Should Eichmann have been tried? (A response)

The problem posed by Adolf Eichmann's 1961 trial in Jerusalem is what to do about evil, a category that eludes definition and evades justice. The definitional problem is linguistic; we cannot make a tort or a felony of evil, though it may involve particular crimes or offenses. The jurisdictional problem follows from this.

Courts can punish specific crimes against particular parties or against the general welfare of a given community; they cannot properly construct or legally recognize abstract entities such as "humanity" against which punishable offenses can be committed. The notion of a crime against humanity is a matter for philosophical debate; it is incapable of judicial resolution.

Courtrooms can do just so much. When they overreach, mischief results, and sometimes much worse. The Hague Court of Justice is a current example.

Mandate to kidnap

In the Eichmann case, Israel lacked lawful jurisdiction. It did not exist when Eichmann served the Nazis, and although some (perhaps many) of its citizens had suffered directly because of his individual actions, they had not done so as Israelis.

The argument that as a Jewish state Israel represented all Jews, past and present, was mere presumption. No other court in the world would have accepted such a claim, and it's unlikely that any state would have extradited Eichmann on the grounds that Israel was uniquely (if at all) qualified to try one of its citizens or residents. That is why Eichmann was kidnapped.

If one accepts the argument that Eichmann's capture was justified, no matter by what means, then the question arises as to which court might have claimed jurisdiction over him. The Germans might have tried him, if it could have been decided which Germany to send him to. An international court might have been constituted under the auspices of the United Nations.

These solutions presented major difficulties, but in any case the Israelis never seriously considered them. They chose to appoint themselves judge, jury, and (as there was little doubt they would be) executioner.

Necessary and civilized?

If, indeed, the first principle of a fair trial is that the accused shall be tried in a venue where his judges will be impartial, then Eichmann's rights were violated as egregiously as possible from the beginning. Victor L. Schermer's recent contention in BSR that Eichmann's trial was "one of the most necessary and civilized acts of justice in human history" and "a triumph of human reason" thus fails to meet the most elementary objection. (To read Schermer's essay, click here.)

That the Israeli court presented mounds of evidence about Eichmann's acts and treated him, as Schermer observes, with "dignity and civility," does not alter the matter. I trust we've all seen the Western where the rustler is assured that he will get a fair trial before being hanged.

To her credit, Hannah Arendt didn't base her condemnation of Eichmann on legal reasoning or procedure. Instead she couched it as a justified act of revenge. Her own reasoning, however, opens even more serious objections.

Arendt and Mother Nature

Arendt quotes with approval the observation of a contemporary Israeli commentator that Eichmann's crimes had offended not only humanity but also nature, "so that the very earth cries out for vengeance" and only by his blood might the planet's "natural harmony" be restored. This rhetoric carries the idea of an offended humanity to the more exalted realm of nature, whose beneficent harmony is presumably exemplified by the countless species extinctions it has encompassed.

Arendt's clinching argument is "No member of the human race can be expected to want to share the earth" with Eichmann after his crimes, and "this is the reason, and the only reason," to hang him. This argument, certainly, is not law, and I would hesitate very much to call it philosophy— not to mention the fact that there were then and are now people who found Eichmann's actions not only excusable but laudatory.

I agree with Dan Rottenberg that Eichmann should not have been executed. (Click here.) On the other hand, if the agents sent to capture him had assassinated him instead, it would at least have satisfied lex talionis, the most primitive law of retribution. There would have been no pretense of judicial process and the "civilizing" benefits of capital punishment. Instead, we got a history lesson capped off by a strangulation.

Melville's symbol

Gresham Riley comes closest to the heart of the issue, I think, when he says that there is "no appropriate societal response to radical evil." (Click here.) Respond to evil we must, but no response based on civilized discourse is ever adequate.

The paradigm case is that of Melville's Billy Budd, in which Billy— Melville's symbolic embodiment of goodness— soundlessly strikes the wicked Claggart dead with a blow. Claggart has done nothing contrary to His Majesty's regulations and so cannot be prosecuted, yet he is evil, and his death is not only deserved but, as Melville would have us believe, necessary.

Billy cannot explain or justify his action, yet he intuitively grasps the mystery of iniquity and responds as he must. Only as a holy innocent can he rightly do so, however, and few of us are that.

There is no way to rectify what evil does— it rends the world permanently, that is its very nature— and so there was no satisfying way to deal with Eichmann, the colorless bureaucrat who was its servant. The Israelis tried, and made a mess.♦


To read Gresham Riley's review of Hannah Arendt, click here.
To read Victor Schermer's review of Hannah Arendt, click here.
To read Dan Rottenberg's response to Riley and Schermer, click here.
To read Victor Schermer's response to Dan Rottenberg, click here.
To read Gresham Riley's response to Dan Rottenberg, click here.
To read Dan Rottenberg's response to this essay, click here.
To read other responses, click here.
To read a follow-up by Victor L. Schermer, click here.