Male Captus, Bene Detentus: Israel’s Trial of Adolf Eichmann

When Israel’s intelligence service captured Otto Adolf Eichmann (known as Adolf Eichmann), a Nazi Holocaust perpetrator, in Argentina and Prime Minister Ben-Gurion subsequently announced the capture, Argentina formally protested that Israel had encroached upon Argentina’s sovereignty as a nation.[1] After the almost immediate failure of mediation, Argentina brought its claim against Israel to the United Nations and called for a meeting of the UN Security Council (UNSC), which took place in an emergency session on June 22, 1960.[2] During the session, Argentinean President Frondizi declared the Israeli ambassador to Argentina a persona non grata, meaning that the Israeli ambassador was not welcome in Argentina.[3] After the UNSC condemned Israel’s actions, Argentina agreed to allow Israel to keep Eichmann in custody, rather than return him to Argentina, and a joint resolution was published declaring reconciliation between the two nations.[4] After the UN declared that Israel had the right to keep Eichmann pending reconciliation and reparations to the Argentine government (which were made up of a long winded apology by Prime Minister Ben-Gurion), the diplomatic crisis promptly ended.[5] There was still no international consensus, however, about Israel’s right to try the accused, and it became a subject of much debate in the year between Israel’s capture of Eichmann and the trial. Ben-Gurion was determined to make the trial an international showcase for the strength of the Israeli people and their government, as well as for the importance of the Holocaust in world history.

 

Reporters, journalists, government officials, UN representatives, and a huge number of private citizens around the globe debated whether or not Israel had the legal authority to try a Nazi war criminal. The public questioned Israel’s prosecution of Eichmann in two separate ways: first, did Israel have jurisdiction to try a German man who committed crimes on European soil against people who were not citizens of Israel? Second, did Eichmann’s kidnapping invalidate any prosecution of Eichmann by the state of Israel?

 

Initially, upon announcing the decision to try Eichmann in Jerusalem, Israel used the principle of universal jurisdiction to argue that it could try Eichmann. Universal jurisdiction is a precept that allows “the courts of any state [to] exercise jurisdiction without regard to the territory where the crime occurred or the nationality of perpetrators or victims.”[6] This principle was accepted before the Nuremberg Trials took place via an international military tribunal, and universal jurisdiction has been used dozens of times by judicial organizations like the International Criminal Court and the International Court of Justice.[7]

 

Though widely accepted by practitioners and scholars of international law, at the time, universal jurisdiction had only been used to try war criminals in international courts, or by the nations within whose borders or against whose citizens the serious crimes under international law had been committed.[8] Many argued that the Nuremberg and Eichmann decisions were not legitimate because the crimes were not necessarily committed against Allied or Israeli nationals, respectively.[9] Israel defended its right to apply universal jurisdiction to the Eichmann case by citing the UNSC decision in June of 1960 not to force Israel to return Eichmann to Argentina. Furthermore, Ben-Gurion argued that Israel was the only nation that had the right to try Eichmann because the Holocaust and Eichmann’s crimes specifically had so affected Israel that the young country had more interest in finding justice than any European nation did.[10] Ben-Gurion’s justifications were based on acceptance of the Allied Powers’ acknowledgement of Israel as both the legal inheritor of the British Mandate Palestine and the heir to “murdered Jewry,” an idea that the Israeli District Court supported once the trial actually began.[11] The acceptance of this idea by the international community at large, and especially by the United Nations and the International Court of Justice, as demonstrated by their lack of action against the trial (past the debate over Eichmann’s extradition), allowed the Eichmann trial to change the concept of universal jurisdiction for the international community forever. Previously, universal jurisdiction had only been applied by international tribunals, the International Military Tribunal that presided over the Nuremberg trials, and by nations prosecuting an individual for a crime committed on their soil or against their citizens.[12]

 

