خاتمه بخش دوم

I have insisted on the similarities between the Schwartzbard trial in 1927 in Paris and the Eichmann trial in 1961 in Jerusalem because they demonstrate how little Israel, like the Jewish people in general, was prepared to recognize, in the crimes that Eichmann was accused of, an unprecedented crime, and precisely how difficult such a recognition must have been for the Jewish people. In the eyes of the Jews, thinking exclusively in terms of their own history, the catastrophe that had befallen them under Hitler, in which a third of the people perished, appeared not as the most recent of crimes, the unprecedented crime of genocide, but, on the contrary, as the oldest crime they knew and remembered. This misunderstanding, almost inevitable if we consider not only the facts of Jewish history but also, and more important, the current Jewish historical self-understanding, is actually at the root of all the failures and shortcomings of the Jerusalem trial. None of the participants ever arrived at a clear understanding of the actual horror of Auschwitz, which is of a different nature from all the atrocities of the past, because it appeared to prosecution and judges alike as not much more than the most horrible pogrom in Jewish history. They therefore believed that a direct line existed from the early anti-Semitism of the Nazi Party to the Nuremberg Laws and from there to the expulsion of Jews from the Reich and, finally, to the gas chambers. Politically and legally, however, these were “crimes” different not only in degree of seriousness but in essence.

The Nuremberg Laws of 1935 legalized the discrimination practiced before that by the German majority against the Jewish minority. According to international law, it was the privilege of the sovereign German nation to declare to be a national minority whatever part of its population it saw fit, as long as its minority laws conformed to the rights and guarantees established by inter-nationally recognized minority treaties and agreements. International Jewish organizations therefore promptly tried to obtain for this newest minority the same rights and guarantees that minorities in Eastern and Southeastern Europe had been granted at Geneva. But even though this protection was not granted, the Nuremberg Laws were generally recognized by other nations as part of German law, so that it was impossible for a German national to enter into a “mixed marriage” in Holland, for instance. The crime of the Nuremberg Laws was a national crime; it violated national, constitutional rights and liberties, but it was of no concern to the comity of nations. “Enforced emigration,” however, or expulsion, which became official policy after 1938, did concern the international community, for the simple reason that those who were expelled appeared at the frontiers of other countries, which were forced either to accept the uninvited guests or to smuggle them into another country, equally unwilling to accept them. Expulsion of nationals, in other words, is already an offense against humanity, if by “humanity” we understand no more than the comity of nations. Neither the national crime of legalized discrimination, which amounted to persecution by law, nor the international crime of expulsion was unprecedented, even in the modern age. Legalized discrimination had been practiced by all Balkan countries, and expulsion on a mass scale had occurred after many revolutions. It was when the Nazi regime declared that the German people not only were unwilling to have any Jews in Germany but wished to make the entire Jewish people disappear from the face of the earth that the new crime, the crime against humanity—in the sense of a crime “against the human status,” or against the very nature of mankind— appeared. Expulsion and genocide, though both are international offenses, must remain distinct; the former is an offense against fellow-nations, whereas the latter is an attack upon human diversity as such, that is, upon a characteristic of the “human status” without which the very words “mankind” or “humanity” would be devoid of meaning.

