I am going to discuss this case only in terms of its (remarkable) significance for SO Mania law. The reviewer, Douglas – a law professor – supports the author, Lipstadt, and I am only making comments based on his review-analysis of her book.
Let me say right off that I most certainly am convinced that the Holocaust took place, that it was a monstrous injustice, and that it was and remains a shocking affront to any genuinely human civilization, especially Western civilization. And that the Jewish people had always been active and valuable contributors to the European and Western culture that existed prior to Hitler’s rise and rampage.
Lipstadt seeks in her book to update the assessments made by the trial at the time half a century ago and subsequently.
She notes that at the time Hannah Arendt had attended the trial and reported on it and then written a book entitled “Eichmann in Jerusalem”. Lipstadt is not satisfied with Arendt’s account because “it was a highly critical account that itself has been the subject of great controversy” and Lipstadt (and Douglas) want to move around or beyond Arendt’s well-known analysis which, Lipstadt feels, has a “stranglehold” on public conception of the matter.
In writing her book Lipstadt says she was guided by her own (successful) experience countering a lawsuit by noted author David Irving in 1996, in which she prevailed against his assertion that the Holocaust did not happen. Between the Irving case and Eichmann’s case she finds a common thread: both Irving and Eichmann were anti-Semitic. Without centuries of anti-Semitism, she asserts, Hitler would have found it impossible to carry out the Holocaust and then the later denials that the Holocaust ever happened. (I’m not fully in agreement with that assertion but that is not relevant to the SO matters discussed in this Post.)
Arendt’s take on the matter was that the Israelis themselves failed to appreciate “the unprecedented challenge that acts of state-orchestrated genocide present to the legal imagination”; Arendt was not satisfied with the approach of the Israeli prosecutor, who focused only on his “treating the Holocaust as simply the most horrific expression of centuries of anti-Semitism”.
Part of the problem here was that David Ben Gurion, the Israeli Prime Minister of the day, sensed that by 1960 a generation of Israeli young were growing up with a dimmed awareness of the Holocaust that had happened before they were born. It would help, he realized, to provide some flesh-and-blood reminder; thus Eichmann’s trial was to serve not only as an act of justice (or at least the imposing of justice on a pre-determined conclusion) but also as a sort of educational theater for Israeli youth too young to remember the Holocaust. While this made some real sense in the unique matter of the Holocaust and Eichmann’s clear part in it, you can see where such a determining use of ‘justice’ to ‘educate’ about ‘monsters’ starts to lay a disturbing precedent for the type of SO Mania ‘justice’ and trials in our own era.
Arendt took issue with the prosecution’s strategy of simply asserting that “the history of the Jewish people is steeped in suffering and tears”. There was more to it than that, she asserted: the Holocaust’s assault on the fundamental canons of Western law and culture and – much more difficult for the prosecution – the impact on Western governments as they tried to deal with such a monstrous undertaking. (She was going towards the idea that in seeking to avenge or bring-justice in the matter of the Holocaust Western governments were faced with the torturous challenge of avoiding Nazi-like actions themselves. AND the solution hit upon – lethally – was that if you are a Good government then you can perform the same type of actions but they won’t be Evil because Good entities – governments or people – by their very nature can’t do Bad and Evil things … which is precisely the presumption Victimism tries to manipulate you into making: Victims are by definition Good, if only because victimizers are by essence Evil, and so whatever a Victim does or says may always – and always must – be considered as Good.
In the Israeli prosecution’s strategy I see a substantial thread of a then-nascent Victimism and indeed a group-identity of Victimism: one group has been (terribly and monstrously) wronged and in such a profound and extraordinary way that standard legal procedures could not be followed if a government were to bring (some form of) justice to the matter.
Thus the deliberate abduction of Eichmann on another nation’s sovereign territory, and the purposeful evasion and deception of that nation’s own authorities, constituted at the very least a blatant violation of Argentinian sovereignty and possibly constituted an act of war.
The Israeli courts as well as the prosecution were clearly aware of that problem, and attempted to avoid any discussion of the legality of Eichmann’s abduction/capture; claiming, in a legal gambit that in those days would not have found favor in the US legal system, that the legality (or illegality) of his abduction/capture had no substantive bearing on the legality and rightness (two rather distinct categories) of his trial (since the crime with which he was charged – “orchestrating genocide” as Douglas nicely puts it – was so awful).
