The problem with Hausner and Auerbach’s approach was that Eichmann did not play a role in all aspects of the Final Solution. Nonetheless, the indictment, which Hausner issued in early February, took exactly that approach. It charged Eichmann with the “implementation” of the Final Solution, committing acts of “extermination” on Jews in Poland at death camps, murdering Jews in the USSR with the Einsatzgruppen, imposing sterilization and abortions on Jews, forcing Jews to live in conditions that were “likely to bring about their physical destruction,” creating the mechanism to plunder Jews’ property, and causing the death of thousands of Jews in forced-labor camps, ghettos, and transit camps. He was also charged with dispatching tens of thousands of Gypsies to be murdered and of deporting, under conditions of “servitude, coercion, and terror,” more than a half-million Polish non-Jews and multitudes of others. Though his crimes against non-Jewish victims were included, they were clearly ancillary items.14 At Nuremberg, the murder of the Jews had been an example of crimes against humanity. Here it would be the centerpiece.
But there was another reason for Hausner’s displeasure with the limited and more focused nature of the case as envisioned by Bureau 06. He wanted to paint a portrait “with as much detail as possible … [of] the gigantic human tragedy.” But that picture had to be painted in a way that would superimpose “on a phantom a dimension of reality.”15 He wanted the trial to capture the imagination of Israelis, among others, and give them a personal sense of what had happened. In order to do this, he would rely on those who had witnessed the events. They would fill the historical canvas with their own stories and make the victims and their experiences the trial’s focus. This decision on his part would be controversial from a jurisprudential perspective, and monumental from a historical perspective. The prosecution would call a series of witnesses who had no connection with Eichmann. Some legal experts considered their testimony highly prejudicial and legally irrelevant. Much of it was based on hearsay, if not outright gossip. Yet their presence would transform the trial from an important war-crimes trial into an event that would have enduring significance. It would give a voice to the victims that they had not had before and would compel the world to listen to the story of the Final Solution in a way that it never had before.
4
On April 11, 1961, shortly before 9 a.m., Adolf Eichmann was quietly ushered into the glass booth that had been constructed in the Beit Ha’am’s theater qua courtroom. Nearly all those present, including Hausner, had the predictable reaction. Could this normal-looking man be responsible for the death of millions? Elie Wiesel, who was reporting for The Jewish Daily Forward, observed that the assembled journalists considered it remarkable that he looked no “different from other humans.” The New York Times columnist C. L. Sulzberger strangely noted that Eichmann was “more ‘Jewish looking,’ according to conventional definitions, than the two sunburned Israeli guards” at his side. There was, however, little time to reflect on this, because shortly thereafter the judges entered. In what may have been an effort to telegraph the message that this was to be, first and foremost, a legal proceeding, Presiding Judge Moshe Landau made no introductory comments and began reading the indictment.
He read in Hebrew, the language in which the vast majority of the trial was conducted. Over the coming months additional languages, including German, Yiddish, Hungarian, and English would be used in the courtroom. Some witnesses insisted on speaking Hebrew, despite the fact that it was not their native tongue, while others preferred the familiarity of Yiddish. Irrespective of the language that they spoke, their words would be translated into Hebrew. On those occasions when the judges wanted to ensure that Eichmann understood them precisely or wanted to expedite matters, they addressed him in German, his and their native tongue. The proceedings were simultaneously translated into English, French, and German. Hannah Arendt was mystified by the fact that while the French was “excellent” and the English was “bearable,” the German was a “sheer comedy” and often “incomprehensible.” Given that Beit Ha’am is adjacent to the Jerusalem neighborhoods in which there lived at the time an exceptionally high concentration of well-educated Yekkies (German Jews), it is baffling that good translators could not be found.
But this was not the only language-related drama taking place behind the scenes. Israeli authorities distributed daily bulletins on the trial in English, French, and German. The trial was being covered by numerous journalists from Yiddish newspapers who challenged the Israelis about this arrangement. Why, they asked, could bulletins not be made available in Yiddish, which was, they reminded Israeli officials, the language “of Eichmann’s victims.” (In fact, many of his victims spoke other languages, but it was the language spoken by more Holocaust victims than any other.) How could Israel ignore them? In a clear expression of 1960s Israel’s contempt for the language that it considered the epitome of “exile,” authorities told the protestors that they “ought to know Hebrew” and suggested that they translate the other language bulletins into Yiddish. Ultimately, a condensed version of the bulletins was issued in Yiddish.1
Eichmann’s lawyer, Servatius, immediately rose to challenge the proceedings. Servatius had also been critical of the Nuremberg tribunal, which he had described as a “regression to barbarism.” Reiterating the arguments that had been voiced over the past eleven months, he contended that the court lacked jurisdiction, because these crimes were committed prior to Israel’s existence, on foreign soil, and against people who had no connection to Israel. How, then, could this court claim jurisdiction? Even if the court did claim jurisdiction, which Servatius knew they certainly would, a number of elements rendered the proceedings inherently unfair if not illegal. First of all, Eichmann had been abducted. Furthermore, because of the 1950 law, colleagues from the SS whom Eichmann might wish to call as defense witnesses could not enter Israel without facing arrest. If a witness could not call upon those who might support his position, how, Servatius legitimately wondered, could the trial be fair? Finally, using an argument that was almost guaranteed not to sit well with the judges who would have to decide whether it was a fair objection, Servatius challenged the judges themselves. He argued that, as Jews, they were incapable of remaining impartial in a case that dealt with the Final Solution.
