Should Bin Laden Have Faced a Judge?

What the Eichmann Trial Taught Us

Two Mass Murderers: Eichmann and bin Laden each ended up at the bottom of the sea, but faced justice in different ways.
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Two Mass Murderers: Eichmann and bin Laden each ended up at the bottom of the sea, but faced justice in different ways.

By Deborah Lipstadt

Published May 03, 2011.
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When I heard the news that Osama bin Laden had been killed, I was in the middle of an author’s tour for my recent book on the Eichmann trial. It was impossible not to immediately see the parallels between the fates of these two mass murderers, who both ended up in watery graves: While bin Laden’s body was dumped in the sea, Eichmann’s ashes were strewn over the Mediterranean.

Adolf Eichmann was responsible for the murder of close to 1.5 million Jews. Bin Laden had far less blood on his hands. And while both men wished to kill as many Jews as possible, bin Laden was, of course, also interested in killing any American or “Westerner” he could. Each man was ferreted out, in the end, by forces operating clandestinely on foreign soil. Both operations were decisive, swift and successful.

But, of course, what happened to bin Laden and Eichmann after each was located was radically different. One was shot and killed on the spot; the other was put on trial.

It was not inevitable, however, that this would be Eichmann’s fate. It was a decision by David Ben-Gurion that prevented Eichmann from ending up like bin Laden and having justice delivered immediately, with a bullet to the head.

The Israelis were slow at first to follow up on a German tip that Eichmann was living secretly in Argentina. Only once he was given additional, unimpeachable proof did Isser Harel, head of Israeli Security Services, present what he knew to Ben-Gurion.

At that point, the Israeli prime minister could have told Harel to “bump him off.” Let Eichmann end up dead in a ditch. His fate would telegraph a message to all Nazi war criminals that they should not sleep so soundly in their beds; someone was on their trail. Instead, Ben-Gurion authorized a highly risky operation to bring Eichmann to Israel, where he would be given what he never gave his victims: a fair hearing.

One has to wonder what would have happened had bin Laden been captured alive. Would he have stood trial? Would it have been in a military court or a civilian one? It’s tantalizing to imagine. The United States’ biggest enemy would have been offered a striking illustration of American democracy: The rule of law applies to even the most nefarious defendants.

It is here that my mind segues to the recent death, on May 1, of Moshe Landau, a member of Israel’s High Court who was the presiding judge at Eichmann’s trial. Born in Germany and educated in London, Landau was intent on ensuring that this trial be as “undramatic” and unexceptional as possible. The evidence and the testimony would be emotional enough; he did not have to add anything to it. On the first day of the trial, with reporters from every corner of the world present, he offered no rousing opening statement. He did not call attention to the momentous nature of what was about to unfold. He simply began the proceedings.

If there was one person in the courtroom who was the object of Landau’s criticism it was not Eichmann but the prosecutor, Gideon Hausner. Landau berated Hausner for letting witnesses wander off topic and give orations about the Final Solution. He grew angry when Hausner tried to use the trial as a forum for discourse about resistance or other topics that had little connection to Eichmann.

Landau understood, more than anyone else in that courtroom, that the legacy of this trial would be, at least in great measure, the clear-cut message that it was as fair and as just as was possible. Sometimes he succeeded, sometimes he did not. But he never forgot that a trial, in addition to bringing justice, was a sacred forum that could help secure the historical record.

While I am not sorry that bin Laden was shot, I regret that he never was shown the wonders of a democratic system of justice. It would have been the best response to the culture of death and hatred that this man represented.

Deborah E. Lipstadt teaches Jewish history at Emory University. Her most recent book is “The Eichmann Trial” (Nextbooks/Schocken).


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