Eichmann in Jerusalem: Epilogue Summary & Analysis

Arendt explains that the trial’s “irregularities and abnormalities” tended to make people forget “the central moral, political, and even legal problems” it created. Israel pursued “ulterior purposes” to the trial’s singular mission: “to render justice, and nothing else.” The court made this abundantly clear in its judgment. There were three kinds of objections to Eichmann’s trials: first, that (like the defendants at the Nuremberg Trials) “Eichmann was tried under a retroactive law and appeared in the court of the victors”; secondly, that the Jerusalem court was incompetent or Eichmann’s kidnapping illegal; and finally, that Eichmann was guilty not of “crimes against humanity” but merely of “crimes ‘against the Jewish people,’” so the law governing his trial was illegitimate—and he should have faced an international court instead of an Israeli one.

To the first kind of objection, the court responded that the Nuremberg Trials set the only valid precedent to Eichmann’s kind of unprecedented crime. Such laws “had to be” retroactive, but their adequacy was up for debate. Unlike the “crimes against peace” and “war crimes” outlined in the Nuremberg Trials’ Charter—of which the Allies were also guilty—“crimes against humanity” was a truly unprecedented category. While this category erroneously came to include many elements that properly belonged to “war crimes,” its true subject was the Nazis’ “policy of systematic murder to be continued in time of peace.”

At the Nuremberg Trials, the judges were hesitant to convict Nazis of “crimes against humanity,” but reserved the worst punishments for those found guilty of them. And, while many observers celebrated the fact that Eichmann’s trial finally focused on Jewish suffering, this was precisely what had led to the new category of “crimes against humanity” at Nuremberg, and it took center stage in many other Nazi officials’ trials throughout Europe. Since Jews now had a state, however, Arendt thinks it just as appropriate that they try crimes committed intently against the Jewish people as it would be for Poland to try crimes against Polish people. It was also ridiculous to argue that Jewish judges could not be impartial to Eichmann—they may, in the prosecutor’s words, “hate the crime and yet be fair to the criminal.”

The Jerusalem court based its jurisdiction on two irrelevant principles. The first was “passive-personality,” meaning only Israel could speak for Eichmann’s victims. Yet crimes do not primarily violate victims, but rather “the community,” which means the court does not speak for the victims but for “the general public order,” the law itself. The second principle was “universal jurisdiction,” which relies on a false comparison between piracy and “crimes against humanity.” Eichmann committed, and was on trial for, his crimes against Jews. Universal jurisdiction only applies to piracy because it happens on “the high seas,” where no law applies, and positions the criminal “outside all organized communities”—neither of which apply to Eichmann, whose crimes were “committed under a criminal law and by a criminal state.” The Genocide Convention even explicitly rejects the comparison between piracy and genocide.

Israel could have created an international court or tried to redefine territorial jurisdiction in order to claim the right to try Eichmann—but it did neither, for it was remarkably afraid to “break fresh ground and act without precedents.” It could have redefined territory as a cultural and political rather than only geographical concept, but instead spent 53 sections in its judgment listing off various precedents.

Ultimately, Eichmann’s trial was no different than the other trials that were modeled after the Nuremberg Trials and followed the war, except that his kidnapping was “a clear violation of international law.” But there was also no legal way to bring him to justice given Argentina’s laws and persistent refusals to extradite Nazi criminals. And so, in the name of justice, the kidnapping might be defended “as a desperate, unprecedented and no-precedent-setting act.” The Israelis could have killed Eichmann on the spot—in two similar cases, people assassinated genocide perpetrators, presented themselves for trial, and were acquitted after proving their victim’s horrible deeds. But in these cases, unlike in Eichmann’s, the assassins had no recourse besides taking the law into their own hands.