Hausner then began his rebuttal. Drawing on international legal principles as well as examples of American and British case law, he challenged each of Servatius’s objections. The UN had stipulated that Eichmann should be tried. Israel was, therefore, not doing anything contrary to the will of free nations. Besides, courts had consistently ruled that how an accused is brought before a court does not negate its right to try him. In fact, he continued, the abduction had no bearing on the case, because Eichmann had been in Argentina illegally. Regarding the issue of “retroactive justice,” he observed, this trial was no more retroactive than the Nuremberg tribunals. He acknowledged that Eichmann was being tried under a law that had been crafted after the war, and that had “retroactive application.” However, even without it, everyone recognized the Final Solution as morally and legally wrong. Servatius’s complaint about the inability of Eichmann’s witnesses to enter Israel, Hausner argued, could be resolved by deposing them abroad. In contrast to Servatius, who had submitted a long written brief and had, therefore, outlined his core arguments, Hausner spoke for two and a half days. Piling legal precedent on top of precedent, Hausner droned on, even though he had no doubt that the judges would reject Servatius’s arguments no matter what he said. His intended audience extended far beyond the courtroom. He was addressing critics throughout the world who had questioned the trial’s legality. This, he wanted to make clear, was not “jungle justice.”2
Reporters who had come to witness the trial of a mass murderer grew restless, and retreated to the snack bar to follow the breaking news regarding Yuri Gagarin, whom the Soviets had just launched into orbit. Spectators dozed. The judges grew impatient. Israeli commentators were brutal: “Do we need to cite a case from Idaho
to prove that we are entitled to try Eichmann?” Though reporters may have been frustrated, in certain circles Hausner’s approach met with praise. In the London Sunday Times Professor Hugh Trevor-Roper, who had previously attacked Israel’s decision to conduct the trial, noted that he “listened to those endless English and American precedents and … saw clearly that the Israeli Government … is resolved that the case against Eichmann shall rest … unmistakably on the established theory and practice of civilized states.” The New York Herald Tribune’s S.L.A. Marshall declared, “We hear American voices speaking to the tribunal through Mr. Hausner with such weight that if there is lingering doubt about the proprieties of the trial then our quarrel is with our own lawgivers.” Patrick O’Donovan, writing in The Observer, described these elaborate examinations of precedent as an “essential preliminary, without which the trial would be a waste of time and a disgrace.” The Earl of Birkenhead, who covered the trial for The Daily Telegraph, admitted that he had come to Jerusalem skeptical that Eichmann could be “impartially tried,” but after listening to Hausner’s opening speech he was convinced that “far from being unfair … scrupulous justice is [being] observed.” Edith Templeton of The Washington Post, which had savaged the notion of a fair trial in Israel, opined that the legal objections to the trial had “fallen by the wayside under the driving, painstaking, mountainously documented argumentation of prosecutor Hausner.”3
Finally, on the fourth day after the court had first been called to order, the judges rejected Servatius’s objections. They acknowledged that, even though judges had human emotions, they “are required to subdue them for otherwise [they] will never be fit to consider a criminal charge which arouses feelings of revulsion.” At last, the trial itself could begin. Landau asked Eichmann to rise and to indicate how he pled to the charges. Standing in his glass box Eichmann responded to each charge, “In the sense of the indictment, no.” This was the response intoned at Nuremberg by Göring, Ribbentrop, and the other defendants. In essence, Eichmann was proclaiming that, despite having possibly committed a wrongdoing, he bore no guilt because he was following orders.4
Hausner then rose for his opening address. He had completed it a few days earlier, yet, on the previous evening, he’d added an introductory paragraph. It—not the multiple pages that followed—remains one of the most oft-quoted passages of the entire trial. Addressing the judges with a biblical appellation, he evoked Cain and Abel as well as Emile Zola’s cri de coeur about the French army’s anti-Semitic treatment of Captain Alfred Dreyfus.
As I stand here before you, Shoftei Yisrael, Judges of Israel, to lead the prosecution of Adolf Eichmann, I do not stand alone. With me in this place and at this hour, stand six million accusers. But they cannot rise to their feet and point an accusing finger towards the man who sits in the glass dock and cry: “J’accuse.” For their ashes were piled up in the hills of Auschwitz and in the fields of Treblinka, or washed away by the rivers of Poland; their graves are scattered over the length and breadth of Europe. Their blood cries out, but their voices are not heard. Therefore it falls to me to be their spokesman and to unfold in their name the awesome indictment.
