Autor: Matěj Jungwirth (Beloit College)

 

Defendants_in_the_dock_at_nuremberg_trialsAlthough the nascent attempts to exercise some sort of international justice could be traced long before the end of World War II, the Nuremberg trials constituted a radical turning point in the development of international law.[1] Even at the very time of the prosecutions, many of the Allied participants sensed the utter novelty of the proceedings of the court. The prosecutors in Nuremberg themselves had to invent one of four charges – crime against humanity – to encompass a broad scale of Nazi crimes against a variety of minorities, not limited to: Gypsies, homosexuals, disabled and, most importantly, Jews. Disregarding the actual proceedings of the Nuremberg court, many people nowadays assume that these well known trials constituted a judicial retribution for the Holocaust.

As it will be demonstrated in this analysis, quite the opposite was true. It was precisely the striking absence of discussion of responsibility for the Endlösung (Final solution) specifically that led David Ben Gurion, Israeli Prime Minister, and his government to authorize the covert abduction of Adolf Eichmann, a chief Nazi bureaucrat of the Holocaust. Eichmann’s subsequent trial in Jerusalem was persuasively presented by the Israeli political establishment as a completion of the Nuremberg trials that fully exposed the horrors of Nazi crimes against the European Jewry.

Nevertheless, both the Nuremberg and Jerusalem annals are replete with judicial flaws and controversy. Rather than present the Eichmann trial as a much-needed supplement to, and correction of, Nuremberg (which in many aspects undoubtedly was), this analysis strives to present a succinct overview of the major shortcomings of both. For a variety of reasons, the Nuremberg trials failed to bring proper attention to the atrocities of the Holocaust, whereas the Eichmann trial failed to do so in accordance with existing norms of international law by focusing exclusively on defendant’s crimes against the Jews.

 

The Holocaust in Nuremberg

At a succession of Allied conferences that took place toward the end of the WWII in Quebec, San Francisco and London it was at last decided that rather than be subjected to summary executions,[2] the Nazi leaders should be held responsible for their crimes at a newly established international tribunal. There they would enjoy basic legal rights such as: “notification to the accused of charge, the right to be heard, and to call witnesses in his defence.”[3]

The so-called ‘Trial of the Major War Criminals’ before the International Military Tribune was held between      November 20, 1945 and October 1, 1946 in the Bavarian city of Nuremberg.[4] However, the three most sought after Nazi leaders were already dead: both Hitler and Joseph Goebbels, the leading Nazi propagandist, committed desperate suicide in a Berlin bunker and Heinrich Himmler, the head of the SS, killed himself in British custody. Although it was originally not intended, all of the 23 defendants were Germans.

The inadequate attention given to the Holocaust at Nuremberg was partly a result of insufficient or incomplete evidence available at the time of the court proceedings. In the summer of 1945, most of the information regarding the extermination of European Jews was provided through Jewish organizations, and the two major orchestrators of genocide – Eichmann and the Gestapo chief Heinrich Müller – were absent from the lists of potential defendants.[5] Furthermore, the commandant of Auschwitz, Rudolf Höss, was captured in the spring of 1946, which was too late to be included in the proceedings. Telford Taylor, a member of the American prosecution staff, even remarked: “I myself did not become aware of the Holocaust until my exposure to the relevant documents and witnesses at Nuremberg.”[6]

It nonetheless bears stressing that the absence of the Final Solution in the Nuremberg court was not a mere function of insufficient evidence. Since the WWII victors operated the trials, they were preoccupied with the war crimes committed by Germany against Allied countries. Several types of war crimes perpetrated against the Allies obscured the Holocaust at court, including: the extrajudicial executions of French and American captive soldiers, Germany’s violations of naval laws during submarine war with Great Britain, and atrocities committed by the Germans during Operation Barbarossa.[7]

The “conspiracy to commit crimes against peace and war crimes” was turned into a central tenet of charges brought against indicted Nazis.[8] Given the nature of the court and its prosecutors, this should not come as a great surprise, but the way in which the issue of the Holocaust was treated is deeply unsettling. The prosecution’s explication of crimes against humanity brought forth in the official indictment mentioned neither Jews nor the Holocaust and spoke vaguely of “inhumane acts committed against civilian populations.”[9] Robert. H. Jackson, an experienced American lawyer who led the prosecuting team, voiced the commonly shared view that the atrocities of the Final Solution should be regarded merely as ancillary to the acts of aggression:

[T]his isn’t merely a case of showing that these Nazi Hitlerite people failed to be gentlemen in war; it is a matter of their having designed an illegal attack on the international peace, which to our mind is a criminal offense by common-law tests, at least, and the other atrocities were all preparatory to it or done in execution of it […] The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it is a part of a plan for making an illegal war.[10]

