Fifty years after: a critical look at the Eichmann trial.

• Author: Birn, Ruth Bettina
• Position: International Law in Crisis

The Prosecution in the Eichmann trial exaggerated Eichmann's role in the Holocaust, due to political considerations and ignorance. New information, including the reports of a trial observer, a German prosecutor experienced in Nazi crimes, helps to establish the level of knowledge available in 1961. Placed into the context of investigation files dealing with the most important Holocaust related crimes up to 1961, an in-depth assessment of the extent to which the prosecution's case against Eichmann reflected the historical facts is possible. Hannah Arendt and other commentators' assertion, that the Eichmann trial was instrumental in starting a wave of prosecutions of Nazi crimes in Germany, can now be shown to be unfounded. A close look at the Prosecution's evidence demonstrates the problems associated with the utilization of post-war affidavits of Nazi perpetrators and the selective use of survivor testimony. This makes the didactic significance doubtful, with recent commentators attributed to the case.

1. A VIEW ON THE PAST FROM THE PRESENT II. THE POLITICAL FACTOR III. THE EICHMANN TRIAL IN THE NAZI PROSECUTION FRAMEWORK OF 1961 A. Zeug's Reports IV. WAS ZEUG'S CRITICISM JUSTIFIED? V. THE CRIMES EICHMANN COMMITTED AND THOSE HE DID NOT COMMIT A. "Aktion Reinhardt" B. Sonderkommmando 1005 C. Mobile Killing Units (Einsatzgruppen) VI. CRITICISM AND APPLAUSE A. Legal Considerations B. Empowerment of Victims? C. On Show Trials and Narratives I. A VIEW ON THE PAST FROM THE PRESENT

   At the time of a major anniversary--a half century--we do not only look back at the past event, but also measure the distance between then and now. What has happened in between? Has our knowledge increased? Has our view of the past changed?

   Concerning the Eichmann trial, recently discovered Israeli archival findings provide an in-depth view on the political background of the case. Likewise, the reports of a trial observer, a prosecutor experienced in the investigation of Holocaust crimes, now help us to assess whether the case against Eichmann correctly reflected the level of knowledge about Nazi crimes available in 1961. These two sources can assist us in taking a critical look at opinions about the Eichmann trial voiced in the literature in the last fifteen years. Was the trial instrumental in empowering Holocaust survivors by giving them a voice? Is the didactic result, the narrative generated, equally or more important than the strict observation of the rule of law?

2. THE POLITICAL FACTOR

   The findings of Israeli historians add a new dimension to our knowledge of the political background of the Eichmann trial. (1) David Ben-Gurion, then Prime Minister of Israel and a towering figure in Israeli politics, set the tone when he announced Adolf Eichmann's capture to the Knesset on May 23, 1960, calling Eichmann "the greatest war criminal of all time." (2) The trial was meant to remind the world that "the Holocaust obligated them to support the only Jewish state on earth;" (3) to establish the Holocaust as a unique historical event; to educate the younger generation in Israel about the past; to strengthen the Zionist narrative; and to create a link between the Arabs and the Holocaust. "The 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." (4) Consequently, Ben-Gurion attacked critics who argued that Eichmann should be tried by an international court as anti-Semites or Jews with an inferiority complex. (5) The Israeli government invested a lot to give the trial as much media prominence as possible. (6) A specific view on history--"The subject of the trial was Jewish suffering: the Jewish nation was presented as a constant victim throughout history" (7)--was clear not only from Ben-Gurion's statements, but also from the language used throughout the trial by Attorney General and chief prosecutor Gideon Hausner. Several contemporaneous observers have commented on that. (8)

   What had not been known was the extent of political interference, and how accommodating the prosecution had been. (9) For example, Ben-Gurion vetted Hausner's opening speech and influenced the report of the historical expert Salo Baron. (10) Foreign Minister Golda Meir wanted prominent mentioning of the former Mufti of Jerusalem, Al-Husseini, in order to create a link between the Nazis and the Arab national movement. (11) Several countries had specific wishes how the past should be presented. (12) Politics, presumably even to the level of party politics, played a role in the selection of witnesses. In the mid-fifties another Holocaust-related trial, the Rudolf Kasztner trial, had had negative political repercussions for Ben-Gurion's party. According to historian Tom Segev, the party wanted "to reassert its control over the heritage of the Holocaust." (13)

