Why the eichmann trial really mattered

Hausner, we have heard shocking things here, in the language of a poet, but many parts of this evidence were far from the subject of this trial. Out of respect for the witness and out of respect for the matters he is relating, it is absolutely impossible to interrupt such testimony. It is your task to prepare the witness, to explain matters to him, and to eliminate everything that is not relevant to the trial, so as not to place the Court once again—and this is not the first time—in such a situation.

I regret that I have to make these remarks, after the conclusion of a testimony such as this. The Court has a certain view of this trial according to the indictment, and we have stated this more than once—sometimes in a hint, sometimes more clearly, and the prosecution must direct itself in accordance to what it hears from the Court.

Landau did not always succeed in conducting the trial as he intended or within the boundaries he attempted to set. Yet, despite the extraordinary circumstances, he did succeed in conducting a legitimate criminal trial. The judges heard defense attorney Dr. Servatius' preliminary arguments claiming that an Israeli court had no jurisdiction and no right to judge his client Adolf Eichmann, and—as expected—they rejected those arguments.

The parties made their opening speeches. The prosecution submitted nearly 2, documents, some of them very long. Hausner called more than witnesses to the stand.

The defense submitted a small number of documents and a small number of written testimonies. The judges handed down some seventy intermediate decisions. The prosecution and the defense made their closing speeches in mid-August , and the judges adjourned to write the decision. I did not read or hear any negative criticism of the manner in which the trial was conducted.

Landau knew well that no one doubted the court's professionalism or independence. The judges were successful in accomplishing their exceedingly difficult task. The numerous documents accumulated by the police and the prosecution prior to the trial were sufficient to convict Eichmann and to substantiate a sentence of death. Most members of the prosecution team were in favor of basing the case on documentary evidence alone. Hausner's vision was different.

He envisioned, in contrast, an experience made emotionally powerful through the oral testimony of living witnesses. Twenty-one witnesses belonged to the first category: members of Jewish underground movements, Jewish partisans, and Jewish soldiers in the Allied forces. One after another they—survivors of ghettos, of Einsatzgruppen atrocities, of concentration camps, of death camps, and of death marches—climbed to the witness stand.

In a chain of shocking personal stories, they related their experiences and those of their relatives under the rule of Nazi Germany. The survivors' presence in the flesh, the heart-rending stories they told, and the simple manner in which they narrated their tragic stories had a tremendous impact on the Israeli public. These witnesses forced many Israelis to confront the Holocaust for the first time. In bearing witness in the courtroom, the survivors broke that silence. But while Landau was preparing himself for the trial, he grew understandably concerned that the victims' testimonies might overstep the trial's judicial boundaries.

Assuming that Hausner did not know in advance how the defense was going to act, his plan for the trial was a gamble. Ironically, the prosecution's plan was saved by the German legal system. Landau explains: Dr. Servatius conducted himself according to his legal education, based on German criminal procedures—in which the court examines the defendant and witnesses, and the defense attorney's task is more limited than in the English system that we use here: He is permitted to examine the witnesses only through the Court, which ensures that the examination is limited to questions that are in dispute.

It was the good fortune of the prosecution, of the court, and of history that the witnesses were heard consecutively and almost without interference or disturbance. As Landau listened to the survivors, his face revealed his anguish.

Listening day after day to the devastating accounts of atrocities required immense mental and emotional effort. I sensed the full measure of his stature when he looked at the Holocaust victims as individuals, and saw the suffering of the individual. Anything that is required for these goals should be examined in the trial. Anything that is irrelevant to them should be left out of the proceedings.

Did the survivors' testimonies fit into this framework? The question arose explicitly some three weeks after the trial opened, during the twenty-third session. On the previous day, the prosecution had called seven survivors from prewar Polish territories to the stand. One after the other they told appalling stories of beatings, humiliation, murder, mass executions, selections, forced labor, and deportation to concentration and extermination camps.

None of them had encountered Eichmann, and so they could not testify directly about his actions. The seventh witness was Dr. Leon Weliczker Wells, an American citizen and a reputable scientist.

When the war broke out he was 16 years old and lived with his family in Lvov. At the end of the war, he was the only survivor of his large family. Throughout these testimonies, Dr. Servatius sat silently. It is not relevant in the judicial process since they have no connection to the defendant's responsibility.

