The Faces of Justice in Jerusalem

By TELFORD TAYLOR JN a judgment noteworthy for its lucidity and dignity, the District Court of Jerusalem con- victed Adolf Eichmann under all fifteen counts of the indictment charging him with crimes against the Jewish people, crimes against humanity, war crimes and membership of criminal organisations. In the light of the evi- dence and the circumstances surrounding the trial, the conviction was virtually a foregone conclusion, and public speculation has thus been focused on the sentence. The judgment is subject to review by the Supreme Court of Israel and the President is empowered to grant clemency; the only remaining uncertainty appears to be Whether or not the President will commute Eichmann's death sentence.

The most impressive feature of the tribunal's Judgment is its meticulous and dispassionate assessment of the evidence. The judges wisely eschewed the understandably frenetic tone that Permeated the prosecution's presentation; and With equal wisdom, they relied but sparingly on the statements and affidavits of Eichmann's Nazi colleagues, some of whom were dead and others of whom had to be cross-examined in Germany or Austria because they were unwilling to come to Israel.

Such fastidiousness was cheap, to be sure, for even if not a single witness had taken the stand, the documentary evidence was damning. Eich- mann's own testimony largely confirmed the story told in the documents and portrayed him as a rigid bureaucrat whose ruthlessness sprang from feelings of inferiority and a paranoidal ambition which found gratification in the rank and status of an SS officer and bureau chief. There were many comparable personalities among the Nuremberg defendants and, like them, Eichmann sought to defend himself chiefly by placing the responsibility on others: his subordinates—to whom, he said, he left wide discretion—and his superiors who, he said, left him none. But, as the tribunal found, Eichmann • • . 'believed wholeheartedly in the Nazi ide- ology that the Jews ... were to be destroyed with- out mercy. . . . His hatred was cold and calcu- lated, aimed rather against the Jewish people as a Whole than individual Jews. . . . He acted within the general framework of the orders which were given to him. But within the framework hb went to every extreme to bring about the speedy and complete extermination of all Jews. . . . In say- ing this we do not mean that the accused's viciousness was unusual within the regime which had raised him . . . in all his activities the ac- cused acted with others. . . . But all this does hot detract from the fact that the accused's office Stood at the very centre of the final solution; the guilt of others does not lessen by one iota the Personal guilt of the accused.' Eichmann's guilt could hardly be stated more simply or succinctly, and few will quarrel with the verdict. Ben- Gurion's objectives in giving the trial the dimen- sions of a spectacle have been measurably achieved, and its conduct by the judges has been generally and deservedly praised.

In all these respects, therefore, the Eichmann trial is to be accounted a success. The two features which are and probably will remain highly controversial are the jurisdictional diffi- culties which emerged with the first announce- ment that Eichmann had been kidnapped and would be tried in Israel; and the sentence im- posed.

Martin Buber has declared that Eichmann should not be put to death because there is no possible punishment to fit so monstrous a crime and therefore the capital penalty is meaningless. This reasoning would seem to rule out any punishment whatever, and in any event it is an illusion to seek a `punishment to fit the crime' in the Gilbertian sense. What is the 'fitting' penalty for the slaughter of a wayfarer by a drunken motorist? Questions of sanity aside, what should be done to a rapist-murderer of little girls? The human consequences of the crime in which Eichmann participated were in- calculably greater; but was his personal sin deeper? Punishment is not the only purpose of criminal penalties; their degrees are little governed by logic and much more by habits springing from the desire to safeguard the com- munity by removing the offender from its midst and discouraging his emulation by others— habits which have undergone a revolution in the last two centuries. No doubt Eichmann would be 'punished' more severely if he were tortured exquisitely or exposed to constant public con- tumely—but nobody has proposed such a fate.