Before the Eichmann trial, the terms set by the Universal Declaration of Human Rights in 1948 had not been put into practice. Universal jurisdiction consisted of only two principles. First, there is the protective principle, which permits a nation to try criminals for crimes committed outside of the state’s borders against the security, stability, and political independence of the state. Secondly, there is what George R. Parsons Jr. argued in 1960 was the only possibly appropriate reason for Israel to claim universal jurisdiction: the passive personality principle.[13] This principle allows a state to assume jurisdiction if the victim of a crime is a citizen of that state. Parsons argued that because Jewish victims during the Holocaust were not Israeli citizens when they were being victimized, Israel cannot use the passive personality principle. Conversely, American scholar L.C. Green agreed with Parsons that Israel did not have right to try Eichmann through universal jurisdiction, but represents another argument. Green asserts that the Universal Declaration of Human Rights allows that any “state is entitled to exercise its [territorial] jurisdiction over any person, alien or national, who has offended against its criminal law” when the accused is accused of “serious crimes under international law.”[14] Parsons and Green are just two of the dozens of international scholars jumping to publish both scathing and supportive articles in law journals and newspapers around the world. The Eichmann trial, from the moment of Ben-Gurion’s announcement of Eichmann’s capture, was set to draw attention from around the world to the changing international law, changing relationships between sovereign nations, and to the truth of the Holocaust.

 

Israel’s Nazi and Nazi Collaborators (Punishment) Law (NNCL) had multiple functions. First and most clearly, it made all of the various persecutory and violent actions the Nazis imposed upon the Jewish people crimes under Israeli domestic law.[15] Secondly, the NNCL created a system to deal with the existence of Israelis who were an undefinable combination of perpetrator of crimes against the Jewish people and victim of the Holocaust.[16] It provided a forum– a trial– in which a past kapo could explain his actions, prove his moral innocence, or face the consequences of his alleged overzealous collaboration with camp SS officers. Thirdly, the law articulated a disgust felt by many Israelis and members of the Israeli government who were not survivors toward the Jewish survivor community. The majority of Israelis at this time were not Holocaust survivors, and many expressed a scorn for European Jews because of the lack of large scale resistance against the Nazis; the debates over passing the NNCL showed that non-survivor Israelis were suspicious of those who survived because of possible collaboration, like acting as a kapo or joining the Judenrat.[17] Finally, one of the law’s most intriguing aspects was one of its inactions– the law did not clearly define “collaborator.”[18] The difficulty of defining a Nazi collaborator is one the entire world struggled with for the final half of the 20th century, and to some extent, continues to struggle with. The Knesset’s inability to agree on a strict interpretation of where necessary attempts at survival end and where collaboration begins is representative of an international struggle for justice and also for progress after one of history’s greatest tragedies.
The language of the NNCL is distinct from the laws against genocide and crimes against humanity set out by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, but is notably similar in places.[19] Though Israel was not a member nation of the United Nations until 1949, it signed the Convention almost immediately upon the start of its participation in the UN.[20] Israel then proceeded to use the Convention’s definition of genocide when writing the NNCL in 1950, but replaced the words “national, ethnical, racial, or religious group” with “the Jewish people” when considering the possible victims of a genocide.[21] In changing the type of people genocide could be perpetrated against, Israel did not intend to suggest that genocide is only perpetrated against Jews, but rather that the “crimes against the Jewish people” section of the NNCL (Article 1, Section A, Subsection 1) could only be used to prosecute perpetrators involved in the genocide of the Jews, referring to the Holocaust.[22] The prosecution used the NNCL in its full capacity against Eichmann; Israel accused him of every one of the crimes illustrated in the law, owing either to his direct responsibility or his indirect administrative responsibility in the commission of that crime, either during peacetime in the Nazi regime (1933-1939), or during the Second World War (1939-1945).[23]

 

The prosecution of Eichmann for crimes against humanity during peacetime was the first time a law (the NNCL) had distinguished between war crimes (crimes against civilians not justified by military necessity) and crimes against humanity.[24] Although most of the legal theory and precedent cited in Israeli law and Hausner’s arguments in the trial came from Western courts and the Nuremberg trials, Israel stepped away from traditional international law in the NNCL. This trial laid the precedent for post-Nuremberg war crimes trials of Nazis and other war criminals alike. The trial of Eichmann also served as a collection of oral history and a fuller record of the events of the Shoah. Eichmann’s trial continues to inspire debate among historians, world leaders, and specialists in international law.

