Law Text Culture
Volume 14 Law's Theatrical Presence Article 7
2010
Theatre and the Drama of Law: A ‘Theatrical
History’ of the Eichmann Trial
Michael Bachmann
Mainz University, Germany
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Recommended Citation
Bachmann, Michael, Theatre and the Drama of Law: A ‘Theatrical History’ of the Eichmann Trial,
Law Text Culture, 14, 2010, 94-116.
Available at:http://ro.uow.edu.au/ltc/vol14/iss1/7
Theatre and the Drama of Law: A ‘Theatrical History’ of the Eichmann
Trial
Abstract
In his seminal study, The Seventh Million, historian Tom Segev (1993) examines how the changing
perceptions of the Holocaust relates to the ways in which Israelis understand themselves, their state, and its
connection to the Diaspora. Segev’s cultural history begins with a phone call he describes as if it were a direct
link to the past. The call, made in 1987, is to writer and Holocaust survivor Yehiel De-Nur, who answers in a
‘hushed, choked voice’ (Segev 1993: 3). Segev wants to ask him for an interview. Upon hearing his voice,
however, Segev is instantly taken back, as it were, to the moment twenty-six years ago when he first heard the
Holocaust survivor speak. In 1961, De-Nur was one of the witnesses at the trial against Adolf Eichmann in
Jerusalem. His testimony has become famous for the fact that he could utter a mere few sentences before
fainting.
This journal article is available in Law Text Culture: http://ro.uow.edu.au/ltc/vol14/iss1/7
94 0000Law Text Culture Vol 14 2010
Theatre and the Drama of Law:
A ‘Theatrical History’ of the Eichmann Trial
Michael Bachmann
In his seminal study, The Seventh Million, historian Tom Segev (1993)
examines how the changing perceptions of the Holocaust relates to
the ways in which Israelis understand themselves, their state, and its
connection to the Diaspora. Segev’s cultural history begins with a phone
call he describes as if it were a direct link to the past. The call, made in
1987, is to writer and Holocaust survivor Yehiel De-Nur, who answers
in a ‘hushed, choked voice’ (Segev 1993: 3). Segev wants to ask him
for an interview. Upon hearing his voice, however, Segev is instantly
taken back, as it were, to the moment twenty-six years ago when he
first heard the Holocaust survivor speak. In 1961, De-Nur was one of
the witnesses at the trial against Adolf Eichmann in Jerusalem. His
testimony has become famous for the fact that he could utter a mere
few sentences before fainting. Segev remembers that De-Nur spoke ‘in
a hollow voice, with the intensity of a prophet, oblivious to his physical
surroundings. … Something in his voice and the tone of what he said
charged the atmosphere with almost unbearable tension’ (1993: 4). Then
De-Nur ‘collapsed in a faint, slumping, almost theatrically, to the floor.
All Israel held its breath. It was the most dramatic moment of the trial,
one of the most dramatic moments in the country’s history’ (1993: 4).
In 1987, De-Nur offered Segev an explanation as to why he fainted.
During the trial, he was forced — for the first time — to state that
he was the author, Ka-Tzetnik 135633, who wrote texts based on his
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Holocaust experience. They included successful novels such as Beit
ha-Bubot (House of Dolls 1953). De-Nur believed the reason for his
collapse was having to admit — not only to the public, but also to
himself — that he and Ka-Tzetnik were the same person (Segev 1993:
5). As a witness, De-Nur thus encountered the double impossibility
of maintaining a distance between his everyday life and his Holocaust
experience (delegating the latter to the Ka-Tzetnik persona) and, at
the same time, of closing the gap between them. His collapse might
then be understood as a failed act of negotiation between ‘De-Nur’
and ‘Ka-Tzetnik’, that is, between two personae representing different
parts of the self. It is only twenty-six years later, having undergone a
psychotherapy based on LSD, that De-Nur believed himself able to
accept that he and Ka-Tzetnik are the same. For Segev, this alleged
journey to oneself — ‘Ka-Tzetnik’s Trip’ — parallels ‘Israel’s painful
confrontation with the Holocaust’ (1993: 11). According to the
historian, both Ka-Tzetnik’s story and the story of Israel encompass
‘a great human drama of repression and recognition, of agonizing
engagement with the lessons of the past’ (1993: 11).
