Crime, punishment and Eichmann: Hannah Arendt’s contribution

The Eichmann verdict revisited (a response)

9 minute read
The young Hannah Arendt: A new definition of an indefinable crime.
The young Hannah Arendt: A new definition of an indefinable crime.
When I wrote "'Hannah Arendt: Ill-served again" (BSR, July 7), my review of the 2012 biopic directed by Margarethe von Trotta, I quoted the last paragraph of Arendt's controversial Eichmann In Jerusalem: A Report On The Banality of Evil to make a very limited point. Arendt, in her 1963 book on the trial, did not minimize the seriousness of Eichmann's participation in the "final solution of the Jewish problem"; in fact she supported the death penalty even while Jewish leaders and scholars (most notable among the latter, the great religious thinker Martin Buber) called for clemency.

In his rejoinder to my review, "The Eichmann verdict: Arendt's vs. mine," Dan Rottenberg makes that last paragraph the centerpiece of his article. He argues that whereas others (myself included) have considered the last paragraph brilliant, it has long struck him "as the flimsiest intellectual argument in her book." In addition to being flimsy, Rottenberg considers the case Arendt makes for hanging Eichmann unimaginative and proceeds during the remainder of his rejoinder to write the sentence he believes the Jerusalem judges should have delivered.

Rather than hanging, Dan says, Eichmann should have faced a lifetime of incarceration, which would alternate between cleaning toilets/mopping floors and helping the Israelis "understand the roots of hatred" in weekly sessions with Jewish psychiatrists and possibly (if Eichmann comported himself as a model prisoner) by writing his memoirs.

Rottenberg's rejoinder was sufficiently imaginative that for a brief period I re-examined all that I had written earlier, especially the claim that Arendt's last paragraph is among the most moving passages of Arendt's report. For that I am most grateful. Upon further reflection, however, I am convinced that his rejoinder is deeply flawed.

The crime and the criminal

The most serious flaw is Rottenberg's mistaken understanding of Arendt's reasons for supporting the death sentence, and this results from his placing too much importance on the last paragraph. As a stand-alone paragraph, it is not brilliant. In this assessment he is correct. Whatever brilliance is to be found there is solely derivative, from the book as a whole and most especially from the concluding chapter, "Epilogue."

In his mistaken formulation of Arendt's "justification" for hanging, Rottenberg makes the same mistake that Arendt accuses both the Israeli prosecution and the Israeli court of making. He (and they) failed to understand properly the unprecedented nature of the crime and the criminal before them.

The crime before the Jerusalem court was neither "crimes against peace" nor "war crimes" but rather "crimes against humanity," only the last of which was new and unprecedented. As for the defendant, Arendt writes:

"The trouble with Eichmann was precisely that so many were like him, and that the many were neither perverted nor sadistic, that they were, and still are, terribly and terrifyingly normal. From the viewpoint of our legal institutions and of our moral standards of judgment, this normality was much more terrifying than all the atrocities put together…."

"'Radical evil'

In failing to understand the criminal whom they had come to judge and the crime for which he was partially responsible, the Jerusalem court's sentence needed, in Arendt's judgment, a rewrite. In making the same mistake, Rottenberg placed too much weight on one paragraph and in doing so missed Arendt's justification for capital punishment in this very special, historic case.

Little wonder that the Jerusalem court understood so poorly the crime and the criminal before it, and little wonder that Hannah Arendt, in covering the trial, had the opportunity of a lifetime to begin the task of helping future generations understand both.

We must keep in mind that the "crime against humanity" was given a name— "genocide"— by the U.N. General Assembly on December 9, 1948, less than 13 short years prior to the Eichmann trial. The Nuremberg Trials, therefore, lacked the benefit of even this limited international codification of an unprecedented crime, and those trials along with the successor trials in Poland and Czechoslovakia provided the only judicial precedents for the Israeli judges.

Hannah Arendt, in turn, had inherited an equally thin conceptual framework for interpreting what was happening in Jerusalem and for creating a body of theory for understanding "radical evil."