And Lipstadt and Douglas are equally sensitive to the matter now: Douglas, echoing Lipstadt, refers to the entire Mossad episode in Argentina as “an audacious kidnapping orchestrated by Mossad” without following up on the fact that ‘kidnapping’ is, not to put too fine a point on it, a crime. And in this case a government-sponsored crime (although Israel would claim, when pressed, that the Mossad agents were “acting as private citizens” (vigilantes, therefore) – which hardly settles the matter). You note the neat verbal symmetry: since Eichmann ‘orchestrated’ something, then a sovereign government is justified in ‘orchestrating’ something right back at him.** And perhaps also that there is something ominous in that cheerible “audacious” that doesn’t quite mesh with the American approach to government wielding its power.
Lipstadt and Douglas prefer to quickly pass over the capture/abduction (it couldn’t at the time be called an ‘arrest’) and want the matter to focus on the trial.
In the trial, the prosecutor’s strategy was to “avoid the numbing arithmetic” by structuring “the Eichmann trial around the testimony of the survivors”. This – and Lipstadt and Douglas support it – was a gambit whereby “eyewitnesses to the destruction could connect the anonymity of state-sponsored killing with the suffering of concrete individuals”. And you can see here the introduction of a tactic whereby ‘stories’ or ‘narratives’ are relied upon to finesse any touchy legal questions of validity and to put a human face of pain and suffering to the charges. This, says Douglas the law professor, “was arguably the trial’s greatest contribution to posterity”.
I cannot but agree.
The trouble – prescinding from the state-sponsored kidnapping and violation of another nation’s sovereignty – is that the Eichmann trial dealt with an undeniable and genuinely monstrous civilizational violation, i.e. the Holocaust, about which no reasonable person could have any doubt. But when American Victimism and especially in its Sex-Offense mutation adopted this ‘template’ or ‘paradigm’ or ‘strategy’ or ‘gambit’, then there develops a huge disconnect: while ‘rape’ surely is a repellent crime, there is no such instant and undeniable presumption before any individual’s trial in any specific case that the alleged act actually happened. Holding former SS officer Eichmann responsible for his part in the Holocaust is one thing; presuming that any ‘sex offense’ is equally as certain to have happened and to have been perpetrated by the accused is another thing altogether. And if that is what ‘victim-friendly law’ or ‘victim-friendly rape law’ requires, then such a requirement must be acknowledged for what it is: a profound undermining of essential American legal principles.
Yet indeed that widely held ‘presumption’ is precisely what American Victimism tried to establish (and largely succeeded in doing so for quite a while, even up to now) in public opinion. AND, even worse, in American law where the presumption-of-innocence in regard to the accused (see my immediately previous Post) is utterly fundamental to American law and, consequently, cannot be abolished or undermined (by, say, being transferred to the allegating ‘victim-complainant’) without destabilizing and undermining the entire American approach to law and the rendering of justice.
And, of course, in SO Mania law, ‘rape’ is only one of an extensive menu of eligible crimes, most of them involving acts far lesser in gravity. (Though of course, to counter that inconvenient fact, the Mania sought to conflate all sexual crimes as equally terrible in their consequences and nature, such that any thought as to proportion or perspective could be swept aside as ‘quibbling’ and ‘insensitive’ and ‘re-victimizing’.)
The use of ‘suffering’ and ‘stories of one’s suffering’ by indubitable victims of a Holocaust that indubitably happened are fair play in the trial of an SS officer who indubitably commanded the special SS Office responsible for carrying out the selection-and-transport logistics of the Holocaust.
But again, you can see what might easily happen (and has, in the SO Mania Regime) when there is room for reasonable doubt (prior to the presentation of sufficient and valid evidence) as to whether an individual committed a specified act.
As Douglas puts it well enough, the Israeli prosecutorial gambit “imaginatively placed survivor testimony at the legal fore [sic] of the case”. Again, it is legitimate in the utterly unique setting of the trial of a key former SS officer in the matter of the Holocaust; but once ‘survivor stories’ are endowed with a sort of free-standing and indeed overriding evidentiary authority as if – to use Bernard-Henry Levy’s phrase quoted in the immediately preceding Post – they were “Gospel” then you are into something else entirely and have gone into dark and treacherous legal ground indeed.
