Criminal Case 40-61, the Trial of Adolf Eichmann: An Eyewitness Account (review)

Throughout the ages governments have relied upon public trials to air accusations against alleged law breakers. There are a number of reasons for this reliance, including a desire to put on display the evidence that allegedly condemns an outlaw, a wish to invite the public to participate (at least vicariously) in the adjudicatory process and an intention to demonstrate the fairness of the process for all to see. If successful, such proceedings can powerfully legitimate the decisions reached and the government reaching them. If not, that government may become the subject of intense criticism. The trials of Jesus, Socrates and Charles I all attest to the potential for trials to become a locus of criticism and dissent. Much turns on what happens at trial and how the watching world reacts to it.

One of the all time most successful trials in terms of the world's view of the rectitude of the judgment reached and its impact upon subsequent political and legal developments was conducted at Nuremberg, Germany at the conclusion of the Second World War. At that trial twenty leading members of the Nazi regime were prosecuted for their parts in the gravest crimes committed by Hitler's Germany.¹ The Tribunal at Nuremberg was comprised of representatives from the four main Allied powers (Britain, France, USSR, and United States). It heard hundreds of witnesses and reviewed thousands of documents. Despite serious flaws including an imbalance of resources that substantially disadvantaged the defense and the presence of Soviet judges who were not predisposed to yield to the dictates of justice, it produced a nuanced judgment that apportioned guilt with care and created an enduring historical record of the crimes of the Third Reich. Nuremberg set the standard for trials intended to address crimes of international scope. Over the past six decades it has served as a siren song to those contemplating a legal response to misconduct on a massive scale.

One of the most significant of Nuremberg's progeny was the trial of Adolf Eichmann in Israel in 1961. Eichmann was kidnapped from his post-World War II hiding place in Argentina by Israeli agents and brought to Jerusalem to stand trial on charges of having been the architect of the Holocaust—the Nazi's effort to exterminate all the Jews of Europe. The Israeli prosecutor, Gideon Hausner, steeped himself in the Nuremberg transcripts and resolved to use the Nuremberg approach and the evidence as the basis for Eichmann's prosecution.² This meant the presentation of a vast body of evidence not only to tell the story of Eichmann's deeds but of the entire Holocaust. Hausner's approach posed serious risks to the focus and integrity of the trial, because Eichmann was not, in fact, the initiator of the Holocaust but simply one of its willing executioners. Despite all its risks, the Eichmann trial was a powerful success. It was instrumental in re-awakening the world to the evils of the Holocaust and the need for renewed exertions in pursuit of those who had carried it out. It demonstrated that the Nuremberg model could be used more than once and was a significant stepping stone in the process leading to such modern international efforts as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC).³

Its success notwithstanding, the Eichmann trial poses a series of challenges to those who care about justice. The trial was an enormous "show" that concentrated far more on the Holocaust than on Eichmann. It flirted with unfairness and irrelevance at just about every turn, from the pretrial interrogation of the unrepresented defendant that lasted for months to an imbalance of resources that pitted the State of Israel with dozens of investigators and lawyers against a defendant represented by a single advocate with one assistant. The case helps pinpoint not only the strengths but the weaknesses of...