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Adolf Eichmann and Mens Rea

Nazi Germany

SODOM & GOMORRAH: This author owes some explanation for his prolonged absence.  It is not, as some might suppose, that I was raptured away and then returned to his previous state once that particular article was discovered.  Instead a series of personal matters have been taking priority.

Through the course of these matters, there has been little time for writing but some time for reading.  After being acquainted with some of Hannah Arendt's shorter essays, it seemed that the time had come for a closer look at some of her more in depth works.

First on this list was Eichmann in Jerusalem, which recounts the famous Adolf Eichmann trial, the trial of the man who Israel accused of being the mastermind behind the Holocaust.  Eichmann had been an SS officer under the Nazi regime and was the bureaucrat who headed up the government's official study of the Jewish question.  Originally, Eichmann had been tasked with finding "territorial" or "political" solutions to the "problem" of the Jews.  These consisted of mainly semi-forced to forced emmigration from Germany and deportation to countries of origin.  In some instances, Eichmann helped smuggle Jews into other countries illegally.

Arendt's work was controversial in two regards.

First, she blamed Jewish leaders for supporting the Nazis.  Basically, Eichmann and others would assemble Jewish leaders into special councils and then task these councils with designating who would be shipped off and who wouldn't, so long as certain quotas were met.  Arendt takes issue with the leaders who cooperated, even while knowing that those they selected would likely be gassed.  She argues that without internal cooperation from the Jewish leaders, far fewer people would have been killed because the Nazis would have lacked the resources to find people. The point Arendt is trying to make with her book on the Adolf Eichmann trial is that people who are far removed from a situation are culpable in the outcome.

Second, she rejected the claim made in Adolf Eichmann's trial that he was a mastermind.  Her claim is that Eichmann was more or less an idiot, not a genius.  She believes that he wasn't much of an anti-Semite, never physically killed anyone, and hated the sight of blood.  Regardless, it was beyond a doubt that he knowingly organized train shipments of people destined to die.  He knew exactly where they were going and what would happen when they got there.  Eichmann was a man who was far removed from the actual killing and was placed in isolation of the real events.  He was purposely situated so that he would think about everything else except the final outcome.

The Adolf Eichmann trial remains a controversy for much the same reason that current judicial proceedings are, in many regards, disjointed from reality.  The legal apparatus that exists in the world today was birthed by previous legal codes that existed in a time when the criminal was very much tied to the crime.  Put another way, someone convicted of murder in Roman times would generally have had to take a tool and personally used it to kill another.  Now, with the development of new forms of technology, someone can push a button, organize a train schedule, or close down a factory in another country and potentially kill thousands or even millions of people.  The old legal system always carried with it an element of criminal intent (mens rea).  It is extremely telling then that Arendt would point out that nobody was keen on extraditing Eichmann to Germany for a trial because the whole thing may have been thrown out for lack of intent.  Did Eichmann really mean to kill people, or was he simply doing a job that didn't actually involve a decision on who would live or die - those decisions were made by Jewish leaders who drew up the list, SS guards who performed shootings, or physicians who determined who was fit for work in the camps and who was not.  The Jerusalem court was faced with the inexplicable challenge of trying to convict a man of murder who never physically killed anyone, made a direct decision to kill, who didn't feel anything much about the people his work impacted, and who never would have opted to kill if the decision had been left solely up to him.

In short, the Jerusalem court had to convict on an intent that did not exist.  The real issue, which has never been addressed, was what the impact of jurisprudence's loss of mens rea actually has on our society.  The Eichmann trial gave precedent to governments in two regards - it allowed them to throw out the element of intent and it allowed them to break the law (kidnapping Eichmann from Argentina and putting him on trial in a country that didn't even exist at the time his crime was done) when prosecuting someone.  All of this was, and remains, an acceptable practice when pursuing the absolute, unbounded evil people in our midst.  But if the unbounded evil people are (as the psychologists who examined Eichmann said) perfectly normal people who simply get trapped in situations they don't understand, then this means the prosecutors (if they really believed that Eichmann was the mastermind of the Holocaust) are people who don't understand, then the whole situation is insanely tragic.