Nor can the indubitably accurate term ‘survivor’ when used in the context of those who survived the SS camps be so easily and without-consequence appropriated by those who neatly arranged to have the Holocaust-paradigm (or game-plan) run in the SO Mania Regime.
Further, Douglas notes that another effect of the ‘survivor story’ strategy was to “transform the trial’s spectators [there were no jurors, only a panel of 3 Israeli judges] into witnesses to the witnesses, persons with a direct connection to the narratives of unimaginable atrocity”. Which in the context of a Holocaust trial of a key former SS officer facing camp-survivors is legitimate, especially given the civilizational import of the Holocaust for all Western peoples (if not also all human beings).
But when this element is transferred to individual trials in SO cases, where there are jurors as well as spectators (and given the media attention back in heyday of the SO Mania, the entire public were spectators) the whole thing mutates into a stampede and a form of emotional manipulation and perhaps even intimidation, which works (as the advocates and prosecutors would well know) against any rational and objective and dispassionate consideration of the actual facts presented in the case.
(Interestingly, and this is a brief and acknowledged digression on my part, Douglas compliments Lipstadt for doing an especially good job in describing “the resistance that the planned trial aroused within the American Jewish community, whose members questioned Israel’s right to speak as the representative of world Jewry”.)
Lipstadt also rejects Arendt’s now-famous assertion that Eichmann was not so much a zealous psychotic as simply a banal careerist who switched off his moral voice and did what he had to do to get ahead in his chosen career (i.e. Hitler’s SS, where he won promotion for overseeing camp-transports). Rather, Lipstadt insists, other later scholars now consider Eichmann to have been “extremely anti-Semitic and that these feelings were important motivators of his genocidal actions”.
I’m not sure that that has been so clearly established, especially since Eichmann would have had to publicly mouth a great deal of Nazi racial claptrap in order to keep his creds in the SS. (Arendt here may have been on to something that Charles Fair noted in his 1971 book “From the Jaws of Victory” about great but failed military commanders: they (and Fair specifically mentions Hitler among others) reveal themselves to be, when not ‘performing’ in front of an audience as Leader and ‘let their hair down’, utterly mediocre human beings, intellectually, socially, and of course morally.)
Rather, there would certainly be a need to insist that Eichmann’s deeds were not simply criminal in themselves, but that Eichmann himself was a monstrously flawed (anti-Semitic) individual. And this strikes me as similar to the Victimist need not simply to establish the accused’s guilt for having committed an act, but also to insist upon the profoundly (and incorrigibly?) monstrous attitude that the Sex Offender has toward his victims (and, to give a not-inappropriate feminist spin to it) all women. In the symmetry of the paradigm, being in one’s heart misogynist or patriarchal or anti-woman is the equivalent of the anti-Semitic element in the case of Eichmann.
Douglas does have one substantial bone to pick with Lipstadt, however. She “does not fully consider the legal legacy of the proceedings”. Douglas considers the 1961 Eichmann trial to be at least as significant as the 1946 Nuremberg trials of Nazi war criminals. The Eichmann trial, he says, specifically initiated in international law the establishment of “universal jurisdiction” whereby the profoundly awful nature of the crime (the Holocaust) by itself conferred a right of jurisdiction upon any government that chose to involve itself (which, of course, also neatly justified the Israeli abduction-capture-kidnapping after the fact). The nature of the crime alone was sufficient to justify any government in taking steps (legally, it must be hoped) to render justice. The Israeli court neatly considered Eichmann to be similar to “a Barbary pirate” – piracy being so odious a crime in the days of sailing ships that any sovereign authority that captured one was considered justified in dealing with the brute forthwith; he was a hostis humani generis, an enemy to the human species and “his crimes were so extreme as to authorize any court anywhere to judge” him.
I can’t point out strongly enough what a noxious element this would be in any attempt to transfer the Holocaust paradigm to, in matters relevant here, sex-crimes: the Sex Offender becomes an enemy of humanity (or at least of the entire female gender), and a presumptively incorrigible enemy at that.
