Actually, the judges were faced with a highly unpleasant dilemma. At the very beginning of the trial, Dr. Servatius had impugned the impartiality of the judges; no Jew, in his opinion, was qualified to sit in judgment on the implementers of the Final Solution, and the presiding judge had replied: “We are professional judges, used and accustomed to weighing evidence brought before us and to doing our work in the public eye and subject to public criticism…. When a court sits in judgment, the judges who compose it are human beings, are flesh and blood, with feelings and senses, but they are obliged by the law to restrain those feelings and senses. Otherwise, no judge could ever be found to try a criminal case where his abhorrence might be aroused…. It cannot be denied that the memory of the Nazi holocaust stirs every Jew, but while this case is being tried before us it will be our duty to restrain these feelings, and this duty we shall honor.” Which was good and fair enough, unless Dr. Servatius meant to imply that Jews might lack a proper understanding of the problem their presence caused in the midst of the nations of the world, and hence would fail to appreciate a “final solution” of it. But the irony of the situation was that in case he had felt inclined to make this argument, he could have been answered that the accused, according to his own, emphatically repeated testimony, had learned all he knew about the Jewish question from Jewish-Zionist authors, from the “basic books” of Theodor Herzl and Adolf Böhm. Who, then, could be better qualified to try him than these three men, who had all been Zionists since their early youth?
It was not with respect to the accused, then, but with respect to the background witnesses that the fact of the Jewishness of the judges, of their living in a country where every fifth person was a survivor, became acute and troublesome. Mr. Hausner had gathered together a “tragic multitude” of sufferers, each of them eager not to miss this unique opportunity, each of them convinced of his right to his day in court. The judges might, and did, quarrel with the prosecutor about the wisdom and even the appropriateness of using the occasion for “painting general pictures,” but once a witness had taken the stand, it was difficult indeed to interrupt him, to cut short such testimony, “because of the honor of the witness and because of the matters about which he speaks,” as Judge Landau put it. Who were they, humanly speaking, to deny any of these people their day in court? And who would have dared, humanly speaking, to question their veracity as to detail when they “poured out their hearts as they stood in the witness box,” even though what they had to tell could only “be regarded as by-products of the trial”?
There was an additional difficulty. In Israel, as in most other countries, a person appearing in court is deemed innocent until proved guilty. But in the case of Eichmann this was an obvious fiction. If he had not been found guilty before he appeared in Jerusalem, guilty beyond any reasonable doubt, the Israelis would never have dared, or wanted, to kidnap him; Prime Minister BenGurion, explaining to the President of Argentina, in a letter dated June 3, 1960, why Israel had committed a “formal violation of Argentine law,” wrote that “it was Eichmann who organized the mass murder [of six million of our people], on a the mass murder [of six million of our people], on a gigantic and unprecedented scale, throughout Europe.” In contrast to normal arrests in ordinary criminal cases, where suspicion of guilt must be proved to be substantial and reasonable but not beyond reasonable doubt—that is the task of the ensuing trial—Eichmann's illegal arrest could be justified, and was justified in the eyes of the world, only by the fact that the outcome of the trial could be safely anticipated. His role in the Final Solution, it now turned out, had been wildly exaggerated —partly because of his own boasting, partly because the defendants at Nuremberg and in other postwar trials had tried to exculpate themselves at his expense, and chiefly because he had been in close contact with Jewish functionaries, since he was the one German official who was an “expert in Jewish affairs” and in nothing else. The prosecution, basing its case upon sufferings that were not a bit exaggerated, had exaggerated the exaggeration beyond rhyme or reason—or so one thought until the judgment of the Court of Appeal was handed down, in which one could read: “It was a fact that the appellant had received no ‘superior orders’ at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs.” That had been precisely the argument of the prosecution, which the judges in the District Court had not accepted, but, dangerous nonsense though it was, the Court of Appeal fully endorsed it. (It was supported chiefly by the testimony of Justice Michael A. Musmanno, author of Ten Days to Die [1950], and a former judge at Nuremberg, who had come from America to testify for the prosecution. Mr. Musmanno had sat on the trials of the administrators of the concentration camps, and of the members of the mobile killing units in the East; and while Eichmann's name had come up in the proceedings, he had mentioned it only once in his judgments. He had, however, interviewed the Nuremberg defendants in their prison. And there Ribbentrop had told him that Hitler would have been all right if he had not fallen under Eichmann's influence. Well, Mr. Musmanno did not believe all he was told, but he did believe that Eichmann had been given his commission by Hitler himself and that his power “came by speaking through Himmler and through Heydrich.” A few sessions later, Mr. Gustave M. Gilbert, professor of psychology at Long Island University and author of Nuremberg Diary [1947], appeared as a witness for the prosecution. He was more cautious than Justice Musmanno, whom he had introduced to the defendants at Nuremberg. Gilbert testified that “Eichmann… wasn't thought of very much by the major Nazi war criminals… at that time,” and also that Eichmann, whom they both assumed dead, had not been mentioned in discussions of the war crimes between Gilbert and Musmanno.) The District Court judges, then, because they saw through the exaggerations of the prosecution and had no wish to make Eichmann the superior of Himmler and the inspirer of Hitler, were put in the position of having to defend the accused. The task, apart from its un-pleasantness, was of no consequence for either judgment or sentence, as “the legal and moral responsibility of him who de-livers the victim to his death is, in our opinion, no smaller and may even be greater than the liability of him who does the victim to death.”