Justice and Identity: A Retrospect on the Eichmann Trial in light of Israeli Hostility to the ICC

Barrie Sander joins JiC for this post on the Eichmann Trial and Israel’s recent hostility towards the ICC. Barrie is a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID).

Audience members react to proceedings at the Eichmann Trial.

Audience members react to proceedings at the Eichmann Trial.

In light of the 70th anniversary of the liberation of Auschwitz, last week’s premiere of the BBC’s docudrama, The Eichmann Show, was timely. The film told the story behind the global television screening of the Israeli trial of Adolf Eichmann, a German Nazi who had been tasked with facilitating the logistics of the mass deportation of Jews to ghettos and extermination camps during World War II. In many ways, the Eichmann trial was a groundbreaking event, and despite its much-publicized flaws, managed to encapsulate many of the tensions that continue to grip the field of international criminal justice.

Still, the Eichmann Show was not the only drama to hit our television screens last week, which also witnessed the launch of a blistering campaign by Israeli government officials against the International Criminal Court (ICC). Reacting to the ICC Prosecutor’s decision to open a preliminary examination into alleged crimes on Palestinian territory since 13 June 2014, Israeli President Benjamin Netanyahu denigrated the ICC as an institution that “legitimizes international terror”, while Israeli Intelligence Minister Yuval Steinitz was similarly disparaging, characterizing the ICC as nothing more than “a kangaroo court” targeted against Israel.

In light of these events, it seems an opportune moment to reflect on Israel’s pioneering trial of Adolf Eichmann, a trial that not only had a lasting impact on the future shape of the field of international criminal justice, but also may help contextualize the Israeli government’s current hostility towards the ICC.

Justice as Theatre: Survivor Testimony That Would Reach The Hearts Of Men

More than any trial that preceded it, the Eichmann trial was a global spectacle. As portrayed in The Eichmann Show, the trial was broadcast to individuals around the world, who were able to watch the drama unfold from the comfort of their homes. In her now-infamous account of the trial for The New Yorker, Hannah Arendt compared the trial to a theatrical performance: the opening of each session was announced by the shout of an usher which produced “the effect of the rising curtain”; the judges were seated upon a raised platform, “facing the audience as from the stage in a play”; and the proceedings themselves had an “invisible stage manager” in the form of David Ben-Gurion, then-Prime Minister of Israel, who, though not in attendance, spoke through the voice of Attorney General Gideon Hausner, a prosecutor with a particular “love of showmanship”.

Yet, while the Eichmann trial was a show, it was not a show trial, at least not in the pejorative sense of the term. As international criminal law professor Kai Ambos has remarked, “There is broad consensus in the vast amount of legal literature on the case, and particularly in the English and the German literature, that Eichmann had a fair trial”. The Eichmann trial is better characterized as a show-case trial, what Lawrence Douglas has famously referred to as a drama of “didactic legality”, an orchestration specifically designed to educate the world about the extreme acts of atrocity that had been committed during the Nazi regime.

In line with its pedagogic aims, the Eichmann trial took a completely different orientation to the trial of the leading Nazis that had earlier taken place before the International Military Tribunal (IMT) at Nuremberg. Before the IMT, US Prosecutor Robert Jackson had relied primarily on documentary evidence, fearful that survivor testimony might be subject to charges of embellishment. Moreover, in light of the statutory framework established by the Nuremberg Charter, the Prosecution’s case focused primarily on proving a large-scale conspiracy by the Nazis to commit a war of aggression and tended to downplay the racist and genocidal character of the Nazi regime.

By contrast, the Eichmann trial put survivor witness testimony front and centre in an effort to educate the world about the Holocaust. Holocaust survivor Primo Levi once wrote that SS militiamen would cynically admonish prisoners that even if they were fortunate to survive the death camps, the acts of the Nazis would be dismissed by the public as “too monstrous to be believed”. Ultimately, the Eichmann trial would serve to counter such prophecies of denialism by means of the overwhelming power of survivor testimony. As Israeli Prosecutor Gideon Hausner explained:

In order to secure a conviction, it was obviously enough to let the archives speak […] But I knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster. […] The only way to concretize it was to call surviving witnesses, as many as the framework of the trial would allow, and to ask each of them to tell a tiny fragment of what he had seen and experienced.

