58

A R.EPOR. TER. AT LARGE

EICHMANN IN JE.I\U5A LE. M -V

URING the last weeks of the

war, the S.S. bureaucracy
occupied chiefly with forging
identit) papers and with destroying the
paper mountains that testified to six
years of systematiC murder. Adolf Eichmann's department, more successful
than others, managed to burn its fi lesa triumph that achie' cd little, since practically all its correspondence had hten
..ddrcssed to othtr state and Part} offices, whose files fell into the hands
of the Allies. \Vhcn, in !96 1, Eichmann was brought to trial in the District Court of J erusalem- before Presiding Judge M oshc Landau, J udgc
Ben jamin Halc\"i, and Judge Yitzhak
R aveh-there were more tha n enoug h
documents left to tell the story of t he
Final Solution ( the Nazi code name fo r
the program to exterminate Europe's
J cws) , and most of these had heen made
known at the N urcmberg Trials and the
so-called Successor Trials. The story
was confirmed by sworn and unswo rn
statements, usually gnen by witnesses
and defendants in previous tnals and
frequently by persons who now were
no longer alive. (All this, as well as a
certain amount o f hearsay
testimony, was admissible as evidence, hccause
Section IS of the Nazis
and Nazi Collaborators
[Punishment J Law, or
so-called Law of 1950,
unde r which Eichmann
was tried, stipulates that a
court "may deviate from
the rules of evidence" provided it "places on record
the reasons which promptcd" such deviation. ) The
Nazi documents and the
affidavits were supplemented by testimony taken ahroad, from SIXteen witnesses in Gnmany, Austria,
and Italy, who could not come to J erusalem, because Attorney General Gideon Hausner had announced that "we
intend to put them on trial for crimes
against the J ewish people." (Du1ing the
first session, he had declared, "And if
the defense has people who arc r<:ady to
come and be
I shall not block
the way. I shall not put up any obstacles," hut later he refused to grant them
immunit\'.) The granting or withholding of immunity depended entirely upon
the good will of the government, since
prosecution under the Law of 1950 is
not mandatory. Since it was highly unlikely that any of thr sixteen would have

come to Israel under any circumstances-se,en of them were in prison -this was a technical point, but it
was of considerable importance: it constituted a rdutation of Israel's cla1m
that an Israeli court was, at
technically, the "most suitable for <1 tnal
against the implementers of the Final
Solution," because documents and witnesses were " mo re abundant than in
any other countr) "-and the claim with
respect to documents had heen doubtful
from the start, since the l sradi archives
wac founded at a comparatively late
date (not until the mid-fifties) a nd arc
in no wa) superior to other archives.
[t turned o ut that Israel was the only
country in the world where defense witnesses, having been 1az1s, could not be
heard, and w hrre certain witnesses for
the prosecution, alsu former Nazis those who had given affidavits in previous trials-could not be cross-e:>.ammed
hy the defense. This was all the more
se rious because the acc used and his
lawyer, Dr. Robnt Servatius, were
not, as Dr. Servatius pointed out, "in
a position to obtain their own defe nse
documents." Dr. Scrvatius submitted
a hundred and nine documents, as against fifteen
hundred and forty-three
submitted by the prosecution. M oreover, of the
hundred and nine only
about a dozen originated
with the defense, and they
consisted mostly of excerpts from books hy L eon
PoliakO\ or G erald Reitlinger; all the rest, with
the exception of seventeen
charts drawn by Eichmann, were picked out of
the wealth of mate rial
gathered by the prosecution and the
I sraeli police. O bviously, the defense
counsel received the: crumbs from the
rich man's table. In fact, as Dr. Scrvatius said, he and Eichmann had neither
"the means nor the time" to conduct the
affair properly; they did not "have at
[their J disposal the archi\TS of the world
a nd the instruments of go,ernment."
(The same reproach had been levelled
against the Nuremberg Trials, where
the inequality of status between prosecution and defense was even more glaring.
The chief handicap of the ddense, in
Nuremberg as in J erusalem, was that
it lacked a staff of trained researche rs who would g o through the mass of
documents and find whatever might be

useful in the Ca$e. Even today, eighteen

years after the war, our knowledge of
the immense archival matenal o f the
' azi regime rests, to a large c:>.tent, on
selections made for purposes of prosecution. ) No one could have been more
aware of
decisive disadvantage
for the defense than Dr. Scrvatius,
who was one of the d efe nse counsels in
-u remherg. A nd this makes the quest:Jon of whJ he offered his services to
hegin with even more inkrcsting. His
own answer to this question was that he
wished "to make money," but he must
have known, from his Nuremberg experience, that the sum paid him hy the
I sraeli gmcrnment-twcnt) thousand
dolla rs, as he himself had sllpula tedwas ridiculously inade'luate, even though
Eichma nn'$ family in Linz had given
him another fifteen thousand marks.
For the position the defenda nt took
on w hat he had done, the court could
relr upon the detailed statement he had
made to the Israeli police e:>.aminer,
supplemented hy many handw ritten
notes he handed in during the eleven
months needed for the preparation of
the trial. That these were voluntary
statements no nne e ve r attempted to
deny, and, in fact, most of them wt re
not even elicited by questions. Eichmann
was confronted with sixteen hundred
documents, and it turned out that he
must have been familiar with som e of
them, because they had been shown to
him in Argentina, in 1955, during a n
inkrview with the Dutch journa list
\ Villem S. Sasscn-which Mr. Ha usner,
with some j ustification, called a "dress
rehearsal." But he started wo rking on
them serious]) only in J erusalem, and
when he was put on the stand, it soon
became apparent that he had not wasted
his time; he now knew h<>W to read documents-something he had not known
d uring the police examination- and, for
that matter, could do it better than his
lawyer. E ichmann's testimony in court
turned out to he the most important evidence in the case. His counsel put him on
the stand on J unc 20th, during the seventy-fifth sess10n, and interrogated him
almost uninterruptedly for fourteen sessions, concluding on July 7th. That
same day, during the eighty-eig hth session, the cross-examination by the prosecution began, and it lasted for seventeen
sessions- up to the twentieth of July.
There were a few incidents: Eichmann
once threate ned to "confess everything," l\1oscow stvle, and he once complained that he was "grilled until tile

59
steak
done," but he was usually
quite calm, and he was not serious when
he declared, at one point, that he would
refuse to answer any more questions. He
told Judge Halcvi how "pleased I am at
this opportunity to sift the truth from
the untruth that has been
upon me for fifteen years," and how
proud he was of being the subject of the
longest cross-examination ever known.
Aftt:r a short reexaminatiOn by his lawyer, which took less than a session, he
was examined by the three judges, and
they got more out of him in two and a
half sessions than the prosecution had
been able to elicit in seventeen.
Eichmann was on the stand from
June 20th to July 24th, for a total of
thirty-three and a half sessions. Almost
twice as many sessions- sixty-two out
of the hundred and twenty-one of the
entire trial- w ere given over to a hundred-odd prosecution witnesses, who,
representing country after country, tuld
their tales of horrors. Their
lasted from April 24th to June 12th,
and the three sessions between June 12th
and June 20 th were largely taken up
with the submission of documents, most
of which the Attorney G eneral read
into the record o f the court's proceedings, which was handed out to the press
at the close of each session. All but
a mere handful of the witnesses were
Israeli citizens, and they had been picked
from hundreds and hundreds of applicants. (Ninety of them were survivors
in the strict sense of the word; they had
survived the war in one form or 'tnother
of Nazi captivity.) How much wiser it
would have been to resist the pressure
altogether (it was resisted up tt a point,
witnesses
for not one of the
mentioned in "Minister of Death: The
Adolf Eichma nn Story," written by
Quentin Revnolds on
basis of material provided by two Israeli journalists,
and published in 1960, was ever called
to the stand) and to seek om those who
had not volunteered!
though to
prove the point, the prosecution called
upon a man named Dinuor, well known
on both sides of the Atlantic, who went
under the name K-Zetnik- a slang
word for a concentration-camp inmate-as the author of several books
about Auschwitz that emphasized brothels, homosexuals, and other "humanintcrest stories." He started off, as he
had done at many of his earlier public
appearances, with an explanation of his
adopted name. It was not a pen name,
he said . "I must carry this name as long
as the world will not awaken after the
crucifying of the nation ... as humanity
has risen after the crucifixion of one
man." H e continued with a
excur-

sion into astrology: The star "influenc- e red by witnesses.) These were all
ing our fate in the same way as the star "background witnesses," and so were
of ashes at Auschwitz is there facing our sixtet:n men and women who told the
planet, radiating toward our planet." court about the extermination campsAnd when he had arrived at "the un- Auschwitz (ten) and T reblinka (four),
natural power above 1ature which had and Kuhn and Majdanek (one apiece) .
sustained" him thus far, and for the first From Theresienstadt, the camp for "fatime had paused to catch his breath, Mr. vored" J ews that was set up on Reich
Hausner himself felt that something had territo ry, and the only camp in which
to be done about this "testimony," and, Eichmann's power was indeed considervery timidly, ''ery politely, interrupted able, there were four witnesses, who
to ask, "Could I perhaps, Mr. Dmoor, were far from being mere background
put a few questions to you if you will con- witnesses, and there was one for the
sent ?," whereupon the presiding judge exchange camp at Bergen-Belsen.
At the end of this procession, "the
saw his chance as well, and said, "Mr.
Dinoor, please, pleasr, listen to Mr. right of the witnesses to be irrelevant,"
Hausner and to me." The witness, prob- as the Bulletin put out by Yad Vashem,
the Israeli archives, phrased it in
ably deeply wounded, fainted and
summing up the testimony, was so
answered no more questions.
firmly established that it was a
This, to he sure, was an excepmere formality when Mr. Haustion. But if it was an exception that

ner, during the seventy- third sesproved the rule of normality, it

sion, asked permission of the court
could scarcely be said to prove the
rule of simplicity or of ability to tell a "to complete the picture" by calling as
story, let alone of the rare capacity for his last witness a former member of the
distinguishing between things that had J ewish Brigade, the fighting force of
happened to the storyteller anywhere Palestinian J ews that had been attached
Btitish E ighth Army during the
from sixteen to rwenty years ago and to
what he had read and
and imag- war. Judge Landau, who some fifty sesined m the meantime. These complica- sions before had protested strongly
tions could not be avoided, but they were against this "picture painting," agreed
not improved by the predilection of the immediately The last witness, Mr.
prosecution for witnesses of some prom- Aharon H oter-Yishai, now an Israeli
inence, many of whom had published lawyer, said t hat in 1945 he had heen
books about their experiences, and who working for Aliyah Beth, an organizanow told what they had previously tion whoSe purpose was to arrange for
written, or at least had told and retold illegal immigration into Palestine, and
many times. The procession started, in that he had been ass1gned the task of
a futile attempt to proceed accord1ng coiirdinating all efforts to search for
to chronological order, w1th eight wit- J ewish survivors in Europe. The J ews
nesses from G ermany, all of whom were were dispersed among some eight million
sober enough but none of whom were displaced persons from all over Europe"survivors;" they had been high-rank- a floating mass of humanity that tht:
ing J ewish officials in Germany and Allies wanted to repatriat<: as quickly as
were now prominent in l sradi public possible. The danger was that the J ews,
life, and they had all left G erman) prior too, w ould be returned to their former
to the outbreak of war. Ther were homes. Mr. Hotcr-Yishai told of the joy
followed by five witnesses from Prague with which he and his comrades were
and then by just one witness from Aus- g reeted when ther presented themselves
tna, no others, apparently, being felt to J ewish sunivors as members of "the
necessary, since the prosecution had sub- J ewish fighting nation," and how it
mitted the valuable reports of t he late "was sufficient to draw a Star of Da,,id
Dr. J osef Lowenherz, the head of the on a sheet in ink and pin it to a broomVienna J ewish Communit}, written stick" to shake these people out of the
during and shortly after the end o f the dangerous apathy of ncar-starvation. He
war. There appeared one witness each also told how some of them " had wanfrom France, Holland, D enmark, Nor- dered home from the D .P. camps," only
way, Luxembourg, Italy, Greece, and to come back to another camp, since
Soviet Russia; two from Yugoshwia; "hom e" was, for instance, a small Polish
three each from Rumania and Slovakia; town where of six thousand former J ewa nd thirteen from H ungary. But the ish inhabitants fi fteen had survived, and
large majority of the witnesses who were four of the survivors had been murdered
survivors- about fifty of them- came upon their return by the Poles. Finalfrom Poland and Lithuania, where ly, he described how he and his assoEichmann's competence and authoritr ciates uied to forestall the repat1iation
had been almost nil. (Belgium and Bul- attempts made by the Allies and how
garia were the only countries not cov- they frequently arrived too late: "In

60
Theresienstadt, there were thirty-two
thousand survivors. After a few weeks,
we found only four thousand. About
twenty-eight thousand had returned
I home], or were returned. Those four
thousand whom we fou nd there-of
them, of course, not one person returned
to his place of origin, because in the
meantime the road was pointed ollt to
them;" that is, tho: road to what was
then Palestine and was soon to hecome
I srael. This testimon} perhaps smacked
more strongly of propaganda than anything heard previous!), and yet
man
told the simple truth. T hose who had
survived the ghettos and the camps, who
had come out alive from t he nightmare
of absolute helplessness and abandonment-to whom the whole world was a
jungle and the} its prcy-haJ only one
wish: to go where the) never would see
a non-J ew again. T hey needed the
emissaries of the J ewish people in Pakst:ne in order to learn that they could
come, legally ,,r illegally, h} hook or hy
crook, and that t hey would h< welcome;
they did not need them 111 order to be
con\'inced.
Thus, every once in a long while
one was glad that Judge LanJ.no had
lost his battle, and, as it happened, the
first glad moment occurred even hdore
the hattie had started. Mr. Hausner's
first background witness did n<>t look as
though he had volunteered. He was an
old man, small, very frail, with sparse
white hair and beard, wearing the traditional Jewish skullcap and holding
himself quite erect; in a sense, his name
was "famous,'' and one understood why
the prosecution began its picture with
him. H e was Zindel Grynzspan, father
of Herschel Grynzspan, who, on November 7, 1938, at the ag< of sevenk en, walked up to the German Embnssy
in Paris and shot to death its third secretary, the young C;msular Official
Ernst vom Rath. The
triggered the pogroms in G ermany and
Austria ,)11 the so-called KrtJtnllnacht of
November 9th, which was
a
prelude to the Final Solution but with
which Eichmann had nothing to do.
Grynzspan's motive has never bet:n
satisfactooily explained, and his brother, whom the prosecution also put on
the stand, was remarkably reluctant to
talk ahout it. The court took it for
granted that the assassination w:ts an
act of vengeance for the <::>.pulsion of
some fifteen thousand Polish J ews- the
Grvnzspan fam ily among them- from
G erman territory during the last Jays
of October, 1938, hut it is generally
known that this explanation is unlikely. Herschel Grynzspan was a psychopath, who had been unable to finish

