Eichmann Trial: Legality and Morality

JONATHAN R. WALTON, Eichmann comes to trial in Jerusalem. He stands under a special Israeli law provides the death penalty gis and Nazi Collaborators" d of crimes against the people. Eichmann, who was the authors of the "Final to the Jewish problem"--ration and extermination was captured May 11 in Aries by "volunteers", and to Israel before either Is Argentine government of of his where abouts, be tried publicly, and is ex plead superior orders; edguesses predict that the of evidence accumulated last 15 years will be suf convict him.

these facts a heated con has raged, privately print, concerning the legmoral probity of the pro The conduct of the Is been challenged and de with equal fervor in the newspapers and magazines. is disagreement about the thin the Harvard Faculty. pute centers around three . First, does the fact that was kidnapped on Ar territory--in the absence xtradition treaty covering and military crimes--un the competence of the ourt? Second, does a valid sis for that competence view of the fact that Eich crimes were committed on Israeli soil nor at a time State of Israel existed? d, is there a sound moral the trial: were his crimes ed against the Jewish peo humanity, and, if the does the State of Israel the Jewish people as a complex and frequently vague definitions of "competence" and "moral basis" have naturally lead opinion down divergent lanes. This is not surprising; what is a little surprising is the extent to which Faculty views converge about one line of reasoning, a line rather sharply critical of Israel's conduct.

Typical of this view is the position of Oscar Handlin, Professor of History, as put forth in the August issue of Commentary. Attacking the kidnapping, Handlin claims that the Case has been conducted "as if espionage and invasion of another state's sovereignty were irrelevant to the cleanliness of hands of those who presume to sit as judges in the case." He calls attention to the long fight, partly waged by the Jews, for the rights of refugees against enforced extradition. Handlin goes on to challenge Israel's jurisdiction over Eichmann, as "a majority of the world's Jews do not wish Israel to speak for them."

Many critics would set aside technicalities in favor of quick and sure justice. To them, Handlin replies: "The desire to see the wrong-doer brought to retribution may lead only to an act of revenge in satisfaction of the private offense. Justice involves more than that. It calls for recognition that the offense was directed not simply against the individual who suffered but against the whole community." Again citing history, Handlin emphasizes the Jewish people's traditional adherence to law. If Eichmann is suddenly more important than the law, he suggests, that tradition has been violated.

Among those concurring in this view are David Riesman, Henry Ford II Professor of Social Sciences, and Robert G. McCloskey, Professor of Government and Chairman of the Government Department.

McCloskey, a specialist in American Constitutional law, questions whether "a legal trial can have its inception in an illegal base." Referring to Israeli Premier BenGurion's frequent declarations that one of the purposes of the trial is to teach the present generation a lesson in history that it might have forgotten. McCloskey accuses BenGurion of "perhaps mixing a great deal of immorality into a moral lesson." He cites the kidnapping of Eichmann and the lack of a legal basis for Israel's claim to jurisdiction, and asks. "Can you make a moral point by immoral means?"

"It is not," McCloskey maintains, "a question of Eichmann's rights but of the law's rights." He decries the posing of the issue in terms of a choice between letting Eichmann go free and punishing him. "It is certainly not Eichmann who should be preserved, but the integrity of the law, and of the principles underlying the law."

It was pointed out that American law does not prohibit a trial when the accused has been forcibly extradited. McCloskey raised his eyebrows in a deprecating gesture: "A good case, with foundations in American law, could be made to contradict that decision.

McCloskey's statement, like those of many Faculty members, revealed a tension between regard for legality and a desire to see Adolf Eichmann receive retribution. Almost no arguments can be heard, on either side, that do not contain some ambivalence along these lines.

Representative of another view were the comments of Benjamin Kaplan, Professor of Law and former staff aide to the Chief Prosecutor at the Nuremberg trials, the late Just. Robert H. Jackson.

"The problem with Eichmann" he says, "is similar to that which confronted the nations at the end of the war. A perfect procedure for dealing with Axis criminals was not attainable. Nuremberg was perhaps the best, and certainly not the worst, of the viable alternatives. The United Nations, while approving the principles of Nuremberg, has not succeeded during the past fifteen years in establishing a recognized, stable international criminal jurisdiction to which resort could be had in a case like Eichmann's. So again in the Eichmann case a choice had to be made among practical alternatives, and it is quite wrong to condemn the procedure proposed by the Government of Israel because it does not accord with a visionary ideal.