For Hausner, only survivor testimony would be able to “reach the hearts of men” and it was therefore imperative to give their voices a prominent place in the trial.

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

The orientation of the Eichmann trial towards the testimony of survivors was to leave a lasting legacy on the field of international criminal justice, marking the beginning of the witness-driven approach to atrocity trials. Indeed, the extent to which survivors should participate in international criminal proceedings has subsequently become one of the defining debates in the field of international criminal justice. While witness-driven trials may provide a more vivid picture of what happened during particular episodes of mass atrocity, they also tend be longer, slower and more vulnerable to undermining the rights of the accused. As such, the Eichmann trial remains a symbol of both the benefits and dangers of defining justice in terms of its therapeutic value for survivors within the courtroom and its educational value for the general public beyond it.

Justice as Culpability: The Man in the Glass Booth

If the centrepiece of the Eichmann trial was the testimony of the survivors, it was arguably Hannah Arendt’s critical report on the trial that would spark most discussion about its depiction of the accused.

According to Arendt, during the course of his trial Eichmann became a scapegoat, “not only for the German Federal Republic, but also for the events as a whole and for what made them possible – that is, for anti-Semitism and totalitarian government as well as for the human race and original sin”. Sitting in the glass booth that had been constructed for him in the courtroom, the full weight of the Holocaust was heaped onto Eichmann’s shoulders as survivor after survivor recounted their traumatic tales of horror.

For Arendt, not only was this implausible, but also by depicting Eichmann as a “perverted sadist” and “abnormal monster”, the Prosecution had failed to understand that Eichmann represented a “new type of criminal”, one who was “terribly and terrifyingly normal”. Arendt’s Eichmann was the “perfect bureaucrat”, a thoughtless conformist whose conscience vanished in circumstances where all around him had held the same blind devotion to the Nazi regime. It is with this vision of Eichmann in mind that Arendt famously spoke of “the banality of evil”.

Arendt’s depiction of Eichmann threatened the basic assumption of criminal law that a guilty mind (mens rea) is necessary for the commission of a crime. If one accepts, as Arendt seems to, Eichmann’s claims to have acted out of thoughtless obedience to authority, it is unclear how it is possible to hold such an individual criminally culpable. According to this perspective, Eichmann was just an ordinary man receiving extraordinary orders in very particular historical circumstances (a view that would also find support in the work of social psychologists, such as Stanley Milgram and Philip Zimbardo, in the years that followed).

In response to Arendt’s thought-provoking account, at least two challenges have emerged in the subsequent literature.

First, it is not clear that Arendt’s evaluation of Eichmann’s character was accurate. Gabriel Bach, one of the three prosecutors at the Eichmann trial, has elaborated various episodes in Eichmann’s life that reveal him to be a ferocious racist who, after initially becoming the head of the relevant Gestapo department on Jewish affairs primarily to advance his career, soon became a fanatical anti-Semite, obsessed with ensuring the destruction of the Jewish people. Specifically, Bach points to an attempt by Eichmann to thwart a decision of Adolf Hitler in order to ensure as many Jews were killed as possible, as well as recounting how Eichmann became preoccupied with the killing of Jewish children so as to maximise the probability of eradicating the Jewish people. With these incidents in mind, Arendt’s understanding of Eichmann’s character appears to be more tailored to fit her own theory of how totalitarianism works than an accurate portrayal of the man Eichmann revealed himself to be.

Second, as social psychologist James Waller has argued, to offer a psychological explanation of how ordinary people commit extraordinarily evil acts should not be confused with exonerating their behaviour:

There are no “perpetratorless” genocides or mass killings. Perpetrators of genocide and mass killing are not just the hapless victims of human nature, culture, psychology, or their social context. On the road to committing atrocities, there are many choice points for each perpetrator. […] [T]he perpetrators, in wilfully failing to exercise their moral judgment, retain full moral and legal accountability for the atrocities they committed.

In other words, to recognise the pressures imposed on an individual by their social circumstances is not necessarily to render them devoid of agency or responsibility.