As Gary J. Bass laconically concludes: “Amid all this effort on aggression, crimes against humanity [including Holocaust-related charges] got relatively short shrift.”[11]

The fact that the Nazi crimes against Jews were marginalized throughout the Nuremberg trials cannot be dismissed as a haphazard coincidence. Although ignorance and unawareness of the true extent of the Holocaust played its role, the chief culprit was the desire to try defendants on charges of aggressive war against the Allies. This dismissive approach to the Holocaust corresponded well with domestic opinions in both the US and Great Britain. The vast majority of American organizations calling for a closer attention to the fate of European Jewry were, unsurprisingly, Jewish. As Bass observes, “this relative lack of interest in prosecuting the Holocaust was of a piece with the Roosevelt administration’s inattentive reaction to the Holocaust while it was happening.”[12] The attitude was somewhat different in Great Britain whose citizens still acutely remembered the suffering brought by Hitler’s aerial warfare and demanded, above all, retribution for Germany’ s heinous crimes of aggression:

British policy was […] accurately represented by the attorney general, Somervell, who thought that “the primary and main justification for punishing Hitler and his colleagues is the policy which they have pursued in bringing about and conducting the war.” Nazi war crimes and the Holocaust were, to Somervell, a “very important” but “secondary reason for punishment.”[13]

The text of the Joint Declaration of the United Nations, issued two and a half years before the end of WWII in December 17, 1942, underscores the emerging discrepancy: “The above-mentioned governments […] condemn in the strongest possible terms this bestial policy of cold-blooded extermination [of Jews]. They reaffirm their solemn resolution to insure that those responsible for these crimes shall not escape retribution.”[14] In a direct contradiction of the previous Allied claim, the defendants at Nuremberg were tried primarily for crimes against their victors, not victims.

 

 

The Holocaust in Jerusalem

Otto Adolf Eichmann, born in 1906, made a career in the SS where he eventually earned a reputation as an expert on Jewish issues. In 1938, he was promoted to the head of the Central Office for Jewish Emigration that carried out the complex logistics of mass deportations of Jews to ghettos and death camps. Eichmann, an SS lieutenant colonel, was an extremely effective bureaucrat who diligently carried out the assigned tasks. After the war, unrecognized, he served a spell in an Allied prisoner camp, but managed to escape and fled to Argentina under an assumed name. However, his wife and children, who soon joined him in exile, kept their names – a careless mistake that gave the first clue to Mossad about his whereabouts. Following Ben Gurion’s directive, Israeli agents kidnapped him in May 1960 and promptly deported him to Israel. The trial took place in an Israeli court in Jerusalem between April 11, 1961 and December 11, 1961. Found guilty of “crimes against Jewish people” and with both his appeal and plea for clemency unsuccessful, Eichmann was hanged on May 31, 1962.[15]

The connection between the Jerusalem and the Nuremberg trials was manifest to everyone involved and so was the somewhat justified feeling of an ‘unfinished job’ on the Israeli side. Thus, the prosecution’s opening statement promptly distanced itself from other post WWII trials – Nuremberg and the so called successor trials – and stated that it was for the first time the Holocaust “occupied the central place in the court proceedings, and [that] it was this fact which distinguished this trial from those which preceded it.”[16] This time the German Nazi criminal was to be tried by a court of the Jewish state solely for crimes committed against Jews. Many Israelis viewed this particular feature of the Jerusalem court as nothing less than a “revolutionary transformation.”[17]

The Israeli prosecutors, led by Justice Gideon Hausner, were very well aware of the excessive attention that the world would devote to their proceedings. Indeed, Hausner himself later wrote about a “trial of a trial,” referring to the level of scrutiny that the international community gave to the Jerusalem court.[18]   Among the scores of foreign journalists following the trial was Hannah Arendt, a German Holocaust survivor, who wrote series of concise and controversial articles for The New Yorker, later published under the title Eichmann in Jerusalem: A Report on the Banality of Evil.  [19]

Before proceeding to the central tenets of Arendt’s philippics, it is necessary that we acknowledge that she was in no way opposing the notion of Eichmann being held responsible for his WWII crimes and, as a matter of fact, on many occasions eloquently defended the Jerusalem court against many criticisms that she found unjust and irrelevant. Arendt staunchly dismissed the preposterous claims that since the prosecutors were Jewish, they were inevitably biased against Eichmann or that the Israeli law of 1950, under which Eichmann was prosecuted, lacked retroactive validity.[20] As to the question of Eichmann’s guilt and appropriate punishment, Arendt left no room for doubt, concluding her book with a resounding appeal: “you must hang.”[21] The fact that Eichmann’s trial wound up precisely like this did not prevent Arendt from voicing a poignant critique of the rather spurious means that were used to reach this end.

