Justice for the Holocaust: Eichmann's Jerusalem Trial

• Publication year: 2020
• Author: Keith D. Nunes

JUSTICE FOR THE HOLOCAUST: EICHMANN'S JERUSALEM TRIAL

Keith D. Nunes^*

I.INTRODUCTION

The culmination of international jurisdiction against German war criminals was, paradoxically, not the Nuremberg trials or the subsequent United States (US) trials of 1946-49.¹ Instead, it was Israel's assertion of national and universal jurisdiction over SS leader Adolf Eichmann, kidnapped by Israeli agents from Argentina and forced to stand trial in the newly established Jewish homeland, which gave rise to an expanded view of international authority over genocide. The Israeli courts, asserting jurisdiction over Eichmann for crimes committed in Europe even before the establishment of the State of Israel, enhanced (and, indeed, created) a new form of jurisdiction over perpetrators of crimes against humanity. As the sixtieth anniversary of the Eichmann trial approaches, and many countries including the US consider the legality of forced rendition, this article addresses the legal developments that arose out of the Jerusalem trial of Adolf Eichmann.²

For Hannah Arendt, the political scientist and then-correspondent for The New Yorker, Eichmann was a clerk in a shop rather than the greatest mass murderer in history. He was, for her, "the de´classe´ son of a solid middle class family" with "the personality of a common mail-man" who was certified by the psychologists who examined him as normal—"more normal," said one, "than I am after having examined him."³ Arendt does seem to challenge Eichmann's claim that it was from reading Kant that he had derived his notion of obedience in implementing the final solution at Hitler's order. Critics question, however, Arendt's portrayal of Eichmann as a passive recipient of orders who took no personal initiative to destroy the Jews.

In her book,⁴ Arendt unleashed a firestorm with her characterization of the Judenräte (the Jewish councils established by the Nazis to execute German policy and maintain public order in the ghettos) as complicit.⁵ She charged essentially that they were collaborators with the Nazis by supplying Jews for deportation to the camps. Is there some justice in Arendt's assessment of the Judenräte? Perhaps they were remiss in not seeking choices to resist the Nazis instead of taking the binary path (either we submit or they take our lives), but Arendt's focus is skewed in making the Judenräte responsible for the "Final Solution" rather than focusing more fully on Eichmann's conduct and the consequences of his acts and omissions.⁶

II. LEGALITY OF EICHMANN'S TRIAL IN JERUSALEM: EX POST FACTO JUSTICE?

Eichmann was a major perpetrator of the Holocaust. He was the major organizer for managing and facilitating the mass deportation of Jews to ghettos, killing centers, and slave labor camps in German-occupied Eastern Europe. Eichmann's defense that he had been just a cog in the Nazi state's machinery of mass murder was unsustainable, but his trial in Israel was controversial because of the debate over jurisdictional issues. Eichmann could have been tried by an international tribunal⁷ or by a court in Germany, "the forum delicti commissi of many of the crimes attributed to him,"⁸ or in Austria, which was the locus from which he had operated his machinery of transporting human beings in cattle cars for slaughter.

The trial in Jerusalem, by a special panel of three Jewish judges in a Jewish state created just three years after the Holocaust, gave rise to accusations of ex post facto justice and extraterritorial jurisdiction. This reproach does not hold water: under international law there is no statute of limitations for crimes against humanity, war crimes, or genocide under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,⁹ nor under Article 29 of the Rome Statute of the International Criminal Court.¹⁰ In the Federal Republic of Germany, genocide, crimes against humanity, war crimes, and crimes of aggression have no statute of limitations, and Germany applies international law. Eichmann was indicted on fifteen criminal charges, including crimes against humanity (Counts 5-7, 9-12), war crimes (Count 8), crimes against the Jewish people (Counts 1-4), and membership in a criminal organization (Counts 13-15).¹¹

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Substantively it is true that Eichmann fell under a law both retroactive and extraterritorial in effect. As the District Court of Tel Aviv decided in Honigmann v. Attorney General, the Nazis and Nazi Collaborators (Punishment) Law is retroactive and extraterritorial:

[The 1950 law] is fundamentally different in its characteristics, in the legal and moral principles underlying it, and in its spirit, from all other criminal enactments usually found on the Statute books. The Law is retroactive and extra-territorial and its object, inter alia, is to provide a basis for the punishment of crimes which are not comprised within the criminal law of Israel, being the special consequence of the Nazi regime and its persecutions.¹²

Israel's law against genocide was based on the 1945 Nuremberg Charter (the London Agreement of 1945)¹³ which attracted the same disapproval. But the question of whether Eichmann could be tried ex post facto under law made in 1950 for offenses committed during World War II may be approached by considering what equity requires, namely, that it "looks to the substance rather than the form."¹⁴ True, the form of the Israeli law is a post-war, 1950 statute. But Eichmann was charged with crimes punishable by ordinary criminal law in the countries linked to his offenses; in other words, the Israeli law in substance tracked the existing law of the fora where Eichmann committed his genocide and is retroactive only in form, not substance.

Professor Hans Baade explains:

[I]n those portions that form the gravamen of the charges against Eichmann, the law is retroactive in form, not in substance. It is true that no Israeli law provided for the punishment of crimes against the Jewish people and crimes against humanity before May 8, 1945. But with some exceptions not material in this connection, the acts defined as such crimes were punishable under German law and, where committed outside of Germany, Polish or Soviet law, at the time of their commission. So long as prosecution is limited to acts punishable under German or local law prior to 1945, there is no substantive retroactivity.¹⁵

Professor Hans Kelsen underscores that Eichmann was subject to the domestic law of the countries where the offenses were committed and the real issue is jurisdiction of the forum, domestic (in Israel) or international:

The atrocities for which persons belonging to the Axis powers, and especially the Germans, shall be prosecuted are almost all ordinary crimes according to the municipal law of the persons to be accused, valid at the moment they were committed. In respect of these crimes the main problem is not the application of the rule against ex post facto laws but the jurisdiction of the International Tribunal.¹⁶

What about justice for the accused? Kelsen affirms that the principle against ex post facto laws contends with the principle of justice, and the lesser principle must give way to the greater:

Besides, in all cases where the rule against ex post facto laws comes into consideration in the prosecution of war criminals, we must bear in mind that this rule is to be respected as a principle of justice and that...this principle is frequently in competition with another principle of justice, so that the one must be restricted by the other. It stands to reason that the principle which is less important has to give way to the principle which is more important.¹⁷

Kelsen then looks to enlightened public opinion, the democratic component of law, for support in bringing an offender such as Eichmann to justice, overriding the general rule against ex post facto laws:

There can be little doubt that, according to the public opinion of the civilized world, it is more important to bring the war criminals to justice than to respect, in their trial, the rule against ex post facto law, which has merely a relative value and consequently, was never unrestrictedly recognized.¹⁸

Yet, kidnapping a person (Eichmann) from one country (Argentina) to stand trial in a second (Israel) for crimes committed in a third (the various European settings where Jews were murdered) may be more problematic and is addressed under universal jurisdiction in Part VI, infra.

III. MALE CAPTUS, BENE DETENTUS: THE "TOUGH LUCK RULE" OF JURISDICTION19

Was Eichmann's trial in Israel vitiated by his forcible removal from the territory of Argentina, without its consent, by agents of the Government of Israel? The legal maxim male captus, bene detentus articulates the principle that a court may exercise jurisdiction over an accused regardless of how that person's rendition to the jurisdiction of the court was secured. In other words, kidnapping Eichmann to stand trial in Israel is not an offense to jurisdictional principles. Male captus situations encompass arrests in which: (1) normal procedures of arrest were not followed; (2) the actual arrest was executed with excessive force although the apprehension procedures were appropriate; or (3) the arrest was followed by a disproportionately long pretrial detention.

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In US case law, the Ker-Frisbie doctrine combines two landmark male captus cases to provide that for a fair trial, an accused person cannot be tried in absentia and must be in court to answer the charges, which supports forcible rendition. The basis of the doctrine is that a defendant must be in court in person to answer the charges; it does not matter how law enforcement got the defendant into court. Because forced rendition actually allows for jurisdiction to be exercised, it is lawful in domestic and international cases, as Justice Black wrote for a unanimous US Supreme Court in Frisbie:

[D]ue process of law is satisfied when one present in court is convicted of crime

...