 

 

[1] Ra’anan Rein, “The Eichmann Kidnapping and its Effects on Argentine-Israeli Relations and the Local Jewish Community”, Jewish Social Studies (Vol.7, Iss.3, 2001), 101-130.

[2] Ibid.

[3] Sachar, 555.

[4] Ra’anan Rein.

[5] Ibid. See also Brecher, 241.

[6] Madeline H. Morris, “Universal Jurisdiction in a Divided World: Conference Remarks”, New England Law Review (Vol. 35, Iss. 2), 339.

[7] “International Military Tribunal at Nuremberg”, US Holocaust Museum: Holocaust Encyclopedia, http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069. See Also “UN Documentation: The International Court of Justice”, Dag Hammarskjold Library Research Guides, http://research.un.org/c.php?g=98280.

[8]“THE SCOPE AND APPLICATION OF THE PRINCIPLE OF UNIVERSAL JURISDICTION: THE

REPORT OF THE SIXTH COMMITTEE A/64/452-RES 64/117”, International Criminal Court Kenya Conference, http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/Kenya.pdf, 1.

[9] “Eichmann Supreme Court Judgment: 50 Years on, Its Significance Today”, Amnesty International Publications,http://www.amnesty.org/pt-br/library/asset/IOR53/013/2012/en/52ae5e58-9511-4215-a61a-51e1c56df25d/ior530132012en.pdf, 6-9. Here we see that the Nuremberg Trials and their International military Tribunal opened the door metaphorically for Israel to prosecute Eichmann. Furthermore, Amnesty argues that Israel wound up with de facto jurisdiction since no nation officially protested Israel’s very public intention to try Eichmann.

[10] For Ben-Gurion’s statements on this issue, see Becher, 241. This argument that Ben-Gurion makes is separate from the arguments Gideon Hausner makes in response to objections in court; Hausner’s response is legal, while Ben-Gurion’s is political.

[11] Sachar, 557.

[12] Itamar Mann, “The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the ‘Court of Critique’”, Yale Law School Legal Scholarship Repository (January 1, 2010), 496-498.

[13] George R. Parsons, Jr., “Israel’s Right to Try Eichmann”, The New Republic, Washington, D.C., March 20th, 1961, 13-15. When presented with this argument in both Eichmann’s trial and his appeal to the Israeli Supreme Court, the Court twice asserted that the acknowledgment of the Allied Powers during the Nuremberg Trials as well as the United Nations Security Council that Israel had the right to extradite Eichmann, and that Israel was the heir to the Jews who were killed during the Holocaust, meant that Israel had the right to try Eichmann for his crimes committed elsewhere.

[14] L.C. Green, “The Eichmann Case”, Modern Law Review, (Vol. 23, Iss.5), September 1960, 511. Also, for definition of “serious crimes under international law”, see:

“THE SCOPE AND APPLICATION OF THE PRINCIPLE OF UNIVERSAL JURISDICTION: THE

REPORT OF THE SIXTH COMMITTEE A/64/452-RES 64/117”, 1-2.

[15] Bazyler and Scheppach, 424. See also Israel Ministry of Foreign Affairs, Nazi and Nazi Collaborators (Punishment) Law, August 1st, 1950.

[16] Bazyler and Scheppach, 425. See also Israel Ministry of Foreign Affairs.

[17] Bazyler and Scheppach, 425-426. See also Bergen, 210 for full description of Judenrat.

[18] Bazyler and Scheppach, 426. The NNCL did, regardless of its boundaries about what a collaborator could be, in fact define Judenrat and kapos as collaborators.

[19] For background information on the Convention’s treaty, see General Assmebluy of the United Nations, Convention on the Prevention and Punishment of the Crime of Genocide: Adopted by the General Assembly of the United Nations on 9 December 1948, available at https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf.

[20] William Schabas, “The Contribution of the Eichmann Trial to International Law”, Leiden Journal of International Law (Vol. 26, Iss. 1, 2013), 671.

[21] Ibid., 670.

[22] Bazyler and Scheppach.

[23] Stephan Landsman, “Criminal Case 40-61, the Trial of Adolf Eichmann: An Eyewitness Account (review)”, Human Rights Quarterly (Vol. 28, Iss. 4, November 2006), 1074-1078.

[24] Schabas, 676.

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