The Eichmann Trial and the Legacy of Jurisdiction (original) (raw)
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The Specialist on the Eichmann Precedent: Morality, Law, and Military Sovereignty
Critical Inquiry, 2003
Law and the Folk-Revisiting a Redefinition The trial of Adolf Eichmann in 1961 and Hannah Arendt's report on the trial, Eichmann in Jerusalem, continue to draw legal scrutiny and provoke international political controversy decades after the judgment was pronounced. In the pages of this journal, Shoshana Felman invoked the Dreyfus Affair as a legal and cultural precedent for the epochal Eichmann trial.' She argues that the unjust and anti-Semitic prosecution of Captain Alfred Dreyfus in 1894 and Emile Zola's impassioned and now proverbial counteraccusation against Dreyfus's persecutors supply a model for an individual speaking out against a state legal apparatus in the name of a victim of miscarried justice. Not only the enormity of the crimes being judged in Jerusalem, but the jurisdiction of the court, the nature of the criminality, the status of the legal code with respect to the crimes, the relevance of the evidence, and the spirit of the precedent to be set all contributed to what Felman characterizes as the later trial's "monumental repetition of a primal legal scene," in which traumas of the past were radically revisited and redressed ("TJ," p. 219). The scene monumentally revisited in the Eichmann trial is, according to Felman, the Dreyfus Affair's quintessential persecution This essay began as a presentation at the Kent State University conference "Screening the Shoah," sponsored by David Brenner, to whose comments and encouragement I am indebted. Thanks are also due to Bill Brown, John Davidson, John Rosenthal, and Jennifer James Robinson for their responses to earlier drafts of the essay. 1. See Shoshana Felman, "Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust," Critical Inquiry 27 (Winter 2001): 216-22; hereafter abbreviated "TJ." Critical Inquiry 30 (Autumn 2003) ? 2003 by The University of Chicago.
The Eichmann Trial: Towards a Jurisprudence of Eyewitness Testimony of Atrocities
Journal of International Criminal Justice, 2014
For many years, the Eichmann Judgment has been overshadowed by the Nuremberg proceedings, considered as the more important precedent for international criminal law. In this article, I question this understanding by positioning the Eichmann trial at the head of the series of international criminal trials, which have become more familiar over the past two decades. The main part of this article addresses the role of witnesses in light of the framework of 'jurisprudence of atrocity'. It departs from previous literature, which has sharply distinguished the legal from the historical or didactic role of testimony given by victims during the Eichmann trial. In contrast, adopting a framework based on collective crimes, this article investigates the changing role of the victim as witness and thereby illuminates such distinctive crimes, which are characterized by mass murder and the separation ç both physical and psychological ç of the victimizer from his victims. The District Court of Jerusalem in the Eichmann case granted witnesses this new role by juxtaposing the dry Nazi documents discussing effective methods and numbers with horrifying stories conveyed by victims and survivors. In this manner, the encounter that could not have taken place during actual events was recreated in the courtroom. * Full Professor, Faculty of Law, Tel Aviv University. I would like to thank Ziv Bohrer, Shachar Eldar, Amit Pundik, Galia Schneebaum, and the two anonymous reviewers for commenting on previous drafts. I also thank the participants of the international conference entitled, 'The Trial of Adolf Eichmann: Retrospect and Prospect', held at the University of Toronto, 8^10 September 2012 as well as Miriam Gur-Arye, the participants of the criminal law workshop held at the Hebrew University, and members of the Israel Democracy Institute for comments. I thank Rachel Klagsbrun for outstanding research assistance and commentary at all stages. I am grateful to Natalie Davidson and Shani Shisha for their research assistance. The Israel Science Foundation supported this research under Grant No. 795/11.