‘Ka-Tzetnik’s Trip’, the prologue of Segev’s The Seventh Million, is
a good starting point for what I would like to call a ‘theatrical’ history
of the Eichmann trial, a history that I will attempt to outline. Within
this context, the interest in Segev’s prologue lies in its extensive use
of theatrical metaphors as well as in the fact that these metaphors
are embedded in a larger discourse surrounding the Eichmann trial.
Famously, both Susan Sontag in her ‘Reflections on The Deputy’ (1964),
about the controversial play by German writer Rolf Hochhuth, and
Hannah Arendt in her report, Eichmann in Jerusalem (1963, rev 1965),
have compared the Eichmann trial to forms of theatre and drama.
This might be connected to a second level of theatricality at work in
Segev’s prologue: namely, that it stages the phone call with De-Nur
as a connection to the past, mirroring the use of testimony during the
Eichmann trial where more than a hundred witnesses were summoned
by Attorney General Gideon Hausner, primarily to ‘conjure’ up the
ghosts of the dead Holocaust victims.1
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While a complete ‘theatrical’ history of the Eichmann trial
would also have to look at how it has been represented in drama and
theatre,2
I will only touch upon this dimension, focusing instead on the
theatrical discourse in narratives of the trial as well as on the complex
theatricality of witnessing, which Segev’s prologue and Hausner’s
spectral testimonial theatre both hint at. To retrace this history, I
will consider primarily Arendt’s report, Hausner’s memoirs (Justice
in Jerusalem 1966) and the work of literary scholar Shoshana Felman,
arguing that their different perspectives on the relation between theatre
and the law might be related to larger historical concerns regarding
the place of testimony after 1945 — both within as well as outside the
borders of juridical discourse.
A ‘Question of Genre’ or Drama v Theatre
Many studies of the Eichmann trial mention its theatrical dimension
but do not make a distinction between theatre and drama (see Bilsky
1996; Felman 2002; and Flessas 2005), yet these concepts have to be
carefully distinguished in the ‘theatrical’ history of the trial. Roughly
speaking, the concept of drama is linked to certain generic expectations
as well as to the idea of literature, in that drama is considered a text
that exists independently of its theatrical performance. The concept of
theatre — as I will explain — has, from a Western perspective, often
been thought to exist in an exclusive relationship to drama, as if its sole
purpose was to faithfully perform a given dramatic structure. However,
theatre encompasses many forms of spectacle that exist independently
of drama as, for instance, in most twentieth-cen­tury performance art
in which the bodily presence of the performers carries more weight
than any given text (cf Fischer-Lichte 2008).
Regarding the ‘theatrical’ history of the Eichmann trial, the relation
between theatre and drama is further complicated through a third term:
theatricality. In a sense, theatricality is a mode of perception — an event
becomes theatrical because it is perceived as such by an audience (Burns
1972). On a basic level, this is what allows us to study or describe that
which, per definition, is not theatre — such as a trial — in theatrical
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terms. However, things are not as easy as that since the use of theatrical
metaphors in legal theory (eg Legendre 1989) or sociological theory
(eg Goffman 1959) is more than just a matter of perception on the
part of the theorists, and is related to the fact that representation and
self-presentation play a major role not only in theatre but in everyday
life.3
Whether or not we ‘choose’ to see something as theatrical, then,
does not change the fact that it might have a theatrical dimension.
Segev’s prologue employs theatrical metaphors in two distinct
ways. Paradoxically, De-Nur’s fainting is described as ‘one of the most
dramatic moments’ in Israel’s history and as something appearing
‘almost’ theatrical (1993: 4). While the latter use of the metaphor is
clearly pejorative, with ‘theatrical’ suggesting something artificial and
staged, the term ‘dramatic’ has a positive meaning, within its context,
of emphasising the cultural historical importance of the event. When
Segev later speaks of Israel’s and Ka-Tzetnik’s ‘great human drama’
(1993: 11), the connotation remains positive. His choice of words
suggests that, despite the agony of having to deal with an unbearable
past, there is a structured (dramatic) form underlying and facilitating
the painful movements of ‘repression and recognition’ (1993: 11).
