The Legacy of the Eichmann Trial

Many principles of international law that are universally accepted were established by Israeli judges during the Eichmann trial. The fact that these same principles are now being distorted to indict Israeli leaders for war crimes is bitterly ironic.

Eichmann 311 (Yad Vashem) (photo credit: Yad Vashem)
Eichmann 311 (Yad Vashem)
(photo credit: Yad Vashem)
Fifty years have passed since the trial of Adolph Eichmann in Jerusalem and perhaps only now is it possible to examine the trial’s historical legacy. The Israeli government at the time didn't conceal the fact that the object of the trial was not solely to punish a major war criminal. By presenting detailed forensic evidence of witnesses, documents, photos and Eichmann's own statements, the government wanted to ensure that future generations would not be able to deny the Holocaust. No doubt they also wanted to emphasize the role of the State of Israel as representing the collective memory and conscience of the Jewish People.
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The Eichmann trial achieved all of these goals and it also made the world aware, for the first time, of the supreme quality of Israel's judiciary. Prior to the Eichmann trial, there are almost no Israeli court decisions quoted by foreign courts. The Eichmann outcome however, is frequently cited by US and European Courts and is quoted in every modern textbook on international law. The trial judges of both the District and Supreme Courts laid out rules of international criminal law that are now universally accepted.
The best known legal principle set out in the Eichmann trial concerns universal jurisdiction. In the Israeli court, Eichmann's attorney argued that Israel had no jurisdiction over the case since Eichmann had committed his crimes outside of its territory, against people who were not Israeli citizens and at a time that Israel did not even exist. However, Justice Landau ruled, “these crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself. The jurisdiction to try crimes under international law is universal."
The Court also added that even had there been no international jurisdiction, there was a clear nexus between Israel and the crimes committed by the Nazis since "Hitler and his associates exploited the defenseless position of the Jewish people in its dispersion, in order to perpetrate the total murder of that people in cold blood.”
Convening the trial in Israel “was also in order to provide some measure of redress for the terrible injustice of the Holocaust that the sovereign state of the Jews, which enables the survivors of the Holocaust to defend its existence by the means at the disposal of a state, was established.[…]The sovereign State of the Jewish people performs through its legislation the task of carrying into effect the right of the Jewish People to punish the criminals who killed its sons with intent to put an end to the survival of this people."
As part of the ongoing attempts to delegitimize Israel, the principle of universal jurisdiction has been warped in an attempt to have Israeli leaders and officers indicted for war crimes in the UK and other European countries. It hasn’t succeeded thus far, and while it is safe to assume that no European court would allow itself to be misused for such nefarious political ends, the initiators have nevertheless succeeded in significantly harming public opinion of Israel.
Another issue of principle that arose from Eichmann's defense was that he was only obeying orders and that as a German officer he was bound by oath to do so. The court ruled that where the order was manifestly illegal it should have been disobeyed. This notion of a person’s duty not to obey an illegal order is reflected in the Israeli military code. Every Israeli soldier is taught that in cases where there is a "Black flag" [of explicit illegality] accompanying an order, the soldier is legally bound to disobey it. The principle of manifest illegality is now an accepted one within international criminal law, as reflected in the statute of the International Criminal Court in The Hague.
Former prime minister Menachem Begin once famously declared "There are judges in Israel" thereby silencing a speaker who was complaining about judicial activity. Indeed, Israel has much to be proud of in its judicial legacy.
The writer teaches international law at the Hebrew University and is the former legal adviser to the Israel Foreign Ministry.