Regardless of the view one adopts, the character of Adolf Eichmann continues to be a subject of much fascination to this day. For the field of international criminal justice, the Eichmann trial again left a lasting legacy, sparking debate on what remains one of the central challenges of our time: the identification of an individual’s criminal culpability in a bureaucratic context.

Palestinian Authority President Mahmoud Abbas recently signing a number of international treaties, including the Rome Statute (Photo: EPA)

Palestinian Authority President Mahmoud Abbas recently signing a number of international treaties, including the Rome Statute (Photo: EPA)

Justice as Identity: The Eichmann Trial and Israeli Hostility to the ICC

Shoshana Felman has characterised the Eichmann trial as “a living, powerful event – an event whose impact is defined and measured by the fact that it is not the same for all”. Certainly, the questions that arose during the course of the trial have sparked debates on fundamental questions of law and morality that continue to perplex the field of international criminal justice to this day.

Yet, the Eichmann trial also left behind a powerful precedent for future Israeli policy towards the field of international criminal justice. If the Eichmann trial was a show, it was very much a show orchestrated to enhance Israel’s national interests. As Israeli Prime Minister David Ben-Gurion explained:

Here for the first time in Jewish history, historical justice is being done by the sovereign Jewish people. For many generations it was we who suffered, who were tortured, who were killed – and we who were judged. Our adversaries and our murderers were also our judges. For the first time, Israel is judging the killers of the Jewish people. It is not an individual that is in the dock at this historic trial, and not the Nazi regime alone, but anti-Semitism throughout history.  […] And let us bear in mind that only the independence of Israel could create the necessary conditions for this historic act of justice.

Not only would survivor testimony educate the world about the horrors of the Holocaust, but as Douglas has recounted in his compelling study of the trial, it would also provide an opportunity for Israel to instrumentalize their testimony to buttress “a specifically Israeli ideology of nationhood and Jewish identity”. Taking the stand were not victims, but survivors, whose testimony symbolized the struggle of the Jewish people against continual attempts aimed at their eradication. As Douglas has argued:

For the prosecution, the survivor was imagined as a symbol of the rebirth of the Jewish people, and the trial as an example of the newfound efficacy of a reborn nation. Together, they served, in the minds of the prosecution, as instances of the reconstruction of a people organized around a new national identity.

Justice, then, is more than the trial of an accused or memorializing the experiences of survivors, but a means to strengthen and protect national identity. It is this aspect of the Eichmann trial that has much to offer in understanding the current hostility of the Israeli government to the ICC.

The rhetoric deployed by Israeli Prime Minister Benyamin Netanyahu against the ICC is firmly grounded in fears of justice once again being instrumentalised to strengthen claims to statehood, only this time it is Palestinians rather than Israelis who are the perceived beneficiaries. Netanyahu has also argued that “it’s absurd for the ICC to go after Israel, which upholds the highest standards of international law”, and whose actions are “subject to the constant and careful review of Israel’s world-renowned and utterly independent legal system”. Again, justice and identity are very much intertwined, with the ICC being depicted as an attack on the credibility of Israel’s legal system.

Yet, rather than viewing the ICC as a threat, the Israeli government would be better advised to view the preliminary examination as a didactic opportunity. The ICC is a court of last resort so Israel can avoid the opening of a formal ICC investigation simply by conducting its own national investigations into the same persons and same types of conduct that the ICC would charge. In this way, Israel could use the ICC’s preliminary examination as an opportunity to demonstrate the integrity of its justice system and the democratic values it claims to uphold. Moreover, Israel could use the ICC’s preliminary examination to pressurize the Palestinians to conduct their own investigations into past crimes or risk facing accountability on the global stage.

The trial of Adolf Eichmann illustrates the inescapable link between justice and identity politics. In constructing its response to the ICC’s preliminary examination, it is now up to Israel to decide what type of identity it wishes to portray to the international community.

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About Barrie Sander

Barrie Sander is a Visiting Researcher at FGV Direito Rio, Brazil. In 2017, he completed his Ph.D. in International Law (summa cum laude avec félicitations du jury) at the Graduate Institute of International and Development Studies in Geneva. His research interests include international criminal justice, technology and human rights, and cybersecurity.
This entry was posted in Germany, International Criminal Court (ICC), International Criminal Justice, Israel and tagged , , . Bookmark the permalink.

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