Regarding the Eichmann trial, this metaphorical distinction
between drama and theatre, in which the latter term is devaluated,
may already be found in Arendt’s (1965) study. As The Seventh Million,
but far more radical, Eichmann in Jerusalem employs opposing concepts
of theatricality: the ‘good’ one being linked to the idea of drama, the
‘bad’ one relating to artificiality or constructedness, as well as a desire
for spectacle. While the relation between theatricality and the sociopolitical
is a complex and much discussed issue in Arendt’s work (eg see
Bilsky 1996; Kottman 2008: 15-35), studies of Eichmann in Jerusalem
emphasise its critique of the trial’s ‘bad’ theatrical (spectacular and
artificial) dimension. In an insightful essay on Arendt’s narrative, legal
scholar Tatiana Flessas argues that the philosopher’s criticism of the
trial begins as a ‘question of genre’ (2005: 218). For Arendt, according
to Flessas, ‘trials are not plays’ and everything in them — for example,
the witnesses and the rulings — ‘must be in service of something which
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itself cannot be displayed on a stage’: that is, justice (2005: 218). Flessas
rightfully reads Eichmann in Jerusalem as an attempt to rewrite the
trial on a different scale, moving it from the ‘“stage” created for it by
the prosecution’ to ‘the “house” of justice’ (2005: 216). As proof of this
movement, she quotes from Arendt’s postscript: ‘Eichmann was not
Iago and not Macbeth, and nothing would have been further from his
mind than to determine with Richard III “to prove a villain”’ (Arendt
1994: 287). For Flessas, this re-positioning of the defendant underscores
Arendt’s ‘assertion that the evil exposed in the proceedings of the trial
was factually “banal” rather than dramatic’ (2005: 219).
Flessas’ reading focuses exclusively on the concept of ‘bad’
theatricality in Arendt’s narrative which seems to leave no room for
a positive dimension of theatricality regarding legal proceedings.
However, if we distinguish between theatre and drama, a different
perspective arises. In Western culture, these concepts seem so closely
related that even today — despite the historical avant-gardes and the
emergence of performance art since the 1960s — ‘the concept of drama
has survived as the latent normative idea of theatre’ (Lehmann 2006:
33, original emphasis). That is, for the general public, the theatrical
performance is defined in relation to a written text, the drama, that
supposedly carries within it all the information needed for its staging.
Such a definition, however, would reduce theatre to nothing more than
the reenactment of a given structure, and thus to lesser value than
the latter — as in Aristotle’s Poetics, according to which the actual
performance is the ‘least germane to the art of poetry’ (Aristotle 1982:
line 1450b). If Arendt is not entirely opposed to a ‘theatre of justice’
— she quotes the popular idiom that ‘justice must not only be done
but must be seen to be done’ (1994: 277) — this legal theatricality is
only ‘good’ as long as it follows a dramatic structure, that is, as long as
the performance has no value in itself and is true to the rules allegedly
inscribed in the presumed drama. For Arendt:
… [a] trial resembles a play in that both begin and end with the doer,
not with the victim. … In the center of a trial can only be the one who
did — in this respect, he is like the hero in a play — and if he suffers,
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he must suffer for what he has done, not for what he has caused others
to suffer (1994: 9).
Comparing Eichmann to the hero of a drama seems not only
inappropriate but also at odds with the quote where Arendt removes
him from the dramatic realm (1994: 287). However, the two paragraphs
serve different parts of her argument that should not be confused. The
quote from the postscript is meant to metaphorically support Arendt’s
thesis concerning the ‘banality of evil’, whereas the other can be read
as a defense of drama (that is, ‘good’ theatricality) in order to fault
the trial in Jerusalem for its use of ‘bad’ theatricality, meaning all
theatricality exceeding that which Arendt perceives to be the juridical
norm in an adversarial system. This norm, or right scale of theatricality,
would be what Shoshana Felman calls the ‘dramatic function’ of legal
proceedings: ‘making justice seen’ (2002: 162).
The ambivalence of theatricality, whether or not something is
perceived as theatrical, thus returns as a question of drama v theatre:
if trials must have a theatrical structure (‘making justice seen’), this
structure — for Arendt — must not be perceived as such. As long as
trials follow their generic expectations (and are dramatic in this sense),
their theatricality is ‘good’ because it vanishes insofar as it does not
have any value in itself but only serves something other (the ‘making’ of
justice). However, as soon as trials deviate from their alleged dramatic
norm, their theatricality — for Arendt — becomes apparent and ‘bad’:
turning the trial into a form of theatre removed from the ‘dramatic
function’ of justice, thus putting its legality at risk.
