The case of a Nazi war criminal

The trial of Adolf Eichmann by a court in Israel has given rise to many controversies. And a book which is written on that trial has earned even more controversy. The trial is over but the book is still there with the meticulous and somewhat personal account of that trial which keeps on causing a hullabaloo even today.
Moral or legal, legal or philosophical, psychological or perfunctory, hatred or indifference --- these are some of the major contentions raised by the book. The author, Hannah Arendt, was a journalist cum political theorist and not a lawyer. Although her accounts of the trial were meant to be objective reports prepared for a newspaper, the moment she started thinking outside the court and looked at history, her account became subjective and opinionative. And it was her opinions that gave rise to serious criticisms and controversies.
Hannah Arendt was a journalist for The New Yorker when she observed the Eichmann trial in Israel in 1961. The book is based on a series of articles that she wrote and sent for the newspaper from the 'House of Justice' in Israel where the trial had taken place. Her articles used to be published with the common heading of 'A reporter at large'. Adolf Eichmann, the accused, was born in 1906, and after early failures in school and difficulties in getting a job he joined the NSDAP and the SS out of his ambition to enter a career in 1932. He organized the Jewish emigration from Germany, and after the "Final Solution" was ordered by Hitler, he  as an "expert on the Jewish Question"  became the chief organizer of the transportation of Jews to the gas chambers. After the war Eichmann disappeared, moving to Argentina, from where he was kidnapped by the Israel secret service and brought to Jerusalem in order to be put on trial in 1960. Modeled after the Nuremberg trials, the tribunal organized in Jerusalem charged Eichmann with "crimes against humanity" for coordinating the logistics that transported millions of Jews to their deaths. The trial began in April 1961 and ended with Eichmann being sentenced to death. And his death sentence was executed in May 1962.
The very first controversy comes with the name of the book. The phrase that the writer uses, 'the banality of evil', has been criticized and challenged by many.
By 'banality of evil', she means that the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths, but by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal. Explaining this phenomenon, Edward S. Herman has emphasized the importance of "normalizing the unthinkable."
The book is ordered chronologically. The book generally deals with three broad aspects, the trial itself, Eichmann as a person, and the treatment of Jews. The latter is the biggest section and describes the three "solutions" of expulsion, concentration and killing through German authorities, and the deportations to the killing centers in the east. This part of the book caused a controversy over the compliance of Judenrat officials. Arendt's conclusion is that without this collaboration, many lives could have been saved. So in plain words she not only sees Eichmann as normal as any other common man but also points her finger at the Jewish leadership for the massacre that Jews has suffered.  Naturally, many people did not appreciate her argument and questioned her own identity as a Jew.
But the most mind boggling parts of the book are those where she portrays Eichmann as a person. The author did not try to psychologically analyze his personality. She relied on the testimony and evidence produced before the court and investigation done by the court itself. She heavily relied on the statement made by the psychologist who examined Eichmann and declared him 'quite normal' and even normal than the psychologist himself was after examining Eichmann. But she completely forgot that the examination took place some good fifteen years after the gruesome crimes that he had committed. It is understandable that one can get back to normalcy even after a week of committing a heinous crime. But Eichmann did confess that he also experienced sleeplessness and nightmares after having seen those atrocities with his own eyes.
She argues that this point is enough to reveal the image of an unexceptional, simple-minded man. Eichmann willingly participated in the extermination of millions, and even at his trial, Eichmann showed no remorse and his principal regret was that his career had not advanced further within the Third Reich. Adolf Eichmann was no fanatic visionary. He was a small man, following his duties and proud of himself as a law-abiding citizen. These facts convinced Arendt that Eichmann embodied the "banality of evil".
Her book repeatedly argues that Adolf Eichmann was an ordinary man without personal hatred of Jews, and he became one of the chief functionaries in the organization of the Holocaust by dint of his careerist motivation. He was a component in the system, maybe one of the biggest components, but still an example for the bureaucratic nature of the Holocaust.
Beyond her discussion of Eichmann himself, Arendt discusses several legal aspects of the trial, its context. Although she does not disagree with the court's rulings, she points out that
·    Eichmann was kidnapped by Israeli agents in Argentina and transported to Israel, an illegal act. Argentina did not have appropriate extradition laws for former Nazi officials to Jerusalem and Germany would not have taken him. Thus, Israeli officials illegally grabbed Adolf Eichmann and forcibly brought him to trial in Jerusalem.
