legal – Literature and Law Spring 2020

Questions of Legality – Eichmann in Jerusalem

While reading Hannah Arendt’s Eichmann in Jerusalem, I had many questions racing through my mind. The Holocaust is arguably one of the most, if not the most, atrocious mass murder in human history, and it disgusts me to think that something of its scale actually occurred – and was able to occur for as long as it did. Nazis, like Eichmann, along with other individuals who played a role in orchestrating and carrying out such an awful event deserved to be held accountable for their crimes. However, as I was reading Arendt’s novel, I had many questions of legality come to mind.

One question being how a person can even be punished for committing a crime of this magnitude. The Holocaust resulted in the death of millions and affected millions more. Innocent men, women, and children were either put to death or worked to death in concentration camps; families and communities were torn apart. Frankly, I don’t believe there is any punishment that can be deemed as “fit” or “just” for the individuals who played a role in the execution of millions of people. In one section in the text, it is brought up that Eichmann should have “spent the rest of his life at hard labor” (pg 250), because of the torturous and forceful labor so many of those in the concentration camps had to endure. This makes me wonder if the justice system can even work in a situation like this, if there is any punishment that can be imposed matching the crime. The only punishment that comes close enough is, as Arendt discusses in the text, the death penalty; “he must hang” (pg 279).

As I continued reading I also thought about another aspect of legality in regards to Eichmann and other Nazi trials, and it is a question of jurisdiction. The Holocaust posed enormous legal issues for the international community. It was a crime against humanity, an entire population of people. So, who is actually responsible for holding the Nazis responsible? Eichmann’s trial takes place in an Israeli court and was orchestrated by the Israeli Prime Minister. Whereas the famous Nuremberg Trials were located in Germany. This made me wonder what gave certain regions the authority to put individuals on trial. (It could totally be an obvious answer but I’m just unsure).

Overall, Arendt does a great job commenting on Eichmann’s trial throughout her novel. She also brings up the phrase “banality of evil” in the text which I found very interesting to consider. It is another area of legality that is brought into question, which is individual intent/accountability. Eichmann claimed he may have committed these acts, but doesn’t have the terrible, anti-semitic mindset that was expected from someone like him. In fact, Arendt states that Eichmann was terrifyingly normal at his trial. Although Eichmann ends up being found guilty, it is interesting to consider this because intent is a crucial element to prove in the court of law.

Eichmann and the power of the law

The most interesting part of Eichmann in Jerusalem to me was the question of what a court can do to “prove” guilt that is simply apparent. We all know that Eichmann committed atrocities the likes of which it is difficult to even comprehend, and he did them to human beings who had done nothing to deserve them. The court knows it, the reader knows it, Arendt knows it, and Eichmann knows it. The question thus becomes where a court’s authority runs out; obviously Eichmann’s argument that concentration camps were legal when he sent people to them is moot, but that raises many other ethical dilemmas. If one court can retroactively wipe the legitimacy of an entire legal system-one not its own, even-where is the line drawn between Israel condemning Hitler’s orders as bunk and Hitler himself stripping Jews of citizenship in order to kill them with no legal culpability under German laws of his day? Obviously the answer is that one of these is right and one is wrong-I can see that because I am human. But the question of what the law can do, being that the ideal of just law is its objectivity and its independence from human presumptions of right and wrong, is a lot murkier.

The easy answer to this is that no human law will ever be able to make sense of such questions. Eichmann and every other complicit cog in the machine of the Holocaust will serve their due justice in due time, whether or not any judge on earth pronounces them guilty. This is a somewhat comforting answer, but it is not sufficient, particularly not for a newly formed Israel with lots of wrongs to attempt to right. Though I may believe Eichmann will face his rightful punishment from a higher power than any on earth, to let him go free of any attempted justice would not be right, either. This is where I believe Arendt loses her faith in the court, and part of why she refuses to not be critical of Ben-Gurion, the lawyer, the jury and the judges. Obviously she agreed with their eventual verdict, but I think she thought it was based on the wrong evidence. His feelings on Jewish people, his rank within the government, his insanity or lack thereof, none of those things matter. What he did was wrong because it was wrong, and I think finding a way to implement that legally is a lot easier said than done, but that was the challenge that Arendt, and I, would have liked to see them succeed in.

Does the declaration declare more than just independence?

In Derrida’s “Declarations of Independence,” he discusses on what basis the signature of the DOI becomes a legitimate manner to both express and in this expression, enact independence. I think his process of declaration can also be applied to the rights stated in the DOI, which Armitage implies in “The Declaration of Independence and International Law,” had yet to be formally recognized by an established government even though they had little bearing on the act of gaining independence.
Derrida addresses the rights stated in the DOI and argues that it is one reason which compelled the signers to declare independence. He writes, “… they should declare the causes which impel them to separation: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with inalienable Rights …(Derrida 11),” specifically of “Life, Liberty and the pursuit of Happiness (DOI),” which are infringed upon. While these may be “self-evident,” it wasn’t to Britain at the time, aligning these rights alongside independence; although the states “are” already independent, it is not till the declaration of this independence that it becomes true – the same can be said about these rights. The signature grants itself recognition of these rights which it intrinsically has but is not recognized, and furthermore is more legitimate in its justification to sign because it has them and recognizes them by creating a state that does so upon signing.
However, as Armitage points out, this assertion was “strictly subordinate (44),” as one of many justifications for separation, leading to the question its presence. Because these rights are new in terms of their formal recognition (distinct from and not yet, legally protected) it can be assumed as Armitage asserts that their presence is for future use. For a government looking to eventually protect these “self-evident rights” these rights must be evident since the moment of formation, making their appearance important in the DOI. Given this, the signers had to call on a higher power than the British Crown to grant these rights legitimacy in the declaration, stating “the Creator” has endowed them (DOI). This section of the DOI therefore links these rights with God as a manner to unify and appeal to common beliefs, although this intertwinement may later seem contradictory when granting these rights legal protection in what will be a secular state.