Victor Gollancz scoffs at the deterrent value of the death penalty in general and particularly as applied to Eichmann: 'The idea that a second Eichmann would be likelier to disobey a second Hitler . . . from fear that . . . he might find himself, like his predecessor, on the gallows, is hardly consistent with the elements of human reason.' But the question is bgged by narrowing its application to 'a second Eichmann,' and Mr. Gollancz's comment betrays a complete mis- understanding of the deterrent purpose of criminal penalties.

That purpose is not addressed to Eichmanns and other criminals, but to the gentle reader and your author. Pickpockets circulated in the very crowds that watched the public hangings of past years, well knowing that they faced the same fate• if caught. Criminal sanctions do not deter those who live by, lawbreaking or whose pleasure it is to flout society. But most people wish to be well regarded and to achieve their goals this side of the grave in accordance with the standards of organised society. As Brierly puts the matter: 'It is not the existence of a police force that makes the law strong and respected, but the strength of the law that makes it possible for a police force to be effectively organised.' It is to reconfirm the validity of human standards that transgression is penalised.

All this, however, tails short of proving that the capital 'penalty bolsters those standards any more effectively than other punishment. If any man ever 'deserved' to be hanged, the man is Eichmann, and others as deeply implicated paid with their lives at the Nuremberg and other war crimes trials. But the depth of his guilt neither proves nor disproves the wisdom of the death sentence. In fact, Israel will appear in a very poor light if Eichmann is executed, for capital punishment has long since been removed from its regular criminal law and has been preserved only in the 1950 'Nazis and Nazi Collaborators Law' under which Eichmatin is convicted. Is Israel to treat capital punishment as suitable only for those who have committed crimes directed against the Jewish people?

Other considerations may persuade President Ben-Zvi to commute the sentence. The seizure and trial of Eichmann has been hailed by Premier Ben-Gurion as a manifestation of Israel's coming of age as a sovereign nation. it may now appear advantageous to show that Israel, with the arch-enemy of Jewry in her hands, is strong enough not to kill him.

Controversial as is the issue of the sentence, intrinsically it is far less significant thar; the vex- ing questions of jurisdiction which marked and, in the opinion of some, marred this trial from its inception. Did the admittedly unlawful seizure of Eichmann in the Argentine vitiate the trial ab faith)? By what right did the Israeli court try Eichmann for crimes committed in distant lands and years before Israel's sovereign birth? Is the concept of the 'crime against the Jewish people'—the primary charge in the indictment —legally defensible? Especially in view of Ben- Gurion's public pre-judgment of the case, was Israel a suitable locale for such a trial?

These questions touch profoundly important issues of jurisprudence and of international law and morals. Strong naticinalists may brush them aside and extreme positivists may deny that the trial had anything to do with law in the proper sense. But for those for whom man's best hope is the development of at least a measure of world order under the rule of law, the question about the Eichmann trial that overshadows all others is whether or not it will contribute to the healthy growth of international law and custom.

The Jerusalem court's analysis of these troublesome problems is routine and superficial. This was to be expected, for the Israeli (like British and unlike American) courts have no power to set aside statutes, and therefore Eich- mann's judges were bound by the Nazis 'and Nazi Collaborators Law and could not 'enter- tain the contention that this law conflicts with the principles of international law.'

• And in so far as the 'crime against the Jewish people' is defined in terms of the racial and re- ligious identity of the victims, the Nazis and Nazi Collaborators Law is a retrogressive measure. Centuries ago in Germany, crimes were considered to affect only the victim and his kinsmen and all could be put right if their grief was assuaged by geld. Thus, the dangerous his- torical implication of the 'crime against the Jewish people' is that it is not a crime against anyone else. In the modern, and it is to be hoped enlightened, view, crimes are committed not so much against the victims as against the com- munity from which emanates the law that is broken. Crimes of which the motivation is racial are, regretfully, not unknown in other parts of the world. If a Negro is unlawfully killed in South Africa or one of the southern United States, the Negro race may well be the object and, in a sense, the victims of the crime. But nothing is more important than to preserve the law's generality, so that such a crime is indeed committed equally against the whites, the blacks and all others to whom the laws apply.