·    He was tried in Israel even though he was not accused of committing any crimes there.
·    The prosecution and defense did not have equal access to resources. The prosecution had more lawyers and was able to utilize documents the defense did not always have access to.
·    Arendt describes his trial as a show trial arranged and managed by Prime Minister Ben-Gurion, and says that Ben-Gurion wanted, for several political reasons, to emphasize not primarily what Eichmann had done, but what the Jews had suffered during the Holocaust.
·    She points out that the war criminals tried at Nuremberg were "indicted for crimes against the members of various nations," without special reference to the Nazi genocide against the Jews.
·    The decision of the court can hardly be impartial where all the judges are Jews and citizens of Israel; a Jewish state is conducting the trial.
·    The evidence brought forth by the prosecution does not necessarily have relevance to Eichmann's actions. Such evidence was presented most likely in order to provoke emotion than to indicate Eichmann's culpability in the crimes against the Jewish people.
On these legal issues Arendt tends to support defence lawyer Robert Servatius, a prominent lawyer at the time and has gained a reputation by representing the accused at the Nuremburg trials. Though these arguments are successfully rebutted by the prosecution, they can hardly satisfy the author.
The author has some problem with the foundation of modern criminal jurisprudence when she starts to take the actual legal problem of the Eichmann trial seriously. The challenge that the Israeli Court faced was to judge whether Eichmann, who admitted to his role in the administrative massacres of the Holocaust, had violated any laws. Eichmann was charged in Israel on 15 counts, of which 12 concerned his activities. Four of these 12 addressed his crimes against the Jewish people and eight concerned "crimes against humanity." In law, each one of these crimes requires a certain amount of mens rea, a state of guilty mind or intent. In other words, the law required that Eichmann intended to cause the "killing of millions of Jews" (count 1) and non-Jews (count 5); that he intended to place "millions of Jews under conditions which were likely to lead to their physical destruction" (count 2); that he sought to cause them "serious bodily and mental harm" (cause 3); that he directed "that births be banned and pregnancies interrupted among Jewish women" (count 4); that he knowingly or recklessly "persecuted Jews on racial, religious, and political grounds" (count 6) and intentionally engaged in the "plunder of property linked with the murder of these Jews (count 7) and other war crimes (count 8); that he intentionally expelled "hundreds of thousands of Poles from their homes" (count 9), "fourteen thousand Slovenes" from Yugoslavia (count 10); that he was intentionally responsible for the deportation of Gypsies to Auschwitz (count 11), and the deportation of 93 children from Lidice, a Czech village (count 12). Of this last charge he was partially exonerated.
Arendt argues that the Israeli court rightly judged that Eichmann did not actually possess the requisite mens rea for these crimes to justify a guilty verdict, at least under traditional criminal law concepts. The judgment by the Israeli court accepted Eichmann's own legal analysis, that he was "guilty only of 'aiding and abetting' in the commission of the crimes with which he was charged, that he himself had never committed an overt act." In the court's words, Eichmann was guilty of aiding and abetting genocide.
It is crucial to recognize that both Arendt and the Israeli court concluded that the evidence did not support a finding that Eichmann had the mens rea needed to find him guilty of crimes against the Jewish people or crimes against humanity. And yet both Arendt and the Israeli court knew that Eichmann was guilty and that they needed to figure out a way around the traditional mens rea requirement.
The Israeli court's interpretation of mens rea is simply to say that in cases of bureaucratic crime and administrative massacres, those most guilty are those who are furthest from the doings of the actual deeds. Today we know and talk about command and superior responsibility but at that point of time this concept of command responsibility was not a well recognized concept. "In such an enormous and complicated crime as the one we are now considering," the court writes, wherein many people participated, on various levels and in various modes of activity--the planners, the organizers, and those executing the deeds, according to their various ranks--there is not much point in using ordinary concepts of counseling and soliciting to commit a crime. For these crimes were committed en masse, not only in regard to the number of victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals was close to or remote from the actual killer of the victim means nothing, as far as the measure of his responsibility is concerned. On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands. Finally, the Israeli court gave an explanation for finding Eichmann guilty in spite of his lack of mens rea. But still, Arendt does not think that the court's reasoning is sufficient.
Till the end of her book, Arendt has her conviction that in Eichmann profound guilt was not of the kind recognized by our "civilized jurisprudence" which maintains that guilt be accompanied by intent to do wrong.

Abdullah Al Arif is a student at South Asian University (SAARC University), New Delhi.