Had the court in Jerusalem understood that there were distinctions between discrimination, expulsion, and genocide, it would immediately have become clear that the supreme crime it was confronted with, the physical extermination of the Jewish people, was a crime against humanity, perpetrated upon the body of the Jewish people, and that only the choice of victims, not the nature of the crime, could be derived from the long history of Jew-hatred and anti-Semitism. Insofar as the victims were Jews, it was right and proper that a Jewish court should sit in judgment; but insofar as the crime was a crime against humanity, it needed an international tribunal to do justice to it. (The failure of the court to draw this distinction was surprising, because it had actually been made before by the former Israeli Minister of Justice, Mr. Rosen, who in 1950 had insisted on “a distinction between this bill [for crimes against the Jewish people] and the Law for the Prevention and Punishment of Genocide,” which was discussed but not passed by the Israeli Parliament. Obviously, the court felt it had no right to overstep the limits of municipal law, so that genocide, not being covered by an Israeli law, could not properly enter into its considerations.) Among the numerous and highly qualified voices that raised objections to the court in Jerusalem and were in favor of an international tribunal, only one, that of Karl Jaspers, stated clearly and unequivocally—in a radio interview held before the trial began and later published in Der Monat—that “the crime against the Jews was also a crime against mankind,” and that “consequently the verdict can be handed down only by a court of justice representing all mankind.” Jaspers proposed that the court in Jerusalem, after hearing the factual evidence, “waive” the right to pass sentence, declaring itself “incompetent” to do so, because the legal nature of the crime in question was still open to dispute, as was the subsequent question of who would be competent to pass sentence on a crime which had been committed on government orders. Jaspers stated further that one thing alone was certain: “This crime is both more and less than common murder,” and though it was not a “war crime,” either, there was no doubt that “mankind would certainly be destroyed if states were permitted to perpetrate such crimes.” Jaspers’ proposal, which no one in Israel even bothered to discuss, would, in this form, presumably have been impracticable from a purely technical point of view. The question of a court’s jurisdiction must be decided before the trial begins; and once a court has been declared competent, it must also pass judgment. However, these purely formalistic objections could easily have been met if Jaspers had called not upon the court, but rather upon the state of Israel to waive its right to carry out the sentence once it had been handed down, in view of the unprecedented nature of the court’s findings. Israel might then have had recourse to the United Nations and demonstrated, with all the evidence at hand, that the need for an international criminal court was imperative, in view of these new crimes committed against mankind as a whole. It would then have been in Israel’s power to make trouble, to “create a wholesome disturbance,” by asking again and again just what it should do with this man whom it was holding prisoner; constant repetition would have impressed on worldwide public opinion the need for a permanent international criminal court. Only by creating, in this way, an “embarrassing situation” of concern to the representatives of all nations would it be possible to prevent “mankind from setting its mind at ease” and “massacre of the Jews… from becoming a model for crimes to come, perhaps the small-scale and quite paltry example of future genocide.” The very monstrousness of the events is “minimized” before a tribunal that represents one nation only.

This argument in favor of an international tribunal was unfortunately confused with other proposals based on different and considerably less weighty considerations. Many friends of Israel, both Jews and non-Jews, feared that the trial would harm Israel’s prestige and give rise to a reaction against Jews the world over. It was thought that Jews did not have the right to appear as judges in their own case, but could act only as accusers; Israel should therefore hold Eichmann prisoner until a special tribunal could be created by the United Nations to judge him. Quite apart from the fact that Israel, in the proceedings against Eichmann, was doing no more than what all the countries which had been occupied by Germany had long since done, and that justice was at stake here, not the prestige of Israel or of the Jewish people, all these proposals had one flaw in common: they could too easily be countered by Israel. They were indeed quite unrealistic in view of the fact that the U.N. General Assembly had “twice rejected proposals to consider the establishment of a permanent international criminal court” (A.D.L. Bulletin). But another, more practical proposition, which usually is not mentioned precisely because it was feasible, was made by Dr. Nahum Goldmann, president of the World Jewish Congress. Goldmann called upon Ben-Gurion to set up an international court in Jerusalem, with judges from each of the countries that had suffered under Nazi occupation. This would not have been enough; it would have been only an enlargement of the Successor trials, and the chief impairment of justice, that it was being rendered in the court of the victors, would not have been cured. But it would have been a practical step in the right direction.

