Professor Rodger Citron - A Visit From Justice Gabriel Bach

My course on “Selected Political Trials in Israel” this summer focused on two trials. The first, known as the Kastner trial, was a criminal libel trial involving the author of a pamphlet that made defamatory statements about Rudolf Kastner, an Israeli government official who had been involved in negotiations with the Nazis near the end of World War II in order to save Hungarian Jews from extermination. The pamphlet criticized Kastner for collaborating with the Nazis. Although the trial did not attract much attention when it began, it became a central political event in Israel. Because the author of the pamphlet insisted that the statements were truthful, the trial effectively put Kastner on trial and concluded with the trial court judge excoriating Kastner for having sold his soul to the devil. (The trial court later was reversed on appeal.)

The second trial was the more well-known trial of Adolf Eichmann, which occurred from 1960 through 1962. For Israel, the symbolic value of conducting a trial of a former Nazi official responsible for the death of millions of Jews during World War II was enormous – and not without controversy. (Eichmann was convicted of many but not all of the criminal charges against him and sentenced to death by hanging; he is the only criminal defendant to have been executed in Israel’s history.) The most (in)famous account of the trial was rendered by Hannah Arendt in her book, Eichmann in Jerusalem: A Report on the Banality of Evil.

The high point of the course came during the second week of class, when former Israeli Supreme Court Justice Gabriel Bach met with the students in class and then continued the discussion over lunch in the cafeteria. I had met Justice Bach once before and knew that he had been one of the three prosecutors who tried the case against Eichmann. I did not know, until he told me before class, that he had worked on the government’s brief to the Supreme Court in the Kastner case. (In Justice Bach’s view, the trial court judge was shocked and offended by Kastner’s conduct, which led to his exoneration of the defendant on nearly all of the charges.) We could not have a more relevant speaker for the class.

Israel 2010 participants gather with Justice Bach in the courtyard of the Agron Guest House in Jerusalem (photo courtesy of Sergey Korolev - Touro Law Center)

Over the course of an hour, Justice Bach shared some of his life story with us as well as a number of interesting anecdotes about the Eichmann trial. He was born in Germany in 1927, left with his family in 1938 to go to Holland, and then they departed for Palestine in 1940 shortly before Germany invaded Holland. After studying law school in England, he returned to Israel and embarked upon a long and interesting career in the State Attorney’s Office before becoming a justice on the Supreme Court.

After Eichmann was abducted from Argentina and taken to Israel, Bach coordinated the pretrial investigation of the defendant. Bach rejects the notion that Eichmann was a mere bureaucrat following orders. He noted that, for example, it was Eichmann’s idea to have Jews detained in Auschwitz, a concentration camp, send post cards to family members and friends saying that the camp was enjoyable and that they should join them. Justice Bach also recounted several stories that illustrated Eichmann’s commitment to exterminating Jews – despite requests or orders made by other high-ranking Nazis to save certain Jews, including, in one instance, an arrangement made by Adolf Hitler to maintain a neutral position toward a number of Jews in Budapest, Hungary.

Perhaps the most interesting remarks by Justice Bach concerned Hannah Arendt and her book about the trial. Eichmann in Jerusalem is controversial for, among other reasons, its contention that the only legitimate purpose of the trial was to determine the defendant’s guilt or innocence (hence the testimony of many of the Holocaust victims was irrelevant and should have been excluded) and its apparently somewhat sympathetic depiction of the defendant. To be sure, Arendt was convinced that Eichmann was guilty of at least aiding and abetting the murder of millions of Jews and that he deserved to be executed for his crimes. Nevertheless, Arendt seems most interested in Eichmann as a representation of a new form of evil – bureaucratic evil in the modern age of totalitarianism.

According to Justice Bach, Arendt declined an invitation to meet with the prosecutors before the trial and never did meet with them. Bach nevertheless insisted that she be provided with copies of documents and evidence introduced during the course of the trial. During our meeting, Justice Bach said that Arendt willfully misrepresented certain aspects of the trial – including critical exchanges during the trial testimony – in order to support the thesis of her book. His comments were of great interest and became the centerpiece of class the next day.

The discussion focused on the following question: If Justice Bach is correct that Arendt intentionally misinterpreted the facts of the trial, is her theory about the “banality of evil” in the modern age still valid? The students responded in a number of ways, all interesting; all plausible. Personally, I cannot avoid feeling as if Justice Bach had successfully directed a wrecking ball at Arendt’s theory: Eichmann’s knowing and intentional efforts to exterminate Jews during World War II confirm rather than supplant traditional notions of good and evil.

By Professor Rodger Citron, Touro Law Summer Abroad Program in Israel 2010