Eichmann, he declared, was a link in the long chain of anti-Semites who wished to destroy the Jewish people. He was the scion of Pharaoh (Egypt), Haman (Shushan/Iran), and Chmielnicki (Poland), all of whom had the same objective for the people of Israel: “to destroy, to slay, and to cause to perish.”5
From a distance of five decades, and after too many encounters with people who arrogate the right to speak in the victims’ names, it is hard not to find this rhetoric historically glib and self-aggrandizing. Yet, if we read it in the context of 1961, it is evident why it left many people breathless. Now, for the first time, the Jewish people, who during the war had looked this way and that for someone to speak on their behalf, had risen, not to implore others to save them but to prosecute. Here was a representative of the Jewish people speaking, not as a supplicant begging for help, but as a government official demanding long-delayed justice. Most important, he was not addressing some foreign authority who might or might not deign to take the Jews’ fate into consideration. He was speaking to shoftei Yisrael, representatives of a country that, had it then possessed the sovereignty it now had, would have done more than grant the victims refuge. Israel would have welcomed them home.
Some critics claim that Ben-Gurion manipulated the trial from behind the scenes. In fact, one of the few aspects of the trial into which he had direct input was Hausner’s speech. Hausner had shared an earlier draft of his speech with Ben-Gurion. (Some critics contend that this was a breach of protocol. Others argue that Hausner represented the government, of which Ben-Gurion was the head.) Ben-Gurion’s requests for changes had far more to do with history and politics than with forensics. Well aware of Adenauer’s sensitivities, and anxious to do nothing that would frustrate Israel’s attempts to develop closer relations with West Germany, Ben-Gurion asked Hausner to use the term “Nazi Germany” rather than “Germany,” and to mention Hitler’s name early in the speech, so as to leave no doubt that today’s Germans were not those of the Third Reich. The prime minister did not have to tell Hausner to argue that the Holocaust was a link in the enduring chain of anti-Semitism. Hausner came to the job with that view.
Hannah Arendt dismissed his speech, particularly its opening, as “cheap rhetoric and bad history,” but others were transfixed. The New York Times observed that Hausner, who had thus far been dry and pedantic, had opened on a “dramatic note,” and that muffled sounds of sobbing echoed through the courtroom. Israeli writer Haim Gouri saw the lawyer who had tried everyone’s patience with endless legal precedents transformed into a “great figure of lamentation.” The Washington Post described Hausner’s opening as a “mighty chronicle” that “held the packed courtroom in the grip of compulsive attention.” There was “harrowing drama—but it was not staged.… It sprang solely from the power of overwhelming truth.” Another observer found in Hausner’s words the “eloquent thundering” of ancient prophets who “strode across the Judean Hills—perhaps on this very spot”—and engaged in a “fearless condemnation of iniquity.”6
This praise for the speech notwithstanding, there is no doubt that Hausner got much of the history wrong. Depicting Eichmann as the Final Solution’s chief operating officer, he held him responsible for every aspect of it, including shootings in the East, European deportations, ghettos, and death camps. Hausner’s portrait of Eichmann reflected the prevailing historical consensus at this time. Historians tended to think of the Third Reich as a highly organized top-down bureaucracy, where power flowed from higher pinnacles in an easily identifiable and highly regulated fashion. In fact, as historians now recognize, the Third Reich was far more amorphous than that. Different agencies and people within the same agency competed for power and control. Ideas flowed in two or more directions, and even in relation to the Final Solution, subordinates often took the lead. Their actions were then subsequently authorized by those above them. Their actions were in synch with an ideology of Jew hatred which was nurtured by the Nazi leadership. The differences of opinion among the members of the hierarchy were not over whether to persecute the Jews but over how to do so. In contrast to Hausner’s accusation, Eichmann did play a decisive role in aspects of the Final Solution, though he certainly did not control most aspects of it.
But even if Hausner got this wrong, some elements of his depiction of Eichmann were quite accurate. In every instance where his imprint was to be found—volunteering suggestions, giving orders, or interpreting policy—Eichmann always chose the most stringent option. Ordered to deport one trainload of Jews, he pushed for two. Ordered to end deportations on a certain date, he fought to extend the deadline. Ordered to deport Jews from one region, he included those from another. A portrait emerged of a man who was proactive, energetic, and a creative master of deception. This defendant, working with a group of subordinates who were dedicated to their task and to him, arranged the
deportations of a great portion of European Jewry.
He pursued individual victims with the same zeal with which he deported multitudes—and sometimes even greater zeal. When the German Foreign Office interceded on behalf of a senior French officer who was a Jew, Eichmann unequivocally rejected its request on “principle.” When the Swiss government tried to free some of its citizens, Eichmann refused: they knew too much. When the Italians learned that an Italian officer’s widow was being held in Riga and asked for her release, Eichmann refused. When the Italians, including the Fascist Party representative, asked again, Eichmann rejected their request and, lest anyone overrule him, ordered her to be held at Riga. When the Italians asked the Germans to locate Bernardo Taubert, an Italian national who had been living in Lvov, Eichmann’s deputy recommended that they be told to desist from such “superfluous requests.” German authorities had “more important duties to carry out than to investigate the fate of a deported Jew.”7
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