Israel, as may be remembered, reacted against all these proposals with great violence. And while it is true, as has been pointed out by Yosal Rogat (in The Eichmann Trial and the Rule of Law, published by the Center for the Study of Democratic Institutions, Santa Barbara, California, 1962), that Ben-Gurion always “seemed to misunderstand completely when asked, ‘Why should he not be tried before an international court?,’” it is also true that those who asked the question did not understand that for Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man—rights which, as no one knew better than they, were claimed only by people who were too weak to defend their “rights of Englishmen” and to enforce their own laws. (The very fact that Israel had her own law under which such a trial could be held had been called, long before the Eichmann trial, an expression of “a revolutionary transformation that has taken place in the political position of the Jewish people”—by Mr. Rosen on the occasion of the First Reading of the Law of 1950 in the Knesset.) It was against the background of these very vivid experiences and aspirations that Ben-Gurion said: “Israel does not need the protection of an International Court.” Moreover, the argument that the crime against the Jewish people was first of all a crime against mankind, upon which the valid proposals for an international tribunal rested, stood in flagrant contradiction to the law under which Eichmann was tried. Hence, those who proposed that Israel give up her prisoner should have gone one step further and declared: The Nazis and Nazi Collaborators (Punishment) Law of 1950 is wrong, it is in contradiction to what actually happened, it does not cover the facts. And this would indeed have been quite true. For just as a murderer is prosecuted because he has violated the law of the community, and not because he has deprived the Smith family of its husband, father, and breadwinner, so these modern, state-employed mass murderers must be prosecuted because they violated the order of mankind, and not because they killed millions of people. Nothing is more pernicious to an understanding of these new crimes, or stands more in the way of the emergence of an international penal code that could take care of them, than the common illusion that the crime of murder and the crime of genocide are essentially the same, and that the latter therefore is “no new crime properly speaking.” The point of the latter is that an altogether different order is broken and an altogether different community is violated. And, indeed, it was because Ben-Gurion knew quite well that the whole discussion actually concerned the validity of the Israeli law that he finally reacted nastily, and not just with violence, against the critics of Israeli procedures: Whatever these “so-called experts” had to say, their arguments were “sophisms,” inspired either by anti-Semitism, or, in the case of Jews, by inferiority complexes. “Let the world understand: We shall not give up our prisoner.” It is only fair to say that this was by no means the tone in which the trial was conducted in Jerusalem. But I think it is safe to predict that this last of the Successor trials will no more, and perhaps even less than its predecessors, serve as a valid precedent for future trials of such crimes. This might be of little import in view of the fact that its main purpose—to prosecute and to defend, to judge and to punish Adolf Eichmann—was achieved, if it were not for the rather uncomfortable but hardly deniable possibility that similar crimes may be committed in the future. The reasons for this sinister potentiality are general as well as particular. It is in the very nature of things human that every act that has once made its appearance and has been recorded in the history of mankind stays with mankind as a potentiality long after its actuality has become a thing of the past. No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been. The particular reasons that speak for the possibility of a repetition of the crimes committed by the Nazis are even more plausible. The frightening coincidence of the modern population explosion with the discovery of technical devices that, through automation, will make large sections of the population “superfluous” even in terms of labor, and that, through nuclear energy, make it possible to deal with this twofold threat by the use of instruments beside which Hitler’s gassing installations look like an evil child’s fumbling toys, should be enough to make us tremble.

It is essentially for this reason: that the unprecedented, once it has appeared, may become a precedent for the future, that all trials touching upon “crimes against humanity” must be judged according to a standard that is today still an “ideal.” If genocide is an actual possibility of the future, then no people on earth—least of all, of course, the Jewish people, in Israel or elsewhere—can feel reasonably sure of its continued existence without the help and the protection of international law. Success or failure in dealing with the hitherto unprecedented can lie only in the extent to which this dealing may serve as a valid precedent on the road to international penal law. And this demand, addressed to the judges in such trials, does not overshoot the mark and ask for more than can reasonably be expected. International law, Justice Jackson pointed out at Nuremberg, “is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act…. Our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law.” What Justice Jackson failed to point out is that, in consequence of this yet unfinished nature of international law, it has become the task of ordinary trial judges to render justice without the help of, or beyond the limitation set upon them through, positive, posited laws. For the judge, this may be a predicament, and he is only too likely to protest that the “single act” demanded of him is not his to perform but is the business of the legislator.