Jews were largely unwilling to see Eichmann’s crime as unprecedented, for they see the Holocaust as another version of “the oldest crime they knew and remembered.” “This misunderstanding,” Arendt argues, is responsible for all the problems with the Eichmann trial. Namely, Jews failed to see the difference between the early forms of discrimination and the ultimate turn to mass murder. The Nuremberg Laws surely violated Jews’ due rights within Germany, but they were not yet a crime in the eyes of the international community. Expulsion, on the other hand, was an international crime because it forced other countries to deal with refugees. Neither was unprecedented.

The unprecedented “crime against humanity” began when the Nazis determined “to make the entire Jewish people disappear from the face of the earth.” This is a “crime ‘against the human status,’ or against the very nature of mankind,” and not merely against other countries. If the court had grasped this fact, then it would have been able to see the attempted extermination of a whole population as “a crime against humanity, perpetrated upon the body of the Jewish people.” While the Jerusalem court could legitimately try Eichmann’s “crimes against the Jewish people,” only an international court could fairly address his “crimes against humanity.”

The philosopher Karl Jaspers called for the court to publically declare this after hearing its evidence, and to show the United Nations that it absolutely needed to create a new “permanent international criminal court.” This could create a counterweight to future genocides; indeed, as Jaspers argued, trying the genocide in a single state “minimized” its horrors and scale. The other (much worse) arguments for an international court met impassioned resistance from Israel, which felt that “for the first time […] Jews were able to sit in judgment on crimes committed against their own people.” Along these lines, Ben-Gurion refused “the protection of an International Court.”

In fact, Israel tried Eichmann under an erroneous law: genocide is not like murder, because in genocide “an altogether different order is broken and an altogether different community is violated.” But Ben-Gurion lashed out against Israel’s critics, and so the Eichmann trial threw away its opportunity to set a valid precedent to fight “the rather uncomfortable but hardly deniable possibility that similar crimes may be committed in the future.” Between the inevitable failure of deterrence and improvements in technology, this possibility “should be enough to make us tremble.” Heretofore unprecedented, genocide can now become a precedent, and the legal community needs to set its own precedent for addressing genocide as a counterweight.

This requires that judges act as legislators, however, and the Eichmann trial’s judges refused to do this just like numerous other Successor trials’ judges before them. The Jerusalem trial was no greater failure than the Nuremberg Trials, but its central failures were threefold. The first was that Jerusalem provided imperfect justice because it tried Eichmann in “the court of the victors.” It failed to admit defense witnesses or neutral countries into the proceedings.

The Jerusalem court’s second failure lay in its shortsighted concept of “crimes against humanity.” It improved significantly on the Nuremberg Charter’s definition of such crimes as “inhuman acts,” in no meaningful way different from war crimes, because it finally focused on the Nazis’ attempts to destroy the Jewish people as a whole. But it did not understand this as a crime against the entirety of humankind.

The court’s third failure was its inability to conceptualize the new kind of criminal who committed these “crimes against humanity.” While it would have been comfortable to think Eichmann “the most abnormal monster the world had ever seen,” like the prosecution portrayed him, in fact he and most of the other Nazi criminals were “terribly and terrifyingly normal,” simply unable to “know or feel that he [was] doing wrong.” This crushes the conventional assumption that a crime requires the “intent to do wrong.” Rather, jurisprudence must return to the ostensibly “barbaric,” “long-forgotten” notion that Eichmann was a criminal simply because he violated the moral order of the world; he openly tried “to eliminate forever certain ‘races’ from the surface of the earth,” and so in turn “he had to be eliminated.”

In closing, Arendt suggests what justice would have required the judges to have said to Eichmann: that he admitted his participation in “the greatest crime in recorded history” and that, even if he had no “base motives” and merely fell into his role by accident, his guilt has nothing to do with those of his co-conspirators or countrymen, but merely comes from the actual matter of fact that he “carried out, and therefore actively supported, a policy of mass murder.” Because he refused to “share the earth with the Jewish people and the people of a number of other nations,” she declares, “no one […] can be expected to want to share the earth” with Eichmann, and so he must hang.