There is another, more delicate, and politically more relevant, side to this matter. It is one thing to ferret out criminals and murderers from their hiding places, and it is another thing to find them prominent and flourishing in the public realm—to encounter innumerable men in the federal and state administrations and, generally, in public office whose careers had bloomed under the Hitler regime. True, if the Adenauer administration had been too sensitive about employing officials with a compromising Nazi past, there might have been no administration at all. For the truth is, of course, the exact opposite of Dr. Adenauer's assertion that only “a relatively small percentage” of Germans had been Nazis, and that a “great majority [had been] happy to help their Jewish fellow-citizens when they could.” (At least one German newspaper, the Frankfurter Rundschau, asked itself the obvious question, long overdue—why so many people who must have known, for instance, the record of the chief prosecutor had kept silent—and then came up with the even more obvious answer: “Because they themselves) The logic of the Eichmann trial, as Ben-Gurion conceived of it, with its stress on general issues to the detriment of legal niceties, would have demanded exposure of the complicity of all German offices and authorities in the Final Solution—of all civil servants in the state ministries, of the regular armed forces, with their General Staff, of the judiciary, and of the business world. But although the prosecution as conducted by Mr. Hausner went as far afield as to put witness after witness on the stand who testified to things that, while gruesome and true enough, had no or only the slightest connection with the deeds of the accused, it carefully avoided touching upon this highly explosive matter—upon the almost ubiquitous complicity, which had stretched far beyond the ranks of Party membership. (There were widespread rumors prior to the trial that Eichmann had named “several hundred prominent personalities of the Federal Republic as his accomplices,” but these rumors were not true. In his opening speech, Mr. Hausner mentioned Eichmann's “accomplices in the crime who were neither gangsters nor men of the underworld,” and promised that we should “encounter them—doctors and lawyers, scholars, bankers, and economists—in those councils that resolved to exterminate the Jews.” This promise was not kept, nor could it have been kept in the form in which it was made. For there never existed a “council that resolved” anything, and the “robed dignitaries with academic degrees” never decided on the extermination of the Jews, they only came together to plan the necessary steps in carrying out an order given by Hitler.) Still, one such case was brought to the attention of the court, that of Dr. Hans Globke, one of Adenauer's closest advisers, who, more than twenty-five years ago, was co-author of an infamous commentary on the Nuremberg Laws and, somewhat later, author of the brilliant idea of compelling all German Jews to take “Israel” or “Sarah” as a middle name. But Mr. Globke's name—and only his name—was inserted into the District Court proceedings by the defense, and probably only in the hope of “persuading” the Adenauer government to start extradition proceedings. At any rate, the former Ministerialrat of the Interior and present Staatssekretär in Adenauer's Chancellery doubtless had more right than the ex-Mufti of Jerusalem to figure in the history of what the Jews had actually suffered from the Nazis.
For it was history that, as far as the prosecution was concerned, stood in the center of the trial. “It is not an individual that is in the dock at this historic trial, and not the Nazi regime alone, but anti-Semitism throughout history.” This was the tone set by Ben-Gurion and faithfully followed by Mr. Hausner, who began his opening address (which lasted through three sessions) with Pharaoh in Egypt and Haman's decree “to destroy, to slay, and to cause them to perish.” He then proceeded to quote Ezekieclass="underline" “And when I [the Lord] passed by thee, and saw thee polluted in thine own blood, I said unto thee: In thy blood, live,” explaining that these words must be understood as “the imperative that has confronted this nation ever since its first appearance on the stage of history.” It was bad history and cheap rhetoric; worse, it was clearly at cross-purposes with putting Eichmann on trial, suggesting that perhaps he was only an innocent executor of some mysteriously foreordained destiny, or, for that matter, even of anti-Semitism, which perhaps was necessary to blaze the trail of “the bloodstained road traveled by this people” to fulfill its destiny. A few sessions later, when Professor Salo W. Baron of Columbia University had testified to the more recent history of Eastern European Jewry, Dr. Servatius could no longer resist temptation and asked the obvious questions: “Why did all this bad luck fall upon the Jewish people?” and “Don't you think that irrational motives are at the basis of the fate of this people? Beyond the understanding of a human being?” Is not there perhaps something like “the spirit of history, which brings history forward… without the influence of men?” Is not Mr. Hausner basically in agreement with “the school of historical law”—an allusion to Hegel—and has he not shown that what “the leaders do will not always lead to the aim and destination they wanted?… Here the intention was to destroy the Jewish people and the objective was not reached and a new flourishing State came into being.” The argument of the defense had now come perilously close to the newest anti-Semitic notion about the Elders of Zion, set forth in all seriousness a few weeks earlier in the Egyptian National Assembly by Deputy Foreign Minister Hussain Zulficar Sabri: Hitler was innocent of the slaughter of the Jews; he was a victim of the Zionists, who had “compelled him to perpetrate crimes that would eventually enable them to achieve their aim—the creation of the State of Israel.” Except that Dr. Servatius, following the philosophy of history expounded by the prosecutor, had put History in the place usually reserved for the Elders of Zion.
Despite the intentions of Ben-Gurion and all the efforts of the prosecution, there remained an individual in the dock, a person of flesh and blood; and if Ben-Gurion did “not care what verdict is delivered against Eichmann,” it was undeniably the sole task of the Jerusalem court to deliver one.
II: The Accused
Otto Adolf, son of Karl Adolf Eichmann and Maria née Schefferling, caught in a suburb of Buenos Aires on the evening of May 11, 1960, flown to Israel nine days later, brought to trial in the District Court in Jerusalem on April 11, 1961, stood accused on fifteen counts: “together with others” he had committed crimes against the Jewish people, crimes against humanity, and war crimes during the whole period of the Nazi regime and especially during the period of the Second World War. The Nazis and Nazi Collaborators (Punishment) Law of 1950, under which he was tried, provides that “a person who has committed one of these… offenses… is liable to the death penalty.” To each count Eichmann pleaded: “Not guilty in the sense of the indictment.”
In what sense then did he think he was guilty? In the long cross-examination of the accused, according to him “the longest ever known,” neither the defense nor the prosecution nor, finally, any of the three judges ever bothered to ask him this obvious question. His lawyer, Robert Servatius of Cologne, hired by Eichmann and paid by the Israeli government (following the precedent set at the Nuremberg Trials, where all attorneys for the defense were paid by the Tribunal of the victorious powers), answered the question in a press interview: “Eichmann feels guilty before God, not before the law,” but this answer remained without confirmation from the accused himself. The defense would apparently have preferred him to plead not guilty on the grounds that under the then existing Nazi legal system he had not done anything wrong, that what he was accused of were not crimes but “acts of state,” over which no other state has jurisdiction (par in parem imperium non habet), that it had been his duty to obey and that, in Servatius' words, he had committed acts “for which you are decorated if you win and go to the gallows if you lose.” (Thus Goebbels had declared in 1943: “We will go down in history as the greatest statesmen of all times or as their greatest criminals.”) Outside Israel (at a meeting of the Catholic Academy in Bavaria, devoted to what the Rheinischer Merkur called “the ticklish problem” of the “possibilities and limits in the coping with historical and political guilt through criminal proceedings”), Servatius went a step farther, and declared that “the only legitimate criminal problem of the Eichmann trial lies in pronouncing judgment against his Israeli captors, which so far has not been done”—a statement, incidentally, that is somewhat difficult to reconcile with his repeated and widely publicized utterances in Israel, in which he called the conduct of the trial “a great, spiritual achievement,” comparing it favorably with the Nuremberg Trials.