And, indeed, before we come to any conclusion about the success or failure of the Jerusalem court, we must stress the judges’ firm belief that they had no right to become legislators, that they had to conduct their business within the limits of Israeli law, on the one side, and of accepted legal opinion, on the other. It must be admitted furthermore that their failures were neither in kind nor in degree greater than the failures of the Nuremberg Trials or the Successor trials in other European countries. On the contrary, part of the failure of the Jerusalem court was due to its all too eager adherence to the Nuremberg precedent wherever possible.

In sum, the failure of the Jerusalem court consisted in its not coming to grips with three fundamental issues, all of which have been sufficiently well known and widely discussed since the establishment of the Nuremberg Tribunal: the problem of impaired justice in the court of the victors; a valid definition of the “crime against humanity”; and a clear recognition of the new criminal who commits this crime.

As to the first of these, justice was more seriously impaired in Jerusalem than it was at Nuremberg, because the court did not admit witnesses for the defense. In terms of the traditional requirements for fair and due process of law, this was the most serious flaw in the Jerusalem proceedings. Moreover, while judgment in the court of the victors was perhaps inevitable at the close of the war (to Justice Jackson’s argument in Nuremberg: “Either the victors must judge the vanquished or we must leave the defeated to judge should be added the understandable feeling on the part of the Allies that they “who had risked everything could not admit neutrals” [Vabres]), it was not the same sixteen years later, and under circumstances in which the argument against the admission of neutral countries did not make sense.

As to the second issue, the findings of the Jerusalem court were incomparably better than those at Nuremberg. I have mentioned before the Nuremberg Charter’s definition of “crimes against humanity” as “inhuman acts,” which were translated into German as Verbrechen gegen die Menschlichkeit—as though the Nazis had simply been lacking in human kindness, certainly the understatement of the century. To be sure, had the conduct of the Jerusalem trial depended entirely upon the prosecution, the basic misunderstanding would have been even worse than at Nuremberg. But the judgment refused to let the basic character of the crime be swallowed up in a flood of atrocities, and it did not fall into the trap of equating this crime with ordinary war crimes. What had been mentioned at Nuremberg only occasionally and, as it were, marginally—that “the evidence shows that… the mass murders and cruelties were not committed solely for the purpose of stamping out opposition” but were “part of a plan to get rid of whole native populations”—was in the center of the Jerusalem proceedings, for the obvious reason that Eichmann stood accused of a crime against the Jewish people, a crime that could not be explained by any utilitarian purpose; Jews had been murdered all over Europe, not only in the East, and their annihilation was not due to any desire to gain territory that “could be used for colonization by Germans.” It was the great advantage of a trial centered on the crime against the Jewish people that not only did the difference between war crimes, such as shooting of partisans and killing of hostages, and “inhuman acts,” such as “expulsion and annihilation” of native populations to permit colonization by an invader, emerge with sufficient clarity to become part of a future international penal code, but also that the difference between “inhuman acts” (which were undertaken for some known, though criminal, purpose, such as expansion through colonization) and the “crime against humanity,” whose intent and purpose were unprecedented, was clarified. At no point, however, either in the proceedings or in the judgment, did the Jerusalem trial ever mention even the possibility that extermination of whole ethnic groups—the Jews, or the Poles, or the Gypsies—might be more than a crime against the Jewish or the Polish or the Gypsy people, that the international order, and mankind in its entirety, might have been grievously hurt and endangered.