school and who for years had knocked

about Paris and Brussels, though he had
been e:>..pelled from both places. His
lawyer, in the French court that tried
him, introJuced a confused story of
homosexual relations, and the Germans, who later ha d him extradited,
never put him on trial. ( There a re nomors t hat he survived the war- as
though to substantiate the "paradox
of Auschwitz" that those J ews who
haJ committed a criminal o ffense were
spared.) Vom Rath was a sing ularly
inadequak \'ictim. H e had been shadowed by the Gestapo for openly e:>..pressing anti-Nazi views and sympathy for
the J ews; indeed, the story of his homosexuality mar well have been fabricated
h} the Gestapo. Grynzspan was pt rhaps
acting as an unwitting tool of G estapo
agents in Paris, who could have wanted
to kill two birds with one Stone- create
a pretext for pogroms in G erman y and
get rid of an opponent to the Nazo regime-and failed to realize that they
could not have it both ways; that is, that
they could not slander vom Rath as a
homosexual having relations w1th J ewish
and also make of him a martyred victim of "world J ewry."
However that may have been, it is
,, fact that the Polish government, in
the early fall of 1938, decreed that all
Polish J ews residing in Germany would
their nationality by O ctober 29th;
prohahly it had learned that the German government intended to expel all
such J ews to Poland and wanted to
prevent this. It is more than doubthoi that people lih Mr. Zindel Grynzspan knew of the existence of the decree.
He had gone to Germany in 1911,
at the age of twenty-five, to open a
grocery store in Hannover, and there,
in due time, he fath ered eight children.
In 1938, when catastrophe overcame
him, he had been living in Germ,my for

twenty-seven years, and, like many other such people, he had never bothered
to ask for naturalization. Now, in 1961,
he had come to the District Court of
J erusalem to tell his story, and he carefully
t he questions put to him
by the prosecutor, speaking clearly anJ
firmly, without embroidery: "On the
twe nty-seventh o f O ctober, 1938- it
was Thursda) noght- at eight o'clock, a
policeman came and told us to come
to P olice St:ttion II. H ., said, 'You are
going home immediately; don't take
anything with you. Take with you your
passports.' " Grynzspan went to the
police station with his family-a son, a
daughter, and his wife. \'\' hen they arrive d, "I saw a large number of people,
people sitting, some sta nding; people were crying. T hey [the police ] were
shouting, 'Sign, sign, sign.' I had tn
stgn, as all of them dod. One of us did
not- his name was, I hclieve, Gershon
Silbcr-and he had to stand in the corner for twenty- four hours. They took
us to the concert hall, anJ there were
people from all over t own-about six
hun dred. There we stayed until Friday night; about twent} - four hours, yes,
until Friday night. Then they took us
in police trucks, in prisoners' lorries,
about twenty men m each truck, and
they took us to the railroad station.
And the streets were black with people
shouting, 'The J cws out to Palestine ! '
They took us by train tu 1\'eubenschen,
on t he German-Polish border. It was
Shahbat morning when we reached
Neuhenschen, at six on the morning.
There came trains from all sorts of
places -Leipzig, Cologne, D usseldorf,
Essen, Biedcr feld, Bremen. T ogether
we w ere ahout twelve thousand people.
It was the Shahbat day, the twentyninth of October. When we reached the
border, we were searched to see if an}body had any money, anJ anybody who
had more than ten marks -the halance
was taken from him. This was a G erman law; no more than ten marks could
he ta ken out of G ermany. The G ermans said, 'You didn't bring any more
into Germany and you can't take any
more out.' " They had to walk a little
over a mik to reach the Polish border,
since the G ermans intended to smuggle:
t hem into Polish territory. "The S.S.
men were whipping us, those who lingered they hit, and blood was flowing
on the road. They tore awav our suitcases from us--the} treated us on a most
IMrba nc fashion- this was the first time
that f'd seen the wild brutality of the
G ermans. They shouted at us, 'Run!
Run ! ' I myself received a blow and fell
into the ditch. !\1} son helped me, a nd
he said, 'Run, F at her, non, or you'll

62

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die!' \ Vhen we got to the open border, the women went in first. T he
P oles didn't know. T hen a Polish general an d some officers arrived and
examined the papers, and s.,w t hat we
were Polish citizens. It was decided to
let us enter. T hey took us to a \illagt: of abo ut sox thous.,nd peopk, and
we were twehe thousand. T lw ntin
was d ri\ ing hard, people were fainting-on all sid("s one saw old men
and women. O ur suffering was great.
T here was no food ; since Thursday we
had not eaten . . . . " T he} were taken
to a military camp and put into " stables,
as there was n o room elsewhere." T he
witness concluded, "I think it was our
Second day [in P oland] . On the fi rst
day, a lorry with bread came from Pm:nan. T h,n I wrote a letter to Frnncc
to my sun: 'Don't write any more letters to G ermany. \Ve a re now in
Zbanszyn.'"
T his testimony did not take more
than perhaps k n min utes, a nd when it
was owr-t he account of the needless,
destruction of twenty-s.:' en
years in less than twenty- fou r hoursone t hought foolish!}, ,erp>ne, everyone should have his day in court. Only
to lind nut, in the endless sessions that
f,, l!nwcd, how difficult it was to tell the
story; that- at least outside the transforming realm of poetry-it needed a
purit} of soul, nn unmirrored innocence of heart a nd mind, that only the
righteous possess. T here was no one
anw n g the witnesses at any other time
to equal Zindcl G rynzspan m his shming

N., one could claim that G ryn zspan's

testimony created a nyrhmg remotely resembling a "dramatic moment .'' But
such a moment came a few weeks later, and it came unexpeckdl), just when
J udgt L andau was makmg his most
Stnn uous attempts to bring the proCeedings back under t he control of normal c riminal-court procedures. On the
stand was Abba Kovner, 'a poet and
an author," who had not so much

tc,tilied as
an audience with
Pri Wid Lore - Our ntw
the cast of someone who is used to
is till} and hght.llearted
in public and resems inter spTiilgtirne. Brilliant ct nters uf
ruptions from the floor. He had been
IO<lboc;hon emeralds a1e surrounded
asked by the presiding judge to be
by gracefully fashioned petals with
brief- a request that he obviously did
diamonds set in 18 kt. gold.
not care for- and :vl r. Hausner, who
Clip .. . $2,500. Eardips .. $1 ,500.
had defended his witness, had been told
DeeiJJns A ci1<a.l !iz t . Fed. tax iftel.
that he "cannot complain of a lack
of patience on t he part of the court,"
and na turally hr did not care for that.
At t his slightly tense moment, the witness happened to mention the name of
London Monr.C.rlo . Cenneo . O.oovtllo . O.,neva
An ton Schmidt, a F rlrlwrhrl, or ser.1 gennt, in the German Army- a name

65
that was not
unknown to th1s
audience, for Yad Vashem had published Schmidt's stOr} some years before in its Bu/11 tin, and a number of
Yiddish papers in America had picked
it up. Anton Schmidt was in charge of a
patrol 111 Poland that collected stray
German soldiers who were cut off from
their units. In the course of doing this,
he had run into members of the J ewish
underground, including 1\Ir. Kovner, a
prominent member, and he had helped
the J ewish partisans by suppl} ing them
with forged papers and militar} trucks.
Most important of all, according to
Kovncr, "He did n ot do it for money."
This had gone on for five months, from
October, 1941, to March, 1942, when
Anton Schmidt was arrested and executed. (The prosecution had elicited
the story because Kovner declared that
he had first heard the name of Eichmann from Schmidt, who had told
him about rumors in the Army that
it was Eichmann who "arranges everything.") This was by no means the first
time that help from the outside, nonworld was mentioned. Judge
Halevi had been asking the
"Did the J ews get any help?" as regularly as the proSeCUtiOn had asked them
"\Vhy did you not rebel?" The answers to the J udge's question had been
various and inconclusive -"\\'., had
the whole population against us," and
J ews hidden hy Christian families could
"be counted on the fingers of one
hand"-but on the whole the situation
had, surprisingly, been better in Poland
than in an} other E astern country.
( T here was no testimony on Bulgaria,
where the population had refused to tolerate a ny anti-J cwish measures whatever.) A J ew who was now married to
a Christian Polish woman and living in
Israel testified that his future wife had
hidden him and twdve other J ews
throughout the war; another had a
Christian friend from before the war to
whom he had escaped from a camp and
who had helped h1m, and who was eventually executed because of the help he
had given J ews. One witness claimed
that the Polish underground had supplied many J ews with weapons and had
saved thousands of J ewish children by
placing them with Christian families.
The risks were terrible; there was the
story of an entire Polish family who had
been executed in the most brutal manncr because they had adopted a six-yearold Jewish girl. But the first and the
last time that any such story was told of
a German was while Kovner was on the
stand, though one other incident involving a G erman was referred to in a

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66
KILLINS, KIRSTEN & THE
KING OF PRUSSIA

NEW YORK
RADIO
PEOPLE

ED JOYCE- Fri., Mar. 15-1:153:00

P.M. A spirited Jiscussion \\ith John
Killins, author of "And Then There Was

Thunder"-the controversial noveJ deal.ng

with the problem, of a Negro combat unit

in World War II.
TED STEELE-Toes., Mar. 19--3:15
4 :00 P.M. 0)>t'ra star Dorothy Kirsten has

some very cogent things to sa) abour non.

musical subJ<CtS such a<

fash

ion. manners and morts. Her upinions are

as solid as her lyric soprano hi)lh Cs.

BOB MAXWELL-Wed., March 2Q-4:15.6:00 P.M. Another switch as Bob does
a Talk Along with Mitch Miller whose
million.seller albums are only part of what
he docs for a living. The Bearded One
discusses the great
involved 10
bringing new music talent into the Bigtune.
MUSIC

LEE JORDAN-Sun., Mar. 17-10:05

A.M. to Noon. Always 'way ahead of the
game, Lee int<rviews blondiful Florence
Henderson, the star of the new
Coward muSical-yet unutled-slat.d for
Broadway next fall. They'll also talk about
h<r appearance with Lee at Carnegte Hall
March 31st when the big "festival Of
Music Of Broadway" kicks off the Cancer
Crusade. Many son,11s by f lorence. too.
NEW YORK PHILHARMONIC OR
CHESTRA-5un., Mar. 17-9:10 P.M.
The 99th broadcast features George Szell,
Conductor. Music is Wagner's Prelude to
'Lohengrin". Beethoven's Piano Concerto
No. 1 in C Major. Piano soloist is Leon
Fleisher. Also-Schumann's Symphony :Ko.
; in E Flat Major.
MUSIC 'TIL DA WN-Tues., Mar. 191:15 A.M.- Selections from Me)erbecr'<
Le Prophete" The Paris Opera
is conducted by
Wed., Mar. 2o-4:15 A.M. Mozart s Quintet No. 21, "Ktn)l
of PIUssia", played by the Budapest Strin):
Quartet.
SPORTS

NEW YORK KNICKERBOCKERS

BASKETBALL-Fri., Mar. 15-8:30
P.M. The Chicago Zephyrs invade the Gar.
den. Marry Glickman describes the action.
NEW YORK RANGERS HOCKEYSun., Mar. 17- 7:00 P.M. The Toronto
Maple Leafs cut up the Garden ice in what
should be a swinger. Wed., Mar. 2Q--7:30
P.M. The Boston Bruins come to town
Thurs., Mar. 21-8:00 P.M. The Range"
fol low the Bruins home for another face.
off. Jim Gordon p.ives the play-byplay.

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document: An Army officer had helped

indirectly b) sabotaging ce rtain police
orders; nothing had happened to him,
but the matter had been consdcrcd
sufficiently serious to be mentioned in
correspondence between Himmlcr and
!\1artin Bormann. During the few mnutes 1t tonk to tell of the help afforded
hy a German >crgcant, a hush settled
over the courtroom; it was as though the
crowd had spontaneously decided w observe two minutes of silence in honor of
the m an named Anton Schmidt. And in
those two minu tes, which were lih a
sudden burst of light in the mtdst of
impenetrable, unfathomable darkness,
a single thought stood out clearly, irrefutably, heynnd question: H ow utll'rly
different everything would be todlly in
this courtroom, in Tsrael, in G erman},
in all of Europe, and pt:rhaps m all the
countries of the world, if unl} more
such stories could be told!
There are, of course, e:>..p]anations of
th-s devastating shortage, and thq have
been repeated many times. I shall give
t he gist of them in the words of P ete r
Bamm, a G e rman A rmy physician
who had sen ecl at the Russ.an front,
whOSe book "Die Unsichtbare
F lagge," published in Munich in I952,
is among the very
sincere memoirs of its kind. H e tells
of the killing of J ews in. Sevastopol.
They we re collected by " the others,"
as he calls the S.S. mobile killing units,
to distinguish the m from ordinary soldiers, whose dece ncy the book cxtolls,
and were put into a sealed-off part of
the former G .P .U . prison
a butted on the l)fficers' lodgings), whe re
Dr. Bamm's own unit was quartered . Later, they were made to board
a mobile gas van, 111 which the} died
after a few minutes, whe re upon the
d river transported the corpses outside
the city and unloaded them into tank
ditches. D r. Bamm w rites,
kne w
this. \ Ve did nothing. E veryone who
had seriously protested or acted against
the killing unit would ha\e hcen arrested
wit hin twenty-four hours and would
have disappeared. It belongs among the
refinements of totalitarian gove rnments
in our century that they don't permit
their opponents to die a great, dramatic
martyr's death for their convictions. A
good many of us might have accepted
such a death. The totalitarian state lets
its opponents disappear in silent anonymity. It is certain that anyone who had
dared to suffer death rather than silently
tolera te the crime would have sacrificed
his I if.: in \ a in. This is not to say that
a sacrifice would have been morally
meaningless. It would only have heen

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practicallv useless. None of us had a

conviction so deeply rooted that we
could have taken upon ourselves a
practically useless sacrifice for the sake
of a higher moral meaning." N eedless
to say, the w riter remams unaware of
the emptiness of what he elsewhere refers to as their "decency," in the absence
of a "higher moral meaning." But the
hollowness of respectability-for decency under such circumstances is no
more t han respectability- was not what
became apparent in t he example afforded by Sergeant Anton Schmidt but,
rathe r, the fatal /law in the argument
itself, which at first sounds so hopelessly plaus1ble. It is true that the totalitarian state tned to establish holes of
oblivion into which all deeds, good and
evil, would disappear , but just as the
Nazis' feve1ish attempts, from J une,
1942, on, to erase all traces of their massacres-through cremation, through
burning in open pits, through the use of
explosives and flame- throwers and bonecrushing machinery- were doomed to
failure, so all efforts to let their "opponents disappear in silent anonymity"
were in vain. The holes of ohlivion do

not exist. Nothing human is perfect,

Md there are simply too many people in
thge
- -.-.
t he world to make
possibl.:.
- - - - - - - - - -- -- - - - - - - - - - - - - - - - - - - -!One man will always be left alive to
tell the story. Hence, nothing can ever
be "practically useless"- at least, not in
the long run. I t would be of great practical usefulness for G ermany todayand not merely for her prestige abroad
but for her sadly confused inner condition- if there were more stories like
Schmidt's to tell. For t he lesson of such
stories is simple and within everybody's
grasp. P olitically speaking, it is that under conditions of terror most people will
comply but some people wil11wt, just as
the lesson of the countries to which the
Final Solution was proposed is that "it
could happen" almost anywhere but it
dtd not happm t"IJcrytuhere. H umanly
speaking, no more is required, and no
more can reasonably be asked, for th1s
planet to remain a place fit for human
Any man who really knows hi s way
habitation.
around, knows why his bar accessones
should be made of stainless.
ICHMANN spent the last months of
No staining. No tarni s hin g. No
the war cooling his heels in Berlin.
polishing. Just all fun - with quality.
H e had nothing to do, and he was cut
That's stainless steel living - modern
by the other dep.utment heads in his
in beauty; modern in carefreeness.
outfit, who had lunch together every
day in the building where he had his office but did not once ask him to join
BY REPUBLIC STEEL CORPORATION
them . H e kept himself busy by devising
Sales Offtces and Representatives
defense installations for "the last battle"
in Principal Cities
in Be rlin, and, as his only official duty,
(Only the E N 0 U R 0 Stainless Steel is produced by Republic Steel: The
paid occasional visits to T hcresienstadt,
manufacturer's name and address w tll be supplied on request to Republic
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wher e he showed R ed Cross delegates

