Gregory S. Gordon, the Eichmann Trial

• Citation: Vol. 26 No. 1
• Publication year: 2010

BOOK REVIEW

THE EICHMANN TRIAL

Gregory S. Gordon*

In 1960, the Israeli government abducted key Holocaust organizer Adolf Eichmann from Argentina and put him on trial in Jerusalem the following year.1 On the proceeding’s fiftieth anniversary, renowned Holocaust historian Deborah Lipstadt’s The Eichmann Trial2 offers a timely update to the only other book to focus primarily on the trial itself—Hannah Arendt’s controversial Eichmann in Jerusalem: A Report on the Banality of Evil.3 As its famous subtitle suggests, Arendt’s book has more of a philosophical, as opposed to a legal, focus. Lipstadt’s work more than makes up for that. For a book that offers an excellent general introduction to the 1961 inquest, The Eichmann Trial also provides terrific insights into some of its complex legal

issues.

For instance, Lipstadt’s discussion of jurisdiction considers both its traditional ex post facto aspects—whether crimes against humanity, for example, could be charged when it was not an established offense during 1941–1945—as well as its more unique temporal/geographic facets—whether Israel was entitled to try Adolf Eichmann when the state did not even exist

until after the war.4 Similarly, given that Eichmann was kidnapped from

Argentina by Israeli Mossad agents, were the Israeli proceedings against him proper from an international law perspective?5

* Associate Professor, University of North Dakota School of Law, and Director, University of North

Dakota Center for Human Rights and Genocide Studies.

1. See Lisa J. Del Pizzo, Note, Not Guilty—But Not Innocent: An Analysis of the Acquittal of John Demjanjuk and Its Impact on the Future of Nazi War Crimes Trials, 18 B.C. INT’L & COMP. L. REV. 137, 150

   (1995).

2. DEBORAH E. LIPSTADT, THE EICHMANN TRIAL 25, 59 (2011).

3. See HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1963). David

   Cesarani’s 2006 book Becoming Eichmann: Rethinking the Life, Crimes, and Trial of a “Desk Murderer” deals with the Eichmann trial in one of its chapters, but that is not the book’s main focus. See DAVID CESARANI, BECOMING EICHMANN: RETHINKING THE LIFE, CRIMES, AND TRIAL OF A “DESK MURDERER” 237– 323 (2006).

4. LIPSTADT, supra note 2, at 25, 59.

5 Id. at 21–25.

Lipstadt analyzes these issues with reference to both the arguments made at trial and the presiding judges’ written decision.6 The ex post facto issue had already been resolved at Nuremberg—crimes against humanity could be charged notwithstanding its recent vintage, as the international community

recognized the Final Solution as inherently wrong and crimes against humanity best captured the nature of the offense.7 Lipstadt quotes the District Court that convicted Eichmann: “The Holocaust was not a ‘new crime which had not hitherto been known,’ but was a criminal act according to the laws of all civilized nations. . . . Eichmann and his compatriots knew their acts were wrong. Otherwise, why would they have tried to ‘efface the traces’ of them?”8

Regarding the temporal/geographic problem posed by Israel’s post-war establishment, on one hand, Eichmann’s trial was a proper exercise of universal jurisdiction (although being applied to a human rights prosecution for the first time in history9) and “reinforced the notion that there is universal jurisdiction over genocide.”10 On the other hand, as to the role of the Jewish state in particular, Lipstadt again references the decision of the District Court:

The aim of the Final Solution was the destruction of the “entire Jewish people.” To argue that there was “no connection” between Jews in Israel and Jews murdered by the Nazis “is like cutting away the roots and branches of a tree and saying to its trunk: I have not

hurt you.”11

And while Eichmann might have been abducted from Argentina, “courts had consistently ruled that how an accused is brought before a court does not negate its right to try him,” and, in any event “the abduction had no bearing on

1. Lipstadt does not consider the opinion of the Israeli Supreme Court, which heard the case on appeal and also opined on these issues, presumably because it affirmed and largely mirrored the District Court’s findings. See Attorney-Gen. of the Gov’t of Isr. v. Eichmann, 36 I.L.R. 18 (Dist. Ct. 1961), aff’d, 36 I.L.R. 277 (Sup. Ct. 1962) (1968). The Eichmann trial also raised a legal issue not addressed in Lipstadt’s book, namely Eichmann’s “Act of State” defense (that a state may not judge acts undertaken on behalf of another sovereign state—the presiding judges held that the Act of State defense for acts condemned as criminal under international law had been abrogated by the Nuremberg Charter and subsequent relevant legal instruments, including the Genocide Convention). See Matthew Lippman, Genocide: The Trial of Adolf Eichmann and the Quest for Global Justice, 8 BUFF. HUM. RTS. L. REV. 45, 113–14 (2002).

2. LIPSTADT, supra note...