Closely connected with this failure was the conspicuous helplessness the judges experienced when they were confronted with the task they could least escape, the task of understanding the criminal whom they had come to judge. Clearly, it was not enough that they did not follow the prosecution in its obviously mistaken description of the accused as a “perverted sadist,” nor would it have been enough if they had gone one step further and shown the inconsistency of the case for the prosecution, in which Mr. Hausner wanted to try the most abnormal monster the world had ever seen and, at the same time, try in him “many like him,” even the “whole Nazi movement and anti-Semitism at large.” They knew, of course, that it would have been very comforting indeed to believe that Eichmann was a monster, even though if he had been Israel’s case against him would have collapsed or, at the very least, lost all interest. Surely, one can hardly call upon the whole world and gather correspondents from the four corners of the earth in order to display Bluebeard in the dock. The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal. From the viewpoint of our legal institutions and of our moral standards of judgment, this normality was much more terrifying than all the atrocities put together, for it implied—as had been said at Nuremberg over and over again by the defendants and their counsels—that this new type of criminal, who is in actual fact hostis generis humani, commits his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong. In this respect, the evidence in the Eichmann case was even more convincing than the evidence presented in the trial of the major war criminals, whose pleas of a clear conscience could be dismissed more easily because they combined with the argument of obedience to “superior orders” various boasts about occasional disobedience. But although the bad faith of the defendants was manifest, the only ground on which guilty conscience could actually be proved was the fact that the Nazis, and especially the criminal organizations to which Eichmann belonged, had been so very busy destroying the evidence of their crimes during the last months of the war. And this ground was rather shaky. It proved no more than recognition that the law of mass murder, because of its novelty, was not yet accepted by other nations; or, in the language of the Nazis, that they had lost their fight to “liberate” mankind from the “rule of subhumans,” especially from the domination of the Elders of Zion; or, in ordinary language, it proved no more than the admission of defeat. Would any one of them have suffered from a guilty conscience if they had won?

Foremost among the larger issues at stake in the Eichmann trial was the assumption current in all modern legal systems that intent to do wrong is necessary for the commission of a crime. On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent, where, for whatever reasons, even reasons of moral insanity, the ability to distinguish between right and wrong is impaired, we feel no crime has been committed. We refuse, and consider as barbaric, the propositions “that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal” (Yosal Rogat). And yet I think it is undeniable that it was precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with, and that they were, in fact, the supreme justification for the death penalty. Because he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate forever certain “races” from the surface of the earth, he had to be eliminated. And if it is true that “justice must not only be done but must be seen to be done,” the justice of what was done in Jerusalem would have emerged to be seen by all if the judges had dared to address their defendant in something like the following terms: “You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it. But you said you had never acted from base motives, that you had never had any inclination to kill anybody, that you had never hated Jews, and still that you could not have acted otherwise and that you did not feel guilty. We find this difficult, though not altogether impossible, to believe; there is some, though not very much, evidence against you in this matter of motivation and conscience that could be proved beyond reasonable doubt. You also said that your role in the Final Solution was an accident and that almost anybody could have taken your place, so that potentially almost all Germans are equally guilty. What you meant to say was that where all, or almost all, are guilty, nobody is. This is an indeed quite common conclusion, but one we are not willing to grant you. And if you don’t understand our objection, we would recommend to your attention the story of Sodom and Gomorrah, two neighboring cities in the Bible, which were destroyed by fire from Heaven because all the people in them had become equally guilty. This, incidentally, has nothing to do with the newfangled notion of ‘collective guilt,’ according to which people supposedly are guilty of, or feel guilty about, things done in their name but not by them—things in which they did not participate and from which they did not profit. In other words, guilt and innocence before the law are of an objective nature, and even if eighty million Germans had done as you did, this would not have been an excuse for you.

“Luckily, we don’t have to go that far. You yourself claimed not the actuality but only the potentiality of equal guilt on the part of all who lived in a state whose main political purpose had become the commission of unheard-of crimes. And no matter through what accidents of exterior or interior circumstances you were pushed onto the road of becoming a criminal, there is an abyss between the actuality of what you did and the potentiality of what others might have done. We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives or with the criminal potentialities of those around you. You told your story in terms of a hard-luck story, and, knowing the circumstances, we are, up to a point, willing to grant you that under more favorable circumstances it is highly unlikely that you would ever have come before us or before any other criminal court. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations—as though you and your superiors had any right to determine who should and who should not inhabit the world—we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.”