I am, therefore, of the opinion that there is a certain repetition here. Servatius' argument was that Eichmann did not deny the Nazis' horrific crimes against the Jewish people—crimes that were specified in the indictment. Therefore, these matters did not need to be proven.

Eichmann's defense was that he himself was not responsible for the crimes, and that on the matter of his personal guilt, survivors of the ghettos and camps could contribute nothing. Intermediate Decision No. The decision reads: We think that the testimony of the witness Wells is relevant to the subject of the trial. The question that has to be determined is the personal responsibility of the defendant for the acts set out in the indictment.

The Prosecution must prove, first, that all these acts were committed; and second, that they are the responsibility of the defendant. According to established criminal procedures, matters may not be eliminated from the area of dispute by an agreement of the parties.

Wells' testimony was relevant, as were the testimonies of other survivors. Even if Decision No. Eichmann's conviction, the judgment emphasized, was based on documents: Nazi administrative documents, as well as testimonies of senior Nazis mainly in the Nuremberg trials , the transcripts of Eichmann's police interrogation, and statements Eichmann had made on several occasions during and after the war.

No part of the conviction was based on survivors' oral testimonies. However, as far as this Court is concerned, these are no more than side effects of the trial. That is, he allowed the trial to transgress the strict limits of criminal law, and become, in part, the type of event that the prosecutor and the Israeli government had envisioned. Why, then, was Landau inconsistent? What were his considerations when he agreed to let the court and the world listen to survivors' testimonies?

As he left no explanation, it is up to us to try to think through—and articulate—the answer to this question. On a simple level, no great trial can be entirely consistent. Such a picture could be drawn only by the victims—not by administrative documents drafted by the organizers and the performers of the persecutions, humiliations, tortures, and murders, and not by written statements and admissions of the architects and perpetrators of the crimes.

Even while he was working hard to maintain the legal framework, Landau recognized that history was also at stake. I believe that there was a further, equally powerful reason for Landau's deviation from the strict legal line that he emphasized in his judgment: he recognized the human and moral obligation to give the victims a voice. Intuitively, Landau knew that the former inmates of ghettos and camps felt an obligation to tell the world what happened—to bear witness.

On the one hand, as a judge he was required to conduct the trial according to strict legal principles, regardless of the trial's subject. On the other hand, as one of the early Supreme Court justices, Landau was among the engineers of an enormously difficult and fragile project: that of building the new Jewish homeland.

Here, in the Eichmann trial, he had the obligation and the opportunity to lead and shape an event that would influence the future spirit of the Jewish state.

Landau understood that, alongside the legal proceedings taking place in the courtroom, a public event of immeasurable significance was taking place as well. Landau's solution to the conflict was to allow the judicial event and the public event to take place side by side.

He took care not to let the public event shatter the legal framework, or to let the criminal trial deteriorate into a theatrical show trial. His genius as a judge lay in his ability to keep the two dimensions of the trial—the legal and the extra-legal—separate and distinct from one another.

It stemmed from her hostility to theatricality, from dislike of Hausner, her hostility to nationalism, and her complex and ambivalent attitude toward Zionism. On one matter, the cosmopolitan political theorist and the Israeli judge had the same view: Both were severely critical of the prosecutor's plan to present to the judges, the audience, and the general public more than twenty lengthy testimonies to Jewish heroism.

Landau's consent to hear the survivors extended to those who could expose the deeds of the perpetrators, not to those who presented the victims' response. Hausner's incessant attempts to put the heroes at the center of the trial caused considerable friction between the bench and the bar, as the exchange between the judge and the prosecutor over the testimony of Abba Kovner demonstrated. The fact that Landau limited as far as he was able the stories of the heroes had a significance that, in my opinion, has not received the recognition it deserves.

Landau's decision to allow survivors to narrate the Jewish catastrophe, but at the same time to restrict and limit narratives of Jewish heroism, turned out to be a major contribution to a gradual cultural transformation that took place in Israeli society as a consequence of the trial.

