'The Eichmann Trial – Toward a Jurisprudence of Eyewitness Testimonies of Atrocity?' by Leora Bilsky in (2014)
Journal of International Criminal Justice comments that
The Eichmann judgment was overshadowed for many years by the Nuremberg proceedings that were considered the more important precedent for international criminal law. In this article I question this understanding by positing the Eichmann trial at the head of the chain of international criminal trials we have become more familiar with in the past two decades.
An essential part of the article turns to the role of witnesses under the framework of 'atrocity jurisprudence'. It departs from previous literature that sharply distinguishes the legal from the historical or didactic role of victim testimony in the trial. In contrast, adopting the framework of collective crimes, the paper investigates the changing role of the victim as witness, which is to throw light on the new crime that is characterized not only by mass murders, but also by the separation - both physical and psychological - of victimizer from his victims. The court gave the witness this new role by juxtaposing the dry Nazi documents discussing best methods and numbers, with the most horrifying stories conveyed by victims and survivors. In this manner, the encounter that could not take place during actual events was recreated in the courtroom. …
In his famous monograph "Basic Concepts of Criminal Law" George Fletcher describes the judicial development of the law: "[c]ourts proceed by identifying a core image of crime and punishing it. That precedent, then, becomes the paradigm for the offence." In this article, my aim was to show how the court in the Eichmann trial was on a legal mission to depict "a core image" of the relatively new type of criminality - crimes against humanity - by changing the paradigm offered in Nuremberg, one that makes the victims' testimonies relevant to the proof of guilt and integrates them into the trial. The court did so by interpreting the new crimes of genocide and crimes against humanity, by developing a theory regarding modes of liability in collective crimes, and finally by elaborating the role of victims' testimonies in atrocities trials, both expanding their relevance while constraining their didactic uses. Together these three moves offered a novel jurisprudence of atrocity trials, one that sees the humanity of the victims as the core value protected by these crimes.
The Eichmann judgment has suffered for many years from bad public relations. This article suggests a belated correction by pointing to its potential contribution to international criminal law – an attempt to develop a new jurisprudence of atrocity trials that attempts to confer legal recognition and importance to the testimony of the individual victim in the trial of the perpetrator.
