Trial,83 Deborah Lipstadt analyzes the issues addressed in the law ​ ​ journal articles cited earlier. In respect to these matters she offers conclusions including that “Eichmann and his compatriots knew their acts were wrong. Otherwise why would they have tried to efface the traces of them?;”84 that “the abduction of Eichmann had no bearing on the case because Eichmann had been in Argentina illegally”85 and that “he had never applied for asylum in Argentina, lived there under an assumed name, and committed crimes that Argentina itself had condemned.”86

In addition to addressing the legal issues related to Eichmann, Lipstadt explored an undeveloped issue, the role of victims in the legal proceedings. In contrast to Arendt, Lipstadt credited Prosecutor Hausner for telling the story of the Holocaust through survivors. She wrote that “Hausner’s determination that this trial would be founded on the human story of the Jewish victims’ suffering stands, from a perspective of five decades, as the trial’s most significant legacy…(T)hrough their testimony what happened to the European Jewry was transformed in the public’s consciousness.”87

Lipstadt utilizes a portion of her book to address the writings of Hannah Arendt. While opining that Arendt’s use of the Eichmann to formulate her theories was off-base, Lipstadt agrees that Arendt was correct in suggesting that a central feature of and the Final

80 Ibid. ​ 81 Arendt, Hannah, “Eichmann in Jerusalem”, The New Yorker, February 8, 1963. ​ ​ ​ 82 Milgram, Stanley, Obedience to Authority, New York Harper, (1974) Chpt. 1. ​ ​ ​ 83 Lipstadt, Deborah, The Eichmann Trial, Random House, 2011. ​ ​ ​ 84 Ibid. p 141; also, Gordon, Gregory S., “Book Review: The Eichmann Trial” Emory International Law Review. ​ ​ 85 Ibid., p. 59. ​ 86 Ibid., p. 12, 16. ​ 87 Ibid., p. 192-3. ​ Solution was the need for compliant masses who simply obeyed orders without thinking about the consequences.88 In summarizing Adolf Eichmann, Lipstadt writes:

Though he may not have started out as a virulent anti-Semite, he absorbed this ideology early in his career and let it motivate him to such an extent that after the war he described…the joy he had felt at moving Hungarian Jews to their death at an unprecedented clip and his pleasure at having the death of millions of Jews on his record.89

The issue of whether the capture, transportation, trial and execution of Adolf Eichmann was legal under Argentine law, Israeli law and international law has long been debated. It is unlikely that a definitive conclusion will ever be reached, based on the fact that the issue was unprecedented and multi-faceted, involving multiple entities each with diverse and often divergent motives in the goals and results sought.

Regardless of one’s opinion on the above, another question persists: is there ever a situation where regardless of all intervening circumstances, the ends trump the means? Is there a scale of evilness or a metered level of “banal” atrocities committed, that should cause mankind to apply no concern whatsoever to the rights of the perpetrator? Perhaps, but who is so charged to make such a determination, and could this selective treatment, if implemented, be, in a perverse, roundabout way, eerily similar to the conduct engaged in by the original offender(s)?

88 Ibid., p. 185-7. ​ 89 Ibid., p. 169-70. ​

Bibliography

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