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70
around- and, to them, of all people,
unburdened his heart about Himmln's new "humane line" in r egard to
the J ews, which included an avowed
determination tu have, "next time,"

concentration camps after "the English model." In April, 194 5, Eichmann had the last of Ius rare interviews
with Himmlcr, who ordered him to select "a hundred to two hundred prominent J ews in Theresienstadt," transport
them to Austria, and install them in hotds, so that Himmler could 11se them as
"hostages" in his forth nnning negotiations with Eisenhower. The db,urditr
of this commission seems not to havt:
dawned upon Eichmann; he went "with
g rief in my heart, as I had to desert m)
defense installations," and he never
reached
hcca use all the
roads were blocked hy the approaching
Russ;,,n armies. InStead, he ended up at
Alt-Aussec, in Austria, where Ernst
Kaltcnbrunner, who in 1943 had succeeded H cydrich as the chief of Eichmann's outfit, the H ead Office for
R eich Security, or R.S.H.A., had taken
refuge. Kaltenbrunner had no interest
in Himmler's "prominent J ews," and
told Eichmann to prepa re a small unit
for partisan warfare in the Austrian
mountains. A nd Eichmann responded
with the greatest enthusmsm: "This
was again something worth doing, a
task I enjoyed." But just as he had collected about a hundred m<>re ur less
unfit men, most of whom had never
seen a riflc, and had taken possession
of an arsenal of abandoned weapons of
all sorts, he received the latest Himmler
order: "No fire is to be op<'ncd on English and Americans." This was the end.
H t: sent his men home an d gave a small
strongbox containing paper money and
gold coins to his trusted legal adviser,
R egicrungsrat Otto H unschc: "Because, I said to myself, he is a man from
the higher ci,il services, he will be correct in the management of funds, he
will put down his expenses, etc., for I
still believed that accounts would be
demanded someday."
\\rith thes., words, supposedly, Eichmann concluded the autohiograph}' he
had spontaneously given tht: police ex"The Grimaldis live
aminer in J erusalem. It took up only a
down this street. We might
few days of the police examination, and
run into Prince Albertfilled no more than three hundred
he's a bit young to play with,
and fifteen of the thirty-five hundred
and sixty-four pages copied from the
but we'd like to meet him."
tape on which the police examination
was recorded. He made it plain that he
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tcstimon} on the period after the close

of t he war. H oweva, from affidants
given at 1 uremberg, and, more impo rtant, as a result of a m uch discussed indiscretion of a former Israeli civil sen ant, Moshe Pearlman, whose book
Capture of Adolf Eichmann" appeared in L ondon four weeks before t he
trial opened, it is possible to complttc
t he stor} ; in fact, Mr. P earlman's account was clearly based upon maten al
coming from Bureau 06-thc
police office that was in charge of the
preparation of the trial. ( :V1r. P earlman's own stor} was that since he had
retired from government service three
weeks before Eichmann was kidna pped,
he had written the book as a "private
individual," but this is not Yerr convincing, since the Israeli police must have
known of the impe nding ca pture several
months before his retirement. ) Th< disclosure caused some embarrassment in
Israel, not only hccause 1\lr. Pearlman
had becm able to divulge importa nt
prosecution documents prematurely and
had stated that the trial authorities had
alreadr made up their mind about the
untrustworthiness of Eichman.n's testimony but because reliable mformation
on h ow Eichmann was captured in
Buen os Aires was naturally the last
thing they wanted to release.
The story told by M r. Pearlman was
considerably less exciting than the various rumors upon which previous ta les
had been based . Eichmann had never
been 111 the N ear East or the Middle
East; he had never had an} connection
with any Arab country; he had never
returned to G ermany from Argentina;
he had never been to any other LatmAmerican country; he had played no
role in postwar Nazi activities or o rganizations. \\' hen the war ended, he
had tried to
once more with
Kaltcnbrunner, who was still in AltAussee, playing solitaire, but his former
chief was in no mood to receive him;
K altenbrunncr had said, "For this
man I see no chances any more."
(Kaltenbrunncr's chances were not
so ver) good, either; he was hanged
at 1uremherg. ) Almost immediattly
tht rcaftcr, Eichmann was caught by
American soldiers and put into a camp
for S.S. men, where numerous exa minations ne\'el uncovered his identity, although it was known to some of his fellow-prison ers. He was cautious enough
not to write to his family-he had a
wife and three young sons--and to let
them helieve he was dead; his wife tried
to obtain a death certificate, but faikd
when it was discovered that the only
" eyewitness" to her husband's death

75
whom she was able to produce was her
brother-in-law. Since she had been left
penniless, Eichmann's family in Linz
supported her and their three children.
In 1'\ovcmhcr, 1945, the Trials of the
Major \ \ ' ar Criminals opened in Nurcmherg, a nd Eichmann's name hegan
to appear with uncomfortable regularity. In January, 1946, former Hnuptsturmfiilzrrr Dieter \ Visliceny, Eichmann's assistant in Slovakia, in Greece,
and later in H ungary, appeared as a witness for the prosecution and gave damning evidence against Eichmann, whereupon Eichmann decided that he had to
disappear. That same month, he escaped
from the camp, with the help of other
inmates, and went to the Lcmeburger
Heide, a heath about fifty miles south
of Hamburg, where the brother of one
of his fellow-prisoners provided him
with work as a lumberjack. H e stayed
there, under the name of Otto H enninga, for four years, and he was probahl) bored to death. Early in 1950, he
succeeded in estahlishing
with
a clandestine
of
S.S. veterans, and in :\lay of that year
he was
throug h
to Italy,
where a Franciscan priest, fully informed of his ide ntity, ey uippcd him
with a refugee passport in the nam.:
of R ichard Klement and sent him on
to Buenos A1res. He arrived in midJuly,
without any difficulty, obtained his identit)' papers a nd a work
permit as
Klement, Catholic,
a bachelor, stateless, aged thirty-seven
(seven years younger than his true
age) . He was still cau tious, but he now
sent his wife a letter in
own handwriting telling hn thM "her children's
uncle" was ali1c. Over the next two
years, he did a number of odd Jobs as sales representative, laundryma n,
workt r on a ra bbit fa rm.- and thoug h
t hey were all poorly paid, he had his
wife and children join him in the
summer of 1952. ( Mrs. Eichmann obtained a G erma n passport fro >m the G t:rma n consulate in Zurich, Switzerland,
t ho ug h she was a resident of Austria
at the time, a nd, furthermore, she obtained it under her true name, calling
herself a "divorcee" from a certain
Eichmann. H ow this came about rea mystcry, forth< contents of her
application file have disappeared from
the Zurich office. ) Shortly after her arrival, Eichm,tn n got his first steady job,
in t he M ercedes-Benz factory in Sua rez,
a suburb of Buenos Aires, where h e
worked first as a mechanic and later
as a foreman. I n 1955, a fourth son
was born to the Eichmanns, and it has
been said that around this time he rc-

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76
married his wife under the name of
Klement. This is not likely, however,
for the infant was registered as Ricardo
Francisco (presumably for the
pnest) Klement E 1chmmm,
name was only one of man} hints
Eichmann dropped in
to his identity as the years went by. I t docs seem
to be true that he told his children he was
Adolf Eichmann's-brother, though the
children, heing well acquainted With
their grandparents and uncles in Linz,
would have been rather dull to believe
it, and the eldest son, who had been nine
years old when he last saw his fath er,
should certainly have been able to recognize him seven years later in Argentina.
:vi rs. Eichmann's Argentine identity
card, moreover, was never changed (it
read "Veronika L iebl de Eichmann"),
and in 1959, when Eichmann's stepmother died, and a year later, when
his fath er died, the ncwspapcr announcements in L inz included the name
of Mrs. Eichmann among the survivors, contra dicting all stories of divorce
and remarriage. Earlr in 1960, a few
months before his capture, Eichmann
and his sons finished building a primi.,
tiw brick house m one of the poor sub.,
u rbs of Buenos Aires-no electricity,
no running water- and here the family
settled down. Thcr must have been
very poor, all those years in Argentina,
and must have led a dreary life, for
which not even the children could compensate, smce, according to Eichmann,
they showed "absolutely no interest in
being educated and did not even try to
develop their so-called talents."
Eichmann's only compensation, indeed, appears to have been the opportunity to talk endlessly with members of
the large Nazi colony, to whom he
readily admitted his identity. In 1955,
this led to his interview with Sasscn,
who was n ot only a journalist but also a
former member of the Armed S.S., and
At the 1962 USGA amateur
who had exchanged his Dutch nationalchampionship more than eight
ity for a G erman passport during the war
competitors played Titleist for
and had later been condemned to death
every one that played the next
in abse11tia in Belgium as a war crimmost popular ball.
inal. Eichmann made copious notes for
the interview, which was tape-recorded
Among the 200 entrants:
and then wntten by Sassen, with considerable embellishment; the notes in
Eichmann's own handwriting had been
16 ..... .. PLAYED THE #2 BALL
discovered (under circumstances that
14 ....... PLAYED THE #3 BALL
were not revealed) and they were ad11 ....... PLAYED THE #4 BAL L
mitted as evidence at the uial, though
8 ........ PLAYED THE #5 BALL
the statement as a whole was not. Sassen's version appeared in abbreviated
form fi rst in the German illu5trated
SOLD THRU GOLF COURSE PRO SHOPS ONLY magazine Dn Strrn, in J une and July,
1960, and then, in November and
December, as a series of articles in

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Lzfr. But Sas.<;en, obviouslr with Eichmann's consent, had offered the ston
four years before to a Ttmc-Lrfr
spondent in Buenos Aires, and even if it
is true that Eichmann's name was not
cited as a source, the content of the
article could have left no doubt about
the original source of the information it
contained. The truth of the matter is
that Eichmann had made many efforts
to break out of his anonvmity, and it is
rather strange that it took the Israch
Secret Scn ice several \'Cars to learn
that Adolf Eichmann was living in
A rgentina under the name of Ricardo
Klement. [sracl has never divulged the
source of her information, and today
at least half a dozen persons claim they
discovered E ichmann, while certain
"well-informed circles" in Europe insist
that it was the Russian Intelligence
Service that spilled the news. However
that may ha\'e been, the puzzle is not
how it was possible to discover Eichmann's hideout but, rather, how it was
posSJble not to discover it earlier- provided, of course, that the Israelis had indeed pursued this search through the
years. rn view of the facts, that seems
doubtful.
about the 1dentity of
N o doubt
th<: captors, however. All talk of private
" av engers" was squelchcd at the outset
h) Prime Minister Da,id Ben-Gurion
himself, who on May 23, 1960, announced to I srael's wildly cheering
Kncsset that Eichmann "was found by
tlw Israeli Secret Service." Dr. Servatius,
who tried strenuously and unsuccessfully
both bdore the District Court and before the Court of Appeal to call Zvi
T ohar, the pilot of the El AI plane that
tl.ew Eichmann out of the country, and
Y ehuda Shimoni, an official of the airline
who participated in the capture, to the
witness stand, mentioned Bcn-Gurion's
statement in the course of his efforts;
the Attorney G eneral countered by saying that "Israel's Prime Minister had
admitted no more than that Eichmann
was formd by the Secret Scrvice" - not
that he had also bct n kidnapped by government agents. \Veil, in actuality, it
seems that it was the other wa}' around:
Secret Service m en had not "found" him
hut on!) picked hm1 up, after making a
few preliminary tests to assure thcmof the truth of the information
they had received. And even this was not
don e very expertly, for Eichmann was
w ell aware that ht was shadowed. He
stated to Captain Avncr L ess, tlw police
examiner Ill J erusalem, " I told you that
months ago, when I was asked if I had
kno wn that I was found out. I learned
that people in my neighborhood had

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made inquiries about real-estate purchases for the establishment of a factory

for sewing machines-a thing that was
quite impossible, since there existed neither electricit) nor water in that a rea.
Furthermore, I was mformcd that these
people were J ews from 1\orth Amenca.
I could easily havl disappeared, but I
did not do it; I just went on as usual,
and let things catch up with me. I could
have found employment without any
difficult}, with my papers and references. But I did not want that."
And there was more proof than was
revealed in J erusalem of Eichmann's
willingness to go to I srael and stand
trial. C ounsel for the defense, of courSe,
had to stress the fact that the accused
had been kidnapped and "brought to
[srael in conflict with international
law," because this enabled the defense
to challenge the right of the court to
prosecute him, and though neither the
prosecution nor the j udges ever admitted
that the kidnapping had been an " act
of state,"
denied it. They arg ued
that the breach of international law concerned onlr the states of Argentma and
Israel, not the rights of the defendant,
and that this breach was "cured"
throug h the joint declaration of the two
governments, on Aug ust 3, 1960, that
ther "resolve [ d) to view as settled the
incident which was caused in the wa ke
of the action of citizens of I srael which
violated the basic rights of the State of
Argentina." T he court decided that it
did not ma tter whether these I sraelis
were government age nts or private inWhat neither the defense nor
the court mentioned was that Argentina
would not have waived her rights
so obligingly if Eichmann had heen an
Argentine citizen . H e had lived there
under an assumed name, thereby denying himself the right to government
protection, at least as Ricardo Klement
{born on May 23, 1913, at Bolzanoin the southern Tyrol-as h1s Argentine
identity card identified him, although
he had declared himself of "German
nationality") . And he had never invoked the dubious right of asylum,
which would not have been possible,
since Argentina, although she had in fact
offered asylum to many known Nazi
criminals, had signed the United Nations' International Convention for the
Prevention and Punishment of G enocide, which stated {Article 7) that the
perpetrators of crimes against humanity
"will not be deemed to be political criminals" and hence will not he eligible for
asylum. This did not make Eichmann
stateless; it did not legally deprive him
of his G erman nationality, but it gave

