Martin Buber called the execution a “mistake of historical dimensions,” as it might “serve to expiate the guilt felt by many young persons in Germany”—an argument that oddly echoed Eichmann's own ideas on the matter, though Buber hardly knew that he had wanted to hang himself in public in order to lift the burden of guilt from the shoulders of German youngsters. (It is strange that Buber, a man not only of eminence but of very great intelligence, should not see how spurious these much publicized guilt feelings necessarily are. It is quite gratifying to feel guilty if you haven't done anything wrong: how noble! Whereas it is rather hard and certainly depressing to admit guilt and to repent. The youth of Germany is surrounded, on all sides and in all walks of life, by men in positions of authority and in public office who are very guilty indeed but who feel nothing of the sort. The normal reaction to this state of affairs should be indignation, but indignation would be quite risky—not a danger to life and limb but definitely a handicap in a career. Those young German men and women who every once in a while—on the occasion of all the Diary of Anne Frank hubbub and of the Eichmann trial—treat us to hysterical outbreaks of guilt feelings are not staggering under the burden of the past, their fathers' guilt; rather, they are trying to escape from the pressure of very present and actual problems into a cheap sentimentality.) Professor Buber went on to say that he felt “no pity at all” for Eichmann, because he could feel pity “only for those whose actions I understand in my heart,” and he stressed what he had said many years ago in Germany that he had “only in a formal sense a common humanity with those who took part” in the acts of the Third Reich. This lofty attitude was, of course, more of a luxury than those who had to try Eichmann could afford, since the law presupposes precisely that we have a common humanity with those whom we accuse and judge and condemn. As far as I know, Buber was the only philosopher to go on public record on the subject of Eichmann's execution (shortly before the trial started, Karl Jaspers had given a radio interview in Basel, later published in Der Monat, in which he argued the case for an international tribunal); it was disappointing to find him dodging, on the highest possible level, the very problem Eichmann and his deeds had posed.
Least of all was heard from those who were against the death penalty on principle, unconditionally; their arguments would have remained valid, since they would not have needed to specify them for this particular case. They seem to have felt— rightly, I think—that this was not a very promising case on which to fight.
Adolf Eichmann went to the gallows with great dignity. He had asked for a bottle of red wine and had drunk half of it. He refused the help of the Protestant minister, the Reverend William Hull, who offered to read the Bible with him: he had only two more hours to live, and therefore no “time to waste.” He walked the fifty yards from his cell to the execution chamber calm and erect, with his hands bound behind him. When the guards tied his ankles and knees, he asked them to loosen the bonds so that he could stand straight. “I don't need that,” he said when the black hood was offered him. He was in complete command of himself, nay, he was more: he was completely himself. Nothing could have demonstrated this more convincingly than the grotesque silliness of his last words. He began by stating emphatically that he was a Gottgläubiger, to express in common Nazi fashion that he was no Christian and did not believe in life after death. He then proceeded: “After a short while, gentlemen, we shall all meet again. Such is the fate of all men. Long live Germany, long live Argentina, long live Austria. I shall not forget them.” In the face of death, he had found the cliché used in funeral oratory. Under the gallows, his memory played him the last trick; he was “elated” and he forgot that this was his own funeral.
It was as though in those last minutes he was summing up the lesson that this long course in human wickedness had taught us—the lesson of the fearsome, word-and-thought-defying banality of evil.
Epilogue
The irregularities and abnormalities of the trial in Jerusalem were so many, so varied, and of such legal complexity that they overshadowed during the trial, as they have in the surprisingly small amount of post-trial literature, the central moral, political, and even legal problems that the trial inevitably posed. Israel herself, through the pre-trial statements of Prime Minister Ben-Gurion and through the way the accusation was framed by the prosecutor, confused the issues further by listing a great number of purposes the trial was supposed to achieve, all of which were ulterior purposes with respect to the law and to courtroom procedure. The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes—“the making of a record of the Hitler regime which would withstand the test of history,” as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials—can only detract from the law's main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.
The judgment in the Eichmann case, whose first two sections were written in reply to the higher-purpose theory as it was expounded both inside and outside the courtroom, could not have been clearer in this respect and more to the point: All attempts to widen the range of the trial had to be resisted, because the court could not “allow itself to be enticed into provinces which are outside its sphere…. the judicial process has ways of its own, which are laid down by law, and which do not change, whatever the subject of the trial may be.” The court, moreover, could not overstep these limits without ending “in complete failure.” Not only does it not have at its disposal “the tools required for the investigation of general questions,” it speaks with an authority whose very weight depends upon its limitation. “No one has made us judges” of matters outside the realm of law, and “no greater weight is to be attached to our opinion on them than to that of any person devoting study and thought” to them. Hence, to the question most commonly asked about the Eichmann triaclass="underline" What good does it do?, there is but one possible answer: It will do justice.
The objections raised against the Eichmann trial were of three kinds. First, there were those objections that had been raised against the Nuremberg Trials and were now repeated: Eichmann was tried under a retroactive law and appeared in the court of the victors. Second, there were those objections that applied only to the Jerusalem court, in that they questioned either its competence as such or its failure to take into account the act of kidnaping. And, finally, and most important, there were objections to the charge itself, that Eichmann had committed crimes “against the Jewish people,” instead of “against humanity,” and hence to the law under which he was tried; and this objection led to the logical conclusion that the only proper court to try these crimes was an international tribunal.
The court's reply to the first set of objections was simple: the Nuremberg Trials were cited in Jerusalem as valid precedent, and, acting under municipal law, the judges could hardly have done otherwise, since the Nazis and Nazi Collaborators (Punishment) Law of 1950 was itself based on this precedent. “This particular legislation,” the judgment pointed out, “is totally different from any other legislation usual in criminal codes,” and the reason for its difference lies in the nature of the crimes it deals with. Its retroactivity, one may add, violates only formally, not substantially, the principle nullum crimen, nulla poena sine lege, since this applies meaningfully only to acts known to the legislator; if a crime unknown before, such as genocide, suddenly makes its appearance, justice itself demands a judgment according to a new law; in the case of Nuremberg, this new law was the Charter (the London Agreement of 1945), in the case of Israel, it was the Law of 1950. The question is not whether these laws were retroactive, which, of course, they had to be, but whether they were adequate, that is, whether they applied only to crimes previously unknown. This prerequisite for retroactive legislation had been seriously marred in the Charter that provided for the establishment of the International Military Tribunal at Nuremberg, and it may be for this reason that the discussion of these matters has remained somewhat confused.