While Flessas is right in her assertion that Arendt’s criticism of the
trial entails a ‘question of genre’, her claim that, for Arendt, ‘trials are
not plays’ needs to be modified (2005: 216). It is only true insofar as
the relation between trial and play has to remain a metaphorical one.
As Cornelia Vismann (1999) notes, the idiom ‘theatre of justice’ usually
implies that ‘both domains – court and stage – have been differentiated,
so that the latter can be the metaphor for the former’ (Vismann 1999:
169). Arendt needs the trial to ‘resemble a play’ so that it does not become
one. This is the ‘question of genre’ posed by Eichmann in Jerusalem.
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For Arendt, the trial has to follow a dramatic structure in order not to
‘be’ theatre. From this perspective, she can argue that ‘it was precisely
the play aspect of the trial that collapsed under the weight of the hairraising
atrocities’ (1994: 8-9). According to the discursive logic put
forth in her study, ‘bad’ theatricality in a trial begins when theatrical
elements (eg the witnesses’ testimonies) detach themselves from the
presumed dramatic structure and function of legal proceedings, and
become a value in themselves. Then, the defendant is not ‘like the hero
in a play’ (1994: 9) anymore but is staged as if he was Macbeth or Iago
(1994: 287). Furthermore, the spectacular is not confined to showing
the alleged guilt or innocence of the defendant — that is, to ‘making
justice seen’ — but is allowed to run free, thus collapsing the ‘play
aspect of the trial’ (1994: 8) and forcing it to ‘degenerate into a bloody
show’ (1994: 9). ‘Good’ drama, as it were, turns into ‘bad’ theatre.4
A ‘Bloody Show’ or Theatricality in Witnessing
From Arendt’s perspective, Attorney General Gideon Hausner’s
approach to the proceedings appears as a prime example of ‘bad’
theatricality. I have argued that the philosopher accepts theatricality in
court only to render visible what at the same time has to remain separate
from the theatrical realm: the work of justice. For legal proceedings to
be like drama thus fulfils the double goal of making justice seen without
turning it into a ‘show’. This argument draws on a ‘strict separation
between the legal and the extralegal’ (Douglas 2001: 2). Hausner (1967:
292), in contrast, emphasises the ‘extralegal’ effect of the trial, that is,
its ‘correctional and educational aspect’ for the youth of Israel and the
rest of the world. As Hausner writes in his memoirs of the trial, in
‘any criminal proceedings the proof of guilt and the imposition of a
penalty … are not the exclusive objects’ (1967: 292). For the Attorney
General, calling more than a hundred Holocaust survivors into the
witness stand seemed the best possible means to evoke something as
hard to imagine as the persecution and destruction of the European
Jews, and to give Israeli teenagers ‘real knowledge … of the way in
which their own flesh and blood had perished’ (1967: 291-2). Hausner
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thus claims that his use of witnesses did not primarily follow legal aims:
‘In order to merely secure a conviction,’ he writes, ‘it was obviously
enough to let the archives speak; a fraction of them would have sufficed
to get Eichmann sentenced ten times over’ (1967: 291). By putting the
emphasis in the proceedings on what Lawrence Douglas (2001) terms
‘didactic legality’, Hausner subscribes to the political agenda of Israel’s
then-Prime Minister David Ben-Gurion who understood the trial
as an opportunity to underscore the necessity of a sovereign Jewish
state (see Yablonka 2004: 46-54). Not surprisingly, both men become
targets of Arendt’s critique of ‘bad’ juridical theatricality. Describing
the courtroom in Jerusalem’s Beit Ha’am, indeed a theatre modified
to accommodate the proceedings, the philosopher calls it ‘not a bad
place for the show trial David Ben-Gurion … had in mind’ (1994: 4),
and describes him as the ‘invisible stage manager’ (1994: 5) in whose
hands Hausner — with his own ‘love of showmanship’ (1994: 4) — is a
puppet. The judges serve as a counter-example to this ‘bad’ theatricality
and Arendt describes them in a rhetoric of authenticity and sincerity:
Their walk is unstudied, their sober and intense attention, visibly
stiffening under the impact of grief as they listen to the tales of
suffering, is natural. … They are so obviously three good and honest
men that one is not surprised that none of them yields to the greatest
temptation to playact in this setting — that of pretending that they,
all three born and educated in Germany, must wait for the Hebrew
translation (1994: 4).