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the \Vest G erman Repuhlic a welcome
pretext for withholding the protection
due its citizens abroad. Thus, despite
pages and pages of legal argument, based
on so many precedents that one finally
got the impression that kidnapping was
among the most frequent modes of arit was Eichmann's de-facto statelessness, and nothing dse, that enabled
the Jcrusalem court to
in judg ment
on his case. Though Eichmann was no
legal expert, he should have been able to
appreciate that, for he knew from his
own job that one could do as one pleased
only with stateless people; the Jcws had
to lose their nationality before they could
he exterminated. But was in no mood
to ponder such niceties, for if it was a
fiction that he had come voluntarily to
Israel to stand trial, it was true that he
had made fewer difficulties than anybody had expected. In fact, he had made
none.
On \1ay II, I 960, at six-thirty in
the evening, when Eichmann alighted,
as usual, from the bus that took him
home from the Mercedes-Benz factory,
he was seized br three men and, in less
than a minute, bundled mto a waiting
car, which took him to a house that had
been previously rented in a remote suburb
of Buenos Aires. No drugs, no ropes,
no handcuffs were used, and, owing to
the absence of unnecessary violence-he was not hurt in anr way-Eichmann immediately recognized that this
was professional work. Asked who he
was, he instantly replied, "Ich bin Adolf
Eiclmumn," and, surprisingly, added,
"I know I am in the hands of I sraelis."
(He later explained that he had read in
a newspaper of Ben-Gu1ion's order
that he he found and apprehended.) For
eig ht days, while the Israelis were waiting for the El AI plane that was to
carry them and t heir prisoner to Israel,
Eichmann was tied to a bed- this was
the only aspect of h1s treatment that he
complained about-and on the second
day of his captivity, according to Pearlman, he was asked to state in writing
that he had no objection to heing tried
by an I sraeli court. T he statement was,
of course, prepared, and all he was supposed to do was to copy 1t. To everybody's astonishment, however, he insisted on writing his own text, though
it is probable that he used the first sentPnces of the prepared statement. " I , the
undersigned, Adolf Eichmann, hereby
declare out of my own free will that
since now mr true identit} has been revealed, I sec clearly that it is useless to
try and escape judgment any longer. I
hereby express my readiness to travel to
I srael to face a court of judg ment, an

81

82

LOWEST

authoriz ed court of law. I t is

and
und erstood that I shall be given gal aJ VIcc" - thus far, he probablv copied" and I shall try to write down the facts
of my last years of public activitilS in
G ermany, without any
in order that future g enerations will have
a true picture. This declaration I declare
out of my own free will, not for promises
given and not bccauS<: of tlucats. I wish
to he at peace with myself at last. Since
I cannot remember all the details, and
since I snm to mix up facts, I request
assistance h) putting at my disposal
documents and affidavits to hdp m, in
to seck the truth." Sig ned:
my
"Adolf Eichmann, Buenos Aires, l\1ay,
1960." (This J ocumcnt, though C<rtainly genuine, is peculiar in one respect;
the day is omitted from t he date below
the signature. The omission g ives rise
to the suspicion that the letter was written not m Argentina but in J erusalem,
whe re Eichmann arrived on l\1a} 22nd.
The lcncr was needed less for the
trial- during which the prosecution did
submit it ns evidence, but without treating it as a matter of importance-than
for Israel's first explanatory official note
to the Argentine government, to which
it was duly attached. " ' hen Eichmann
testi.fied in court, Dr. Scrvatms asked
him about the letter hut did not mention
the peculiarity of the date, and Eichmann could not very "dl mention it
himself, since, up>n hemg asked a leading question h) Dr. Servatius, he was
confirming-it appcanod- Setvatius' assertion that he had g1ven the stntemcnt
under duress, while he was tied to the
bed in the Buenos Aires suburb. The
prosecutor may have known better hut
did not cross-examine him on this point;
clear!}, tlw
said about it tht better.)
, I\ Irs. Eichmann had notified the Argentine police of her husband's disappearance, hm she had not revealed his
identit}, so no check o f railwa} stations,
highways, and a1rficlds was made. The
Israelis were luck); the) would never
have been able to spirit Eichmann out of
the country ten days after his capture if
the pohcc had been properly alerted.
One reason for Eichmann's astounding coiiperation with the tnal
was hinted at years bdore his capture,
when lw said in
Sas_""n interview
how tired
was of Ius anonymity; it
can be assumed that the more he read
about himself, the more nred he must
; have become. In Israel, he gave the police a second reason, more explicit and
more dramatic: "About a year and a
half ago [that s, in thespring of 19 59],
I heard from an acquaintance who had
just returned from a trip to G ermany

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that a certain feeling of guilt had seized

some sections of G erman r outh, and the
fact of this guilt-complex was for me as
much of a landmark a5, let us 53} , the
la nding of the first man-bearing rocket
on the moon. It became a n essential
pmm of m y inner life, around which
many thoughts Cr) stallized . T his was
why I did not escapt when I knew the
search comma ndo was clusing in on
me .. . . After theS<: con\'ersattons about
the guilt feeling :tmong young people in
G ermany, w hich made such a deep impression on me, I felt I no longer had
the right to disappear. This is also why
I offered, in a w ritten statement, at the
beginning of this c>.amination, to hang
m yself in puhlic. I wanted to do m) part
in lifting the burden ,,f guilt from G erman yo uth, for these young people M e,
after all, innocent of t he events, and of
the acts of t heir fathers, during the last
war"- which, incidentally, lll' was still
referring to, during tlw trial, as n "war
forced upon the G erman R eich ." Of
course, all this was wh;n t he j udgcs la ter
characterized as "empt} talk." n 'hat
prevented him from returning to \\' tst
G erman} of his own free will to gi1c
himself up? H e was asked th1s question
by J udge Ha le1i, a nd he replied that in
his opinion G erman courts still lacked
the " objectivitr " needed for dealing
with people like him. But if he did prefer an I sraeli court- as he implied,
and which was j ust barely possihk he
co uld have spared the I sraeli a uthorities
m uch time and trouble by giving himself up to them . It was apparent in all
his statemen ts t hat th1s kind of talk gave
him feelings of what he oft<n referred to as "elation;" indeed, it seems
to have kept him in something approaching good spirits throug hout his Sta} in
the I sraeli prison and even
him
to look upon death with equanimity. " I
know that the death sentence is in store
for me," he declared at the beginning of
the police examination.
Still, there was some truth behind the
empty talk, and the truth emerged quite
clearly when the question of his dcfenSl'
was put to him. F or ohvious rcaS<Ill<, t he
Israeli government had decided to
mit a foreign counsellor, and on J ul}
14, 1960, when t he police c>.aminatlon had been going on for si>.. WLcks,
Eichmann was in formed t hat he could
choose among three possible counsellors: D r. R obert Servatius, w ho was
recom mended by his famil) (Servatius
had offered his services in a long-distance call t<> Eichman n's
in
L inz) ; another G erman lawrcr, w ho
was residing in C hile; and an American
law fi rm in New Y ork, which had com-

86
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municated with the trial authorities.

(Only Dr. Servatius' name was divulged.) There might be other possibilities, however, Eichmann was told,
and he was entitled to explore them. He
was also told repeatedly that he could
take his time. H e did nothing of the sort
but said on the spur of the moment that
he would like to retain Dr. Scrvatius,
since the lawyer seemed to be an acquaintance of his stepbrother's and, also,
had defended other war criminals, and
he insisted on signing the necessary papers immediately. Half an hour later,
it occurred to him that the trial could
assume "global dimensions," that it
might become a "monster process," that
there were several attorneys for the
prosecution, and that Scrvatius alone
would hardly be able "to digest all the
material." H e was reminded that Servatius, in a letter asking for power of

attorney, had said that he "would lead

a group of attorneys" (he never did),
and Captain L ess added, "It must be
assumed that Dr. Servatius won't appea r alone. That would be a physical
impossibility." But Dr. Servatius, as it
turned out, appeared quite alone most o f
the time. The result of all this was that
Eichmann himself became his defense
counsel's chief assistant, and, in addition
to writing books "for future generations," worked very hard throughout
the trial.
T he trial opened on April II, 196 1,
a nd twelve w eeks later, on J unc 29th,
the prosecution rested the case a nd Dr.
Servatius opened the case for the defe nse. On August 14th, after a total of
a hundred and fomteen sessions, the
main proceedings came to a n end. The
DRIP-DRY LINEN/ TERYLENE SHORTS
court then adjourned for four months.
It r eassembled on D ecember ll th to
BERMUDA SHORTS. TAILORED IN
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OF UNEN WITH TH6 SELF-GROOM
judges read the judgment, which consisted of two hundred and forty-four
!NO
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ED l'OLVESTER FIBRE. BERMUDA
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of the Fuhrer Order (as Hitler's order

fo r the extermination of the J ews was
always called by the Nazis); in his
earlier activities, in Berlin, Vie nna, and
Prague, he had no intention "of destroying the J ewish people." These were the
first four counts of the indictment.
Counts 5 through 12 dealt with crimes
"agamst humanity"- a concept that in
the I sraeli law looked rather strange,
inasmuch as it included both genocide
if practiced against non-Jewish peoples
(such as the Gypsies and the Poles)
and all othtr crimes, including m urder,
committed against either J cws or nonJ ews, provided that these crimes were
not committed with intent to destroy
the people as a whole.
everything Eichmann had done prior to
the Fuhrer Order and all his acts
agamst non-J cws were lumped togt thcr
as crimes against humanity, a nd all his
later crimes against J ews wen: included
here, too, since these were also ordinary
crimes. The result was that C ount 5
convicted him again of the crimes enum erated in Counts I and 2, while
C()unt 6 con' icted him of having " persecuted J ews on nat10nal, racial, religi()us, and political grounds," Count 7
dealt with "the plunder of property ...
linked with the murder ... of these
J ews," and Count 8 summed up all
these deeds as a "war crime," since
m ost of them had been committed during the war, and convicted him of them
yet agam. Counts 9 through 12 dealt
with crimes agamst non-Jews: Count 9
convicted him of "the expulSIOn of ...
hundreds of thousands of Poles from
their homes," Count I 0 of "the expulsion of ... fourteen thousand Slovenes"
from their homes in Yugoslavia, a nd
Count I I of "the expulsion of ... score-s
of thousands of Gypsies" to Auschwitz.
But the judgment held that " it has not
been proved before us that the accused
knew that the Gypsies were bt ing transported to dcstructJOn"-which meant
that no genocide charge ""ccpt " a
crime against the J ewish people" was
made by the court. This was difficult
to understand, for, apart from the fact
that the extermination of G ypsies was
common knowledge, E ichmann had admitted Juring the pohcc examination
that he knew of it; he had remembered
vaguely that this had been a Himmler
order, that no "directiws" had existed
for Gypsies as ther ""isted for J ews,
and that there had been no "rcSt:a rch"
done on the "Gypsy problcm"- "origins, customs, habits, organization, folklore, economy." His depa rtment had
been commissioned to undertake the
" evacuation" of thirty thousand G yp-

90

MARCH l b 19 b.l

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sics from Reich territory, he said, and

he co uld not remember the details very
well, because there had been no intervention from any side; but that Gypsies,
like J ews, were shipped off to he CA.terminated he had neYerdouhted. Thus,
he was guilty of their extermination in
exactly the same way he was guilty of
the extermination of the J ews. C ount
12 concerned, among other things, the
deportation of ninety- three children
from L idice, the Czech village whose
inhabitants had been massacred a fter
the assassmation of H eydrich; Eichmann was, however, rightly acquitted
of th e murder of these children. The
last three counts charged him with
membership in three of the four organizations that the Nuremberg Trials had
classified as " criminal" : the S.S.; the
Secunty Service, or S.D.; and the Secret
State Police, or Gestapo. (The fourth
such organization, the Leadership Corps
of the National Socialist Party, was not
mentioned, because Eichmann obv10uslv
had n ot been one of the Party leaders.)
His membership prior to May, 1941,
fell under the Israeli statute of limitations (twenty years) for minor offenses.
(The: L aw of 1950 specifies that there is
no statute of limitations fur rna jor offenses, and also that the argument r n
judicata shall not avail; that is, a person
can be tried in I srael " even if he has
already been tried abroad, whether before an international tribunal or a tribunal of a foreign state, for the same
All crimes enumerated under
Counts I through 12 carried the death
penalty.
E ichmann, it will be remembered,
had steadfastly insisted that h e was
guilty only of "aiding and abetting" the
crimes with which he was chargedthat he himself had never committed an
overt act. T he judgment, to one's great
relief, in a way recognized that the
prosecuuun had not succeeded in proving him wrong on this point. It was an
important point, since it touched upon
the very essence of this kind of crime,
which was no ordinary cnme, and the
very nature of t his criminal, who was no
common criminal; by implication, it also
took cognizance of the weird fact that
in the death camps it was usually the
inmates and the victims who actually
wielded "the fatal instrument, with
[their) own hands." \'\'hat the j udglllent had to say on t his point was more
than correct, it was the truth: "Expressing his activities in terms of ...
our C riminal C ode .. ., we should say
that they were mainly those of a
person solicitin g by g1ving counsel or
ad vic<' to others and of one who enabled

THE. NE.W YORKER

91

or aided others in" the criminal act. But

"in such an enormous and complicated
crime as the one we are now considering, wherein many people participated,
and in various modes
on various
of activity- the planners, the organizthe deeds, acers, and those
cordmg to their various ranks- there is
not much point in using the ordinary
concepts of counselling and soliciting to
commit a crime. For these crimes were
committed en masse, not only in regard
to the numbe r of victims hut also in
regard to the numbers of those who
perpetrated the crime, and the extent to
which any one of the many criminals
was close to or remote from the actual
killer of the victim means nothing, as far
as the measure of his responsibility is concerned. On the contrary, in general
[and I emphasize) the drgrrr of responSibility incrrnsr! as Wi' drmu further ,
mvny from thr 1111111 tvho wcs the jntnl
znstrum rnt, with his ow" hnnds."
\Vhat followed the reading of tl1e
judgment was routine. Once more, the
prosecution rose to make a rather lengthy
speech demanding the death penalty,
which, in the ahsence of mitigating circumstances, was mandatory, and Dr.
Servatius replied even more briefly than
The accused had carried out
"acts of sta te;" what had happened to
him might happe n in the future to anyone; the whole civilized world faced this
problem; Eichmllnn was "a scapegoat," whom the present \Vest G erman
governmenr had abandoned to the court
in J erusalem, contrary to
law, in order to clear itself of responsibility; the competence of the court,
which was never recognized by Dr. Servatius, could be construed only as "acting in a representative capacity for a
German court"- as, indeed, one state
in \Vest G ermany had formulated the task of J er usalem. Dr.
Servatius had argued earlier that the
court must acquit the defendant because,
according to the Argentine statute of
limitations, he had ceased to be liable
to criminal proceedings against him on
May 7, 1960, "a very short time before the abduction;" Servatius now argued, in the same vein, that no death
penalty could he pronounced because
abolished
capital punishment had
unconditionally in \ Vest G t:rmany.
Then came Eichmann's last statement:
His hopes for justice were disappointed.
The court had not believed him, though
he had always clone his best to tell the
truth. The court did not understand
him; he had never been a J cw-hater,
and he had never wlllcd the murder of
human hcings. His guilt came from his

..HOTOGitAP'H 8Y

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SECHUit II

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Stilts and hoops are part of history, tOo; just as much as battles,
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92