The Eichmann trial was a turning point in the development of Israeli Jews' identity: it transformed their perception of the meaning of the Holocaust, and more generally, their perception of the meaning of being Jewish. The Eichmann trial thus led to a deeper perception of Jewishness as continuity, and of the Holocaust as the destruction of the Jewish nation.

Landau felt that the national catastrophe should be allowed to penetrate into Israeli collective consciousness, and that it demanded above all a collective mourning—one that had yet to take place.

Landau explained in his written judgment that the survivors' testimonies could not serve as the basis for legal conclusions concerning the guilt of the accused. Yet he goes back to these testimonies to point out that they revealed a new and startling insight. Perhaps only at the trial's end, Landau realized that the meaning of the Holocaust consists also in the impossibility for Holocaust victims to fully narrate their traumatic experiences.

That impossibility was exemplified, Landau writes in his judgment, not only by the writer Ka-Tzetnik, who collapsed on the witness stand, but also by another witness, Judge Moshe Beisky. During his testimony, Beisky said that there were things he was unable to tell, to understand, or to explain.

In the judgment, alongside his fact-finding and the legal analysis, he notes the impossibility of giving legal meaning to the depth of the trauma: To describe the Holocaust in the East, documents were submitted. But there is no doubt that even they could not find the words to describe their suffering in all its depth.

This feeling of terror does not exist any longer today when I stand before Your Honors, and I do not think that it is possible to transmit the conditions of those days in a courtroom.

It is not that I believe that people will not understand, but I cannot do it, and I myself experienced it, in my own flesh. The trial opened on April 11, After seventy-five sessions, the prosecution finished its case and the defense started its own, including Eichmann's testimony. This lasted until the th session; in the last two sessions, the three judges examined the defendant.

On August 14, , the closing arguments of the prosecution and of the defense were completed. The judgment was read aloud in the courtroom on December 15, , over several hours, with the judges taking turns reading it.

It convicted Eichmann of crimes against the Jewish people, crimes against humanity, and war crimes. He wrote the preface, a methodological and philosophical introduction. The next part was Halevi's, and it is an extensive and excellent legal rebuttal of the arguments against the Israeli Court's authority to judge Eichmann. The remainder—the main part, which was also written by Landau—describes the various stages of the Holocaust and Eichmann's actions at each stage, analyzes Eichmann's criminal intent, and rejects his defense arguments.

Defendant Adolf Eichmann listens as presiding judge Moshe Landau sentences him to death, December 15, After the judgment was read, Hausner and Servatius summed up their arguments regarding the punishment. Servatius argued that Eichmann should not be sentenced to death because, in Germany, the death penalty had been abolished.

The explanation of the sentence was brief, about two pages. In this respect, they differ from criminal acts against persons as individuals. But at the sentencing stage, consideration must be given above all to the harm inflicted on the victims of the Holocaust as individuals. No one was surprised when he declared that his hope for justice had been frustrated. After four months of proceedings, and another four months of waiting for the verdict, the judgment was anticlimactic for many.

Landau's legal-philosophical preface to the judgment states clearly what the judges would refrain from doing. What are the psychological and social reasons for antisemitism? Could the Nazis have carried out their plot without the assistance they received from other peoples amongst whom the Jews lived?

Could the Holocaust have been prevented, at least partially, if the Allies had demonstrated more will to help the persecuted Jews?

Did the world's Jews do everything in their power to respond and call for help for their brothers? And, What is the lesson that Israel and the nations must learn from all this, and what should every person learn about his relations with his fellow man? It should not be tempted to try to wander to foreign provinces that are outside its sphere. The judicial process has ways of its own, laid down by the law and procedure, and they must be kept meticulously, since they are in themselves of considerable social and educational significance.

The final text of the court's opinion constitutes a clear, comprehensive, rigorously substantiated, and masterfully structured judgment: it leaves no doubt that Eichmann's conviction rests on solid evidence. Yet it is a matter-of-fact text, devoid of philosophical reflections. Other than in the preface, it contains not a single quotable sentence. Few people read it in its entirety. Given the time and effort that he devoted to its writing, its reception by the public and the media must have been a disappointment to Landau.

The judgment describes Eichmann's actions the actus reus of his crimes step by step. This claim was an outright lie, the judges determined. Recent research based on the analysis of newly discovered documents and tapes that were not available at the time of the trial corroborates the substance of the Eichmann trial judgment.