Although the alleged authenticity of the judges removes them
from the theatrical altogether, it backs ‘good’ v ‘bad’ theatricality
when Arendt asserts that ‘no one knew … better than the presiding
judge’ that Eichmann, ‘like the hero in the play’, should be in the trial’s
centre (1994: 9). However, the judges’ efforts to follow this dramatic
structure were futile according to Arendt, and ‘the trial never became
a play, but the show Ben-Gurion had in mind’ (1994: 9). While the
distinction between ‘good’ theatricality, serving the dramatic function
of rendering justice visible as well as drawing a line between court and
stage, and ‘bad’ theatricality, where the spectacular does not serve a
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legal end anymore, is thus laid out during the first pages of Eichmann in
Jerusalem, it fully comes into play when Arendt describes the witnesses
for the prosecution.
Throughout the book, Arendt voices two main objections against
the use of survivor testimony: firstly, survivor testimony lets ‘the trial
… degenerate into a bloody show’ (1994: 9), by piling horror upon
horror, thus shifting the focus away from the defendant. It produces, as
it were, the wrong drama: for Hausner and Ben-Gurion ‘the play [was
to be] the huge panorama of Jewish sufferings’ (1994: 8), regardless of
the connection of the testimonies to the accused. Indeed, many studies
of the trial have noted that the prosecution often failed to produce a
link between testimony and defendant, thus prompting the presiding
judge to remind Hausner of his task ‘to eliminate everything that is not
relevant to the trial’. The judges felt this should have been done before
the actual hearings because, although ‘in many parts of this evidence
we have strayed far from the subject’, there was ‘no possibility at all of
interrupting evidence such as this, while it is being rendered’ (quoted
in Douglas 2001: 137).5
Secondly, survivor testimony is as unreliable, and even more so, as
any testimony. For Arendt, almost none of the witnesses possessed ‘the
rare capacity for distinguishing between things that had happened …
more than sixteen, and sometimes twenty, years ago, and what [the
witness] had read and heard and imagined in the meantime’ (1994: 224).
While she admits that this problem cannot be easily solved, Arendt
blames Hausner for making it worse. In her opinion, the prosecution
not only chose witnesses irrelevant to the case, but also showed a
‘predilection … for witnesses of some prominence, many of whom
had published books about their experiences, and who now told what
they had previously written, or what they had told and retold many
times’ (1994: 224). Only once does Arendt admit to being moved by a
testimony, almost against her will, ‘foolishly’ (1994: 229). Regarding
the testimony of Zindel Grynszpan, the philosopher praises how the
truth about the Shoah is condensed within a ten-minute testimony
of ‘shining honesty’ (1994: 230). Again, she describes this ‘honesty’
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primarily to emphasise the opposite, that is, that most testimonies fall
under the category of ‘bad’ theatricality — not only because she deems
them irrelevant to the ‘proper’ legal question (Is the defendant guilty?),
but also because they are threatened by artificiality. Grynszpan’s
successful testimony shows, precisely, ‘how difficult it [is] to tell the
story … outside the transforming realm of poetry’ (1994: 229).
If Grynszpan is Arendt’s prime example for ‘non-theatrical’
witnessing, De-Nur becomes an example of the ‘bad’ theatricality of
the proceedings. Summoned to the witness stand on 7 June 1961, DeNur
spoke in a narrative mode that — for Arendt — had to fall into
artificiality. After confirming that he publishes books under the name
of Ka-Tzetnik, the witness began:
This is a chronicle from the planet of Auschwitz. I was there for about
two years. Time there was different from what it is here on earth. Every
split second ran on a different cycle of time. And the inhabitants of
that planet had no names. … They were not born there nor did anyone
give birth. Even their breathing was regulated by the laws of another
nature. They did not live, nor did they die, in accordance with the laws
of this world (quoted in Felman 2002: 136)
Arendt cannot accept this as testimony, setting the term in quotation
marks when she claims that ‘even Mr. Hausner felt that something
had do be done about this “testimony,” and very timidly, very politely,
interrupted’ (1994: 224). Recasting the ‘showman’ as a polite attorney
only serves to underscore the alleged ‘bad’ theatricality of De-Nur. His
collapse is described as the act of an offended artiste. In response to
the interruption, ‘the disappointed witness, probably deeply wounded,
fainted and answered no more questions’ (1994: 224). It is ironic,
as well as highly problematic, that Arendt employs the language of
trauma (‘deeply wounded’) in order to satirise the witness, given the
possibility — mentioned above — that De-Nur’s collapse is indeed the
symptom of a failed attempt to face trauma. In Lacanian terms, trauma
is defined as a missed encounter with the Real: the senses overflow and
stop functioning due to the shock inherent in traumatic situations.