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obedience, and obedience was universally praised as a virtue. His virtue had
been abused by the Nazi leaders But
he was not one of the ruling clique, he
was a victim, and onl} the leaders dcpunishment. (He did not go
quite as far as manv uf the other lowranking criminals, who ha\c complamed bitterly that they had been told
never to worry about "responsibilities,"
and that they could not now call
responsible to account, bcca use these
have "escaped and deserted thcm"by committing sutcidc or by having hecn
hanged. ) "I am not the monster I am
made out to be," Eichmann said. "I am
the victim of a fallacy." H e did not use
the word "scapegoat," but he confirmed
what Dr. Servatius had said: It was his
'profound conviction that I must suffer
for the acts of others." On Frida}, D ecember 15, 1961, at nine o'clock in the
morning, the death sentence was pronounced.
Three months later-on March 22,
1962- rcview proceedings were opened
before the Court of Appeal, Israel's
Supreme Court, before five judges,
of whom ltzhak Olshan presided. lVI r.
Hausner appeared again, with four assistants, for the prosecution, and Dr.
Servatius, with none, for the defense.
Counsel for the defense repeated all the
old arguments against the competence of
the Israeli court, and since all his efforts
to persuade the \Vest G erman government to start extradition proceedings
had been in vain, he now demanded that
Israel offn extradition. He had brought
with him a new list of witnesses, but
there was not a single one among them
who could conceivably have produced
anything resembling "new ,vidence;"
the court refused to call them.
H e had included in the list the namt <>[
Dr. Hans Globke, a ministry official under the 1azts and prel>Cnt U nder,.,cretary of State in the nest German Government, whom Eichmann had never
seen in his life and of whom he had
probably heard for the first time in
more
J erusalem-and, what was
startling, that of Dr. Chaim \ Vcizmann, whu had heen dead for ten wars.
The plmd oycr was an incredible hodgepodge, full of errors: in one instanct ,
the defense offered as new cvtdcncc the
French translation of a document that
had already been submitted by the prosecution; in two other cases, it had simply
misread the documents; and so on. Its
carelessness contrasted vividly with the
careful introduction of certain r emarks
that were bound to be offe nsive to the
court: gassing was again a "medical
matter;" a J ewish court had no nght to

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95
Sit m judgment over the fate of the
children from Lidicc, since they were
not Jewish; I sntcli legal procedure ran
counter to Continental procedure, to
which Eichmann, because of his national origin, was entitled, in that it
required the defendant to provide rhe
evidence for his defense, and this the
accused had been unable to do bccaus.:
neither witnesses nor defense doctimcnts were available in Israel. In shurt,
the trial had been unfair, the judgment
unjust.
The procccdmgs before the Court of
Appeal lasted only a week, after which
the court adjourmd for two months.
On :vlay 29, 1962, the second judgment was read- it was somewhat less
voluminous than the first, hut still fiftyone single-spaced leg;d-sized
It
confirmed the judgment of
the District Court on :til points, but the
five judges would nor have n eeded two
months and fifty-on e pages merely for
this confirmation . The j udgment of the
Court of Appea I was actuaUy a revision
of the judgment of the lower court, although it did not
so. In conspicuous
contr:tst to the originlll judg ment, it was
now found thllt "the
had rcceind no 'superior orders' at all. H e
Wl!S his own superior, lind he gave all
orders in mmters
concerned J ewish
llfhirs;" he had, moreove r, " eclipsed in
importance ;tl\ his superiors, including
rHeinrich) Muller." And in reply to
the obvious argument nf the defense that
the J cws would h.tvc been no better off
if Eichmann had never e>.istcd, the
judges stated that "the idea of the Final
Solution would n ever haw assumed the
infernal forms of flaycd skin and tortured flesh of millions of J ews without
the fanatical zeal and the unquenchable
blood thirst of the appellant and his accomplices." hratl's Supreme Court h.td
not only accepttd the argtimcnts of the
prosecution hut had adopted its very language.
Also on :'11ay 29th, Itzhak Ben-Zvi,
President of Israel, received Eichmann's
pka for merq four h.mdwritten
pages, made "up<m instructions nf my
counsd" - together with
from
hi< wife and his famil) in Lin7. In addition, the President received hundreds
of ldkrs and telegrams from all over
the world, pleadmg for clemmcy;
outstanding among the senders were
the C entral Conference of American
Rabbis, tht nprcscntativc bod) of
form Judaism in this country, and a
group of professors from the Hebrew
U niversit) in J crusalem, headed by Dr.
Martin Bubt r, who himself had hetn
opposed tn tlw trial from the start, and

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who now tried to persuade Ben-Gurion
to intervene for clemenq . Mr. I:!en-Zvi
rejected all pleas for mercy on May 31st,
and shortly before midnight of that same
day-it was a T hursday- E ichmann
was hanged, his hody was cremated, and
the ashes were scattered in the .\lediterranean outside I sraeli waters. The speed
with which the death sentence was carried out was e;..traordinar}, even if one
takes into account the fan that Thursday night was the last possihlc date
before tl1e following :V.Ionday, since Friday, Saturday, and Sunday a re all days
of rc:st for one or a nother of the recognized religions in the country. The
execution took place less than two hours
after the moment when Eichmann was
informed of the rejection of his pka for
mercy; there had not even been time for
a last meal. The explanation may well
he found in two last-minute attempts
that Dr. Servatius made to save his client: an application to a court in \ Vest
G erman} to force the government to
demand Eichmann's c>.t raditinn, even
now, and a threat to invoke on his he half
Article 25 of the E uropean Conv<ntion
for the Protection of H uman R ights a nd
Funda mental Freed oms. T he latter step
was hopeless, 111 any e\'ent, sinct: I srad
was not a pa rty to the Convention,
which had heen established in R om< in

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Europ<an countries t>.ccpt F ra nee signed the Rome Con \'enlion.) Neither Dr. Servatius nor his assistant was in I srael wlwn Eidunann's
plea was rejected, and the I sraeb government ''ery hkely wanted to close the
case, which had been going on for tWo
) .:ars, before the defense could even
appl) fur a postponement of the date
of c>.ecution.
T he death sentence had been e>.pected, and there was hard!) an) om to
quarrel with it, hut things were altogether d1fferent when the world learned
that the Israelis had carric.:d it out T he
protests were short-li\'ed, hut the) were
widespread and they were voiced by
peopl.: of influence and prestige. T he
most common argument
that Eichmann's deeds defied the possibility of
human punishment, that it was pointless to impose the dtath sentt nc" for
crimes of such magnitude; a nd, uf
course, this was true, in a sc.: nsl', e>.cept
that it could not conceivably mean that
he who had murdered millions should
for this very reason escape punishment.
tOn a considerablr lower levd, the
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98
were proposed forthwith: Eichmann
"should have spent the rest of his life
at hard labor in the arid stre tches of the
N egev, helping with his sweat
strain
to reclaim the histo ric ] cw ish homeland" - a punishment he would
not ha\'e survived to carry out fo r more
than
single day, to &1) nothing of
the fact t ha t in I srael the desert of the
south is hardly looked upon as a pe nal
colony- o r, in l\1adison Ave nue St}le,
Israd should have reached "divine
heights," rising ahove "the understanda ble legal, political, a nd even h uma n
considerations," by calling togcth<r "all
those who took part in the capture, trial,
and se ntencing to a puhlic ceremony,
with Eichmann there in shackles,
with television came ras and radio there,
as the hcroesofth ecen-

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M a rtin Buhcr called the e"ccution

a "tnista kc of historical dim ensions,"
since it might "se rve to cxpiatt tht:
guilt felt hy many you ng pe rsons in
G e rmany"- an arglllnc nt tha t oddJ v
echoed Eichma nn's own idtas on the:
ma tte r, though Bube r hardly knew tha t
he h:td wanted to hang himself in puhlic
in o rde r to lift the hurdc n of guilt from
the shoulders of G e rman youngsters.
( It is str&nge that Buhc r, a man not
only olf cmmc ncc hm of wry great intcllige nce, should not have Seen how
spurio us these muc h publicized guilt
feelings necessarily are. It is quite
fying to feel guilty if you have n't do!le
anythmg wro ng : How nohlc ! \'' hc rcas
it is rather ha rd and certainly dt prcssing
to admit guilt and to repent. The you th
of G ermany is surrounded hy m e n in
puhlic office and in other positions of
high authority who are indeed guilty but
who feel nothing of the sort. The normal reaction to this state of affai rs should
he indignation, hut indignation w ould he
risky-n<lt a danger to life and limo hut
definitely a handicap to adva ncem ent in
a career. T hose you ng G e rma n m e n
and women who e very o nce in :t while-on the occasion of all the " The D iaq
of Anne Fra nk" stir and of the Eichma nn trial- treat us to hl'ste rical o uthursts said to he based on guilt feelings
a re not
unde r t he hu rde n of
the past, their fathers' g uilt; rathe r, the}
a re trying to escape from the pressure
of present and actual prohlcms by ta king refuge in cheap sentimentality.)
Professor Buber went o n to say tha t
he felt "no pity at all" fo r Eic hma nn,
because he could fed pity " only for
those whose actions I unde rsta nd in Ill)
hea rt," and he repea ted statem ent he
had m ade man) years earlie r in \Vest
G ermany -tha t he had "only in for-

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MARCH I b , 19 b.3
mal sense a common humanity with those
who took part" m the acts o f the T hird
R eich . The luxury of this lofty attitude
was, of course, m ore than those w ho
had to try Eichmann could afford, s1ncc
the law presupposes precisely that we
have a common humanity with those
whom w e accuse a nd judge and condemn. As far as I know, Buber was the
only philosopher who went on public
record on the subject of Eichmann's
execution. ( Short!) before the trial
started, K arl Jaspers had given a radio
interview in Basel, later publishtd in
D rr M 011nt, in which he argued the case
for ,,n intermtional tribunal. ) It
disappointing to find Bubcr dodging, on
the highest possible level, the essence of
the problem that Eichmann and his
deeds had posed. Almost nothmg was
heard from those who w ere against the
death penalty on principle, unconditionally; their arguments would have remained valid, since they would not have
n eeded to specify them for this particular
case, but they scem to
felt th.tt
E ichmann's was not a verv promising
case to take up the cudgels for.
.Adolf E ichmann w ent to the gallows
w1th great dignity. He ashd for a bottle of red wine and drank half of it H e
refused t he help of the P rotestant minister, the R everend \Villiam Hull, who
offered to read the Bihlc with him;
he had only two m ore hours to live,
and therefore no "time to w aste." H t
walked the fifty 1ards from his cell to
th<: execution chamber calm ,1nd erect,
with his hands bound behind him. Whtn
the guards tied his ankles and knees, he
asked them to loosen the honds so that
he could stand straight, and w hen the
black hood was offered him, he said, ''I
don't need that." H e w as in complete
command of himself. 1\:ay, he was m ore:
he w as completely him self.
othing
could ha l'c demonst rated this more con''incinglv than the grottsquc silliness of
his last words. In these last wurds, at
t he foot of t he gallows, after having declared himself a G ottgliiubigc.-a J'\'az1
expression for those w ho have ahandoned their C h ristian faith in a personal
G od and life after death-he addressed
the group that witnessed the execution as
follows: "After a short while, gentlem en, wr shall all mrct again. Such is the
fate of all m en . Long live G ermany,
long Jive Arg<:ntina, long live Austria .
l shall n ot forgrt tllt'm." J n the face of
death, he had found the cliche used in
funeral oratory, hut his m emory had
played him one last trick: he had forgotten that he was n o Christian and that
this was his own funeral. It was as
though in those last minutes he was

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101

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summing up the lesson that this long

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us-the Jesson of the fearsome, wordand-thought-defying btmnltt)' of roil.

HE irregulariti<:S and abnormalities of the trial in ] c rusalem were

so many, so ntried, :tnd of such legal
comple"ity that they overshadowed
from the sta rt during t he trial and
in thc surprisingly small amount of
post-trial liuraturt-the central moral,
political, and judicial
that
the trial inc ,itahl) posed. I srael herself, through the pre-trial statements
of Prime Minister Ben-Gurion and
throug h t he wa) the accusation was
framed b) tht prosecutor,
the
issues furth er by listing a
number
of purposes that the trial was supposed
to achieve, all of which wnc
extraneous to the law a nd to courtroom
procedure. The purpose of a trial is to
render justice, a nd nothing else; even
the nohkM of ultenor purposes-such
as "tlw making of a ncord of the Hitler rcginw which would withstand the
test o f
which is how Robert G.
Storey, e.>.ecutiv< trial counse:l :It Nuremhng, formular<d the supposed higher
aim of t h< l\ unmberg Trials-can onl}
detract from th< law's main business: to
weigh the
brought agmnst the
accustd, to nnder judg ment, and to
mete out d ue puntshmcnt. The first two
sections of the District Court's judgment
in the Eichmann c.1sc, which wen written in reply to the hig her-purpose thcorr
as it was <xp<unded ht>th
and outside the courtroom, could not have
clearer in this respect, or more to the
point: All attempts to widen the range
of the trial
t., be nsistcd, because
the court could not "allow itself to be
cnti('cd into provinces which are outside
its sphere," nnd htcausc "the judicial
has wnrs of its own, laid down
by bw, and which do not change, whatever the subject ,,f the trial may be."
The court could not ovcrstcp these limits without ending "in complcte failure."
1 ot only dots it not have at its disposal "the tools required for the investigation of gcnral questions" but it
speaks with an authority whose very
weight depends upon its limitation.
"No one
made us judges" of matters outside the realm of law, and "no
greater weight is to he attached to our
opinion on them than to that of any person devoting study and thought" to
them. Hence, to the question most commonly asked about the Eichmann trial,
"What good docs it do1 ," there was but
one possible answer: "It will do justice."
The objections raised against the

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E ichmann trial were of three kinds:

first, those objections that had originally
been raised against the N uremberg
T rials and were now repeated, their essence being that Eichmann was tried
under a ret roactive law and appeared in
the court of the victors; second, those obj ections that applied only to the J er usalem court, in that they
either its com pcknce as such or its failure
to take into account the act of kid napping ; and, finally, a nd most importan t,
objections to the charge itself, and hence
to the law u nder which Eichmann was
tried-"A crime against the J ewish people," instead of "a crime against humanitr ," w hich led to t he logical co nclusion that the only court that could
properlr consider these crimes was an
international t ribunal.
T he reply that t he judges of the D istrict C ourt made to the fi rst set of objections was simple: they cited t he
Nurem hag T rials as valid precedent .
Acting under m unicipal law, t hey could
hardly ha ve done ot herwise, since I srael's 'az1s and ' azi C ollaborators
( P unishment ) Law of 1950 was itself
based on this precedent. " T his pa rticular legislation ," the j udgment pointed
Out, " IS totally different from a ny other
usual legisla tion in criminal codes," and
the reason for its difference
m the
nature of the crimes it deals wit h. Its
retroactivity, one may add, violates only
formally, not Stlbstantially, the principle
nullum cnmr1l, nulla portlll smr lcgr
( no crime, no punishment without
law ) , since this applies meaningfully onIr to acts know n to the legislator; if a
pre viously un known crimt, such as
genocide, sudd<n lr mahs its appearance, j ustice itself demands a judgment
according tn a new law. I n the case of
N urem berg, this new law was the
Charter of t he [nttrnatwnal M ilitary
Tribunal (nnnexed to t he L ondon
Four-Power Agreement ,,f August 8,
1945 ) ; in the case of Israel, it was
the L aw of 1950. T he question is not
w hether these laws were retroactive,
which, of course, they had to he, but
w hether the} applied only to crimes
previous!} unknown. T his pn:requisite
for retroactive legislation had been
serious!} ma rred in t he Cha rter that
provided for the establishmen t of the
I nternational Military T ribunal at
Nurem berg, and it mar be for this reason t hat the discussion of t hese matters
has remained somew hat confused . T he
C harter accorded the T ribuna! jurisdiction ovt r three sorts of crimes:
"crimes against peace," w hich the Tribunal called the "supreme interna tional
crime . . . in that it contains withm itself

