The Dead Awaken
MHESpectator has frequently been critical of 1 the sub judice rule with reference to legal proceedings in this country, and in particular to the attempts that are made to extend the boundaries of its operation. But this week, in Jerusalem, there began a trial in which, even if there were any legally binding bar to its discus- sion, such a prohibition would be demonstrably absurd. The principle that every man is innocent until found guilty is a good one, but Eichmann's crimes have been too well, too often and too irrefutably documented for the observance of that principle in this case, where comment in this country is concerned, not to smack of hypocrisy.
But other considerations arise. Grave doubts have been expressed, by many well-qualified authorities, as to the very competence of the Israeli court to try Eichmann (it is the chief defence submission); the distinguished American jurist, Mr Telford Taylor, who led the American prosecution team at the Nuremberg Trials, and who will be reporting on the Eichmann trial for the Spectator, has powerfully argued that Eich- mann should have been tried either in Federal Germany or before some international court— possibly a re-convened Nuremberg Tribunal.
These arguments have substance. The State of Israel did not even exist when Eichmann's un- imaginably terrible crimes were being committed; moreover, the Nazis did not murder only Jews, and the fact that their wickedness was mainly directed against the Jews strengthens the feeling that the people who most desire vengeance against him should not have tried him. And there is the added point that the State of Israel cer- tainly cannot speak in the name of Jewry as a whole; many Jews vigorously dissent from Mr. Ben-Gurion's claim to be their voice. And such dissent is justified; the Israeli attitude is tan- tamount to a suggestion that Jews outside Israel have either no national locus standi or no Judaism, and also that Israel is a State quite different in kind from all others.
Nevertheless, the holding of the trial is an Israeli fait accompli. (The kidnapping of Eich- mann in Argentina must cast further doubts on the legality of the proceedings, though it might be said that the Argentine Government had signally failed to find him in fifteen years, just as the sug- gestion that he should have been tried in Federal Germany would have sounded more convincing if Dr. Adenauer had asked for his extradition.) And a study of the fifteen-count indictment reveals that there is more in the Israeli claim to be properly qualified to try him than has yet emerged.
He is accused, to begin with, of various 'crimes against the Jewish people' And these charges are brought under a law passed in Israel in 1950--the Nazi and Nazi Collaborators' Punish- ment Law. Of course, this statute still does not give'the Israelis the right in international law to try Eichmann for deeds done before it was passed; but at any rate it exculpates them from the charge of passing a special law for him— which is exactly what the Nuremberg Tribunal did. Indeed, the Nuremberg Tribunal's legal competence was even more questionable than that, for it did not rest on any statutes of any countries, even ad hoc and retrospective ones.
The second group of charges concerns 'crimes against humanity'—precisely the offence of which the Nuremberg defendants were accused. At least the Israelis can now argue that they have the Nuremberg precedent to go on; those who have never argued against the competence of the Nuremberg Tribunal (and it is only fair to point out that some notable voices have been raised against it over the years) can hardly now object to the Israelis' use of its charges against a man who, had he been in captivity at the time, would certainly' have shared the dock at Nurem- berg with his Nazi colleagues and masters. And similarly, the third group of charges is of 'mem- bership in a hostile organisation'; in each case the organisation in question (the. SS, the SD and the Gestapo) was ruled a criminal organisation, membership of which was itself an offence, by the Nuremberg Tribunal.
Of the wider 'political' questions of the wis- dom of the decision to try him in Israel, and the effects of the trial on international feeling about Jews in general and Israel in particular, there are much graver doubts. It may be that Mr. Ben- Gurion has plans to hand Eichmann over for sentence, after a verdict which cannot he in any doubt, to some other Government or court--it is worth remembering, after all, that Eichmann is formally 'wanted' in every country in Europe that was ever occupied by the Nazis, including Ger- many. This might smack of hand-washing; and since the alternative can hardly help smacking of revenge it is difficult to see what the Israeli Government, once the decision to try him there had been irrevocably taken, could do. Nobody, after all, suggests that hanging or shooting Eich- mann could possibly constitute retribution for crimes on the scale of those he committed. The only sentence that might is one of keeping him alive: 'then must the Jew be merciful' indeed.
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