Firstly, Arendt objected to the nature of Eichmann’s abduction, declaring that “a clear violation of international law had been committed in order to bring him to justice.”[22] Although Eichmann had lived in Argentina, he still was a German (or West German, more precisely) citizen and his kidnapping constituted a violation of both countries’ sovereignty. It was only his (unsurprising) status as an international persona non grata that prevented either country from a more fervent reaction. Even though it is true that post war Argentina was a safe haven for Nazi criminals, Israel had never made an official request for Eichmann’s extradition in the first place.

Secondly, Arendt firmly refuted the way in which Eichmann’s character was portrayed by the prosecuting side. Although the court had to admit the fact that, psychologically speaking, Eichmann was in no way abnormal,[23] it strived to present him, in the words of Petros A. Papadatos, official observer at the trial, as an “ineffective criminal.”[24] This rather obscure and arbitrary classification allowed the prosecutors to extrapolate that “[these criminals] are psychopaths who are incapable of reacting effectively and are devoid of sentiment (love, compassion, veneration) as well as of the forces which prevent doing evil […] They do not have sufficient strength to restrain their aggression which often leads them to brutality and to cold cruelty.”[25]

Arendt opposed these characterizations not only because they were simplistic, but also especially because they were deeply misleading. As is clear from the Papadatos’ observation at the court, Eichmann was depicted as a unique case of a “pathologically demonic and demented figure” that emanated a “metaphysical aura of satanic greatness.”[26] Astutely, Arendt unveiled the double-edged nature of this approach: “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.’”[27] The opportunity to observe Eichmann’s conduct and behavior during the trial closely led Arendt to the famous conclusion about the “banality of evil”[28] that does not denounce the odiousness of genocide as banal in itself, but rather observes how “terribly and terrifyingly normal” its perpetrators are.[29]

Lastly and equally importantly, Arendt denounced the very nature of the court and charges against Eichmann. The tribunal in Jerusalem was a domestic one and, as mentioned above, Eichmann was held responsible exclusively for crimes against Jews. In the defense of the validity of the court’s proceedings, Chief Justice Hausner claimed that just as a pirate can be tried by any country into whose hands he falls […] The perpetrator of a crime against humanity is considered to be on a similar level. His offense is not aimed at a particular part of the society; it is a crime against the human race. It is, therefore, within the power of any civilized state to try him.[30]

In other words, Justice Hausner and others were convinced that the very nature of Eichmann’s crimes defined him as Hostis humani generis, i.e. an enemy of mankind, who could be tried by any state under the crimes against humanity charge that was first deployed at Nuremberg.

Observing the court proceedings closely, Arendt did not challenge the applicability of universal jurisdiction in itself but rather the fact that the Jerusalem trial, especially its indictment, did not fully reflect Eichman’s proclaimed status of the enemy of mankind:

[W]ho commits [crimes against humanity] has become, like the pirate in traditional international law, hostis humanis generis. Eichmann, however, was accused chiefly of crimes against the Jewish people, and his capture, which the theory of universal jurisdiction was meant to excuse, was certainly not due to his also having committed crimes against humanity but exclusively to his role in the Final Solution of the Jewish problem.[31]

At the core of the Arendt’s argument was the fact that Eichmann was abducted and tried under international law, but the actual charges brought against him included only crimes against a ‘particular part of the society’ – Jews.

As Teylor reminds us “crime is not committed against the victim but primarily against the community whose law is violated.”[32] This is especially true of the crimes that fall within the definition of universal jurisdiction and, consequently, harm mankind as a whole. Extrapolating from this notion, Arendt concluded that “[the Holocaust] was a crime against humanity, perpetrated upon the body of the Jewish people.”[33] This acknowledgment introduces her ultimate assertion that Eichmann should have been tried by an international tribunal, ideally under the aegis of the UN: “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.”[34] Thus, as executed in Jerusalem, the victims’ ‘justice’ hampered the genuine justice and failed to present Eichmann’s offences against Jews as a significant yet subservient component of his overarching crimes against mankind.