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103

THE. NE.W YORKER

the accum ulated evil of the whole;"
"war criml s;" antl " crimes against humanity." Of these, only the last, the
crimes against humanity, were new
and unprecedented. Aggressive warfare
is at least as old as recorded history,
and though it had been denounced as
" criminal" many times before it was
so denounced at Nuremberg, it had
never been recognized as such in any
formal sense. Moreover, one of the
judgtng countries namely, So\iet Russia- was open to the tu-quoquc argument. H adn't the Russians attacked
Finland and di,ided Poland in I 939
with complete impunity? As for "war
crimes," they were surely no more
unprecedented tha n "crimes against
peace;" in fact, they we re covered by
internatiolllll Jaw. The Hague Conventions of 1899 and 190 7 and the G eneva
Red Cross Convention of 1906 had defined the "violations of the Jaws or customs of war;" they consisted chiefly of
ill-treatment of prisoners and of warlike
acts against civilian populations. No
new law with retroactive force was
needed here, and the main problem
posed by Nuremberg's jurisdiction over
such crimes lay in the indisputable fact
t hat here, again, thl ttt-qttoqur argument applied. Russia, which had never
sig ned the 190 7 Hague Convention
(and, incidentallv, neither had Italy),
was more than suspected of mistreatment of prison ers, and the question of
who killed the eleven thousand Polish
officers whose bodies were found in
March, 1943, at Katyn Forest, in the
neighborhood of Smolensk, in Russia,
has n ever been answered to everybody's
satisfaction; all that can be said is that
they must have been shot by the Russians
if their murder took place before Septembe r, 1941, and by the G ermans if it
took place at a later date. \\ orse, the saturation bombing of opeh cities and, above
all, the dropping of atomic bombs on
Hiroshima and Kagasaki clearly constituted wa r crimes in the senS< uf the
H ague Convention. And thoug h the
bomhing of G erman cities had been provoked by the enemy- b) the bombing of
London and C oventry and Rotte rdam- the same cannot be said of the use
of an entirely new and overwhelmingly
powerful weapon, whose existence could
have been announced and demonstrated
in other ways. To be sure, t he most
obvious reason that the violations of
the Hague Convention committed by
the A llies were n ever even discussed in
legal terms was that the International
Military Tribunal was international in
name only- that it was, in fact, the
court of the victors -and the authority

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MARCH l (:, , 19 (:,:}

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of its j udgmen t, doubtful at best, was

not enhanced when the coalition that
had won the war and had then undertaken this joint enterprise broke up, to
quote Otto K irchheimer, in his book
"Political Justice" (Princeton, 1961 ) ,
"before the ink on the Nuremberg
judgments had time to dry." But this
most obvious reason is neither the only
nor, perhaps, the most potent reason
that no Allied war crimes, in the sense
of the Hague Conven tion, were cited
and prosecuted ; and it is only fair to
add that the Nuremberg Tribunal was
at least very cautious about convicting
G erman defendants on charges that
were open to the tu-quoque argument.
For the truth of the matter is that by the
end of the Second \ >\'orld W ar everybody knew that technical developments
in the instruments of Yiolencc had made
the adoption of "crimmal" warfare inevitable. It was precisely the distinction
between soldier and civilian, hetween
army and home population, between
military targets and open cities-the distinction upon which the Hague Convention's definitions of war crimes restedthat had become obsolete. H ence, it was
felt that under these new conditions war
crimes were only those outside all milita ry necessity, where a deliberate inhuman purpose could be demonstrated.
This factor of gratuitous brutality was
a valid criterion for determining what
constituted a war crime. It was not a
valid criterion for, but was unfortunately introduced into the fumbling definitions of, the only entirely new crime, the
"crimes against humanity," which the
International M ilitary Tribunal Cha rter ( in Article 6c) had defined as an
"inhuman act"- as though this crime,
too, were a matter of criminal excess in
the pursuit of war and victory. (The
phrase "crime against humanity," because it was defined as an "inhuman
act," was translated into G erman as
V rrbrrchm gegen die M enschlichkcit,
as though the Nazis had simply been
lacking in human kind ness-certainly
the understatement of the century. )
However, it was b) n o means this sort
of well-known criminal excess that had
prompted the Allies to declare, in the
words of Churchill, that " punishment
of war criminals [was] one of the principal war aims'' but, on the contrary,
reports of unheard-of deeds such as the
blotting out uf whole
and the
"clearance" of whole regions of their
native population; that is, not only
crimes that "no conception of military
necessity could sustain" but crimes that
were in fact independent of the war, announcing a policy of systematic murder

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that was to be continued in time of
peace. This crime was indeed not covered by international or municipal law,
and, moreover, it was the only crime to
which the tu-quoqur argument did not
apply. And yet there was no other crime
in the face of which the Nuremberg
judges felt so uncomfortable, or wh1ch
they left in a more tantalizing state of
ambig uit}. It is perfectly true that- in
the words of the French j udge at .1\uremberg, H enri D onnedieu de Vabres,
to whom we owe one of the best analyses
of the trial ("Le Prods de Nuremberg," Paris, 194 7 ) -"the category of
crimes against h umanit} which the
Charter had let enter by a very small
door evaporated by virtue of the T ribunal's j udgment." The judges, indeed, were as little consistent as the
Charter itself, for althoug h they preferred to convict, as Kirchheimer has
said, "on the war crime charge, which
embraced all the traditional common
crimes, w hile underemphasizing as
much as possible the charges of crimes
against humanity," when it came to
pronouncing sentence they revealed
their true sentiment b) meting out
their most severe punishment, the death
penalty, only to persons who had been
found guilty of tho&
uncommon
deeds that actuall} constituted a "crime
against humanity"- or, as Fran<;ois de
!VIenthon, the French prosecutor at
N urcmberg, called it, with g reater accurac} , a " crime against the h uman
status." The notion that agg ression is
" the supreme international crime" was
silen tly <lbancloncd when a number of
men were sentenced to death who had
never been convicted of a " conspiracy"
against peace.
In justification of the Eichmann trial,
it has frequently
maintained that
although the g reatest. crime committed
dunng the war had been committed
against t he J ews, the J ews had been
only bystanders at Nuremberg, and the
judgment in J erus.1lcm made the point
that now, for the first time, the J ewish
catastrophe "occupied the cen tral place
in the court proceedings, and [that] it
was this fact which disting uished this
trial from those w hicb preceded it"- at
.K uremberg and elsewhere. But this is,
at best, a half truth. It was precisely the
J ewish catastrophe that prompted the
Allies to conceive of a "crime agamst
humanity" in the first place, because, in
the words of the British law professor
Julius Stone, "the mass murder of the
J ews, if they were G ermany's own nationals, could only be r eached by the
humanity count." And what had prevented the N uremberg Tribunal from

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doing full j usticc to this crime was not

that its victims were J ews but that the
dem:1nded that this crime,
which had so little to do with w:1r that
its commission actually conflicted with
and hindered the conduct of war, be tied
up with the other crimes. How deeply
the Nuremberg judges were :1ware
of the outrage perpetr:1tcd against the
J ews m:1r pahaps best he g:1ugcd br
the f:1ct that the only defendant to
be condemned to death on a crimc:lgainst- humanity charge :1lonc was
Julius Streicher, whose specialty had
been anti-Semitic obscenities. In this instance, the judges disrcg<trdcd all other
considerations.
' Yhat distinguished the trial in J erusalem from those that preceded it was
not that the Jewish people now occupied
the central place. In this respect, on the
contrary, the trial resembled the postwar trials in Pol:1nd and Hungary, in
Yugoslavia and Greece, in Soviet Russia and France-in short, in all formerly Kazi-occupied countries-which
dealt wit h those criminals that had been
acti,e in their severa l territories. The
International 1\ lilit.m"}" Tribunal at
N uremberg had
established for
war criminals w hose crimes could not be
localized; all others were ddiw red to
the countries w here they had committed
their crimes. Only the "ma jor war
criminals" had acted without territorial
limitations, and Eichmann was certainly not one of them. (This- and nut, as
was frequent!}
his dis.,ppearance-was the reason he was not
accused at Nuremberg; Martin Bormann, for instance, was accused, tried,
and condemned to death in nbsrntin. )
If
activities h:1d spread all
over occupied Europe, that was not
because he was so important that territorial limits did not apply to him but
because it was in the nature of his t:lskthe collection and deportation of all
J ews- that he and his men had to roam
the Continent. It was the territorial dispersion of the J ews at the time he undertook his task that made the crime
against them an "internationa l" concern in the limited, legal sense of the
Nuremberg Chartt:r. Once the J ews
had a territory of their own, the State
of Israel, they ohviouslr had as much
right to st in judgment on the crimes
committed against their people as the
Poles had to judge crimes committed in
P oland. All the objections raised against
the Jerusalem trial on the ground of the
principle of territorial jurisdiction were
legalistic in the extreme, and although
the court spent a number of sessions discussing these objections, they were ac-

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tually of no great relevance. There was

not the slightest doubt that J ews had
been killed qua Jews, irrespective of
their nationalities at the time, and
though it is true that the l\azis killed
many J ews who had chosen to deny
their ethnic nrigm, and would perhaps
have preferred to be killed as Frenchmen or as Germans, justice could be
done even in these cases only if one took
the intent of the criminals into account.
Equally unfounded, I think, was the
even more frequent argument against
the possible partiality of J ewish judgesthat such judges, especially if they were
citizens of a J ewish state, w ere judging
in their own cause. It is nifficult to see
how the J ewish judges differed in this respect from their colleagues in any of the
other so-called Successor Trials (those
that followed the Nuremberg Trials),
where Polish judges pronouncen sentences for crimes against the Polish people, and Czech judges sat in judgment
on what had happened in Prague and
in Bratislava. (Mr. Hausner, in the last
of a series of articles he wrote for the
Saturday Evening Post, unwittingly
added new fuel to this argument; he
said that the prosecution realized at
once that Eichmann could not be defended by an Israeli lawyer, because
there would be a conflict between
"professional duties" and "national
emotions." ,,vell, this conflict constituted the gist of all the objections
to J ewish judges, and :vir. Hausner's
argument in their favor- that a judge
may hate the crime and yet can be fair
tu the criminal-applies tu the defense
counsel as well: the lawyer who defends
a murderer does not defend murner.
The trut h of the matter is that pressures
outside the courtroom made it inadvisable, to put it mildly, to charge an Israeli
citizen with the task of defending Eichmann.) Finally, the argument that no
J ewish state had
at
time
when the crime was committed was
surely formalistic, out of tune with reality and with all demands that justice be
done. In the interest of justice (as nistinguished from a concern with certain
procedures, which may be importmlt in
its own right hut can never be permitted
to overrule justice, the law's chief concern), the court, to justify its competence, would have needed to invoke
neither the principle of passive personality- that, as applied in this case, the
victims were Jews and that only Israel
was entitled to speak in their namesnor the principle of universal juisdiction, applying to Eichmann the rules
that are applicable to piracy, because he
was hostis ge>Zeris huma>Zi, or an enemy

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of the human race. Both theories were

at length inside and outside the
J erusalem courtroom, and these discussions actuallv blurred the
a nd obscured the 'obvious similarity between
t he J erusalem trial and the trials that
had preceded it in other countries where
special legislation had likewise been
enacted to insure the punishment of
N azis or their collaborators. The pas.<iveprinciple, which in J erusalem
was ba&d upon the learned opinion of
Pieter N. Drost, author of "The Crime
of the State," that under certain circumstances "the forum patriae victimar may
be competent to try the case," unfortunately implies that criminal proceedings
are initiated by the government in the
name of the victims, who are
to
have a right to revenge. This was indeed the position of the prosecution, and
Mr. Hausner opened his address with
the following words: "When I st.1nd
before you, judges of I srael, in this
court, to accuse Adolf Eichmann, I do
not stand alone. H ere with me at this
momem stand six million prosecutors.
But, alas, they cannot rise to level the
linger of accus.1tion in the d1rection of
the glass dock and cry out 'I'acrwr'
against the man who sits there . . . .
Their blood cnes to H eaven, but their
voice cannot be heard. Thus it falls to
me to be their mouthpiece and to deliver the heinous accusation in their
name." 'Vith such rhetoric the prosecution gave substance to the chief aragainst the trial: that it was
established not in order to satisfy the
demands of justice but in order to still
the victims' desire-perhaps justifiable-for vengeance. Criminal proceedings, since they are mandatory and
are thus initiated even if the victim
would prefer to forgive and forget, rest
on laws w hose " essence" - to
T elford T aylor-"is that a crime is not
committed onl) against the victim but
primarily against the community whose
law is violated." The
is
broug ht to justice because his act has
disturbed a nd gravely endangered the
community as a whole, and not because,
as in ciVIl suits, damage has been done
ration. The reparation effected in criminal cases is of an altogether different
nature; it is the body politic itself that
stands in need of being "repaired," and
it is the general pubhc order that has
been damaged and must be rebuilt. It
is, in other words, the law, not the plaintiff, that must prevail.
Even less justifiable than the prosecution's effort to rest its case on the passivepersonality principle was the inclination

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of the court to claim competence in the
name of universal jurisdiction, for this
cl.?im was in flagrant conflict with the
conduct of the trial and also with the
law under which E1chmann was tried.
The principle of universal jurisdiction, 1t
was s,,id, was applicable becaus.- crimes
against humanity arc similar to the old
crime of piracy, and anyone who commits them has hecome, like the pirate in
traditional international law, hostis gent ris lwmani. Eichmann,
was
accused chiefly of crimes against the
J ew1sh people, and his capture, which
the theory of univcrs,,J jurisdiction was
mean t to excuse, was certainly due not
to his also having committed crimes
against humamty but exclusively to his
having played a prominent role in the
Final Solution of the J ewish problem.
Y ct even if Israel had k1dnapped Eichmann solely because he was hastzs getu,.is lwmmu, and not because he was
hostts l udarorum, it would have been
d1fficult to justify t he lcgalit) of his
arrest. The pirate's exception to the
tt-rritorial principle-which, in the abSI:nce of an international penal code,
is the only valid legal principle--is made
not because he is the enemy t l f all, and
hence can he judged b) all, but because
his crime is committed on the high seas,
and the high
arc no man's land.
The pirate, moreover, "in defiance uf
all law, acknowledgmg ohediencc to no
flag whatsoever" (to Cite Hans Zeisel,
author of the article on the Eichmann
case in the "Britannica Book of the
Y ear, 1962"), is, by definition, in business entirely for himself; he is an outlaw
hecausc he has chosen to put himself outside all organized communities, and it is
for this reason that he has hccome "the
enemy of all alike." Surely no one will
maintain that Eichmann was in husiness
for himself or that he acknowledged
obedience to no flag whatsoever. ln this
respl'ct, tht pi racy theory
merely
to dodge one o f the most fundamental
prnblcms posed by Climes of this kind;
namely, that they were, and could only
be, committed under a climinal/aw and
bv a criminal stlltl
. The analogy bl'tween genocide and
piracy IS not new, and it IS therefore of
some importance to note that the Genocidt Convl'ntion, whose resolutions
wcrl' adopted by the U nitcd Nations
General Assembly on December 9,
!948, expressly rejected the claim to
universal jurisdiction and provided instead that "persons charged with genoCide ... shall be tried by a competent
tribunal of the State in the territor} of
which the act was committed or by such
intnnanonal penal tnbunal as may have

