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Q & A with… Robert A. Burt

Yale law professor examines the Eichmann trial, 50 years later

NEW HAVEN – On April 11, 1961, Adolf Eichmann was first led to the bulletproof glass booth in a Jerusalem courtroom where he would be tried for his role in the Holocaust, under the “Nazi and Nazi Collaborators (Punishment) Law of 1950.” For the next 14 weeks, the world looked on as Eichmann sat before three Israeli judges and more than 100 prosecution witnesses, most of them survivors. On May 31, 1962, he was hanged in the only civil execution ever carried out in Israel.
Eichmann’s trial spawned major worldwide controversy at the time. Fifty years later, scholars and lawyers still debate its merits and flaws.
Robert A. Burt, the Alexander M. Bickel Professor of Law at Yale Law School, has studied and written about the trial for a quarter-century. He will present “The Eichmann Trial 50 Years Later” on Tuesday, July 12 at the JCC of Greater New Haven, as part of the Center for Jewish Life and Learning Summer Institute.
Burt spoke with the Ledger about the significance of the trial to Israeli attitudes, and some of the legal issues that still trouble him.

There are many aspects of Eichmann’s capture and trial that merit scrutiny. What, in general, does the trial represent to you as a law scholar?
A: The trial was a quite stunning event in terms of its being a watershed moment in attitudes toward the Holocaust. It may be hard to believe, but the Holocaust was almost a buried event by 1961. At the end of the war, the liberating troops discovered horrors at all the concentration camps and although it was hardly a secret during the war, it emerged into full vision at the end. Gen. Eisenhower, commander of the allied forces in Europe, arranged for many of the troops in Germany and Poland to go to the camps because it was so unbelievable what was going on there.
One would have thought that that moment would be the beginning of sustained attention to the Holocaust, but it was hardly talked about. There was very little public discussion by the survivors or about the survivors or about the killings themselves. The Eichmann trial brought the Holocaust into very high visibility. One of the striking elements was the changed attitudes in Israel toward the survivors.

What exactly was the attitude of Israel toward the survivors up to that point in time?
A: Up until the trial, the survivors who came to Israel, known as “the seventh million,” were a scorned population. The common slang used to describe them was the Hebrew word “sabon,” meaning “bar of soap.”
Tom Segev’s excellent book, “The Seventh Million,” is a study of the attitudes in Israel toward the Holocaust. The basic Zionist view was that the Jews who remained in Europe were led like sheep to the slaughter, and that a true Zionist would stand up for himself and leave behind the Eastern European shtetl to build a new society in Israel. The shtetl society was where you were ashamed of yourself and your Jewishness; the Yishuv that preceded the modern State of Israel represented the strong, new, self-sufficient Jew who worked the land, created an army, defended himself.
The attitude toward the survivor was, “You survived, but you barely survived, and we told you that this would happen, so what did you expect?” Those Jews who stayed in Europe and experienced the camps were considered unfit to help create the new Israel.

What happened to change that attitude?
A: By 1961, for a lot of reasons, the State of Israel was beginning to redefine the relevance of the Holocaust. One of the factors may have been the unrelieved hostility by the surrounding Arab countries. Israel was feeling embattled and endangered, just like the Jews of Europe in 1939. The sentiment was that this time, we would avenge the Holocaust and the State of Israel would be in the forefront of the effort. The Holocaust became the rationale for the State of Israel: to undo the Holocaust and never let it happen again.
As a result, the survivors almost began to be looked at in a different light in Israel, and the Eichmann trial served as the pivotal moment of that shift. Then-Prime Minister Ben Gurion decided that he would use the trial to communicate to the world this new and different vision of Israel.
To wit, there had been an awareness in the Mossad [Israel’s Institute for Intelligence and Special Operations] about Eichmann’s presence in Argentina, for at least a year before his capture was planned and executed. People didn’t feel that it was very important to get him until it came to Ben Gurion’s attention; it then became very important to capture and bring him to trial. There were well over 100 survivor-witnesses who testified, and this was the first time they revealed their experiences in a public forum and were treated with respect in Israeli society.

