The Eichmann Trial and The Rule of Law

By Yosal Rogat

The Eichmann Trial and The Rule of Law by Professor Yosal Rogat is one of a series of pamphlets concerning issues that are fundamental to the maintenance of a free society. These pamphlets and related materials were first published in 1961 by the Center for the Study of Democratic Institutions at Santa Barbara, California. The work of the Center was directed at clarifying basic questions of freedom and justice, especially those constitutional questions raised by the emergence of twentieth century institutions. Among the areas that were studied were the economic order, the political process, law, communications, the American character, war as an institution.

• Language: English
• Publisher: Borodino Books
• Release date: Dec 1, 2018
• ISBN: 9781789124675

Yosal Rogat

Yosal Rogat (1928-1980) was a recognized Associate Law Professor at Stanford University in California who specialised in constitutional law. He was previously a University of California faculty member in law and political science from 1966, teaching seminars in civil liberties, free speech, and jurisprudence. Born on July 13, 1928 in Los Angeles, California, the son of Aaron and Rose Rogat, he earned his Bachelor of Arts degree at the University of California in 1947, his Ph.D in political science at UC-Berkeley in 1956 and two degrees from Oxford: a bachelor’s with first-class honours in 1957 and a master’s in 1961. Rogat’s best known works were two Stanford Law Review articles titled “Mr. Justice Holmes: A Dissenting Opinion.” and a Chicago Law Review article on “The Judge as Spectator,” all published in 1962, 1963, and 1964 respectively. He died in Palo Alto, California on June 10, 1980, aged 51.

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Text originally published in 1961 under the same title.

© Borodino Books 2018, all rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted by any means, electrical, mechanical or otherwise without the written permission of the copyright holder.

Publisher’s Note

Although in most cases we have retained the Author’s original spelling and grammar to authentically reproduce the work of the Author and the original intent of such material, some additional notes and clarifications have been added for the modern reader’s benefit.

We have also made every effort to include all maps and illustrations of the original edition the limitations of formatting do not allow of including larger maps, we will upload as many of these maps as possible.

THE EICHMANN TRIAL AND THE RULE OF LAW

BY

YOSAL ROGAT

TABLE OF CONTENTS

Contents

TABLE OF CONTENTS 3

INTRODUCTION 4

I—THE PURPOSES OF THE TRIAL 6

A Trial for an Incomprehensible Crime 10

The Trial and Jewishness 12

II—INTERNATIONAL LAW AND THE TRIAL 17

Kidnapping 18

Retroactivity 18

The Basis of Israel’s Jurisdiction: The Problem of Extra-Territoriality 19

Piracy 21

Summary 23

The Trial and International Law 24

An Israeli Court vs. an International Court 25

Legality and the Development of International Law 30

CONCLUSION 33

REQUEST FROM THE PUBLISHER 34

INTRODUCTION

This paper will assess the meaning of the Eichmann trial as well as its impact on world consciousness and its effects on the rule of law in the world. It will do so by considering the extent to which Israel achieved its objectives; whether the trial can be justified in terms of existing principles of international law; and finally whether it advanced the development of international law and of a rule of law in the world.

There are good reasons for raising these questions in that order. The legal aspects of the trial can be evaluated only after first considering its broader meaning, purposes, and consequences. It is conceivable that a particular nation, proceeding solely from within its own national point of view, might accomplish sufficient good to outweigh some unfavorable effect on international law. While the development of international law, and of legality in general, is of vital importance, and should never be lightly sacrificed, it is not the only value; its claims may sometimes be outweighed. Such a decision must depend on how vital and urgent the competing interests are, on the extent to which legality is adversely affected, and on alternative means available for meeting pressing needs.

AUTHOR’S NOTE: I have been greatly helped by conversations with Howard Richards, as well as by his research assistance.

It is particularly necessary initially to consider the purposes of the Eichmann trial because of its essentially didactic justification—teaching rather than punishing. Israel with a rare explicitness has stressed her desire to inform the consciousness and, more specifically, the conscience of the world. It has been said that:

The trial is the important thing, not the penalty...the trial is to show...people here and...throughout the world the danger of authoritarian society.{1}

and

the hope is that the truth will serve as an effective educational weapon to assure that they [the horrors of Nazism] will never recur.{2}

This was one of the aspects of the trial that led to widespread criticism of Israel for using courtroom drama for propaganda purposes, even though Israel’s attitude toward civilized legal practice obviously differed greatly from that displayed by totalitarian courts in their showcase trials. There has been concern not only about Israel’s use of the trial to bring out themes only tangentially related to Eichmann himself, but also about the way in which its desire to reach world opinion affected the staging of the trial.

Using the law for ulterior purposes can endanger its dignity. Yet it would be too simple automatically to condemn this kind of law. Law should ideally also be a teacher. It is a common mistake to think that legal rules always follow in the wake of moral attitudes. The relationship is reciprocal. Although community ideas of social justice are normally the source of new legal doctrines, moral attitudes are often