I 13

114

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jurisdiction." In accordance with this

Convention, of which Israd was a signatory, the court should ha,e either
sought to establish an international trihunal or tried to reformulate the territorial principle m such a war that Jt
applied to Israel. Both alternatives lay
defi nitelr within the realm of possibility
.md within the court's competence . The
proposal, made hy m.my, that an international trihunal be established was
cursorily dismissed hy the court, and the
re:tson no meanmgful. redefinition of the
territorial principle was sought (with
the consequence that the court finally
claimed jurisdiction on the ground of all
th rcc principles-territorial as well as
passive personality and univnsal jurisdiction- as though merely adding together three entirely different legal
principles would result in a valid claim)
was certainly closely connected with the
extreme reluctance of all concerned
to break fresh ground and act without precedent. Israel could easil) have
claimed territorial jurisdiction if she had
only explained that the word "territory," as the law understands it, is a political and a legal concept, not merd) a
geographical term. It rdatcs not so
much to a piece of land as to tlw space between the memhers of a group of people
who arc bound to, and at the same time
separated and proteCted from, each other by all kinds of relationships, such
as a common l:tnguage, religion, ancl
history, and common customs and laws.
Such relationships hccome spatiallv manifcst insofar as they themselves constitute
the space wherein the different members of a people preserve intercourse
with each other. No St:ne of Israel
would ever ha,e come into hcing if the
J ewish people had not created and maintained its own specific in-betwetn space
throughout the long centuries of dispcrsum; that is, prior to its !'Cizur, of
its own old territorr . Tlw court, howe\er, nevt:r rns<: to the challenge of
the unprecedented- not even in regard
to the unprecedented n.lturc of the origins of the Israeli state, which certain!)
w.IS clos.:st to 1ts heart and its thought.
I nstead, t swamped the proceedings
with a flood of precedents-during the
sessions of the first week of the trial, to
which the first fifty-three sections of the
judgment correspond-many of which
sounded, at least to the layman's car,
like elaborate sophisms.
The Eichmann trial, then, was in
..tctuality no more, hut also no less, than
the last of the numcwus Successor
And the indictment quite pwpcrly carried in an appcndill. the official interpretatiOn of the L..tw of 19 50

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117
by Pinchas Rosen, then Minister of Justice, which could not be less equivocal:
"\Vhile other peoples passed suitable
legislation for the punishment of the
Nazis and their collaborators soon after
the end of the war, and some even before it was over, t he J ewish people ...
had no p<>litical authorit) to bring the
Nazi criminals and their collaborators to justice until the establishment of
the State." H ence, the Eichmann trial
ddfcred from the Successor Trials in
only one respect- the defendant had
not been duly arrested and extradited to
Israel. On the contrary, a clear violation of international law had been committed in order to bring him to justice.
As has been noted, only Eichmann's
de-facto statelessness enabled Israel to
get awa) with kidnapping him, and it
is understandable that, among the mnumerable precedents cited in J erusalem
to justify the act of kidnapping, the only
relevant one-the capture of Berthold
Jacob, a Leftist G erman-J ewish journalist, in Switzerland by G estapo agents
on March 21, 1935- was never mentioned. {None of the other precedents
applied, btcause they invaJiably cone< rned a fugitive from justice who was
brought back not only to the place of his
crimes but to a court that had, or could
have, issued a valid warrant fo r his arrest-conditions that Israel did not fulfill.) I n this mstancc, [srael had indeed
violated the territorial principle, whose
great s1gnificancc lies in the fact that the
earth is inhahited by many peoples and
that these peoples arc ruled by many different laws, so that every extension of
one territory's law beyond the borders of
its validity will bring 1t into immediate
conflict with the law of another territory. This, unhappily, was the only almost unprecedented feature of the
whole Eichmann trial, and certainly it
was the least entitled ever to become a
valid pn:cede nt. (\Vhat a re we going to
say if tomorrow it o..:curs to some African state to send its agents into 1\Iississippi to kidnap one of the leaders of the
segregationist movement there? And
what arc we going to reply if a court
in Ghana or the Congo quotes the
Eichmann casl as a precedent? ) T he
kidnapping had only two j ustifications: the unprecedentedncss of the
c1ime, and the coming into n.istence of
a J ewish state. There were, however,
important mitigating circumstances, in
that there hardly existed a true alternative if one tndeed wished to bring Eichmann to justice. Argentina had an impressive record (or not extraditing Nazi
criminals; even if there: had been an extradition treaty between Argentina and

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I srad, an
request would almost certainly not have been honored.
Nor would it have helped if Eichmann
had been handed over to the Argentine
police for extradition to 'Vest G ermany,
as is shown by the fact that the Bonn
government had earlier sought extradition of such well-known Nazi criminals
as K arl Otto Klingenfuss and Dr. J osef
( the former one of Martin
Luther's most compromised "experts on
the J ewish question" in the Foreign
Office, and the latter implicated in the
most horrifying medical experiments in
Auschwitz) without success. In the case
of Eichmann, such a request would
have been doubly hopeless, since, according to Argentine law, all offenses
connected with the war against Germany had fallen under
statute of
limitations fifteen years after the end
of that war, so that after May 7, 1960,
Eichmann could not have been legally
extradited anyway. I n short, the realm
of legality offered no alternative to kidnapping.
Those who a re convinced that justice, and nothing else, is tlw end of
law will be inclined to condone the
kidnapping act, though not because of
precedents but, on the contrary, as a desperate, unprecedented, and no-prece-

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dent-setting act, necessitated lly the

unsatisfactory condition of international law. I n this perspective, t11ere c>.isted but one real alternative to what
Israel had dune; instead of capturing
Eichmann and flying him to Israel, the
Israeli agents could have killed him then
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it forgot that he who takes the law into
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THE ARTURO ARTUROS TRIO
least posthumously, be validated. Two
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preceden ts in the fairly recent past come
THE COLUIVNS
immediately to mind. There was the
case of Shalom Schwartzbard, who 111 SAVOY HILTON FIFTH &. 58th EL 52600
Paris, on May 25, 1926, shot and k11led
Simon Petlioura, former hetman of the
Ukrainian armies and the man responsible for the pogroms that claimed about
a hundred thousand victims in Russia
between 1917 and 1920. And there was
the case of the Armenian Solomon Tmdclian, who, in 1921, in the middle of
Berlin, shot to death Talaat Bey, some-

PAYSON RE

120

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Pasha,
the great killer in the
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third ( SIX hundred thousand) of the
Armenian population in T urkey was
massacred. The point is that nc1t her of
these assassins was satisfied with killing
"his" etiminal hut that both immediately gave t h<:msclves up to the police and
insisted on being tried. E ach used his
trial to show the world, throug h the
court procedure, w hat
against his
people had !wen committed and gone
unpLmished. In the Schwartzhard trial,
cspeciallr , methods \'cry similar to those
in the E ichma nn trial were used. T here
was the same stress on extensive documentation of the cn mes, hur that time it
was prepared for the defense (hy the
C omite des D elegation s J uivcs, under
the chairmanship of the latt Dr. L eo
\1otzkin, which needed a } ear
a
half to collect the materml, lind which
published it, in 1927, in "Lcs Pog romes
en UkrlliiH' sous les gouvcrnements
ukrainiens 191 7- 20" ) , j ust as t hat time
it was the accused a nd his lawpr w ho
spoke in the name of the 1k tims- and
who, incidentally, e1en t hen raised rhe
point about the J ews "who had never
defended themselves." Both men were
llcquitted, and in both cases it was felt

1;;::::==============,-

that their gesture "s1gnificd that t heir

mce had fin:tll}
to defend itself,
to leave lwhind its moral abdication, to
overcome its resign<ltion in the face of
insults," as G eorges Suarez, the French
Winter's here. Why not
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visit us and get
Shalom Schwa rtzbard.
away from that
T he advant:-tges of t his solution to the
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sta nd in t he
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show, but its "hero," the one in the
center of the play, on w hom
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Indulge yourse lf. Any decorator,
all criminlll trials. Also, the 1'accuse, dealer, or architect can arrange a visit
so indispensable from the ' iewpoint of
to one of our three showrooms
the victims, sounds much more convinc- where you can s elect from the world's
ing in the mouth of a man who has been finest in both traditional and modern.
forced to ta ke the law into his own
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And yet--<juite apart from practical
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Buenos .AirtS in the sixties h:trdly offers
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122

MARCH

would have been justifiable in Eichmann's case, and it is obvious that it

would have been altogether unjustifiable
if it had been carried out by government agents. The point in favor of
Schwartzbard and Tindclian was that
each was a member of an ethnic group
that did not possess its own state and
its own legal system, so that there
was no tribunal in the world to which
either man could have brought his victim. Schwartzbard, who died in 1938,
more than ten years before the proclamation of the J ewish state, was not a
Zionist, and not a nationalist of any sort,
but there is no doubt that he would have
welcomed the State of I srael enthusiastically, if for no other reason than that 1t
would have provided a tri bunal for those
crimes that had so often gone unpunished. His sense of justice would
been satisfied. And when we read the
letter he addressed from his prison, in
Paris, to his brothers and sisters in Odessa- "Faites uruoir dam Irs villcs rt d ans
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and
the state of mind of J ews all over the
world.
I have insisted on the resemblances
between the Schwartzbard trial in 1927
in Paris and the Eichmann trial in 1961
in J erusalem because they demonstrate
how httle Israel- and the J ewish people
in general-was prepared to recognize,
in the climes that Eichmann was accused of, an unprecedented crime, a nd
how difficult such a recognition m ust
have been for the J ewish people. In the
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oldest clime they could remember. This
misunderstanding, which seems almost
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None of the participants in the trial ever

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113

THE. NE.W YORKER

arrived at a clear understanding of the
actual horror of Auschwitz-which is
of a dd1erent nature from that of all
other atrocities-because it appeared to
prosecution and judges alike as not
much more than the must horrible pogrom in J ewish history. The1' therefore belie\ cd that a direct line stretched
from the early anti-Semitism of the l\az1
P arty to the unmberg L aws and from
there to the c"puision of J ews from the
R eich and, fi nally, to the gas chambers.
P olitically and legally, however, these
w ere " crimes" different not only in
their seriousness but in their essence.
The Nuremberg L aws of 1935
legalized the discrimination that had
been previously practiced b) the G erman majority against the J ewish minority. According to international law, it
was
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 internationally recognized
minority treaties and agreements. International J ewish organizations therefore
immediately tncd to obtain for this newest minority the sam e rights and guarantees that minorities in Eastern and
Southeastern Europe had been granted
in treaties made in G eneva a ftcr the
F irst \Yorld \ Var. These were nut
g ranted, yet the Nurem berg Laws w ere
genera II} recognized bv other nations as
part of German law, and consequently
it was impossible for G erman nationals
to enter into a "m1xed marriage" in
Holland, for instance. The crime of the
Nuremberg L aws was a national crime;
it violated national, constitutional rights
and liberties, but it was of no concern to
the comity of nations. Howev<-r, "forced
emigration," or expulsion, which becam e the official German policy after
1938, did concern the international
communit) , for the simple reason that
those who w ere e"pelled appeared at t he
frontiers of other countries, which were
forced either to accept the uninvited
guests or to smuggle t hem into another
country, equally unwilling to accept
them. The C"-pulsion of nationals, in
other words, is a I ready an offense
against humanit), if by "hum anity" w e
understand no m ore than the comlt)' of
nations. Neither the national crime of
legalized discriminatwn, w hich amounted to persecution by law, nor the international crime of expulsion was unprecedented, even in the m odern age ;
legalized discrimination had been practiced by all the Balkan countries, and
expulsion on a mass scale had occurred
after many revolutions. It was when the

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people not only were unwilling tn haw
anr J ews in Germany hut wished to
make the entire J cwish people disappear
from the face of the earrh that the new
crime, the crime against humanit)-in
the sense of a crime " against tlu huma n
status" (to use the words of F ran<;ois de
1\lenthon), or against the ' er} nature
of ma nkind- appeared. >.pulsion and
genocide, though hoth arc international offenses, must remain distinct.
T he former is an offenSe against fellownations, whereas the latter is an attack
upon human d1versit) as such; that IS,
upon a characteristic of the "human
Stiltus" without w hich the very words
"mankind" and " humanity" would be
devoid of meaning.
H ad the court in J erus.-1lem understood that t here were distinction s hetween discrimination, expulsion, and
genocide, It would have immediately
hecomc clear that t he supreme crime
it was confronted with, the physical extermination of the J ewish people, was
a
against humanity, perpttratcd
upun the hody of the J ewish people,
.tnd t hus that only the choice of victims,
not the nat ure of the crime, could he
de rived from t he long histor} of antiSemitism. I nsofar as the victims were
J cws, it was right and proper that a
J ewish court should sit in judgment, but
insofar as the Cli me was a crime against
hum.mity, it needed a n intlrnational
tribunal to do justice tn it. (This
tion had actual!) once been made by the
formet Israeli Minister of J ustice, P inchas Rosen, who in 19 50 had insisted on
"a distinction between this bill [for
crimes against the J ewish people] and
the L aw for the Prevention and Punishment of G cnt>eide"-alaw t hat was discussed hut not passed by the I sratli
KncSSct. O bviously, the District Court
felt that it had no right to overstep
the limits of municipal law, a nd therefore that genoo dc, not being coven:d
by an Israeli law, could not properlv
enter into its considerations.) Among
the numerous and highly qualified
voices that raised objections to the court
in J er usalem in favor of an international
tribunal, there was only one, that of
Karl J aspers, in his radio intcnicw in
Basel, which stated clcarl} a nd unequivocally that because the crime concerned
a II mankind, all nations of the world
should be admitted to pilSS judgment
on it. This argutmnt in favo r of an
international court was unfortunately
confused with other proposals, wh1ch
rested on different consid(rations, of
consider:tbly less we1ght. Man) of Israel's bcst ftiends, J cwish and non-J cw-

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127
ish, fdt she should act as the accuser,
not the judge; that is, that the court
should collect the data and draw up
the charges, and then Ia} them bdore
the U niter! Nations. Israel should hold
her pnsoner until a special tribunal could
be created to judge him, for she would
demonstrate through this act the urgent
need for a permanent international
criminal court and for the formulation
of a valid international penal code. The
trouble with these proposals was that
thev could too easil) be countered by
Israel- they were quite unrealistic, in
view of the fact that the U.N. G eneral
Assembly twice rejected proposals to
consider the establishment of a permanent international criminal court. But
there was another and more practical
proposal, made by Dr. Nahum Goldmann, president ,,f the \Norlrl Jewish
Congress, about which little has been
said, doubtless simply because it was
practical. Goldmann called upon BenGurion to set up an international court
in J erusalem, with judges from each
of the countries that had suffered under Nazi occupation. T his would not
have been enough; it would have been
only an enlargement of the Successor
T rials, and the objection to justice rendered in the court of the victors would
not have been met. But it would have
been a practical step in the right direction. I srael reacted against all these
proposals with equal violence. And
while it is true, as has been pointed
out by Y osal Rogat (in "The Eichmann
Trial and the Rule of Law," published
in 196 1 by the Center for the Study of
Democratic Institutions, in Santa Barbara, California), that Ben-Gurion always "seemed to misunderstand completely when asked, '\Vhy should he
not be tried before an international
court?,' " it is also true that those who
asked the question did not understand
that for I srael the only unprecedented
feature of the trial was that, for the first
time since the year 70, when J erusalem
was dest royed by tilt' Romans, J ews
were able to sit in judgment on crimes
committed against their own peoplethat, for the first time, they did not need
to appeal to others for protection and
justice, or fall back upon the compromised plea of the rights of man,
which, as no one knew better than they,
were claimed only by people who were
too weak to defend their "rig hts of Englishmen" and to enforce the1r own laws.
(The very fact that Israel had her own
law under wh1ch such a trial could be
held had been called, long before the
Eichmann trial, an expression of "a
r evolutionary transformation that has

