Those who are convinced that justice, and nothing else, is the end of law will be inclined to condone the kidnaping act, though not because of precedents but, on the contrary, as a desperate, unprecedented and no-precedent-setting act, necessitated by the unsatisfactory condition of international law. In this perspective, there existed but one real alternative to what Israel had done: instead of capturing Eichmann and flying him to Israel, the Israeli agents could have killed him right then and there, in the streets of Buenos Aires. This course of action was frequently mentioned in the debates on the case and, somewhat oddly, was recommended most fervently by those who were most shocked by the kidnaping. The notion was not without merit, because the facts of the case were beyond dispute, but those who proposed it forgot that he who takes the law into his own hands will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated. Two precedents in the recent past come immediately to mind. There was the case of Shalom Schwartzbard, who in Paris on May 25, 1926, shot and killed Simon Petlyura, former hetman of the Ukrainian armies and responsible for the pogroms during the Russian civil war that claimed about a hundred thousand victims between 1917 and 1920. And there was the case of the Armenian Tehlirian, who, in 1921, in the middle of Berlin, shot to death Talaat Bey, the great killer in the Armenian pogroms of 1915, in which it is estimated that a third (six hundred thousand) of the Armenian population in Turkey was massacred. The point is that neither of these assassins was satisfied with killing “his” criminal, but that both immediately gave themselves up to the police and insisted on being tried. Each used his trial to show the world through court procedure what crimes against his people had been committed and gone unpunished. In the Schwartzbard trial, especially, methods very similar to those in the Eichmann trial were used. There was the same stress on extensive documentation of the crimes, but that time it was prepared for the defense (by the Comité des Délégations Juives, under the chairmanship of the late Dr. Leo Motzkin, which needed a year and a half to collect the material and then published it in Les Pogromes en Ukraine sous les gouvernements ukrainiens 1917–1920, 1927), just as that time it was the accused and his lawyer who spoke in the name of the victims, and who, incidentally, even then raised the point about the Jews “who had never defended themselves.” (See the plaidoyer of Henri Torrès in his book Le Procès des Pogromes, 1928). Both men were acquitted, and in both cases it was felt that their gesture “signified that their race had finally decided to defend itself, to leave behind its moral abdication, to overcome its resignation in the face of insults,” as Georges Suarez admiringly put it in the case of Shalom Schwartzbard.
The advantages of this solution to the problem of legalities that stand in the way of justice are obvious. The trial, it is true, is again a “show” trial, and even a show, but its “hero,” the one in the center of the play, on whom all eyes are fastened, is now the true hero, while at the same time the trial character of the proceedings is safeguarded, because it is not “a spectacle with prearranged results” but contains that element of “irreducible risk” which, according to Kirchheimer, is an indispensable factor in all criminal trials. Also, the J'accuse, so indispensable from the viewpoint of the victim, sounds, of course, much more convincing in the mouth of a man who has been forced to take the law into his own hands than in the voice of a government-appointed agent who risks nothing. And yet—quite apart from practical considerations, such as that Buenos Aires in the sixties hardly offers either the same guarantees or the same publicity for the defendant that Paris and Berlin offered in the twenties—it is more than doubtful that this solution would have been justifiable in Eichmann's case, and it is obvious that it would have been altogether unjustifiable if carried out by government agents. The point in favor of Schwartzbard and Tehlirian was that each was a member of an ethnic group that did not possess its own state and legal system, that there was no tribunal in the world to which either group could have brought its victims. Schwartzbard, who died in 1938, more than ten years before the proclamation of the Jewish State, was not a Zionist, and not a nationalist of any sort; but there is no doubt that he would have welcomed the State of Israel enthusiastically, for no other reason than that it would have provided a tribunal for crimes that had so often gone unpunished. His sense of justice would have been satisfied. And when we read the letter he addressed from his prison in Paris to his brothers and sisters in Odessa—“Faites savoir dans les villes et dans les villages de Balta, Proskouro, Tzcherkass, Ouman, Jitomir…, portez-y le message édifiant: la colère juive a tiré sa vengeance! Le sang de l'assassin Petlioura, qui a jailli dans la ville mondiale, à Paris,… rappellera le crime féroce… commis envers le pauvre et abandonné peuple juif”—we recognize immediately not, perhaps, the language that Mr. Hausner actually spoke during the trial (Shalom Schwartz-bard's language was infinitely more dignified and more moving) but certainly the sentiments and the state of mind of Jews all over the world to which it was bound to appeal.
I have insisted on the similarities between the Schwartzbard trial in 1927 in Paris and the Eichmann trial in 1961 in Jerusalem because they demonstrate how little Israel, like the Jewish people in general, was prepared to recognize, in the crimes that Eichmann was accused of, an unprecedented crime, and precisely how difficult such a recognition must have been for the Jewish people. In the eyes of the Jews, thinking exclusively in terms of their own history, the catastrophe that had befallen them under Hitler, in which a third of the people perished, appeared not as the most recent of crimes, the unprecedented crime of genocide, but, on the contrary, as the oldest crime they knew and remembered. This misunderstanding, almost inevitable if we consider not only the facts of Jewish history but also, and more important, the current Jewish historical self-understanding, is actually at the root of all the failures and shortcomings of the Jerusalem trial. None of the participants ever arrived at a clear understanding of the actual horror of Auschwitz, which is of a different nature from all the atrocities of the past, because it appeared to prosecution and judges alike as not much more than the most horrible pogrom in Jewish history. They therefore believed that a direct line existed from the early anti-Semitism of the Nazi Party to the Nuremberg Laws and from there to the expulsion of Jews from the Reich and, finally, to the gas chambers. Politically and legally, however, these were “crimes” different not only in degree of seriousness but in essence.
The Nuremberg Laws of 1935 legalized the discrimination practiced before that by the German majority against the Jewish minority. According to international law, it was the privilege of the sovereign German nation to declare to be a national minority whatever part of its population it saw fit, as long as its minority laws conformed to the rights and guarantees established by inter-nationally recognized minority treaties and agreements. International Jewish organizations therefore promptly tried to obtain for this newest minority the same rights and guarantees that minorities in Eastern and Southeastern Europe had been granted at Geneva. But even though this protection was not granted, the Nuremberg Laws were generally recognized by other nations as part of German law, so that it was impossible for a German national to enter into a “mixed marriage” in Holland, for instance. The crime of the Nuremberg Laws was a national crime; it violated national, constitutional rights and liberties, but it was of no concern to the comity of nations. “Enforced emigration,” however, or expulsion, which became official policy after 1938, did concern the international community, for the simple reason that those who were expelled appeared at the frontiers of other countries, which were forced either to accept the uninvited guests or to smuggle them into another country, equally unwilling to accept them. Expulsion of nationals, in other words, is already an offense against humanity, if by “humanity” we understand no more than the comity of nations. Neither the national crime of legalized discrimination, which amounted to persecution by law, nor the international crime of expulsion was unprecedented, even in the modern age. Legalized discrimination had been practiced by all Balkan countries, and expulsion on a mass scale had occurred after many revolutions. It was when the Nazi regime declared that the German people not only were unwilling to have any Jews in Germany but wished to make the entire Jewish people disappear from the face of the earth that the new crime, the crime against humanity—in the sense of a crime “against the human status,” or against the very nature of mankind— appeared. Expulsion and genocide, though both are international offenses, must remain distinct; the former is an offense against fellow-nations, whereas the latter is an attack upon human diversity as such, that is, upon a characteristic of the “human status” without which the very words “mankind” or “humanity” would be devoid of meaning.