I have pointed out in other Posts how American Victimism in the 1980s sought to adapt the Jim Crow paradigm: that ‘victims’ were the equivalent of Southern ‘Negroes’ willfully and deliberately and comprehensively demeaned, brutalized and oppressed by the Jim Crow Regime, and Sex-Offenders were the equivalent (in the script of the paradigm) of the leering, incorrigible white Southerners who ran the Jim Crow Regime. What I am saying here is that there was another paradigm, even more lethal if misapplied to individual sex-offense cases: the Sex-Offender (so often male) was cast not only as the white-Southerner against whom any and all the resources of the government could be brought to bear – and had to be brought to bear. He was also cast as the anti-Semitic Nazi who made a career out of indulging in the most horrendous of crimes against a gender (at least, if not the whole of humanity).
Also, Douglas does not address what Arendt had already seen half a century ago: that it’s an open and vital and ominous question for the West just what limits a government would impose upon itself in pursuing (as well as trying) any such individual once (however it was achieved) he was caught. Because it’s one thing to establish ‘jurisdiction’ and another thing to establish the ground-rules by which the capturing government would consider itself bound. Arendt was not pleased that Eichmann was tried in an Israeli court since, as a matter of principle, the Israeli government – especially as it sought to embody and represent itself as the avenger of the rights of all Jews in the world – could hardly have been considered an impartial judge.
Neatly, Douglas limits himself to using examples of universal jurisdiction that are confined to political dictators and their underlings: Pinochet, the Serbs in the 1990s Balkan strife, and – as a condescending aside – “the passion of Belgian prosecutors to seek indictments against just about anyone – Ariel Sharon, Fidel Castro, and Donald Rumsfeld among others”. This is a shrewd bit: while urging that all nations had a right to involve themselves against the perpetrators of ‘crimes against humanity’, he quickly reduces ‘inconvenient’ decisions to ridicule: the Belgians have had the temerity to seek such indictments against high-ranking members of both the Israeli and US governments (and Fidel Castro, tossed in for further yuks). Apparently the Belgians haven’t gotten the Memo that the Good by definition cannot do anything Evil.
But, he continues, the Eichmann trial (meaning the final outcome determined by the Israeli court) not only established universal-jurisdiction, but also the fact that it is best to conduct such trials in a country “where there was a strong organic link between proceedings, people, and place” so that the trial could more fully achieve the goals of exercising “retributive justice”, establishing “a baseline historical account”, and “as a means of conferring dignity on the lived experience of the survivors”.
In other words, in this type of enemy-of-the-human-race and crimes-against-humanity trial, you most specifically did NOT want the trial to take place in some ‘neutral’ or ‘objective’ setting; instead you wanted the trial of such an enemy-of-humanity to take place in the presence of the specific groups of humanity against whom he (perhaps she) had committed the crimes.
Thus in this type of case you precisely did NOT want ‘impartiality’ because of the existence not only of the civilization-assaulting crime but of the perpetrator’s part in it (an admittedly and clearly proven role as a key SS officer in the Holocaust process). The court's role in such a situation is indeed not so much as a finder-and-trier-of-fact as it is an instrument of almost foreordained retributive justice. But again, you cannot – especially in American law – enter upon a trial, or erect a species of ‘special-type’ trials and a special-category of offenses, in which any such presumptions apply because there is no way that such ‘evidence’ as obvious as Eichmann’s role in the Holocaust could apply.
So it’s a curious blend of an objectively universal-jurisdiction BUT a verrry specific (and no doubt emotionally charged) localization.
And I can’t help but notice that this is precisely the sort of double-stance taken in the SO Mania practice: a Sex-Offender is a horrible perpetrator of a horrible crime against all of a gender or all of humanity; yet you want to make sure that there are plenty of interested and highly-emotionally charged folks involved in the trial (and not just as survivors but as judges and prosecutors as well as jurors).
The Holocaust paradigm – even as applied to subsequent types of crimes-against-humanity – has some validity, certainly; uniformed or clearly-authorized agents or leaders of a government are easily identified as such, as was the crime of the Holocaust certainly. But this is not at all the case with individual sex-offenders accused of any of a hundred or more possible ‘sex offenses’ of whatever severity (or lack of it), even though the Sex Offender of myth and nightmare is spun implicitly as some domestic equivalent of the lifelong Pirate or Nazi death-camp official.
So, Douglas concludes unsurprisingly, Arendt is “proven wrong”. “When courts attempt … [to act from] … a position of Archimedean neutrality, the act of judgment threatens to turn into something arrogant and ultimately arid. The Eichmann trial, by contrast succeeded brilliantly.”