The War Crimes Trial: A Second Look
1962
Note that under this article jurisdiction would not be limited by the fight or for the benefit of the accused, but only on behalf of the injured state. Argentina accepted Israel's apology and did not assert her sovereign rights. Thus Eichmann could not benefit from the violation of Argentina's sovereignty. The case, therefore, really stands on the narrower ground of a violation of municipal law. The fact that nations of the United Nations Assembly requested Argentina to accept Israel's apology in order that Eichmann might be "brought to appropriate justice" leads to the conclusion that the Israeli-Anglo-American view that kidnapping does not impair jurisdiction is a principle of international law. CONCLUSION The Eichmann decision is a precedent. The absense of conventional, customary, or judicial law directly in point prevented the Israeli court from establishing conclusively that it declared approved rules of law. This is the inherent dilemma of the system in which a case develops the law. However, the United Nations resolutions affirming the Nuremberg and Eichmann trials and the unanimous adoption of the Genocide Convention give great weight to the position of the Israeli court. On the basis of these resolutions and in the absense of any concerted disapproval, the principles of the Eichmann case should be regarded as international law.
This chapter analyzes the Soviet Union’s role in the global moment of post-World War II justice. It examines the extent to which Moscow’s participation at the International Military Tribunal in Nuremberg, its war crimes trials of Axis soldiers, and its collaboration trials of Soviet citizens were linked, but also when and why these different-level processes remained separate. Although the Soviet side made productive contributions to the history of international criminal law, its legal system continued to lack the rule of law. In one crucial respect, though, the Soviet trials of Axis soldiers were distinct from the Soviet prewar show trials. The difference lay in fabricated or imagined versus actual and visible acts, and in the extent to which almost everyone in occupied territory had suffered under the Germans. This, in turn, not only seems to have affected public perception of the trials, it also accounted for differences within illiberal justice.
Emory University Electronic and Dissertation Systems, 2018
This thesis analyzes the charges of genocide and crimes against humanity in the context of the Nuremberg Einsatzgruppen trial (1947-48) and the role that each charge played in the formation of modern international criminal law. Prior to the International Military Tribunal at Nuremberg (1945-46), international law was designed to govern the laws and customs of combat between sovereign states. However, the atrocities committed by the Nazis during World War II prompted contemporary legal thinkers to consider expanding the purview of international law in order to protect the human rights of civilians. On the eve of the International Military Tribunal, Hersch Lauterpacht minted the concept crimes against humanity for use in the courtroom. The new legal phrase was used to prosecute Nazis who had committed atrocities against civilians as part of a state-sponsored campaign. Around the same time, Raphael Lemkin devised the word genocide to refer to the intent to destroy an ethnic, racial, or religious group in whole or in part. The legal basis for the main Nuremberg Trial, Control Council Law No. 10, enabled each victorious Allied country to conduct their own series of trials against Nazi war criminals. American prosecutors conducted a series of twelve additional trials between 1946-49, which are now known as the subsequent Nuremberg proceedings (SNT). The Einsatzgruppen trial was the ninth SNT where American lawyers prosecuted twenty-two high-ranking officials who oversaw the murder of Polish and Soviet Jews by way of mass shootings. In this thesis, I argue that the Einsatzgruppen trial represented the most apparent legal confrontation with the crime of genocide to date. However, the processes and politics surrounding the Nuremberg trials made the formal prosecution of genocide virtually impossible during the time that the trial was taking place. Instead, crimes against humanity was used as the principle charge during the Einsatzgruppen trial. The difficulties encountered by American lawyers at Nuremberg provide a reflection of the challenges faced by modern-day human rights lawyers in securing convictions for the charge of genocide.
The Nuremberg Trial Court - Between discourse and negotiations in post-war International Law
Forum historiae iuris - Erste elektronische Zeitschrift für Rechtsgeschichte. , 2017
Among many texts that had been written about the Nuremberg Trial, from different academic perspectives, this paper aims to historically contextualize the creation and conduction of the first grand international criminal court in History. A background of strong symbolism, controvert discourses and political need to signpost a quick and exemplary solution for the destination of Germany's Nazi leaders is analyzed through statements, legislation and trial records. The narrative highlights the ambient of choosing procedural rules, targets and criminal principles of the court that represented a watershed in what jurists understand as international criminal law nowadays. It therefore dialogues with other studies concerning the Trial in historiography and international law and then concludes, in short, that if any obvious connection between Nuremberg's International Criminal Law and politics is proposed, it is made forcefully, due to the openly presented contradictions and difficulties in every decision.