Monday, October 24, 2011

The Eichmann Trial at Fifty

Last week I was invited to present a paper at Melbourne Law School on the topic of the trial of Adolf Eichmann in Jerusalem fifty years ago and the legacy it has left behind.  The case seems almost unique in the lasting effect it has had; it is certainly probably the most famous domestic trial in history, but why?

For those who need a little background, Adolf Eichmann was a high ranking Nazi and facilitator of the holocaust; he organised the deportations of Jews from all over Europe to the death camps where 6 million are thought to have died.  Following the war Adolf Eichmann escaped to Argentina where he lived incognito for some years until being tracked down by the Mossad and smuggled to Israel in 1960 to stand trial. The 4 month long trial commenced the next year, at the end of which the defendant was found guilty.  An appeal was rejected and Adolf Eichmann was hanged in 1962.

Each paper at the conference dealt with a different aspect of this.  The keynote speech came from legal historian and Boston College professor Devin Pendas, who examined the historical legacy of the Eichmann trial.  From a legal perspective, he argued, the trial was not that important; it set no real legal precedents. Its real legacy lies, instead, in universalising the holocaust, in shifting the emphasis from the genocide being a crime against the Jews to being a crime against humanity.  Were it not for the trial, he suggested, we would probably not have memorial museums the world over today, and would not use the word "holocaust" to refer generally to terrible events.  This is largely down to the inventiveness of the judges in the case in defining the crime as a universal one, and indeed invoking universal jurisdiction as one method of approaching it.

The next speaker, DePaul Law Professor Stephan Landsman, studied the connection of the Eichmann case with the "witness-driven" atrocity trial.  In the case, the prosecution called an excess of witnesses many of whom testified about things completely unrelated to the case in hand. The prosecution was keen to tell the complete story of the holocaust rather than just to establish the guilt of Adolf Eichmann, something for which chief prosecutor Gideon Hauser was frequently admonished by the judges.  In so doing the Eichmann case set the standard for ridiculously long international trials such as that of Slobodan Milosevic, and influenced, for instance, the US decision to execute rather than attempt to capture Osama bin-Laden.

I spoke next, my talk dealing with the inventive use of universal jurisdiction by the judges. Establishing jurisdiction would have been straightforward enough applying simply Israeli law, as the judges themselves recognised. Yet they were presented with a number of challenges which they felt inclined to explain their way around - such as the ex post facto nature of the legislation under which Adolf Eichmann was charged, the extraterritorial nature of the jurisdiction asserted, and the fact that Israel did not exist at the time of the offences charged. These issues were combined with complaints from other countries and distinguished individuals such as Telford Taylor and Hannah Arendt, who argued for the establishment of an international tribunal along the lines of Nuremberg.  This combination of circumstances influenced the judges' decision to invoke universal jurisdiction and apply international law, claiming that they were agents of the international community and doing what any other State could do by putting Adolf Eichmann on trial. The judgement also generated persuasive argumentation regarding the application of universal jurisdiction to genocide, in apparent contravention of the Genocide Convention.  This represented something of a leap for universal jurisdiction; but I warned against interpreting it too generously given the muddling of jurisdiction in the case (the court equally appeared to invoke protective and passive personality types of jurisdiction as well) and the unique circumstance of the Nazis, an organisation that received universal condemnation with the result that their trials, under universal jurisdiction or otherwise, receive little criticism - compare this with the controversial universal jurisdiction trials that have been attempted by Belgium or Spain in more recent years. As Louis Henkin, I think, put it, the Eichmann trial happened at the edge of international criminal law.  It was, in many ways, too unique to set a sound precedent.  Kevin Heller responded to my presentation by emphasising the importance of the Control Council Law Number 10 trials (of Nazis tried in occupied Germany in Allied-convened courts) in developing universal jurisdiction.

The final presentation came from Cardozo Law Professor Kyron Huigens, who spoke about Eichmann's "defence of conscience", examining his defence of superior orders and asking whether he had the proper mental capacity to be answerable to the crimes charged.  The presentation unravelled some of what Hannah Arendt meant by referring to the "banality of evil" - the idea that Adolf Eichmann was not an evil person, but instead became caught up in the machinery of evil, a thoughtless "cog" in a machine, operating in an inverse moral universe where killing had become the norm.

All in all, a great event, and in a most beautiful corner of the world.

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