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taken place in the political position of the

J ewish people." I t was Mr. Rosen who
said this, on the occasion of the First
R eading of the Law of 195 0 in the
Knesset.) It was against the background
of these very vivid experiences and as-pirations that Bcn-Gurion said, "Israel
docs not need the protection of an international court." l\1oreover, the argument that the crime against the J cwish 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.
H ence, those who proposed that I srael
give up her prisoner should have gone
one step further a nd 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."
This would have been true. f or just as
a murderer is prosecuted because he has
violated the law of the community, and
not because he has deprived the Smith
familr of its h usband, father, and breadwinner, so these modern, state-employed mass m urderers must be prosecuted because they violated the order ol
mankind, and not because they killed
millions of people. Nothing is more pernicious to an understanding of these new
crimes, or stands more obstructivcly in
the wa} 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 ctime of
genocide are essentially the same. 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 vahdity o f
the I sraeli law that he finally reacted
nasnly, and not just with violence,
against the critics of Israeli procedures.
vVhatever these " so-ca lled experts" had
to say, he declared, their arguments
were
inspired either by antiSemitism or, in the case of J ews, by inferiority complc"es. " L et the world
understand: \ Vc shall not give up our
.
"
pnsoner.
I t is only fair to say that this was by
no means the tone in which the ttial was
conducted in J er usalem . But I think it
is safe to predict that this last of the Successor Trials will serve as a valid precedent for future trials of such crimes no
more than its predecessors did- a nd
perhaps even less. This might be of
little import, in view of the fact that its
prosecute and to demain
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129

THE. NE.W YORKER

Eichmann- was achieved, if it were not

for the uncomfortable but hardly deniable possibility that similar crimes may
he committed in the future. The reasons
for this sinister possibility arc general as
well as particular. It is in the very natun: of things human that everr act that
has once been performed an d been
recorded in the history of mankind star s
with mankmd as a potentiality long after
A
the act itself has become a thing of the
past. No punishment has eve r possessed
enough power of deterrence to prevent
the commission 0f crimes; on the contrary, whate ver the punishment, once a
specific crime has appeared for the first
time, it is more likely to reappear than 1t
was to emerge in the first place. The
part1cular reasons that speak for the possibility of a repetition of the crimes committed by the N azis are even more
plausible. The coincidence of the modern population explosion with the discovery of technical devices that, through
automation, will make large sections of
the population "superfluous" in terms of
labor, and that, through nuclear energy,
will make it possible to deal with this
rwofold threat by the
of instruments
so devastating that beside them H itler's
gassing installations look like toys, should
be enough to make us tremble.
It is essentially because the unpreceIt's the happiness of love. laughter, lobster, fresh air so clean it's fun
dented, once it has appeared, may heto breathe - lakes, seacoast, mountains, scenery that would make a
come a
for the future that all
camera sigh, if it could.
trials touching upon "crimes against
Close your eyes for a second and pretend you and summer have both
humanity" must be j udged according to
come to Maine. Welcome the warmth of a sun that has lost its heat to
a standard that is today still an "ideal."
the ocean. Listen to the seagulls as they soar above the surf. Smell the
If genocide is an actual possibility for the
lobsters steaming! Can't you almost taste the hot buttered corn and the
future, then no people on earth- and
tender clams? Now, walk along that quiet, uncrowded stretch of beach
least of all, of course, the J ewish people,
and feel as though you own it. Lie on the clean sand and gaze at the
sky. Isn't it beautiful? Isn't it wonderful not to hurry or worry? But
in Israel or elsewhere -can feci reasonthere's a lot to do and enjoy when you're ready. Auctions, summer
ably sure of its own contmued existence
theatre, golf, historic sites, a trip to the lakes, fishing, boating, pictures
without the help and protection of Into take and memories to keep. And how you'll sleep at night in the quiet
ternational law. Success or failure in
extra-blanket coolness that sways the pines.
dealing with the hitherto unprecedented
This special happiness that happens in Maine is more nature's doing
can lie onlv in the extent to which this
than ours. She made Maine vacationland when she made it big, dotted it
dealing may serve as a valid precedent
with thousands of lakes, ponds and streams, covered it with mountains.
on the road to international penal law.
hills and pines, wove its rock-bound coast 2 ,500 miles around bays,
And this demand that the reasoning of
inlets and sandy beaches, then blessed it with a climate that's nearly
the judgment in such trials set a preceperfect.
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become the task of ordinary trial j udges

to render justice without the hd p ofor beyond the limitntiom set upon thew
by-positive, posited laws. F or the
judge, this mar be a predJcament, a nd
he is only too likely to protest that the
"single act" demanded of him is not his
to perform hut is the husine!'S of the
legislator. And, indeed, before we come
to any conclusion ahout the success and
failure of the J erusalem court, we must
stress the: judges' firm hd id that they
had no right to hecome lcgislarors, that
they had to conduct their husinc!'S wit hin
the limits of I sraeli law, on the one ha nd,
and of accepted legal opinion, on the
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standing- to identify atrocities with the
crime against humanity- would have
been even worse than in Nuremberg.
But the judgment refused to let the
basic character of the crime be swallowed up in a flood of horrors, and it
did not fall into the trap of equating
the crime with ordinary war crimes.
\Vhat had been mentioned at Nuremberg only occasionally and, as it were,
margmally- that "the evidence shows
thdt .. . 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 J erusalrm proceedings, for
the obvious reason that Eichmann
stood accused of a crime against the
J ewish people, a crime that could not
be e>.plained hy any utilitarian purpose;
J ews had been murdered all over
Europe, not only in the East, and their
annihilation was not due to any desire
to gain territory that- to quote the
judgment of the Nuremberg Trials"could be used for colonization by
G ermans." The great advantage of a
trial centered on the crime against
the J ewish people was that not only
did the difference bc::twn n war crimes,
such as the shooting of partisans and
killing of hostages, and "inhuman acts,"
such as the " c>.pulsion 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 the difference between " inhuman
acts," which wert: undertaken for some
known, though criminal, purpose, such
as expansion thro ugh colonization, and
the "crime against humanity," whose
intent and purpose were unprecedented,
was clarified. At no point, however,
either in the proceedings or m the judgment, did the J erusalem trial ever mention even the possibility that the extermination o f whole ethnic groups, like
the J ews or the Poks or the Gypsies,
might be more than a
against the
J cwish or the Polish or the Gypsy people-that the international order, and
mankind in its entirety, m1ght have been
grie\ously hurt and endangered.
Closely connected with this failure
was the helplessness that the judges obviously experienced when they were
confronted with the task they could
least
task of understanding
the criminal whom they had come tu
judge. I t was not enough that they declined to follow the prosecution in its
clearly mistaken description of the accused as a "perverted sadist;" nor would
1t have been enough if they had gone

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just one step furth er and shown the inconsistency of the case fur the prosecution, in which Mr. Hausner wanted to
try the m ost abnormal monster the
world had ever seen and, at the s.1 mc
time, try in him "many like him," and
even "the whole azi movement and
anti-Semitism at large." They knew, of
course, that it would have been wry
comforting indeed to believe that Eichmann was a monster, even though under this belief I srael's case against him
would have collapsed-or, at the least,
lost all interest. Surely one can hardly
call upon the attention of the whole
world and gather correspondents from
the four corners of the
in order
to display Bluebeard in the dock.
trouble with Eichmann was prcciselv
that there were so many like him, and
that the many were neither perverted
nor sadistic but were, and still are, terribly and terrifyingly normal. From
the viewpoint of our legal institutions
and of our moral standards of j udgment, this normaliq 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 lawyers -that
this new type of criminal, who is indeed
hostis gencris lmm nni, 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 tria ls
of the rnajor war
whose plens
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 th< fact
that during the last months of the war
the Nazis, and especially the criminal
organizations to which Eichmann belonged, had been so very busy destroying the evidence of their crimes. 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," and especially from the domination of the Elders of Zion. In ordinary
language, it proved no more t han tht
admission of defeat. Would any one of
them have suffered from a guilt1 conscience if they had won?
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THE. NE.W YORKER

at stake in the Eichmann trial was the

in all modern legal
sr srcms that intent to do wrong is necessary for the commission of a c1ime. On
nothing, perhaps, has civilized jlllisprudeiKC p1idcd itself more than on this
taking into account of the suhjecti,e
factor. \\' e fed that whae the intent to
do wrong is absent,
for whatC\er
r easons, even reasons of moral insanit),
the ahilit) to distinguish hetween right
and wrong is impaired, no crime has
been committed. \ V c refuse as barbaric the proposition, as Yos..,l Rngat
0nce e>.prcssed it, "that a great crim e
offends nature, so that the very earth
cries out for vengeance; that evil violates a natural harmony which only retribution can restor<; and that a wronged
collectivit} owes H dutv to the mural
order to punish the ,.,.imina!." And yet
I think it is undeniable that It was precise!) on the ground of this long-forgot- _
ten proposition that Eichmann was
brought to justice to begin w ith, and
that this proposition was, in fact, the
supreme justification for the imposition
of tlw death penalty. Because Eichmann
had pia) cd a central role in an enterprise
whose open purpose was to eliminate
foreva certain "races" from the surface
of the earth, neither these
nor
m ankind as a whole could permit lum
to stay :tmong the living. And if it is
true that, as the saying goes, "justice
must not only bt d01w but must be seen
to be dom," then the justice of what
w .1s done in J erusalem w ould have been
m:tde clear for a ll to sec if the judges
h,ul d,trcd ,,ddrcss their defendant in
som ething like these terms:
"You have admitted that the crime
committed against the J ewish people
during the war was the greatest crime
in recorded historr , and you have admitted your role in it. )3ut you said you
had never :tcted from base m otives, that
you had never had any inclination to kill
anybody, that you had never hated J ew s,
a nd srill that you could not have acted
othe rwise and that you did not feel We still make our whiskey the slow, oldg uilty. \ Vc find this difficult, though not fashioned Tennessee way. And that calls for
CHARCOAL
,dtogcrhcr impossible, to believe; tl1ae i> Charcoal Mellowing every drop down
MELLOWED
some, but not very much, evidence through 10 feet of rick-burned, hard maple
against rou 111 this matter of motivation
and conscience that could he proved be- charcoal ... a leisurely rrip that takes twice
DROP
yond reasonable doubt. You also said as long as all the other whiskey-making
that your role in the Final Solution was steps put together. So you see, all the time
an accident and that almost anybody and patience we put into Jack Daniel's
BY DROP
could have taken your place, so that
potentially almost all G ermans are sippin' whiskey has kept us out of the
equally guilty. V.' hat you meant to S..,} habit of hurrying.
Jock Daniel Dittillery, Lem Motlow, Prop., Inc.
was that where all, or almost all, are
TENNESSEE WHISKEY 90 PROOF BY CHOICE
g uilty, nnhody is. This is,n indeed quite
common conclusion, hut o ne that we are DISTILLED AND BOTTLED BY JACK DANIEL DISTILLERY LYNCHBURG (POP. 384), TENN.
not willing to grant you. And if you

M O ST EVERYONE IN JACK DANIEL'S

H OLLOW has sense enough to get out of the
rain, but even that doesn't cause much hurry.

6
6

134

2500

don't understand our objection, we

would recommend to your attention the
Storr of Sodom and Gomorrllh, two
neighboring cities in the Bible, which
were de5trnJ ed by fire and brimstone
from Hcavcn because all the people in
them had become equally guilty. T his,
incidentally, has nothing to do with the
newfangled notion of 'collccth e guilt,'
according to which people supposedly
arc guilty of, or feel guilty ahout, things
done in their name but not h) themthings in which they did not p:trticipatc
and from which they did not profit. In
<lther words, guilt and innocence before
the Ia" arc of an objective nature, and
even if eighty million Germans had
done "s you did, this would ha1c been
no excuse for what you did.
"Luckily, we don't hav< to go that
far. You yourself claimed not the actuality but on!) the potentialit) of equal
guilt on the part of "ll who lived in a
st:tte whose main political purpose had
become the commission of unheard-of
crimes. And no matter through what
accidents of e>..terior or interior circumstance you wer, thrust onto the road
of becoming a criminal, then: os an abyss
between thc actuality of what } ou did
and the potentiality of what others might
donc. \ \'e are
here only
with what you did, and not with the
possible non-criminal nature of your inncr life and of your motives or with the
criminal
of those around
you. You have told your story in terms of
a hard-luck story, and, knowing the circumstances, we arc, up to a point, willing to grant you that under more favorcircumstances it is high!) unlikely
that you would ever have come before
us or before any other criminal court.
us
for the sake of argument,
that it
nothing more th;on misfortune that made you a willing instrument
in the organization of mass
there still remains the f;oct that you MC
one of thosc who carried out, :md thcreforL active!} supported, a poliC) of mass
murder. F or politics is not like the n ursery; on politics obedience and support
a rc the same. And just :os you carried
out a policy of not wanting to
the
earth with the J ewish 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 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."

Ne1o York Chi.ctJfO Boston Philadelphia Rochester

Dtuoit Baltimort Cltr:tland S1. Louis Indianapolis
Allonto St. PDul Minnt tJpolis IJu6tJlo Ktms41J City
IPtJshin,ton, D. C. Hartford Providence

(J'his is the last of a serin

of articles.)

Pecl<.

Pure linen,
p ure lin es
Put them both together ... a
dress ''ith dmh I Crisp and
uncluttered: the Aline skirt,
the slash neckline, the contmst
piping. Fabric by Irish Looms.
Beige/white, mwy/mushroom,
aqua/lime. 8 to 16,

HAN NAH ARENDT

Lady who?
Have you met the excitmg rady w1th the Quaint Italiar
accent? She's irresistible! To create her mix one part
cream (for beauty), one part scotch (for drama), one
part (J;presso Coffee liqueur (for the dry exot1c rich
ness of pure Itahan coffee). Shake with cracked Ice
or use a blender. Pour her slowly into a long shapely
glass. Sit back and meet. .. lady Expresso. Taste her,

and know all coffee liqueurs are not the same!

EXPRESSO COFFEE LIQUEUR

Colloo .,_ iqlnd !Till IIJiy 11r r.e;p Vinb(es,loe. N.Y.C.

Exhibition thru March 30

JOHN HARTELL
Oils & Watercolors

KRAUSHAAR GALLERIES
1055 MADISON AVE., NEW YORK
(Entrance on 80th St.)

ERKINS

u
pump, attractive 4' pool - all for $290.00,
fob N. Y. Use indoors or out. Send 25c for
catalogue of delightful garden or naments

Dept. 331. 8 West 40th St., New York 18.

_ _Come visit our galleries _ __

D
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