Thus, the ‘greatest confrontation with reality may also occur as an
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absolute numbing to it’ (Caruth 1995: 6). In order to put into words that
which has happened but could not be fully perceived at the time, one
has — to a certain extent — to always resort to what Arendt perceives
of as deviation from the truth. As De-Nur explains in the witness
stand, Ka-Tzetnik is not a pen name, but the name of the people on
the ‘planet Auschwitz’. Thus, when he writes as Ka-Tzetnik, he writes
in the name of that people, even when necessarily ‘transforming’ their
story. What De-Nur cannot accept, however, or only at the price of
fainting, is that in speaking for ‘them’, he is also speaking for a part
of himself, that he was actually there and is one of ‘them’, the victims
of the Holocaust.6
This understanding that De-Nur cannot reach in
words — he speaks in metaphors (‘planet Auschwitz’) — is acted out
bodily. According to Shoshana Felman, ‘the witness testifies through
his unconscious body’ (2002: 163). By fainting, his body ‘testifies
dramatically and wordlessly beyond the cognitive and the discursive
limits of the witness’s speech’ (Felman 2002: 163).7
Felman’s reading
evades, as it were, Arendt’s ‘transforming realm of poetry’ (1994: 229)
through the fact that the witness does not have to speak in order to bear
witness. Rather, he or she may testify in the mode of traumatic recall.
That which has happened does not return as an orderly narrative but as
disruption of narrative. Thus, the numbing quality that characterises
the encounter with the Real in traumatic situations is repeated by the
numbness of the wordless body.
This explains why, in Segev’s reading, the alleged near-theatricality
of De-Nur’s collapse does not preclude his testimony from becoming a
‘most dramatic’ moment. In Segev’s as well as in Felman’s interpretation,
theatricality displaces the dramatic act from the realm of words
(necessarily ‘transforming’ the unimaginable reality) to the corporeal,
thus letting the body ‘wordlessly’ act out the ‘great human drama of
repression and recognition’ (Segev 1993: 11). Even when De-Nur
speaks, Segev emphasises not the content of his words and what he
says, but ‘his voice and the tone’ (1993: 4).
In his later writings, French philosopher Jacques Derrida (1992,
1999, 2000) takes up the notion of theatricality in witnessing. As
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Derrida makes clear, testimony, for structural reasons, must allow itself
to be haunted by its alleged opposite: the possibility of fiction. This is
due to the fact that its condition of truth is dependent on the possibility
of universalising the singular: any given testimony is ‘true to the extent
that anyone who in my place, at that instant, would have seen or heard
or touched the same thing and could repeat exemplarily, universally,
the truth of my testimony’ (Derrida 2000: 41). However, no one can
take the place of another witness, nor can the witness him- or herself
repeat the actual moment he or she is relating to when bearing witness
in court; except, that is, with the help of a specific technique such as
language. Testimony is thus dependent on an artificial (or ‘theatrical’)
repeatability of the particular moment, and haunted — from the very
beginning — by the possibility of fiction. This makes another level of
theatricality necessary, namely, that the witness is not only describing
an event but ‘performing’ its truth (Derrida 1992: 286), by authorising
him- or herself through, for instance, the oath to swear the truth and
nothing but the truth.
In Felman’s and Segev’s above description of Ka-Tzetnik’s collapse,
the failure to speak is regarded as a testimonial performance in this
sense, that is, it becomes a bodily authorisation for the truth of that
which words cannot easily convey. In their readings, the traumatic
disruption of narrative moves the testimony beyond fiction since —
for them — Ka-Tzetnik’s words are those of a novelist whereas his
wordless body is that of the witness. Thus, the wordless body is able
to substantiate the words of the novelist, to give them credence by
their disruption. For Arendt, it is the other way round. In her view,
the fictionality that threatens any testimony reaches its climax in a
supposedly meaningless, purely ‘theatrical’ spectacle, a bodily act that
she thinks of as unrelated to the ‘dramatic’ function of the trial. For
her, Ka-Tzetnik’s wordless body continues rather than disrupts the
putatively artificial narrative; thus, the words of the ‘novelist’ undermine
the wordless body, causing even a failure of bodily functions to seem
faked.