For Landau, the heart of the judgment had to do with Eichmann's insistence that he did not harbor criminal intent mens rea. Following Eichmann's direct testimony and the prosecution's cross-examination, the three judges questioned the defendant. Judge Raveh's examination of Eichmann was, more or less, a philosophical debate between the judge and the Nazi defendant: How could Eichmann claim, in his police interrogation, that he had lived according to Kant's categorical imperative?

In a later conversation with Landau I was unable to restrain my curiosity, and asked about his reaction at the time to that macabre comedy. I also asked Landau what his goal was in examining Eichmann. He answered that he wanted to remove any shred of doubt that Eichmann had been an antisemite, and that his insistent denial of his antisemitism had been sheer falsehood.

In fact, Landau's examination may not have been indispensable to the judges' ruling. At this stage of the trial, Eichmann's criminal intent was clear. Had a man of his kind, a man who stood in the center of the war against the Jews, shown the slightest deviation from the antisemitic orthodoxy that was demanded from every member of the Party, however low, he could not have remained in his position even one day.

As we have seen, Hannah Arendt greatly admired Landau and praised him as the embodiment of justice. Arendt's criticism of the judgment consists of three parts.

First, she says, the judges were ethnocentric in their approach. They focused on the Jewish victims and failed to comprehend the true, universal nature of Nazi crimes. They interpreted the Nazis' murderousness as the continuation of an old Jew-hatred; as the culmination of an ongoing and ancient antisemitism. They failed to understand that Nazism was a new and unprecedented phenomenon. The lesson from the Holocaust is a lesson for all humanity. The body against whom the Nazis' crimes were committed was the Jewish People, but the victim was humanity.

This attack on the official judgment was mistaken both in fact and in law. Landau's list of larger questions that the judges would not attempt to answer demonstrates his universal outlook, as do his memoirs. But unlike Arendt, who attributed Nazi bestiality to the political patterns of totalitarianism, Landau saw it as something deep-rooted in German nature.

Arendt's legal error lay in her disregard for positive law. This was a criminal trial: the judges' task was to judge Eichmann according to the indictment, which charged him with crimes against the Jewish People, as well as with crimes against humanity, war crimes, and murder, all brought under the Nazis and Nazi Collaborators Punishment Law. Even if they had wanted to, the judges were not authorized to convict Eichmann solely of crimes against humanity, as Arendt claimed they should have.

In a broader sense, Arendt demanded that the Jerusalem Court fulfill a non-legal role, deciding philosophical and political issues. Yet, Arendt herself was critical of Ben-Gurion and Hausner's ambition to use the trial to achieve extra-legal Zionist and political objectives.

Arendt's second criticism of the judgment is also flawed. It was wrong, she argues, to conclude that Eichmann was an antisemite.

It is ironic that, over the years, Arendt's argument has acquired the status of accepted truth. She did not even attempt to base her argument that Eichmann was not an antisemite on factual evidence.

The evidentiary material presented at the trial clearly points in that direction, and later historical research strongly supports the judges' conclusion. Arendt's third criticism of the judgment is that the judges missed the greatest moral and even legal challenge of the whole case: that of understanding Eichmann not as a monstrous criminal, but rather as a symptom of twentieth-century totalitarianism.

They failed to see the true horror, which lay precisely in the new phenomenon of impersonal mass murder, without motive, without hate. According to Arendt's paradoxical thesis of the banality of evil, Eichmann was an empty shell, made of shallow slogans, incapable of human empathy.

The weakness of this argument is not necessarily in Arendt's theory, but in that she applies her theory to the man Adolf Eichmann. He was the loyal disciple of a regime that was wholly evil and malicious. It is precisely the difference between a first-rate thinker whose portrait of Eichmann has become a symbol and an icon of an important theory, and has had a lasting cultural influence, and a first-rate judge, whose portrait of Eichmann was realistic and accurate, but not fascinating. A judge may not base his or her conclusion on a brilliant theory that stands in stark contradiction to the evidence.