 

Conclusion

The judicial deliberations and actual proceedings of both the Nuremberg and Jerusalem trials were plagued by a variety of flaws closely related to the question of defendants’ degrees of responsibility for the Holocaust. While the Nazis had been promised punishment for their crimes against European Jewry, these atrocities were actually downplayed and marginalized throughout the Nuremberg trials. By indicting Eichmann for his crimes against Jews exclusively, the court in Jerusalem committed the exact opposite mistake. Dryly, Arendt reminds us that in the end “[i]t is the law […] not the plaintiff, that must prevail.”[35] However understandable and justified the indignation and cries for revenge may seem in the both judicial instances discussed, it is necessary to keep in mind that the mere conspicuousness of defendant’s guilt does not permit for misleading and arbitrary indictments. If true justice is to be vindicated at the court, the cause for punishment must be precisely identified and enunciated.

 

Endnotes

[1]Most prominent examples of those are, according to Gary Baas, Napoleon’s expulsion to St. Helena, the Leipzig trials and the Constantinople war trials.

[2] The notion of summary execution of top Nazi leaders, fairly popular at the time, was initially supported by Roosevelt, Churchill and Stalin alike with the only difference lying in question of just how many Nazis ought to be shot.

[3] Henry Stimson, US Secretary of War, quoted in: Sands, Philippe. From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge: Cambridge UP, 2003. Print. p. 4.

[4] The major German Nazi Party, National Socialist German Worker’s Party (NSDAP), had its headquarters in Nuremberg. Unsurprisingly, the Nuremberg Laws, the NSDAP’s first official openly anti-Semitic laws, were presented in Nuremberg in 1935.

[5] Sands, Philippe. From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge: Cambridge UP, 2003. Print. p. 11.

[6] Taylor, Telford. The Anatomy of the Nuremberg Trials: A Personal Memoir. New York: Knopf, 1992. Print. p. 26.

[7] Code name for the German invasion of the Soviet Union in 1941.

[8] Jackson, Robert Houghwout. The Case against the Nazi War Criminals. N.Y.: Knopf, 1946. Print. p. 115.

[9] Jackson, Robert Houghwout. The Case against the Nazi War Criminals. N.Y.: Knopf, 1946. Print. p. 115.

[10] Jackson, quoted in Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton UP, 2000. Print. p. 177. Original emphasis.

[11] Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton UP, 2000. Print. p. 177.

[12] Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton UP, 2000. Print. p. 189.

[13] Ibid. p. 193.

[14] Lemkin, Raphael. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. Washington, D.C.: Carnegie Endowment for International Peace, Division of International Law, 1944. Print. p. 89. Emphasis added.

[15] Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print. p. 281.

[16] Ibid. p. 256.

[17] Ibid. p. 271.

[18] Hausner, Gideon. Justice in Jerusalem. New York: Harper & Row, 1966. Print. p. 288.

[19] For an example of the amount of controversy that Arendt’s book provoked, see Robinson, who, among other things, claims: “Miss Arendt does not convey reliable information. She has not equipped herself with necessary background for an understanding and analysis of the trial.” Robinson, Jacob. And the Crooked Shall Be Made Straight: The Eichmann Trial, the Jewish Catastrophe, and Hannah Arendt’s Narrative. New York: Macmillan, 1965. Print. p. viii.

[20]  For a discussion of Arendt’s response to those, see: Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print. p. 258-259.

[21] Ibid. p. 279.

[22] Ibid. p. 263.

[23] The psychiatrist who examined him supposedly stated immediately afterwards that “this man is entirely normal, more normal than I feel myself after this examination.” Papadatos, Petros Achilleo̮s. The Eichmann Trial,. New York: F.A. Praeger, 1964. Print. p. 28.

[24] Ibid.

[25] Ibid. p. 29.

[26] Arendt, Hannah, and Peter Baehr. The Portable Hannah Arendt. New York: Penguin, 2000. Print. p. xxv.

[27] Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print. p. 276.

[28] Ibid. p. 252.

[29] Ibid. p. 276.

[30] Hausner, Gideon. Justice in Jerusalem. New York: Harper & Row, 1966. Print. p. 314. Emphasis added.

[31] Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print. p. 261.

[32] Ibid.

[33] Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Penguin, 1983. Print. p. 268.

[34] Ibid.

[35] Ibid. 261.

 

Bibliography

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  • Arendt, Hannah, and Peter Baehr. The Portable Hannah Arendt. New York: Penguin, 2000. Print.
  • Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton UP, 2000. Print.
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  • Conot, Robert E. Justice at Nuremberg. New York: Harper & Row, 1983. Print.
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  • Robinson, Jacob. And the Crooked Shall Be Made Straight: The Eichmann Trial, the Jewish Catastrophe, and Hannah Arendt’s Narrative. New York: Macmillan, 1965. Print.
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