Revisiting the Eichmann Trial: Was It Fair?

Beginning in 1960 the Mossad conducted an operation in Buenos Aries, Argentina to locate Adolph Eichmann (may his name be blotted out) and subsequently bring him to justice. Then-Mossad Chief Isser Harel went to Buenos Aries to oversee the operation, which, in 1962, netted the abduction and extradition of Eichmann, who Israeli prosecutor Gideon Hausner characterized as the “executive arm for the extermination of the Jewish people” and whose word “put gas chambers into action.” After locating, kidnapping, and bringing Eichmann to Israel for a trial, the Israeli government gained a war crimes conviction against Eichmann. Eichmann was hanged, his body cremated, and his ashes scattered over the sea. Despite this Nazi monster’s past, legal questions abound. This post will put some of those questions to rest.

From a legal standpoint, critics point to irregularities of authority and methodology in prosecuting that monster. For instance, Holocaust survivor Joseph Reznik presented gruesome testimony to the presiding Israeli tribunal about his experience with Sonderkommando 1005, a unit charged with exhuming corpses from mass graves to destroy evidence of Nazi crimes. Reznik identified Nazi monster Paul Blobel as the commander of that unit. Hausner, using this testimony, stated “[w]ith regard to the covering up of the traces, our point is that the Accused was the superior of Blobel…” Critics point out that Blobel reported to the monster Heimrich Muller, not Eichmann, who was four levels lower than Muller and, as such, was not Blobel’s superior. Critics point to this and other of Hausner’s characterizations as misleading and factually incorrect, thereby questioning the legitimacy of the Eichmann trial. This post will not focus on whether Eichmann’s real role is a black cloud over the trial.

Critics also charge that the 1950 Israeli law charging Eichmann with crimes against humanity was ex post facto (nulla crimen sine lege (“no crime without law”)), not committed against Israeli citizens, and was not committed on Israeli soil. Generally, sovereign legal regimes do not prosecute these crimes for the above-mentioned reasons; instead, international tribunals prosecute these crimes. An example is the International Criminal Tribunal for the former Yugoslavia, whose mandate is to prosecute crimes committed during the Balkan wars in the 1990s. That tribunal is staffed with judges having various international backgrounds and is located in The Hague, not in the former Yugoslavia. The internationally-based Nuremberg trials were used for Holocaust-specific crimes, employed international norms in prosecuting Nazi war criminals, and was not based in a specific European country. In contrast, the prosecution in the Eichmann trial charged Eichmann with crimes committed under Israeli law, used Israeli judges, and was held in Israel specifically. Consequently, some commentators suggest that the Eichmann trial was a legal farce.

The natural law subset of international law recognizes a higher authority that basic legal systems do not recognize. Generally, regimes have an electorate that elects a higher body to make laws, usually with both legislative and executive branches. There is also a judicial branch, appointed either directly by the electorate or by members of the legislative or executive branch, charged with interpreting and applying those laws. Rogue regimes often have such a system, but their laws are corrupt. As such, even people who abide by the extreme letter of the law of such a regime may still be criminally liable for actions performed under this higher authority of international law.

Regarding the Eichmann trial, while the Israeli laws used to prosecute the monster Eichmann did not exist when the crimes were committed, Eichmann was still liable under this higher authority that recognizes war crimes as a punishable offense. The Israeli war crimes laws were developed based on the Nuremberg trials, which did not require a recognized system creating law. The codification of war crimes laws is dissimilar to most laws that require proper codification because the war crimes law is applicable without codification. Codification of war crimes is helpful, but not necessary. Therefore, prosecuting Eichmann under a war crimes statute was not ex post facto, was not nulla crimen sine lege, and was not parallel to crimes like tax evasion.

The legal theory of a higher power, known as natural law, has been discussed for centuries. Plato and Aristotle discuss natural law. Much of John Locke’s writing is predicated on natural law. In 1798 the U.S. Supreme Court applied natural law in the case of Calder v. Bull. Accordingly, Israel prosecuted Eichmann under internationally-recognized natural law, which happened to be codified by Knesset legislation.

Similarly, certain heinous crimes can be prosecuted with minimal links to the legal forum under universal jurisdiction theory. Israel in 1962, with its high concentration of Holocaust survivors, justifiably applied universal jurisdiction over Nazi war crimes. While the accustomed norm is to send war criminals to an international war crimes tribunal, the circumstances surrounding Eichmann did not allow for such a tribunal. The post-World War II Argentinian government under Juan Peron created ratlines for Nazi war criminals to escape justice and live under Argentinian government protection. The Mossad operation that abducted Eichmann functioned without permission from the Argentinian government, which surely would have informed Eichmann about the operation had it known of such an operation. In fact, the Argentinian government criticized the Mossad operation as a breach of sovereignty and demanded that Israel return Eichmann and work through legal channels. Clearly, Israel had to abduct Eichmann covertly and then prosecute him immediately without dragging its feet through an international ordeal. Thus, through the combination of universal jurisdiction, Israel’s Holocaust links, and the impracticality of working through an international tribunal made Israel the proper forum for the Eichmann trial.

Critics point to other irregularities in the trial, such as partiality of the tribunal and the proximity to the Kastner trial. Then-Prime Minister Dovid Ben Gurion stated that “[t]he trial was only a medium … the real purpose of the trial was to give voice to the Jewish people, for whom Israel claimed to speak in the ideological spirit of Zionism.” This statement came in proximity to the Kastner trial, which painted the Zionist establishment as Nazi collaborators. Was the Eichmann trial a political vehicle to wash away the stain from the Kastner trial? Was Zionism itself at stake in this trial, perhaps more than post-Holocaust justice? These issues need to be addressed.

In sum, the legal aspects of the Eichmann trial were fair and proper. The prosecution charged Eichmann with war crimes under natural law and Israel was the correct venue. Eichmann’s trial was legally fair, which sends a message to war criminals that they should live in fear.