In terms of its timing , the Eichmann trial took place precisely in the gap between history and memory. At that time, serious research on the Holocaust had barely begun to develop. The legacy of the trial has been attributed most often to Gideon Hausner, who under the supervision of Ben-Gurion shaped and organized the prosecution's vision, and introduced it with an unforgettable opening speech.

After the trial, Hausner wrote a book explaining his understanding of what he saw as his leading role in it. He also shared his perspective on the trial at numerous ceremonies and other events. In contrast, Landau took pains to minimize his role at the Eichmann trial. He refused to speak about it. His contribution therefore has remained unrecognized and under-researched. In reality, however, the presiding judge was central in establishing the character of the trial.

His role and contribution were utterly decisive. Displaying enormous foresight, he took the unprecedented step of allowing filming in the courtroom, and after the trial led the effort to create an archive of trial documents. Thanks to his leadership, the trial became a foundational event that continues to have resonance both in Israel and in the world at large. In Ben-Gurion and Hausner's vision, the trial was a symbol both of the catastrophe and of triumph over the catastrophe.

The point of the trial for them, it seems, was to achieve historical justice—a type of justice that became possible from the moment that the Jews established their sovereign state. This vision was essentially indifferent to the fate of the individual defendant Adolf Eichmann. His concrete punishment was of little importance; at stake was the exposure of Nazi guilt, and the opportunity to call attention to the history of European antisemitism. That history, Hausner argued, would prove unequivocally the need for a sovereign Jewish state with the military power to protect the Jews and punish their enemies.

Landau, too, was an ardent Zionist. For him, as for Ben-Gurion, the trial was a symbol of catastrophe and redemption. First and foremost, Landau believed, the trial had to be a legitimate one. In a free state, the professional and independent judicial system plays its own educational role—one that does not involve promoting political and ideological lessons of the type that Ben-Gurion and Hausner sought to teach through the trial.

In Landau's vision, the most important mission of the trial was to demonstrate that the rule of law prevailed in Israel. As we have seen, Hausner sought in addition to draw a comprehensive picture of the Jewish tragedy. This picture would be completed by survivors, whose oral testimonies would provide a concrete, human dimension to the ungraspable, abstract features of the genocide.

But, in keeping with Ben-Gurion's and his own Zionist credo, and with their shared educational goal, he wished also to demonstrate that the State of Israel was the sole solution to the problem of the Holocaust. To this end, he contrasted the perceived passivity and helplessness of the European Jews to the heroic actions of the Zionists, who in some cases rose up and fought against the murderers, and who later took their fate into their own hands and helped to establish the State of Israel.

For this reason, Hausner sought to emphasize episodes of Jewish heroism during the catastrophe. By allowing witnesses to tell their tragic stories, Landau appeared to accept Hausner's view that the trial should draw an inclusive picture of the Holocaust. But he systematically limited the numerous tales of Jewish heroism. He did so not only because these stories were irrelevant to the judicial proceedings, but also because he clearly saw that the Holocaust was not a narrative of heroism; it was a story of catastrophe, of the destruction of a nation, and of individual tragedies of inconceivable dimensions.

He understood the need for both collective and personal mourning. Moreover, he clearly felt an obligation not to disguise the mourning with heroic tales or self-congratulation. Such tales served to create an ideological refuge from reality—that is, from the Holocaust as it actually had been.

Landau never mentioned the trial in his articles and public lectures, nor did he refer to it in his later legal decisions. Indeed, from the point of view of his biography, the most compelling and most telling fact is his refusal to use the trial for any personal benefit or gain.

In this, Landau was unique among the actors of the Eichmann affair, all of whom—Gideon Hausner, the prosecutor; Isser Harel, the head of the Israeli secret service, who was responsible for Eichmann's capture; Gabriel Bach, a member of the prosecution team and later a Supreme Court justice; and many others—wrote books about their roles in the trial.

He understood that his role in the Eichmann trial made him a symbol of something greater than himself, yet he did not seek credit for this. The trial belonged to the public and to the victims. It was—and is, henceforth—the property of history. Michal Shaked is the author of several articles on legal theory and Israeli legal history and of the critically acclaimed book Moshe Landoi, Shofet Moshe Landau, Judge [].

In that position and later, in private practice, she litigated precedent-setting cases before the Israeli Supreme Court in the areas of constitutional and administrative law and labor law.