"Still," he continues, "there is a question whether Israel has made a reasonably sound choice. One possibility, as Mr. Telford Taylor has suggested, would have been to arraign Eichmann in an Israeli court with full opportunity for the prosecution and the accused to present charges and defenses, and then to remit Eichmann to the United Nations for any further action that body might decide to take. Would that course have led merely to a flasco? It is at least clear that the United Nations did not come forward to claim Eichmann after his capture. Neither did Western Germany. We are entitled to consider these facts in appraising the choice which Israel has actually made.

"In all events the burden now falls on Israel to establish Eichmann's guilt beyond a reasonable doubt and to provide him with a fair chance to make his defense."

A similar argument is enunciated by Hans J. Morgenthau, visiting Professor of Government during the fall term of this year. "The jurisdiction of the Israeli court," Morgenthau writes from Chicago, "cannot be based on any existing rule of international law. Should then the government of Israel have let it go at that, once it had been appraised of Eichmann's where-abouts? This would have meant that Eichmann could have lived in Argentina happily ever after, since no other government has claimed jurisdiction over him."

Morgenthau sees the moral issue revolving around "the enormity of Eichmann's misdeeds" "The crime, being of superhuman proportions," has according to Morgenthau "left far behind the legal remedies known to men." Hence the questionability of the proceedings is again out-weighed by the absence of plausible alternatives. "The choice," Morgenthau goes on, "is between doing nothing, which would be an outrage to our sense of justice, and doing something, admittedly questionable from a legal point of view and unsatisfactory in moral terms." He concedes the possibility of "devising more valid proceedings than those which are now in prospect," although "I would not count an international tribunal among them." But he submits that "what is being done is morally less unsatisfactory than to have done nothing."

This phrasing of the question is disputed by H. Stuart Hughes, Professor of History. Punishment for war crimes, Hughes feels, must be meted out "in the same emotional context as that in which the criminal acts took place"--that is, shortly after the crimes and with all possible speed. A trial 15 years later, Hughes claims, is "pointless." "The rationale for such a trial is not justice, it is punishment. And punishment is a human and understandable motive." But to clothe revenge in the garments of legality is dishonest. "Either real justice, if that had been possible, with scrupulous attention to legal technicalities, or summary human revenge" would have been preferable to Israel's course of action.

More than one adherent of this general argument revealed an implicit assumption in the course of their statements. "All this," as one Faculty member told us, "is a question only because he wasn't silently and anonymously murdered." It would appear that several, at least, would have rested more comfortably with such a falt accompli.

A somewhat sharper note was struck by Werner Baer, Instructor in Economics. Baer, who spent several years in a concentration camp, expresses the same tension between technicality and outrage, but resolves it in favor of outrage. "I realize," he says, "that there are a lot of legal questions. I also realize that a lot of old hates are going to be stirred up by the trial. Maybe it would be better not to stir them up. But somehow my sense of poetic justice is too strong."

Baer's stand is representative of one group of Faculty members who declined to be quoted. Their argument takes into account the identical objections posed by Handlin, Hughes, and McCloskey, but all, with varying degrees of rationality, brush them aside. Some couch their feelings in legal terms. Some do not bother.15H. STUART HUGHES

these facts a heated con has raged, privately print, concerning the legmoral probity of the pro The conduct of the Is been challenged and de with equal fervor in the newspapers and magazines. is disagreement about the thin the Harvard Faculty. pute centers around three . First, does the fact that was kidnapped on Ar territory--in the absence xtradition treaty covering and military crimes--un the competence of the ourt? Second, does a valid sis for that competence view of the fact that Eich crimes were committed on Israeli soil nor at a time State of Israel existed? d, is there a sound moral the trial: were his crimes ed against the Jewish peo humanity, and, if the does the State of Israel the Jewish people as a complex and frequently vague definitions of "competence" and "moral basis" have naturally lead opinion down divergent lanes. This is not surprising; what is a little surprising is the extent to which Faculty views converge about one line of reasoning, a line rather sharply critical of Israel's conduct.