There has been some criticism of the trial itself.  What was wrong with the way the trial was conducted?
A: There was a lot of criticism about the way the trial was run, and about meting out the death penalty. What I plan to do in my presentation is give the historic background and evaluate the different criticisms leveled at the trial, especially some key ones that I am quite sympathetic to. While there were and are a lot people supportive of the trial, it is a complicated matter. In the end, there is much to be said, not about Eichmann’s guilt and the proposition that he should in some way have been held accountable – those are crystal clear – but there are some troublesome aspects of the trial that are particularly interesting to me as a lawyer and as someone interested in the rule of law.

Can you give one example?
A: For one, judges should be unbiased and should not appear to be biased for one side or the other or, in a criminal trial, appear to be against the defendant in particular. There’s a special detail about the Eichmann trial that is especially disturbing: of the three judges who sat on the panel, the presiding judge was Moshe Landau of the Supreme Court of Israel, and the other two – Yitzchak Raveh and Benjamin Halevi – were District Judges.
Halevi, who was also Chief Judge of the Jerusalem District Court, had presided over the “Kastner Trial” in 1957, which examined the question of Jewish dealings with Eichmann during the war. There were negotiations to bring a fleet of trucks and many millions of dollars to the Nazis in exchange for releasing Hungarian Jews and bringing them to Israel. A number of trucks were accepted by the Nazis, in exchange for only 1,000 Jews.
The Jewish-Hungarian leader of the negotiations was Dr. Rudolf Kastner, who was part of the group that emigrated to Israel. After the war, accusations were made against him because it turned out that of the 1,000 Jews who were allowed to leave Hungary, a significant number were his family and friends.
Kastner sued for libel and Halevi was the trial judge and there was no jury – Israeli courts don’t use juries the way ours do. Halevi ruled that Kastner was not libeled, and wrote that Kastner “sold his soul to the devil”  in dealing with Eichmann.
Four years later, he was sitting in judgment over Eichmann and that’s not right. You could find other judges, and you don’t start out with someone who referred to Eichmann as the “devil.” That was noticed at the time, but Halevi insisted that he be included on the panel and the system accepted. It’s puzzling that Israel was not able to run the trial in a clean and completely unobjectionable way.

How did you develop an interest in the trial?
A: The question of how to restore the ideal of the rule of law in response to a staggering, overwhelming wrongdoing that the Holocaust represented has been an interest of mine for 25 years. I’ve been teaching different aspects of it using the Yale University Library Fortunoff Video Archive for Holocaust Testimonies. For my July 12 talk, I will be using a tape from the archives of a survivor who testified in a war-crimes trial and asked a question concerning the extent to which the criminal trials were helpful or adequately respectful to the survivors and murdered Jews.
So the question remains: What is the purpose of these criminal trials? It’s not to have the defendants adequately pay for their wrongdoing – justice, to an important degree, is unattainable in a massive horror like the Holocaust; there’s no way to recompense it.
This is a problem in any criminal trial, particularly if the defendant has committed a murder. When someone has taken another’s life, how do we say that we’ll make the world right? The death penalty can’t restore the world that existed before this horror. That’s the basic effort in trying to address the Holocaust and confront the reality that this injustice can’t be overcome.
One of the courses I teach, with Rabbi James Ponet [of the Slifka Center for Jewish Life at Yale], is “The Book of Job and Injustice.” Job was subjected to evil by God, even injustice by God. We use this as a run-up to look at the Eichmann trial and struggle with the question: how do you live adequately in a world where justice is not assured?

Prof. Robert A. Burt presents “The Eichmann Trial 50 Years Later,” Tuesday, July 12, 10:30 a.m., JCC of Greater New Haven, 360 Amity Road, Woodbridge. For more information: (203) 387-2522, ext. 300 / rwalter@jewishnewhaven.org / www.jccnh.org

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