In my second blog in this series on show trials, I provided a chart as follows:
|Acquitted||President Bill Clinton 1999||O. J. Simpson 1995 Donald Trump 2021|
|Found Guilty||Socrates– 300 BC Jesus Dreyfus – 1894-1895 Ed Johnson 1906 Tenn. Scottsboro Boys 1931 Stalin 1930s purges Trenton 6 1948 Central Park 5 1989 Lena Baker 2005||The Rosenberg Trial 1951 Eichmann Trial 1960|
I have now covered the two quadrants on the left side. In today’s blog I will cover the quadrant on the lower right side, that is, a case in which the defendant was guilty and was found guilty. But how can that be a show trial? Isn’t a show trial about innocent people put on display, charged with a crime and found guilty when they were innocent? That is certainly the quadrant I discussed in the last two blogs. But a show trial is not determined by whether the person on trial is innocent or guilty but because of the purpose of the trial. Though justice may or may not be served by the trial, its main purpose is not justice but public education – to make a strong impression and a big impact on the public.
For those too young to remember or to even have had an opportunity to remember, Adolf Eichmann was captured by Israeli Mossad agents in Argentina and secretly transported to Israel. He had been hiding in Argentina under the assumed name of Ricardo Klement and worked in a nondescript job in a Mercedes-Benz factory in Buenos Aires. The kidnap had caused the first sensation as Argentina complained to the UN Security Council about this breach in Argentina’s sovereignty, a breach, though illegal under international law, was understandable since there was very little chance, if any, that Argentina would bring this war criminal to justice let alone extradite him to Israel.
After his capture and transport to Israel, he was put on trial in a special tribunal of the Jerusalem District Court starting on 11 April 1961 where he was charged with facilitating and managing the mass deportation of Jews to the Nazi murder camps. In the first fifteen years after WWII, relatively little had been written or said about the Holocaust. The name was not even widely recognized. All that changed with the Eichmann trial. “Holocaust” became a household word.
And that was part of the sensation of the trial. Hannah Arendt in Eichmann in Jerusalem: A Report on the Banality of Evil, the book published based on her essays in The New Yorker, the magazine that had assigned her to cover the trial, had charged that the trial had not been about bringing Eichmann to justice but was, in fact, a show trial to put Adolf Eichmann, the Nazi killing machine and the shoah on public display for the education of the public. Certainly, the trial was one of the very first followed on television and is generally credited with bringing awareness of the Nazi atrocities to a worldwide audience. There is a general consensus among historians that it was this trial that embedded the Holocaust in the public mind in contrast to the Nuremberg Trials conducted by the International Military Tribunal after the war which were followed only by specialists.
I remember reading Hannah Arendt’s essays and books ever since I was an undergraduate and then her book on Eichmann as a graduate student. I had been captivated by this public intellectual ever since I read, The Origins of Totalitarianism. At the time, I was sold on her thesis about Eichmann representing “the banality of evil” and her indignation at the public sensationalism versus concern for justice in the very way the trial had been conducted. (In a twist, Arendt had not been upset at the way he was captured, though that was explicitly illegal under international law.) I resented those who attacked her; she clearly did not excuse Eichmann for formulating the regulations that implemented such noxious laws. Later, years later, the Arendt analysis of the trial became a lesson for me that there were intellectual cults and I had been a member of one. Perhaps academics were as prone to get caught up in such cults as religious or ideological believers.
But first the trial. Unlike the Nuremberg trails based on written documents, the Jerusalem trial called witness after witness, victims who escaped and victims who had resisted. As with the Trump trial in the Senate where the focus had been on the television records, the tweets and the audio recordings of what happened in real time, the Jerusalem trial tried to approximate that feeling by the words of survivors.
The controversy over the trial may have begun with the jurisdictional issue given that Israel had kidnapped the person charged to bring him before the tribunal. There was also the law under which he was tried. It was a retroactive law not existing at the time the alleged crimes were committed. Israel had not even existed at the time. In 1950, Israel passed the Nazi and Nazi Collaborators Punishment Law and it was under this law that Eichmann was charged. But how could you be charged for a crime that did not even exist in law at the time of the crime by a jurisdiction that did not even exist at the time of the alleged crime and of a person who had been criminally abducted?
But none of these issues were Arendt’s preoccupations. Gideon Hasner was the Israeli attorney general who prosecuted Eichmann. It was clear that Hannah Arendt held a particular animus against him, ostensibly based on his sensational use of evidence and witnesses, many of whom had no direct links to the actions of Eichmann as either witnesses or victims. But Eichmann was not just charged for killing or enabling the murder of specific Jews. The 15 counts under which he was tried included “crimes against the Jewish people” and “crimes against humanity” for his deportation to the death camps of Roma.
In his defence, Eichmann portrayed himself, and Arendt accepted that portrayal, that he had been a bureaucrat following orders for the efficient disposal of the material goods of these people and their efficient transport to the camps. The murder of the Jews was not within his field of responsibility. However, there was written evidence that he had been a member of the Storm Troopers (SA), the Security Service (SD), and the Gestapo, all declared to be criminal organizations in the 1946 Nuremberg Trial. Further, as head of the Reich Security Main Office for Jewish affairs, he was not just “a cog in the machinery of destruction,” as he suggested, but was an initiator who coordinated with Gestapo chief Heinrich Mueller on developing the plans for the transport and deportation of the Jews.
It was clear, as the trial stretched over months as Adolf Eichmann’s presence in a bullet-proof glass booth became an iconic vision, that the prime issue was not Eichmann’s guilt or innocence. That was easily proven and was a forgone conclusion. But succinctness is not necessarily an important ingredient in a show trial. In this case, dragging the trial out and sensationalizing the tale – that barely needed any heightened presentation – was the point.