Typical of this view is the position of Oscar Handlin, Professor of History, as put forth in the August issue of Commentary. Attacking the kidnapping, Handlin claims that the Case has been conducted "as if espionage and invasion of another state's sovereignty were irrelevant to the cleanliness of hands of those who presume to sit as judges in the case." He calls attention to the long fight, partly waged by the Jews, for the rights of refugees against enforced extradition. Handlin goes on to challenge Israel's jurisdiction over Eichmann, as "a majority of the world's Jews do not wish Israel to speak for them."

Many critics would set aside technicalities in favor of quick and sure justice. To them, Handlin replies: "The desire to see the wrong-doer brought to retribution may lead only to an act of revenge in satisfaction of the private offense. Justice involves more than that. It calls for recognition that the offense was directed not simply against the individual who suffered but against the whole community." Again citing history, Handlin emphasizes the Jewish people's traditional adherence to law. If Eichmann is suddenly more important than the law, he suggests, that tradition has been violated.

Among those concurring in this view are David Riesman, Henry Ford II Professor of Social Sciences, and Robert G. McCloskey, Professor of Government and Chairman of the Government Department.

McCloskey, a specialist in American Constitutional law, questions whether "a legal trial can have its inception in an illegal base." Referring to Israeli Premier BenGurion's frequent declarations that one of the purposes of the trial is to teach the present generation a lesson in history that it might have forgotten. McCloskey accuses BenGurion of "perhaps mixing a great deal of immorality into a moral lesson." He cites the kidnapping of Eichmann and the lack of a legal basis for Israel's claim to jurisdiction, and asks. "Can you make a moral point by immoral means?"

"It is not," McCloskey maintains, "a question of Eichmann's rights but of the law's rights." He decries the posing of the issue in terms of a choice between letting Eichmann go free and punishing him. "It is certainly not Eichmann who should be preserved, but the integrity of the law, and of the principles underlying the law."

It was pointed out that American law does not prohibit a trial when the accused has been forcibly extradited. McCloskey raised his eyebrows in a deprecating gesture: "A good case, with foundations in American law, could be made to contradict that decision.

McCloskey's statement, like those of many Faculty members, revealed a tension between regard for legality and a desire to see Adolf Eichmann receive retribution. Almost no arguments can be heard, on either side, that do not contain some ambivalence along these lines.

Representative of another view were the comments of Benjamin Kaplan, Professor of Law and former staff aide to the Chief Prosecutor at the Nuremberg trials, the late Just. Robert H. Jackson.

"The problem with Eichmann" he says, "is similar to that which confronted the nations at the end of the war. A perfect procedure for dealing with Axis criminals was not attainable. Nuremberg was perhaps the best, and certainly not the worst, of the viable alternatives. The United Nations, while approving the principles of Nuremberg, has not succeeded during the past fifteen years in establishing a recognized, stable international criminal jurisdiction to which resort could be had in a case like Eichmann's. So again in the Eichmann case a choice had to be made among practical alternatives, and it is quite wrong to condemn the procedure proposed by the Government of Israel because it does not accord with a visionary ideal.

"Still," he continues, "there is a question whether Israel has made a reasonably sound choice. One possibility, as Mr. Telford Taylor has suggested, would have been to arraign Eichmann in an Israeli court with full opportunity for the prosecution and the accused to present charges and defenses, and then to remit Eichmann to the United Nations for any further action that body might decide to take. Would that course have led merely to a flasco? It is at least clear that the United Nations did not come forward to claim Eichmann after his capture. Neither did Western Germany. We are entitled to consider these facts in appraising the choice which Israel has actually made.

"In all events the burden now falls on Israel to establish Eichmann's guilt beyond a reasonable doubt and to provide him with a fair chance to make his defense."

A similar argument is enunciated by Hans J. Morgenthau, visiting Professor of Government during the fall term of this year. "The jurisdiction of the Israeli court," Morgenthau writes from Chicago, "cannot be based on any existing rule of international law. Should then the government of Israel have let it go at that, once it had been appraised of Eichmann's where-abouts? This would have meant that Eichmann could have lived in Argentina happily ever after, since no other government has claimed jurisdiction over him."