She teaches labor law and constitutional law at Tel Aviv University School of Law, and is currently working on a book about the role of law in the rise and fall of Israel's trade unions. Many years later, Landau still remembered his initial surprise: he reported this story to his younger friend, Justice Yitzhak Milanov, who in turn narrated it to me.

During the British Mandate period, the building served as an officers' club. It was there, incidentally, that Landau's wedding to Leah Duchan had taken place. Page numbers will refer to the edition. Notably, the book was translated into Hebrew only in Citations from this book are to the Hebrew-language edition. Gouri covered the trial for the newspaper La-Merchav , and his notes became the basis for his book.

Brager, ed. Knopf, Landau wrote his memoirs in Hebrew. All citations from this typescript text are my translation from the Hebrew. The Herut party was headed by Menachem Begin, who many years later became prime minister.

The Nazi authorities established the Jewish councils pl. Judenrat in the ghettos mainly in Eastern Europe. The decision was published in PSM 27 : The videotapes of the trial, deposited in the State Archive, were neglected for some thirty years, and many were badly damaged. After this lapse of time, the government granted Steven Spielberg's request to take possession of the tapes.

However, independent filmmaker Eyal Sivan blocked this transfer by appealing to the Supreme Court. Sivan wanted to use the tapes for his own film about Eichmann and the trial. The videotapes were lent to Sivan, who restored them and used some of them in his film The Specialist In , the Steven Spielberg Jewish Film Archive asserted that large parts of Sivan's film—which was presented as a documentary—are doctored.

See Goel Pinto's article in Haaretz , January 31, This law was also the basis of the indictment against Eichmann. The law was in fact enacted in order to punish Jews who collaborated with the Nazis.

Landau believed that almost all Danzig Germans had been Nazis. As we now know from Grass's autobiography, there is more to the story. Prior to his appointment as attorney general, Hausner headed a modest law firm in Jerusalem. The firm specialized in matters of civil law, and for the most part was not involved in criminal trials or witness examination.

Hausner was assisted by experts in criminal law on the prosecution team: Tel Aviv District Attorney Yaakov Bar-Or; Gavriel Bach, who would later serve as the state attorney and then as a supreme court justice; and Tzvi Terlo, who later was the director general of the Ministry of Justice and vice president of the National Labor Court. Hausner's lack of experience resulted in overly lengthy and often unfocused cross-examinations of Eichmann.

Some writers claim that Landau was impatient with the survivors' testimonies and tried to curtail them Douglas, Memory of Justice , , ; and Lipstadt, Eichmann Trial , 79, A careful reading of the trial transcripts leads me to conclude that Landau did not express impatience with these witnesses and did not often interfere in their testimonies except to clarify points of fact or to instruct a witness to answer the questions that he or she was asked by a prosecuting attorney.

Lotte Kohler New York: Harcourt, , For background on the plan, see Eric T. Session no. See also Gouri, Mul ta ha-zekhukhit , Arendt, Eichmann in Jerusalem , Accessed February 18, A Tel Aviv: Hakibutz ha-Meuhad, , At one point during his cross-examination by Hausner, Eichmann was allowed out of the glass booth to point out a precise location on a map of Europe that hung on the wall, and was standing for a few moments side by side with Hausner, unprotected.

For an evenhanded description of Hausner's performance, see Lipstadt, Eichmann Trial , — Landau respected Hausner, but even thirty-five years after the trial he was critical of Hausner's theatricality.

This he mentioned to me personally. Cohen had been appointed to the Supreme Court one year earlier, after serving as attorney general. She also guessed that it was due to the poor quality of the translation to and from German. See Eichmann in Jerusalem , 4. Her last guess is reasonable. There may have been an additional explanation: Landau did not want Eichmann to have time to invent lies. Ben-Gurion's articles were published in Davar , the Mapai party's daily newspaper.

See also Lipstadt, Eichmann Trial , chapter 2. The article, translated into Hebrew, was published in the newspaper Davar on the day the trial began April 11, He disclosed these thoughts to me in conversation.

Letter April 24, , Arendt-Jaspers Correspondence , This approach was especially necessary in this extraordinary trial, so as to prevent the dangers of distortion that the trial entailed.

