Arendt, Jaspers, Eichmann, and ex-post-facto law

By Lawrence Helm

           When one considers the Eichmann case, one is faced with the fact that Eichmann was being tried by a nation that didn't exist at the time he committed the "crimes" he was being charged with.  Beyond that, the laws defining those crimes were established by this nation that didn't exist (when he committed them) in 1950, at least five years after Eichmann committed them.  The trial itself commenced in 1961, at least 16 years after Eichmann committed them.

            On page 269 of Eichmann in Jerusalem, Arendt writes, "Jaspers proposed that the court in Jerusalem, after hearing the factual evidence, 'waive' the right to pass sentence, declaring itself 'incompetent' to do so, because the legal nature of the crime in question was still open to dispute, as was the subsequent question of who would be competent to pass sentence on a crime which had been committed on government orders.  Jaspers stated further that one thing alone was certain: 'This crime is both more and less than common murder,'  and though it was not a 'war crime,' either, there was no doubt that 'mankind would certainly be destroyed if states were permitted to perpetrate such crimes.'

            "Jaspers' proposal, which no one in Israel even bothered to discuss, would, in this form, presumably have been impracticable from a purely technical point of view.  The question of a court's jurisdiction must be decided before the trial begins; and once a court has been declared competent, it must also pass judgment.  However, these purely formalistic objections could easily have been met if Jaspers had called not upon the court, but rather upon the state of Israel to waive its right to carry out the sentence once it had been handed down, in view of the unprecedented nature of the court's findings.  Israel might then have had recourse to the United Nations and demonstrated, with all the evidence at hand, that the need for an international criminal court was imperative, in view of these new crimes committed against mankind as a whole."

            I like Jaspers' proposal, but Arendt writes that he was being unrealistic.  Not only did no international court exist, but the U.N. had twice rejected proposals to consider the establishment of one.  Beyond that, Arendt writes on page 271, ". . . for Israel the only unprecedented feature of the trial was that, for the first time (since the year 70, when Jerusalem was destroyed by the Romans), Jews were able to sit in judgment on crimes committed against their own people, that, for the first time, they did not need to appeal to others for protection and justice, or fall back upon the compromised phraseology of the rights of man -- rights which, as no one knew better than they, were claimed only by people who were too weak to defend their 'rights of Englishmen' and to enforce their own laws. (The very fact that Israel had her own law under which such a trial could be held had been called, long before the Eichmann trial, an expression of 'a revolutionary transformation that has taken place in the political position of the Jewish people' -- by Mr. Rosen on the occasion of the First Reading of the Law of 1950 in the Knesset.)  It was against the background of these very vivid experiences and aspirations that Ben-Gurion said: 'Israel does not need the protection of an International Court.'"

            COMMENT:  I would like to agree with Jaspers.  He answers all of my objections, but from a pragmatic point of view (as Arendt tells us) his recommendations would not work.  Beyond that there was the emotion coloring those times, as exemplified by Arendt's description of Ben Gurion.  All of which may mean that I needn't worry about what went on during the Eichmann and Nuremberg trials setting a precedent (fraught with a labyrinth of difficulties) of "victor's justice" because the "crimes" committed by the Nazis were unique in modern human history.

            But as soon as I write that I recall similar crimes committed by modern-day Islamists: cutting off the heads of hapless captives, blowing up civilians, etc.  But perhaps we have laws in place to deal with these modern crimes -- as we moved from treating them as civil crimes during the Clinton Administration to "war crimes" during the Bush and Obama administrations. 

            And just as there are probably few worrying about whether Eichmann and the other Nazis received fair trials, there will be few who will worry about the fair trials of captured Islamists who committed similar crimes.