Morgenthau sees the moral issue revolving around "the enormity of Eichmann's misdeeds" "The crime, being of superhuman proportions," has according to Morgenthau "left far behind the legal remedies known to men." Hence the questionability of the proceedings is again out-weighed by the absence of plausible alternatives. "The choice," Morgenthau goes on, "is between doing nothing, which would be an outrage to our sense of justice, and doing something, admittedly questionable from a legal point of view and unsatisfactory in moral terms." He concedes the possibility of "devising more valid proceedings than those which are now in prospect," although "I would not count an international tribunal among them." But he submits that "what is being done is morally less unsatisfactory than to have done nothing."

This phrasing of the question is disputed by H. Stuart Hughes, Professor of History. Punishment for war crimes, Hughes feels, must be meted out "in the same emotional context as that in which the criminal acts took place"--that is, shortly after the crimes and with all possible speed. A trial 15 years later, Hughes claims, is "pointless." "The rationale for such a trial is not justice, it is punishment. And punishment is a human and understandable motive." But to clothe revenge in the garments of legality is dishonest. "Either real justice, if that had been possible, with scrupulous attention to legal technicalities, or summary human revenge" would have been preferable to Israel's course of action.

More than one adherent of this general argument revealed an implicit assumption in the course of their statements. "All this," as one Faculty member told us, "is a question only because he wasn't silently and anonymously murdered." It would appear that several, at least, would have rested more comfortably with such a falt accompli.

A somewhat sharper note was struck by Werner Baer, Instructor in Economics. Baer, who spent several years in a concentration camp, expresses the same tension between technicality and outrage, but resolves it in favor of outrage. "I realize," he says, "that there are a lot of legal questions. I also realize that a lot of old hates are going to be stirred up by the trial. Maybe it would be better not to stir them up. But somehow my sense of poetic justice is too strong."

Baer's stand is representative of one group of Faculty members who declined to be quoted. Their argument takes into account the identical objections posed by Handlin, Hughes, and McCloskey, but all, with varying degrees of rationality, brush them aside. Some couch their feelings in legal terms. Some do not bother.15H. STUART HUGHES

Typical of this view is the position of Oscar Handlin, Professor of History, as put forth in the August issue of Commentary. Attacking the kidnapping, Handlin claims that the Case has been conducted "as if espionage and invasion of another state's sovereignty were irrelevant to the cleanliness of hands of those who presume to sit as judges in the case." He calls attention to the long fight, partly waged by the Jews, for the rights of refugees against enforced extradition. Handlin goes on to challenge Israel's jurisdiction over Eichmann, as "a majority of the world's Jews do not wish Israel to speak for them."

Many critics would set aside technicalities in favor of quick and sure justice. To them, Handlin replies: "The desire to see the wrong-doer brought to retribution may lead only to an act of revenge in satisfaction of the private offense. Justice involves more than that. It calls for recognition that the offense was directed not simply against the individual who suffered but against the whole community." Again citing history, Handlin emphasizes the Jewish people's traditional adherence to law. If Eichmann is suddenly more important than the law, he suggests, that tradition has been violated.

Among those concurring in this view are David Riesman, Henry Ford II Professor of Social Sciences, and Robert G. McCloskey, Professor of Government and Chairman of the Government Department.

McCloskey, a specialist in American Constitutional law, questions whether "a legal trial can have its inception in an illegal base." Referring to Israeli Premier BenGurion's frequent declarations that one of the purposes of the trial is to teach the present generation a lesson in history that it might have forgotten. McCloskey accuses BenGurion of "perhaps mixing a great deal of immorality into a moral lesson." He cites the kidnapping of Eichmann and the lack of a legal basis for Israel's claim to jurisdiction, and asks. "Can you make a moral point by immoral means?"

"It is not," McCloskey maintains, "a question of Eichmann's rights but of the law's rights." He decries the posing of the issue in terms of a choice between letting Eichmann go free and punishing him. "It is certainly not Eichmann who should be preserved, but the integrity of the law, and of the principles underlying the law."

It was pointed out that American law does not prohibit a trial when the accused has been forcibly extradited. McCloskey raised his eyebrows in a deprecating gesture: "A good case, with foundations in American law, could be made to contradict that decision.