In other words, in these types of cases ‘neutrality’ is precisely NOT desirable. He describes such objectively handled cases, kind of weirdly, as “arrogant and ultimately arid”. I think what he means is that if you actually haven’t been specifically and locally victimized by a particular enemy-of-humanity, then it is arrogant to take his prosecution for yourself rather than letting those who were directly his victims take over the job; and that such objectively handled cases aren’t emotionally useful but instead are “arid”, dry and factual but with no – I’ll say it – oomph and pizzazz, such as is lent by a hefty dollop of ‘survivor stories’. Or, to use a high British government official’s assessment of the ‘justifications’ being passed around for the invasion of Iraq in 2003, the case was being “sexed up”.
Such brilliance.
This is a form of ‘victim-justice’ that borders very dangerously on vengeance and revenge. It may be justified in some monstrously and extraordinarily rare and massive instance such as the Holocaust perpetrated by the Nazis against European Jewry, but such a profoundly and dangerously regressive principle must be (or should have been) carefully and strongly boundaried, in order to prevent a general regression of Western Law back to the Dark Ages.
But instead, this lethal and volatile regressive mutation has been taken as some form of new cutting-edge ‘reform’ of Law under the pressures of Victimism and those interests that seek to advance their agendas through it. There are now generations of law school students who have been taught for all practical purposes that the dynamics of the Holocaust Paradigm join the Jim Crow Paradigm as the cutting-edge of legal ‘progress’ and ‘reform’ in this country, and applicable to domestic criminal law; many of those law school graduates are now not simply to be found among the ranks of attorneys and prosecutors (and government ‘public interest’ bureaucratic lawyers), but among the ranks of judges and legislators – at all levels.
We in a heepa trubble, as the saying goes.
Again and in conclusion, I’d say that this may work in matters of actual crimes-against-humanity (though it is still legally a vague and elastic charge). BUT it most surely is a treacherously dangerous principle to deploy in domestic criminal justice … or in a Sex Offense Mania Regime.
NOTES
*I can’t access it online to give you a link. The one-page review is in the print edition of ‘The Times Literary Supplement’ (of London), June 24, 2011 edition, p.10, and the review itself is entitled “Bigger fish”, written by Lawrence R. Douglas. It reviews a new book by Deborah Lipstadt entitled “The Eichmann Trial”, ISBN 978-0-8052-4260-7.
**It’s not hard to see where the Eichmann trial precedent would also provide conceptual fodder for justifying various types of ‘rendition’ and ‘black ops flights’ in recent US policy.
ADDENDUM
I am making this Addendum on 11 August.
In light of the UK riots, I add here that it is not at all irrelevant that this trope of ‘no impartial and objective justice’ that we see introduced in official proceedings here in the Eichmann trial found its way into – among many many other venues – the UK philosophy of policing.
As this article indicates, in 2002 the UK Association of Chief Police Officers issued a “hate-crime manual” that suddenly overturned the entire concept of impartial-policing and impartial-enforcement of the laws. Instead, such impartial justice and law enforcement was scorned (by the Chief Police Officers!): They actually used ironic quotes to say that “colour-blind” policing is policing “[T]hat purports to treat everyone in the same way. Such an approach is flawed and unjust. It fails to take account of the fact that different people have different reactions and different needs. Failure to recognize and understand these means failure to deliver services appropriate to needs and an inability to protect people irrespective of their background”.
This concept of the wrongness of objective and impartial justice and enforcement is precisely what Professor-Lawyer Richards crows is one of the great contributions of the Eichmann trial to Western jurisprudence.
The linked article goes on to quote the Chiefs that all police officers will be “retrained” and if they have any problems with this whole thing they will be “disciplined”.
In terms of the UK riots this past week, it resulted in one senior police official complaining that the weak police response was due to the police not getting orders from politicians. You might wonder why – confronted with clear evidence of a riot-in-progress – the police would not know what action to take. BUT if the police have now been hobbled by their Chiefs’ (no doubt politically demanded) embrace of Identity Politics’ and multiculturalism’s ‘partial policing’ rather than ‘impartial policing’, then it’s clear that in the face of rioters with ‘backgrounds’ that must be very carefully ‘respected’, they literally did not know just how much ‘law enforcement action’ they could take. And the riots rolled on for days.
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