Groping for understanding

In the final chapter— "Epilogue"— we find her early formulations of a theory. We are told that one feature of "crimes against humanity" is that they were acts against humans that were in fact independent of the war, independent in the sense that their commission actually conflicted with and hindered the war's conduct. As such, they "announced a policy of systematic murder to be continued in time of peace."

A second feature, coined by the French prosecutor Francois de Menthon, is that such crimes are more accurately characterized as "crimes against the human status." Arendt expands on this feature by contrasting "mass expulsion of populations" with "genocide."

"The extermination of whole ethnic groups— the Jews, or the Poles, or the Gypsies— is more than a crime against the Jewish or the Polish or the Gypsy people but against the international order, and mankind in its entirety is grievously hurt and endangered."

Justification for death

Arendt sums up these early gropings for an understanding of genocide, for an appropriate retribution for genocide, and for a rationale for her invented "sentencing" of Eichmann as the lead-in to her famous closing paragraphs:

"We refuse, and consider as barbaric, the proposition "'that a great crime offends nature, so that the very earth cries out for vengeance; that evil violates a natural harmony which only retribution can restore; that a wronged collectivity owes a duty to the moral order to punish the criminal' (Yosal Rogat. Fellow, Institute for the Study of Democratic Institutions). And yet I think it is undeniable that is precisely on the ground of these long-forgotten propositions that Eichmann was brought to justice to begin with, and that they were, in fact, the supreme justification for the death penalty. Because he had been implicated and had played a central role in an enterprise whose open purpose was to eliminate forever certain 'races' from the surface of the earth, he had to be eliminated."

One may disagree with the above line of reasoning, but it is of a different order of sophistication than the account Rottenberg would have us accept as Arendt's position. He is correct, however, in calling into question the alleged "brilliance" of the concluding paragraphs themselves. In fact, after reading Rottenberg's rejoinder I no longer think they are even among the most moving passages of her report.

Death penalty objections

In focusing exclusively on the last paragraphs, Rottenberg not only missed Arendt's justification for the death penalty but also her belief that rendering justice is the sole purpose of a trial, especially the trial of an unprecedented crime and a distinctive, if not unique, criminal.

Interestingly, Arendt anticipates Rottenberg's objections to her support of the death sentence— an easy task for her, since they were common arguments at the time. She dismisses the objection that the death sentence is pointless since genocide is a crime of such character that it defies the possibility of human punishment. Surely, this does not mean (she argues) that those responsible for genocide should for this very reason escape punishment altogether. Likewise, there were those, like Rottenberg, who objected that hanging was insufficiently imaginative.

Arendt's response is that among the many possible purposes a trial might serve, a highly imaginative sentence is not one of them. Rather, "the purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes— 'the making of a record of the Hitler regime which would withstand the test of history,' as Robert G. Story, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials— can only detract from the law's main business, to weigh the charges brought against the accused, to render judgment, and to mete out due punishment."

Unresolved question

As thought-provoking as Rottenberg's formulation is of what the Eichmann verdict should have been, I continue to find Arendt's more compelling: The sentence she would have imposed, her justification for that sentence, and the purpose to be served by the sentence. To leave matters here, however, begs an important question.

Even if we agree with Arendt on these matters, the nagging question lingers: In what sense was justice served, especially in the case of an unprecedented crime— unprecedented not only in degree but also in essence, a crime that broke a different order of mankind and violated a different community of humanity than previous atrocities involving mass murders— a crime Arendt had earlier labeled "radical evil"?

In The Origins of Totalitarianism (1958), her groundbreaking analysis of "radical evil," Arendt concluded that "in their effort to prove that everything is possible, totalitarian regimes have discovered without knowing it that there are crimes which men can neither punish nor forgive…. and which therefore anger could not revenge, love could not endure, friendship could not forgive." [My emphasis.]

If Arendt is correct (and I fear she is) in thinking that there can be no appropriate societal response to radical evil, in what sense could justice have been achieved no matter the sentence imposed on Eichmann by the Jerusalem court? This is the fundamental question Arendt leaves us; this is one of several problems evil poses for our generation and future ones.♦

To read a response by Robert Zaller, click here.
To read Dan Rottenberg's response to this essay, click here.
To read other responses, click here.
To read a follow-up by Victor L. Schermer, click here.

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