The Jerusalem court sustained its own juris- diction, despite Israel's geographical and tem- poral remoteness from the crime, on the dual grounds that serious crimes against international law may (like piracy) be punished wherever the culprit is taken, and that Israel is sufficiently linked with Eichmann's crime because his vic- tims were Jews. But the doctrine of 'universal jurisdiction' is highly debatable and involves hazards and problems which the tribunal did not explore, and the second ground assumes that the State of Israel is legally entitled to represent the Jewish people, an assumption which is widely challenged among Jews in the Diaspora.

If a suspect is unlawfully seized in a foreign country, brought to his own and put on trial for a domestic crime, his illegal arrest does not deprive the home court of jurisdiction. The Jeru- salem court invoked this rule to dismiss Eich- mann's complaint that he had been unlawfully brought to Israel, but the settled principle is not broad enough for this case, for Eichmann was not a citizen of Israel and did not commit his crimes there. Should these circumstances make a difference? The Nazis and Nazi Col- laborators Law defines the 'crime against the Jewish people' so as to cover anyone who 'with intent to destroy the Jewish people in whole or in part' causes 'serious bodily or mental harm to Jews.' Certainly it is not far-fetched to con- clude that various elements in South Africa or the southern United States harbour such intent against and inflict such harm upon Negroes. Might the State of Ghana similarly proscribe 'crimes against the Negro people' and send a clandestine posse to Mississippi or South Africa to abduct violently anti-Negro extremists for trial before a Ghana court?

The implications of so taut a stretch of juris- dictional principles as the Eichmann trial re- quired are serious. The 'right' answer to such problems is far from clear, for they lie on the frontiers of international law. It is unfortunate that they have first emerged as concrete issues before a tribunal which had nos authority to examine them free from overriding commit- ments.

For these and other reasons, grave doubts and sharp controversy will surround the Jerusalem judgment against Adolf Eichmann. A realistic evaluation of the proceeding must, however, issess these factors in the perspective of legal hind political history. The administration of justice is a complex undertaking. Trial-at-law is a mechanism that "has developed throughout the world in many different forms, all of which are more or less defective. The problems encountered in criminal trials, especially where the charges have a sharp political or emotional bite, are extremely diffi- cult; it is virtually impossible so to conduct a great 'State trial' as to avoid charges of unfair- ness or overreaching on the part of the tribunal and the convoking authorities.

Eichmann, for example, would have been more effectively represented had an Israeli law- yer, skilled in cross-examination and other aspects of the adversary process, shared the defence with his German counsel. But the Israeli bar generally took the attitude •that de- fending Eichmann was no fit task for a Jewish lawyer. This unfortunate circumstance was one of the consequences of trying Eichmann in Israel and the proceeding may rightly be criticised on this ground.

. But those who venture to do so should keep in mind that in many other countries the bar is far less independent and professional than is the case in Israel. Even in the United States those accused of sedition or other 'political' offences may find it difficult to obtain suitable counsel, and in the American South it is now virtually unheard of for a white lawyer to repre- sent a Negro if there is any hint of race in the issues for trial.

The Eichmann trial has been held against the background of the Nuremberg and other war crimes trials of a decade past. The merits of these trials, though for somewhat different reasons, were and still are hotly debated among lawyers and statesmen. Whatever the ultimate verdict of history (that imaginary jury to which we con- stantly appeal in vain), the Nuremberg trials resulted in a far more sophisticated public atti- tude toward such trials and the problems with which they must grapple.

It is this very sophistication that sharpened the wits of lawyers and publicists scrutinising the prospect of Eichmann's trial in Israel. But for the Nuremberg experience, many of the issues which arose in Jerusalem might not have been perceived, at least as clearly. Indeed, the tribunal's opinion makes constant reference to the Nuremberg judgments, and the Jerusalem judges often found helpful precedent in the rulings of their Nuremberg predecessors. The corpus of international penal law is a small one. and in many respects the Eichmann judgment is an important increment.