nation is directly threatened, then any citizen … may act for their protection.’ That the menace did not really exist hardly mattered as far as the judgment on the defendants was concerned, for ‘An error concerning the prerequisites of self-defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes … a legal excuse or – at the very least – a mitigating circumstance.’
The striking parallel between this line of defense by Aschenauer and his colleagues on the one hand, and the patho-ideological perspective of historians such as Dawidowicz and Goldhagen on the other, can hardly escape anyone. And the resemblance is even more remarkable when one realizes that the intentions behind both positions are diametrically opposed to one another. Thus, although the arguments used to explain the behavior of the perpetrators are identical, the Nuremberg defense counsel used them to emphasize the innocence of their clients, whereas the historians apply them to underline the exact opposite. As far as logical consistency is concerned, the latter are obviously no match for the lawyers, but this did not benefit their clients much.
In what was a surprisingly humorous rejoinder, given the subject matter under consideration, presiding judge Michael A. Musmanno reduced the subjective self-defense argument to the obvious nonsense it was:
Under this state of law a citizen of Abyssinia could proceed to Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.
And that is not all – ….
Thus, if the Abyssinian mentioned above, invaded Norway out of assumed necessity to protect his nation’s interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake.
That Musmanno and his fellow judges had little sympathy with such sophistry was made crystal-clear in their conclusion:
The annihilation of the Jews had nothing to do with the defence of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defence, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to ←28 | 29→Germany, a menace which called for their liquidation in self-defence, is untenable as being opposed to all facts, all logic and all law.22
The very idea that the defendants – all of sound mind and in possession of a level of intelligence and education considerably above average – had committed their crimes because they had genuinely believed in such a factual, logical and legal absurdity, was simply too grotesque for credibility. And in its verdict, the court again made it clear that it was not prepared to follow Aschenauer and his colleagues in this. Out of the twenty-two officers who stood trial, it sentenced no less than fourteen to death, two to life imprisonment and five to sentences between ten and twenty years.23
What the Einsatzgruppen-trial then made clear at a very early stage already, was that the notion of a misguided ideological obsession on the part of the Nazi mass murderers was untenable, not only because it formed such a bizarre contrast with common sense considerations and historical facts, but particularly also because it did not match the profile of its representatives in the dock. Contrary to the suggestions of their counsel, these defendants were no deranged ‘idealists’ who had lost their grip on reality and should therefore be excused for their crimes. Whatever their motives for participation in the mass extermination might have been, a blind belief in its justified necessity was not among them.
In an even more dramatic fashion, a lesson of at least similar significance was spelled out in yet another trial against a major Nazi criminal, some fifteen years later. This time it took place in Jerusalem and was directed against one of the chief coordinators of Hitler’s genocidal bureaucracy, Adolf Eichmann. As head of Department IV B 4 of the RSHA, Eichmann had organized the mass deportation transports of Jews from the occupied countries to the extermination camps in Poland. His arrest by the Israeli secret service was clearly a formidable catch and his abduction from Argentina in order to bring him before a court of law was generally applauded as an act of supreme justice. Here, after all, was a Nazi criminal who had played a decisive role in the operational heart of the annihilation machinery and whose criminal reputation ranked only slightly below that of its main architects, Himmler, Heydrich and Müller. Here too, was the man, who, as we saw earlier, had shown himself particularly cheerful over the fact that he had personally been involved in the murder of millions. ←29 | 30→Considering Eichmann’s prominent role in these killings, it was therefore hardly surprising that one of his many instant biographers dubbed him ‘the most sadistic and callous murderer of men, women and children this world has ever known.’24 And indeed, as more and more details surfaced about the murderous involvement of this former ‘expediter of death’, as he was called by some of his colleagues, Eichmann grew into the very embodiment of criminal perversion. On the eve of his trial in Jerusalem, Dutch author and trial reporter Harry Mulisch accurately captured the widely felt drama of the moment when he wrote:
It is one of the most fantastic somersaults of history that this trial will be held in Jerusalem. In that same city a man has been sentenced of whom the mysterious story goes that he has taken ‘the sins of men upon himself’. Now there is a man on trial who is supposed to have committed all of them.25
The image of Eichmann’s trial as the counterpart of that against Jesus certainly reflected much of the high-strung expectations over Eichmann’s performance before his judges. But, as with the earlier Jerusalem trial, the court room’s public met with a grave disappointment. For as the carpenter’s son from Nazareth had hardly lived up to the image of God’s Son, neither did the chicken farmer and Mercedes Benz employee from Buenos Aires showed much resemblance with the devil’s envoy. Thus, the anxiously awaited exposure of the super villain and the meticulous dissection of his diabolical mind and character turned into an outright disillusion from the moment Eichmann entered the court room on 11 April, 1961. For instead of showing the particulars of a demon in disguise, the criminal inside the Jerusalem dock turned out to be of a breath-taking human mediocrity. As one trial observer put it, it was ‘the discovery that there was nothing to discover’ which turned the Eichmann trial into such a shocking experience.26
The paradoxical features of the trial could indeed hardly have been greater. Here was a man on trial for organizing millionfold murder, who, when questioned, was unable to produce anything more than inarticulate and stereotyped answers and cliché-ridden pseudo-justifications which were so utterly devoid of meaning that they almost became laughable. Without doubt, Eichmann’s appeal to Kant’s categorical imperative was the culmination of his farcical courtroom performance. As trial reporter Hannah Arendt commented: ‘Despite all the efforts of the prosecution, everybody ←30 | 31→could see that this man was not a “monster”, but it was difficult indeed not to suspect that he was a clown.’27
The greatest shock of the Eichmann trial was not the obvious impossibility of matching crime and punishment, but the bizarre discrepancy between the format of the crime and that of the criminal. Personified by the man in the glass booth, this discrepancy turned the logic of evil upside down by demonstrating that, apparently, one did not need to be a psychopathic megalomaniac to find satisfaction in murdering millions of people. It was Hannah Arendt who most aptly captured the lesson by subtitling her trial report with the famous formula of ‘the banality of evil’. But the phenomenon itself was neither new nor limited to this particular SS officer. It had already been apparent in the courtrooms of Nuremberg and elsewhere, and it would surface again and again in the subsequent German trials against Hitler’s genocidal collaborators.
It was certainly no coincidence that Eichmann’s banality
