Moreover, the argument that the crime against the Jewish people was first of all a crime against mankind, upon which the valid proposals for an international tribunal rested, stood in flagrant contradiction to the law under which Eichmann was tried. Hence, those who proposed that Israel give up her prisoner should have gone one step further and declared: The Nazis and Nazi Collaborators (Punishment) Law of 1950 is wrong, it is in contradiction to what actually happened, it does not cover the facts. And this would indeed have been quite true. For just as a murderer is prosecuted because he has violated the law of the community, and not because he has deprived the Smith family of its husband, father, and breadwinner, so these modern, state-employed mass murderers must be prosecuted because they violated the order of mankind, and not because they killed millions of people. Nothing is more pernicious to an understanding of these new crimes, or stands more in the way of the emergence of an international penal code that could take care of them, than the common illusion that the crime of murder and the crime of genocide are essentially the same, and that the latter therefore is “no new crime properly speaking.” The point of the latter is that an altogether different order is broken and an altogether different community is violated. And, indeed, it was because Ben-Gurion knew quite well that the whole discussion actually concerned the validity of the Israeli law that he finally reacted nastily, and not just with violence, against the critics of Israeli procedures: Whatever these “so-called experts” had to say, their arguments were “sophisms,” inspired either by anti-Semitism, or, in the case of Jews, by inferiority complexes. “Let the world understand: We shall not give up our prisoner.”
It is only fair to say that this was by no means the tone in which the trial was conducted in Jerusalem. But I think it is safe to predict that this last of the Successor trials will no more, and perhaps even less than its predecessors, serve as a valid precedent for future trials of such crimes. This might be of little import in view of the fact that its main purpose—to prosecute and to defend, to judge and to punish Adolf Eichmann—was achieved, if it were not for the rather uncomfortable but hardly deniable possibility that similar crimes may be committed in the future. The reasons for this sinister potentiality are general as well as particular. It is in the very nature of things human that every act that has once made its appearance and has been recorded in the history of mankind stays with mankind as a potentiality long after its actuality has become a thing of the past. No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been. The particular reasons that speak for the possibility of a repetition of the crimes committed by the Nazis are even more plausible. The frightening coincidence of the modern population explosion with the discovery of technical devices that, through automation, will make large sections of the population “superfluous” even in terms of labor, and that, through nuclear energy, make it possible to deal with this twofold threat by the use of instruments beside which Hitler's gassing installations look like an evil child's fumbling toys, should be enough to make us tremble.
It is essentially for this reason: that the unprecedented, once it has appeared, may become a precedent for the future, that all trials touching upon “crimes against humanity” must be judged according to a standard that is today still an “ideal.” 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 continued existence without the help and the protection of international law. Success or failure in dealing with the hitherto unprecedented can lie only in the extent to which this dealing may serve as a valid precedent on the road to international penal law. And this demand, addressed to the judges in such trials, does not overshoot the mark and ask for more than can reasonably be expected. International law, Justice Jackson pointed out at Nuremberg, “is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act…. Our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law.” What Justice Jackson failed to point out is that, in consequence of this yet unfinished nature of international law, it has become the task of ordinary trial judges to render justice without the help of, or beyond the limitation set upon them through, positive, posited laws. For the judge, this may be a predicament, and he is only too likely to protest that the “single act” demanded of him is not his to perform but is the business of the legislator.
And, indeed, before we come to any conclusion about the success or failure of the Jerusalem court, we must stress the judges' firm belief that they had no right to become legislators, that they had to conduct their business within the limits of Israeli law, on the one side, and of accepted legal opinion, on the other. It must be admitted furthermore that their failures were neither in kind nor in degree greater than the failures of the Nuremberg Trials or the Successor trials in other European countries. On the contrary, part of the failure of the Jerusalem court was due to its all too eager adherence to the Nuremberg precedent wherever possible.
In sum, the failure of the Jerusalem court consisted in its not coming to grips with three fundamental issues, all of which have been sufficiently well known and widely discussed since the establishment of the Nuremberg Tribunaclass="underline" the problem of impaired justice in the court of the victors; a valid definition of the “crime against humanity”; and a clear recognition of the new criminal who commits this crime.
As to the first of these, justice was more seriously impaired in Jerusalem than it was at Nuremberg, because the court did not admit witnesses for the defense. In terms of the traditional requirements for fair and due process of law, this was the most serious flaw in the Jerusalem proceedings. Moreover, while judgment in the court of the victors was perhaps inevitable at the close of the war (to Justice Jackson's argument in Nuremberg: “Either the victors must judge the vanquished or we must leave the defeated to judge should be added the understandable feeling on the part of the Allies that they “who had risked everything could not admit neutrals” [Vabres]), it was not the same sixteen years later, and under circumstances in which the argument against the admission of neutral countries did not make sense.
As to the second issue, the findings of the Jerusalem court were incomparably better than those at Nuremberg. I have mentioned before the Nuremberg Charter's definition of “crimes against humanity” as “inhuman acts,” which were translated into German as Verbrechen gegen die Menschlichkeit—as though the Nazis had simply been lacking in human kindness, certainly the understatement of the century. To be sure, had the conduct of the Jerusalem trial depended entirely upon the prosecution, the basic misunderstanding would have been even worse than at Nuremberg. But the judgment refused to let the basic character of the crime be swallowed up in a flood of atrocities, and it did not fall into the trap of equating this crime with ordinary war crimes. What had been mentioned at Nuremberg only occasionally and, as it were, marginally—that “the evidence shows that… the mass murders and cruelties were not committed solely for the purpose of stamping out opposition” but were “part of a plan to get rid of whole native populations”—was in the center of the Jerusalem proceedings, for the obvious reason that Eichmann stood accused of a crime against the Jewish people, a crime that could not be explained by any utilitarian purpose; Jews had been murdered all over Europe, not only in the East, and their annihilation was not due to any desire to gain territory that “could be used for colonization by Germans.” It was the great advantage of a trial centered on the crime against the Jewish people that not only did the difference between war crimes, such as shooting of partisans and killing of hostages, and “inhuman acts,” such as “expulsion and annihilation” of native populations to permit colonization by an invader, emerge with sufficient clarity to become part of a future international penal code, but also that the difference between “inhuman acts” (which were undertaken for some known, though criminal, purpose, such as expansion through colonization) and the “crime against humanity,” whose intent and purpose were unprecedented, was clarified. At no point, however, either in the proceedings or in the judgment, did the Jerusalem trial ever mention even the possibility that extermination of whole ethnic groups—the Jews, or the Poles, or the Gypsies—might be more than a crime against the Jewish or the Polish or the Gypsy people, that the international order, and mankind in its entirety, might have been grievously hurt and endangered.