Sunday, February 14, 2016

Adolf Eichmann: Justice or Retribution by the Victims?

In February, 2016, 94-year-old Reinhold Hanning, a former guard at Auschwitz, went on trial in Detmold, Germany for being an accessory to the murder of at least 170,000 people. Back in 1961, Adolf Eichmann had been tried in Jerusalem for crimes against the Jewish people. I submit that the situs for the Hanning trial is proper ethically and legally, which is to say that Eichmann too should have been tried in Germany rather than in Israel.

Reinhold Hanning, center, on trial for 170,000 counts of accessory to murder in Germany. Proving that he himself facilitated the murders may be more difficult than one might assume; hence the importance of a fair hearing by neutral judges. Associated Press.

In his version of the social contract, John Locke argues that one advantage of leaving the state of nature in favor of forming a state is impartial justice can be enjoyed over victims exacting retribution for crimes against them directly. Put another way, a victim being the prosecutor and judge in a matter in which the crime is against the victim constitutes a conflict of interest. Any of us, as a victim, would naturally tend to be overly severe, even if we delude ourselves as to our objectivity.

I submit that in kidnapping Eichmann and forcing him to go on trial in Jerusalem, the Israeli government and its three appointed judges acted not only illegally in terms of international law at the time, but also unethically in exacting retribution as victims (i.e., being of the Jewish people). In terms of international law at the time, the state of Israel did not exist during the 1933-1945 Nazi period, so that country had no legal basis in prosecuting war crimes. The kidnapping was thus illegal--hardly different than a bunch of victims kidnapping someone thought to have violated them or their group and bringing the new victim back to a location where they could do what they wished.

Legally, either Germany or one of the victors of World War II could legitimately have tried Eichmann. By 1961, Germany would likely have preference because the crimes took place there and the war had been over for over a decade.

In terms of the conflict of interest, the president of the court in the Eichmann trial responded to the defense lawyer's point that the victims could not possibly be neutral by stating that because no one could possibly be neutral in the face of such a horrific crime--and the holocaust was indeed that--he might as well be the one to try to be objective. This faulty logic dismisses the very real possibility that someone else with less emotional attachment in the case could achieve something closer to neutrality. It was not as if everyone in the world were as emotionally biased as the victims and people in general who identify themselves as Jewish. A good means of sniffing out a conflict of interest is when the person charged with being in one makes a rather stunningly faulty rationale for the conflict not being material or even relevant. Even the person claiming, "I won't be subject to the conflict of interest" is suspect, as it is not outside the lines of exploiting the conflict.

Even the Supreme Court of Israel showed symptoms of being ensnared in the conflict of interest. To the defense's claim that a 1950 Israeli law should not be applied retroactively to cover conduct which occurred even before the state of Israel itself and in another country no less, the Court answered that if the crime is heinous enough, laws can be applied retroactively (and to conduct in another country). So ex post facto is apparently valid if the judge feels the crime is a really bad one. That a supreme court would engage in such an atrocious lack of fairness in its "legal reasoning" is itself a sign that the conflict of interest was indeed being exploited by the victims and their group.

The world itself, especially the victors of WWII, was culpable as well, in that the global powers ignored the conflict of interest or at least did not intervene in the interest of civilized justice. As war crimes were included in the indictment, the Allies could legitimately have stepped in to prevent the exacted retribution. Impartial justice, such as hopefully Hanning was getting in Germany in 2016, is one way the world's powers can be distinguished from the justice perpetrated by the Nazis. Perhaps it is in the nature of things that the victim becomes like the victimizer without realizing it. Hence, Locke was on solid ground in claiming as a benefit of civil society that retribution is taken away from victims.