   Records declassified after the political changes in Communist countries allow insight in their concerted efforts to utilize the Eichmann trial for an attack on the capitalist West, embodied by the Federal Republic of Germany. The direct target was Hans Globke, who was considered Chancellor Konrad Adenauer's right-hand man. The aim was to implicate Globke in the Holocaust and make him appear a collaborator of Eichmann. (14) While the campaign itself is well-known, newly available records of GDR authorities now provide more detail. (15) They show widespread cooperation among politicians and secret services in various Communist countries and the utilization of publicists and historians, some of them linked to the Eichmann trial. (16) The Federal Republic, in turn, launched a countercampaign to limit the political fallout of the trial. Apart from making information about Germany's efforts to bring Nazi perpetrators to justice publicly available, the Foreign Minister sent a diplomatic delegation to Jerusalem, and German Justice authorities sent Dietrich Zeug, a prosecutor specialized in Nazi crimes. His reports have only recently been declassified, and we will come back to them in the following.

   The political aims sketched out above were completely different. Israel wanted to create a full narrative of the Holocaust, suitable to the interests of the state and to Zionism. The Communist countries wanted to delegitimize the West. The Federal Republic wanted to distance itself from the Nazi past. What they all had in common is the wish to create a politically usable image of the past.

3. THE EICHMANN TRIAL IN THE NAZI PROSECUTION FRAMEWORK OF 1961

   The Eichmann trial was not the only trial in this period dealing with Nazi perpetrators. Apart from the Kasztner trial in the mid-fifties in Israel, several European countries dealt with Nazi crimes on an ongoing basis. The Soviet Union launched a new series of show trials in 1961 and 1962. The Federal Republic of Germany was particularly active with investigations. (17) A 1958 trial concerning the Holocaust in the German-Lithuanian border region led to the realization that crimes committed in Eastern Europe had not been sufficiently investigated. This led, in turn, to the creation of the "Central Agency for the Investigation of Nazi Crimes" (Zentrale Stelle der Landesjustizverwaltungen) which was charged with systematic investigations of Nazi crimes before the statute of limitations set in. (18) Its creation was, of course, highly contested, as a large part of the German population did not want a continuation of Nazi trials. (19) Parts of the legal system shared this negative attitude. Those who chose to involve themselves in the prosecution of Nazi crimes did so out of moral conviction, not careerism.

   In the following, we will situate the case against Adolf Eichmann in the contemporaneous framework and evaluate it using the level of information about Nazi crimes and the Holocaust available at the time. (20) How to measure what was known? The reports by Dietrich Zeug, a specialist on Nazi prosecutions who was present at the Eichmann trial in Jerusalem for the full length of the hearing (apart from the sentencing), can serve as a conduit to help us measure what was known. From April to August 1961 he wrote twenty-nine reports to his superiors at the Central Agency and the prosecution office (Staatsanwaltschaft) in Frankfurt, Main. (21) Zeug was also in contact with Fritz Bauer, the Attorney General (Generalstaatsanwalt) of the Province of Hessen in Frankfurt, a man very dedicated to the prosecution of Nazi crimes who had played a crucial role in the identification and capture of Eichmann in Argentina. (22)

   Zeug had joined the Central Agency in May of 1959, a few months after its foundation. (23) His responsibilities included investigations of crimes committed in the District of Lublin, located in the part of occupied Poland called "Generalgouvernement." The SS and Police Leader in Lublin had directed a major mass-murder operation, code-named "Aktion Reinhardt," during which between one and a half to two million Jewish victims were gassed in the Belzec, Sobibor and Treblinka death camps. (24) Zeug's case files reveal an active and determined prosecutor. After he had opened an investigation on Treblinka on July 9, 1959, the deputy commander of the camp was soon identified and then arrested on December 2, 1959. (25) Zeug was sent to Jerusalem because of his extensive knowledge of the subject matter of the trial. (26)

   1. Zeug's Reports

   Zeug was commissioned to follow the Eichmann trial and collect as much information as possible that might be beneficial to German cases, not only for those of the Central Agency, but also of other attorneys' offices. In addition, he was to strengthen relations with a specialized Israeli Police unit and with Yad Vashem archives, with which the German authorities were cooperating closely. (27) He also planned to interrogate Eichmann following the trial. Zeug's first impressions were very positive, and he commented on how well he...