Later Kovner's conduct during the Holocaust became the subject of controversy; he was accused of betraying the leader of the resistance in the Vilna Ghetto. Like witnesses from earlier periods, including abolitionists fighting slavery, Jews condemning pogroms, and humanitarians denouncing mass atrocities in the nineteenth and early twentieth centuries, the witness to genocide adapts a biblical representation of the witness.

The witness to genocide warns of the destruction of human life if no action is taken to punish the perpetrators, appealing instead to a potentially sympathetic but just as likely indifferent audience, one that may well need convincing.

This recent witness figure symbolizes the culmination of a long-term process through which Western European and American publics came to conceive mass atrocities not only as unconscionable, reparable, and at worst regrettable forms of barbarism, but also as constitutive and permanent features of modern political formations.

How did this most recent witness take shape? How did this figure, now a ubiquitous and self-evident reference to the Western moral imagination, first appear and change over time?

This witness icon developed over the course of the last century and emerged in its current form only in the late s, after genocide became a ubiquitous reference for state-perpetrated murder 3. These include the trial of Soghomon Tehlirian, an Armenian acquitted in Berlin in of murdering Talaat Pasha, an architect of the Armenian genocide, and the trial of the Jewish avenger Scholem Schwarzbard, acquitted by a jury in Paris in for having murdered the alleged leader of Ukrainian pogroms against Jews.

Raphael Lemkin, Hannah Arendt, and Bruno Bettelheim all referred to these trials to conceive the moral affront of genocide. By envisioning the witness icon in a broader field of representation instead of only a true or false perception of survivors, we unearth connections between very different kinds of thinkers, ideas, and events that otherwise have little in common except the witness figures they bring into presence.

Witness figures, like events — the Armenian genocide, Soviet gulags, and Nazi camps — are historically distinct. They are also inevitably composites, symbols of darkness and hope that have an ideological and memorial function, erase some realities and distort others.

The witness opens up historical and moral questions about whether, for example, Nazi violence is best represented by the universalizing concept of the univers concentrationnaire or the more specific focus on the genocide of Jews into another query about how these distinctions were drawn in the first place.

The symbol of the Jewish Holocaust survivor witness emerged fully formed only after the Eichmann trial, reaching its apogee in the late s. The trial not only gave belated credence to the Jewish experience of death and destruction, but was also one of the most forceful postwar efforts to formulate moral norms governing twentieth-century culture in the shadow of state-sponsored deportation and murder.

He escaped after the war but was kidnapped in Argentina by Israeli secret service agents and tried in Jerusalem after a lengthy investigation.

He was finally sentenced to death and executed on June 1, The Jerusalem courtroom transformed Jewish Holocaust survivors into purveyors of hard, unfathomable truths about human suffering. They have not, however, examined the figurative process by which the survivor-witness became a cultural icon except to argue that the trial transformed the survivor into an exemplar of heroic Jewish memory and later, into a new and problematic Western icon in a new Jewish civil religion, the Holocaust 6.

In so doing, witness testimony laid the rhetorical foundation that challenged conventional narratives of heroism and became the heroism attributed to survivor-witnesses after the s 7. Witnesses are symbols of darkness and hope that have an ideological and memorial function, erase some realities and distort others, and most problematically, especially after the s, transform the victim into a sacred sign.

Like all symbols, they condense specific survival stories to construe a broader message. And although the witness figures —persecuted ethnic minorities, camp survivors, the Jewish Holocaust survivor — shaped a universal image of wounded humanity, their reception may well vary from one location to another.

The definition of who is and is not a symbolic witness is always linked to whether there develops a moral consensus around victims whose suffering can be universalized and whose presence no longer inspires guilt, denial, and displacement. Victims of colonial violence, in spite of the witnesses like Henri Alleg or Djamila Boupacha who spoke loudly about torture in Algeria, have only recently been inducted into the Western witness pantheon, where for a long while there was a thin consensus against the torture they underwent but not against the colonial regime that persecuted them.