McCloskey's statement, like those of many Faculty members, revealed a tension between regard for legality and a desire to see Adolf Eichmann receive retribution. Almost no arguments can be heard, on either side, that do not contain some ambivalence along these lines.

Representative of another view were the comments of Benjamin Kaplan, Professor of Law and former staff aide to the Chief Prosecutor at the Nuremberg trials, the late Just. Robert H. Jackson.

"The problem with Eichmann" he says, "is similar to that which confronted the nations at the end of the war. A perfect procedure for dealing with Axis criminals was not attainable. Nuremberg was perhaps the best, and certainly not the worst, of the viable alternatives. The United Nations, while approving the principles of Nuremberg, has not succeeded during the past fifteen years in establishing a recognized, stable international criminal jurisdiction to which resort could be had in a case like Eichmann's. So again in the Eichmann case a choice had to be made among practical alternatives, and it is quite wrong to condemn the procedure proposed by the Government of Israel because it does not accord with a visionary ideal.

"Still," he continues, "there is a question whether Israel has made a reasonably sound choice. One possibility, as Mr. Telford Taylor has suggested, would have been to arraign Eichmann in an Israeli court with full opportunity for the prosecution and the accused to present charges and defenses, and then to remit Eichmann to the United Nations for any further action that body might decide to take. Would that course have led merely to a flasco? It is at least clear that the United Nations did not come forward to claim Eichmann after his capture. Neither did Western Germany. We are entitled to consider these facts in appraising the choice which Israel has actually made.

"In all events the burden now falls on Israel to establish Eichmann's guilt beyond a reasonable doubt and to provide him with a fair chance to make his defense."

A similar argument is enunciated by Hans J. Morgenthau, visiting Professor of Government during the fall term of this year. "The jurisdiction of the Israeli court," Morgenthau writes from Chicago, "cannot be based on any existing rule of international law. Should then the government of Israel have let it go at that, once it had been appraised of Eichmann's where-abouts? This would have meant that Eichmann could have lived in Argentina happily ever after, since no other government has claimed jurisdiction over him."

Morgenthau sees the moral issue revolving around "the enormity of Eichmann's misdeeds" "The crime, being of superhuman proportions," has according to Morgenthau "left far behind the legal remedies known to men." Hence the questionability of the proceedings is again out-weighed by the absence of plausible alternatives. "The choice," Morgenthau goes on, "is between doing nothing, which would be an outrage to our sense of justice, and doing something, admittedly questionable from a legal point of view and unsatisfactory in moral terms." He concedes the possibility of "devising more valid proceedings than those which are now in prospect," although "I would not count an international tribunal among them." But he submits that "what is being done is morally less unsatisfactory than to have done nothing."

This phrasing of the question is disputed by H. Stuart Hughes, Professor of History. Punishment for war crimes, Hughes feels, must be meted out "in the same emotional context as that in which the criminal acts took place"--that is, shortly after the crimes and with all possible speed. A trial 15 years later, Hughes claims, is "pointless." "The rationale for such a trial is not justice, it is punishment. And punishment is a human and understandable motive." But to clothe revenge in the garments of legality is dishonest. "Either real justice, if that had been possible, with scrupulous attention to legal technicalities, or summary human revenge" would have been preferable to Israel's course of action.

More than one adherent of this general argument revealed an implicit assumption in the course of their statements. "All this," as one Faculty member told us, "is a question only because he wasn't silently and anonymously murdered." It would appear that several, at least, would have rested more comfortably with such a falt accompli.

A somewhat sharper note was struck by Werner Baer, Instructor in Economics. Baer, who spent several years in a concentration camp, expresses the same tension between technicality and outrage, but resolves it in favor of outrage. "I realize," he says, "that there are a lot of legal questions. I also realize that a lot of old hates are going to be stirred up by the trial. Maybe it would be better not to stir them up. But somehow my sense of poetic justice is too strong."

Baer's stand is representative of one group of Faculty members who declined to be quoted. Their argument takes into account the identical objections posed by Handlin, Hughes, and McCloskey, but all, with varying degrees of rationality, brush them aside. Some couch their feelings in legal terms. Some do not bother.15H. STUART HUGHES