And it was to this that Hannah Arendt had taken the greatest umbrage. Arendt recognized that Eichmann had been intimately involved in the commission of extraordinary evil. However, there were three components of a crime necessary to prove criminality – intent, legal jurisdiction and moral responsibility. (Judith Butler’s 2011 essay, “Hannah Arendt’s challenge to Adolph Eichmann” sums up her position well.)
Arendt questioned how Adolf Eichmann could have formed an intent to commit murder since, though he was totally conscious about his deeds, he did not think about them. He performed them, but gave no thought to the consequences or the rationale behind them. In law (in Canadian law, cf. Mohan (1975) QB 1), however, for intent to be established, one had to know that the result was prohibited. Mens rea means malice aforethought. The intent can be clearly deliberate or a by-product of negligence. The accused had to have been able to anticipate the consequences and wanted them to come about. Eichmann was clearly guilty of that.
Hannah Arendt, however, suggested that something much more was entailed. In Adolf Eichmann’s trial, Arendt claimed that Eichmann lacked intention because he failed to think about the crime he was committing. That, of course, made the mobster who followed a mafia boss’s orders and put a bullet in someone’s head, or the FBI agent who put three bullets into Fred Hampton as he lay on a mattress only wounded from the first machine gun fire into the Hampton apartment, were both not guilty of intent. As Fred Hampton lay in a stupor from the pills that had been dropped in his drink by the informer, he was not dead and could have been taken to the hospital. The FBI agent provided a final solution. For Arendt, Eichmann never even pulled the final trigger.
Further, and most importantly, for Arendt the crime was “banal” since it had been accepted, it had been routinized, had been carried out without any moral revulsion. It was like the murders committed in Tarantino’s Pulp Fiction.
There was also the issue of jurisdiction, not so much because Israel used a grandfathered law nor because Israel had kidnapped the accused, but because what had been carried out was a crime against humanity. The same crime killed not only Jews but Gypsies, the handicapped and communists. It was not just an attack on a specific group in the name of its own population but on humanity itself. A specific nation state did not have the status to try such a crime lest it simply be one ethnic group exacting revenge against another in a quid pro quo because of a crime against. In that reasoning, the murders of Chaney, Schwerner and Goodman by white racists in the American south could be viewed as a crime against humanity rather than just a hate crime against Blacks because Goodman and Schwerner were Jewish.
However, Arendt’s exercise in intellectual thrashing was motivated by the conviction that genocides – whether against the Roma or the Armenians (and, later, the Tutsi in Rwanda – were a consequence of the degradation of thought. The degradation of specific peoples was just a correlate. When those who put on trials for such crimes degrade their own reflection, when they lower the bar to ensure that the illustration of what happened gets the marquee attention by the general public rather than paying detailed attention to the requirements of fulfilling the principles of justice, the implication is that the banality of the perpetrator of the crime is matched to some degree by the banality of the agents of revenge and publicity rather than ensuring that they perform as instruments of the blindfolded goddess of justice.
Eichmann was a scapegoat, a symbolic burning of one witch to appease the thirst for revenge of the survivors. He was tried as a symbol rather than as an agent. And Arendt suggested that trials were not held just to inform a public that a horrendous deed had taken place, but to raise the level of self-reflection of those who participated in and observed the trial. For, in the end, what was on trial was thought itself. For Eichmann had insisted that in doing his duty, he was following the guidance of Immanuel Kant in his depiction of duty. But Eichmann’s interpretation inverted Kant into supporting blind obedience rather than a principle where each individual is a rational self-legislator.
Deborah Lipstadt (The Eichmann Trial) leveled the most penetrating criticism of Arendt, arguing that it was she who failed to treat Eichmann objectively and instead used the trial to illustrate why her own philosophical approach and critique of totalitarianism was valid. It was she who used Eichmann as a prop. Further, just as David Irving was judged as having imposed his own ideology on history at the cost of both factual accuracy and coherence, Arendt had done the same. She had naively fallen for Eichmann’s carefully constructed self-portrait when evidence in the trial pointed clearly to a more thoughtful and engaged person, but for malevolent purposes. He was not just a “desk level bureaucrat” who exercised little initiative and exhibited little talent. Arendt had laid the groundwork for the charge that the Jews had shared in the responsibility for their own destruction and had allowed themselves to become passive victims when evidence at the trial testified to many efforts at resistance, almost all futile given the power of the Nazi murder machine. She was the one that characterized Eichmann’s behaviour as “terribly and terrifyingly normal,” when the normality establish was of a monstrous order.
A fanatic, a conspiracy theorist, a supporter of the view that the recent American presidential election was a fraud, may have become a more common character in the American political landscape, but the fight against such people involved reclaiming the normal and defining such behaviour as beyond bounds. Arendt took as her task the use of the trial to illustrate her thesis on the uses of reason and the sources for constructing destructive political regimes. However, not only did she put forth distortions, ignore contradictions in her position and even totally set aside factual evidence given in the trial – there were many days when she was not in attendance. She was contemptuous of Hausner, even contemptuous of the whole Zionist enterprise, and part of her goal, perhaps unconscious, was linking Zionism to National Socialism.
In her narrow view and expansive critique, the specific deeds of Eichmann, not his view of the Jews, should have been on trial. Suffering should not have been widely put on display, but only evidence directly related to proving specific charges.
In the end, ironically, the controversies over Arendt’s interpretations made the trial even more successful as a show.