Indeed, of all the trials, only Eichmann generated a moral consensus, itself extremely fragile and contested by Holocaust denial. The redemption of the Jewish witnesses ultimately rendered the evil of the Holocaust a source of near absolute moral consensus in the West by erasing the guilt and ambivalence projected onto the victims and explains, along with other important factors, why the Holocaust came to stand in so problematically for evil in our time, and was thus universalized and emptied of its specific historical dimension.

In Jerusalem, su rvivor testimony actively supplemented the review of a multitude of documents with unusually rich, meaning-conferring narratives that placed victims center stage by transforming Jewish survivors from passive objects, often of contempt, who did not fight back, into human beings constrained by unimaginable terror and despised by an enemy determined to wipe them off the face of the earth.

Around the same time, David Rousset described all victims of the univers concentrationnaire as having experienced extreme degradation, but restricted the role of the witness to partisans rather than all victims: partisans were redeemed by virtue of having chosen to fight.

In this context, the Eichmann trial was the first to put the suffering of Jews on display to a Western world still ignorant of the particularity of the Jewish experience of Nazism, whether for reasons of guilt, indifference, denial, or political expediency. In this sense, it differed from Nuremberg and other postwar trials in which witnesses were either marginalized or used more conventionally as forensic rather than as moral witnesses.

Arendt famously protested that the trial had a primarily pedagogical rather than legal function because the outcome was known in advance Though Eichmann was under indictment, the witness-survivors were forced into a defensive position from the outset.

They had wrenching stories to tell, but the judges often restricted their testimonies to the subject at hand or for lack of time. They could finally set the record straight about the Jewish dimension of the Holocaust, but the attorney general also asked them painful questions about why they had behaved weakly and passively in the face of the Nazi onslaught. The testimonies that recount the pointlessness of resistance or escape punctuate the trial and are among its most harrowing moments.

Hausner elicited this testimony because he aimed to undermine then pervasive beliefs in Jewish cowardice and complicity, even at the risk of distressing witnesses.

He forced survivors to describe the effects of terror, imminent death, the price of resistance, and the power of hope, compelling observers to grapple anew with their feelings that Jews should have put up more of a fight, which were as common in Israel as elsewhere.

What were you referring to? That until the last moment, even if one knew that there was a Ponary, they always gave us a spark, this distorted hope, that possibly you would be exempt. The frightful illusion produced frightful results of people wanting to prolong the life of some at the expense of others… Only a minority that felt itself possibly less stricken, less misled, less under shock, due to its past, its education and its adherence to certain movements which trained people to give a personal example, perhaps only they could cope with it.

And it is not, evidently, a matter of chance from where the people came in every ghetto, who formed the fighting nucleus. Perhaps it arose from the fact that they experienced less degradation, that they were less panic-stricken, and they knew better how to live in the ghetto as free men in every respect Kovner emphasized the theme of hope and its ability to impede resistance, combined with fear.

He speculates about the type of people who retained their humanity. In his testimony, the resistance hero remembered most acutely not an uprising, but the image of a terrified girl as she was shot. Many trial observers figured the inconceivable suffering that haunted most of the witness testimonies by invoking the deathly atmosphere they brought into being. Her testimony was given only one court session after Hausner announced that she had suffered a heart attack and might not be able to appear.

She testified the next day. Shot with her family and village, she was left for dead. She crawled out of the mass grave covered by blood, with nowhere to go. In despair, she sought to dig her way back into the grave, but it rebuffed her efforts. She slept on it for three nights and wandered around for several weeks, surviving because a sympathetic peasant took pity on her and gave her food, after which she joined a group of Jews in the forest.

Observers not only asserted that her experience was inconceivable, but tried to imagine her powerlessness and subjection, which defied all narratives of heroic redemption. She was not only an Israeli heroine but also an otherworldly presence; she relived her death every day and was too pure to live on earth. Witnesses do not simply honor an oath to the dead, or have a special relation to them, but bring their sacred bond with the deceased into being.

These ghostly survivors take observers on a journey to hell, plunging them into flames, smoke, gas, and death. Now that Gouri had witnessed, in his biblical terms, a pillar of fire in the courtroom, he understood more clearly why Jews did not and could not have resisted as if they had been in a war with ordinary enemies.

The witnesses spoke, the audience listened, and the room was transformed into an enormous meeting of the living and dead in which it is sometimes hard to distinguish between the two.