Two trials for genocide

JVL Introduction

Israel’s trial before the International Court of Justice evokes memories of another trial, that of Adolph Eichmann sixty years ago. Both trials concern the crime of genocide.

Jacob Ecclestone ponders on the similarities and the differences, finding in Arendt’s reflections on the fact that so many of the perpetrators were “terribly and terrifyingly normal”, words that resonate so clearly today when looking at the Israeli pilots dropping their bombs, the settlers destroying Palestinian olive groves and British and American and German politicians who simply cannot see what is staring them in the face.

RK

“A Terrifying Normality”

Jacob Ecclestone, 5th February 2024

Hannah Arendt’s 1963 account of the kidnapping, trial and execution of the German war criminal, Adolf Eichmann, was subtitled A Report on the Banality of Evil.[*] The phrase has taken root in western political thought.

Given Arendt’s background – a Jewish refugee from Hitler’s Germany – her formidable reputation as a philosopher and her increasingly outspoken doubts about Zionism in the 1950s, the publication of her reportage in book form was always likely to generate debate. In fact it provoked outrage among American Jews and led to ferocious criticism of Arendt herself.

What is so extraordinary about Eichmann in Jerusalem is that 60 years after it was first published Arendt’s book is still pertinent. It raises harsh questions about the moral values and political thinking of the men and women who are ordering and carrying out the violent attacks on the people of Gaza and the West Bank.

The International Court of Justice having already brushed aside the argument of self-defence and decided that Israel has a case to answer on the charge of genocide, the judges of the ICJ might do well to read and ponder this historic and troubling book.

Even on a crude level there are telling similarities between the trial of Eichmann and the case lodged by South Africa at the International Court of Justice.

Both involve the state of Israel – first as prosecutor in a carefully managed show trial, today as the defendant; in the first trial the charges were framed under Israeli law, whereas South Africa’s case today rests on the 1948 Genocide Convention. Both cases involve the mass murder of defenceless civilians by militaristic states, states which showed and continue to show a cold indifference to wholesale killing for no military gain. Finally, and perhaps most important, the indifference of the German people to the persecution and killing of European Jews is echoed in Israel today where only a small minority of the Jewish population is sufficiently concerned to oppose the relentless killing of Palestinian civilians.

There are, of course, many important differences. Eichmann was judged by a Jewish court whereas the South African case is being considered by judges drawn from 17 states, only one of which is Jewish. The Eichmann trial was driven by a desire for revenge, whereas the application to the ICJ is, in the first instance, a demand for an end to the killing. The Jerusalem trial was possible only because the defendant was kidnapped in breach of international law whereas the application to the ICJ conforms to international law. Perhaps the most significant difference, however, is that the Eichmann trial was held 20 years after the crimes were committed, whereas the South African complaint is being heard when people around the world are daily witnessing Israel‘s genocide in real time.

One of Arendt’s central criticisms of the Jerusalem trial was what she described as the “inclination” of the court to claim itself competent to judge Eichmann on the grounds of “universal jurisdiction.” Not only was this a device to justify the kidnapping of Eichmann from his home in Buenos Aires, she said, but it was an attempt to pretend that Eichmann’s arrest was justified in law because all states have the right to arrest pirates.

Arendt demolished this argument by explaining that the reason pirates could traditionally be arrested by any state was not because they were “enemies of all” but because the pirate commits his crimes on the high seas and the high seas are no man’s land: they lie outside all territorial claims. Eichmann’s crimes, on the other hand, were committed in Poland, Czechoslovakia, France and Hungary. In view of this it was important, said Arendt, to note the terms of the Genocide Convention.

Adopted by the U.N. general assembly in December 1948, the Convention expressly rejects the claim to universal jurisdiction by declaring that “persons charged with genocide……. shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction.” (Article VI)

Since Israel was a signatory to the Convention, she argued, “the court should have either sought to establish an international tribunal or sought to reformulate the territorial principle in such a way that it applied to Israel.” Arendt was supported in this by her former teacher, the philosopher Karl Jaspers, who declared unequivocally that “the crime against the Jews was also a crime against mankind”, and that in consequence “the verdict can be handed down only by a court of justice representing all mankind.”

This, of course, is precisely what South Africa is doing in bringing its allegation of genocide to the ICJ. Israel’s actions in bombing hospitals and schools and refugee camps – and in denying food and water and medicine to millions of people in Gaza – is an assault on our common humanity. It seems clear that only the ICJ has the moral authority to stop this assault which affects every one of us.

Arendt was relentless in exposing the legal and intellectual flaws in the prosecution of Eichmann, a prosecutiuon led by the Israeli attorney general, Gideon Hausner. He opened the case by declaring that he did not stand there alone. “Here with me at this moment,” he said, “stand six million prosecutors.” This was flawed rhetoric, said Arendt, because the wrongdoer is brought to justice “because his act has disturbed and gravely endangered the community as a whole, and not because, as in a civil suit, damage has been done to individuals who are entitled to reparations.”

The reparations effected in criminal cases, she argued, are altogether different in nature to civil reparation because “it is the body politic itself that stands in need of being ‘repaired’ and it is the general public order that has been thrown out of gear and must be restored.”

One of the most sombre qualities which Arendt brought to her analysis of the trial was her sense of history. She warned that “once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been.” In the same vein she went on to warn that: “ … if genocide is an actual possibility of the future, then no people on earth – least of all, of course, the Jewish people, in Israel or elsewhere – can feel reasonably sure of its existence without the help of international law.”

Finally, in the Epilogue to her book, Arendt addressed the issue which troubled her most deeply – the issue which, I believe, lies at the heart of the holocaust and Israel’s treatment of the Palestinian people over the last 75 years and more. After watching Eichmann in the dock week after week for months, after listening to the evidence day after day, and after reading thousands of pages of transcripts of the police interrogation, Arendt realised that “the trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal.

She went on: “this normality was much more terrifying than all the atrocities put together, for it implied… that this new type of criminal… commits his crimes under circumstances that make it well-nigh impossible for him to know or feel that he is doing wrong.”

Reading these words, I thought of the Israeli pilots who return to their families and their quiet homes after dropping 2,000lb bombs on the schools and hospitals and refugee camps of Gaza; of the Israeli settlers on the West Bank who cut down the Palestinian olive groves; of the British and American and German politicians who mouth platitudes about “political solutions” while carefully avoiding any mention of an end to the killing… and the western journalists, those messengers of truth, who are so “normal” that they cannot see or understand anything beyond the interests of their paymasters.

ENDS

[*] Hannah Arendt’s report on the trial of Nazi leader Adolf Eichmann first appeared as a series of articles in the New Yorker in 1963. They were published afterwards as a book under the title Eichmann in Jerusalem: A Report on the Banality of Evil