The Morality of the Treatment of the Immoral: The Capture, Trial and Execution of Adolf Eichmann 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 Final Solution. 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 Schutzstaffel organization. He quickly rose the ranks of hierarchy and by 1942 he was a participant in the Wannsee Conference held near Berlin, where, per the words of Hermann Goring, plans were implemented for the “final solution of the Jewish question.”1 At said conference, Eichmann was appointed to coordinate the identification, assembly and transportation of Jews 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 emigration 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, Germany, from which he fled via the use of fictitious identification papers.4 Eichman hid in Lower Saxony until 1950, when, via a passport issued in the name of Ricardo Klement on June 1, 1950, Eichmann sailed from Bolzano, Italy to Argentina.5 Over the succeeding 10 years, Eichmann worked and lived in the San Fernando section of Buenos Aires, 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, “Israel 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 Fritz Bauer, the Public Prosecutor in Hesse, Germany. Bauer notified the Israeli Foreign Ministry who alerted Isser Harel, the leader of the Israeli Mossad in 1957.8 By 1960, after numerous efforts at confirmation, Israeli Prime Minister David Ben Gurion granted approval for Operation Finale, the capture of Eichmann.9 On May 11, 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 El Al 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 Golda Meir, 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 Eichmann Trial, 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 Holocaust 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 Gideon Hausner issued a Bill of Indictment charging Eichmann with fifteen counts of criminal conduct including “crimes against humanity and crimes against the Jewish people.21 Commencing on April 11, 1961, Eichmann was tried before three Israeli Judges: Moshe Landau, Benjamin Halery, and Yitzhak Raveh. Eichmann was allowed foreign German counsel. In contrast to the Nuremberg Trials, 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, Robert Servatius, 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”; Haaretz, 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