In contrast, in both Felman and Segev, this climax of ‘bad’
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theatricality is (re-)con­structed as the turning point enabling a new
drama of law, one in which the theatricality of witnessing enhances
the testimonial truth effect rather than damaging it from a legal
perspective. However, as I attempt to show in the following, the
complex theatricality of witnessing cannot be reduced to being either
‘good’ in Felman’s and Segev’s sense (that is, performing the Real
through a bodily act) or ‘bad’ in Arendt’s sense (that is, being theatrical
in a pejorative sense).
Not Facing the Glass Booth or The Advent of the
Witness
It has been argued that the Eichmann trial marks the ‘advent of the
witness’ (Wieviorka 2006: 88). Of course, witnesses played a role in
legal proceedings before Eichmann, but after the trial something
changed in the public perception of witnessing, and testimony itself
has undergone conceptual changes in the move from the ‘strictly’
legal to a broader socio-cultural context. Already in 1977, Elie Wiesel
could proclaim that ‘our generation invented a new literature, that of
testimony’ (1990: 7). By now, we have become so accustomed to the
idea of Holocaust memory being inextricably bound to witness accounts
that it is hard to imagine that it might not always have been this way.
However, from 1945 through the fifties, Holocaust discourses in
Europe, the US and Israel were less centred around survivor testimony.
For different reasons, these countries and regions did not publicly
embrace the surviving victims and their experience (see Bachmann
2010: 100-5). For the US, historian Peter Novick (1999) has shown
that the forties and fifties were marked by an integrationist ethos.
This did not leave much room for the American Jews to insist upon
their particular relation to the events of the Holocaust, either as newly
immigrated survivors or as people who would have shared the fate of
European Jewry if they had been there at the time. The rejection of an
identity politics based on being distinct from the majority was partly
caused by the fact of what it would have meant to consider oneself
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victimised: ‘Whereas nowadays the status of victim has come to be
prized,’ Novick writes, at the time the ‘self-reliant cowboy and the
victorious war hero were the approved (masculine) ideals’ (1999: 121).
While the common notions of heroism and victimhood are not the only
reasons for the (public) marginalisation of survivor narratives in the
US — others include the Cold War and the putative political need to
have West Germany as an ally against the Soviet Union — the relation
of heroism and victimhood also determined the place Israel accorded
to Holocaust survivors. For Israeli Jews who had immigrated before
the war or were born into statehood, the recently arrived survivors
represented the ‘old’ diasporic Jew:
They symbolized … Jewish weakness, and there were real fears that
the new, heroic Jews would be ‘infected’ with this by the survivors.
Although the state laid claim to the memory of the Holocaust, then,
this did not refer to the real survivors and their suffering: Israel
remembered the Holocaust but forgot the survivors (Loshitzky 2004:
183-4).
The Eichmann trial in Jerusalem was an internationally influential
turning point with regard to the status of Holocaust survivors.8
For the
first time, a considerable group of survivors publicly told their stories
to much media attention. They gained a new social identity while — at
the same time — the function of Holocaust testimony began to change:
now ‘the witness became an embodiment of memory, attesting to the
past and to the continuing presence of the past’ (Wieviorka 2006: 88).
According to French historian Annette Wieviorka, this ‘advent of the
witness’ has transformed the way the Holocaust is both remembered
and written about: ‘the genocide came to be defined as a succession of
individual experiences with which the public was supposed to identify’
(2006: 88). While this regards the status of the Holocaust survivors and
of witnessing at large, that is, not in the legal domain — where witnesses
in adversarial as well as inquisitorial systems have always played a major
role — it also relates to a paradigm shift in the history of international
law. For Douglas (2001: 258) as well as Felman (2002: 132-3), the
Eichmann trial is held in a ‘testimonial’ mode, primarily drawing on
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witnesses, as opposed to the ‘documentary’ mode of Nuremberg where
the prosecution primarily relied on written documents. For Attorney
General Hausner, ‘[i]t was mainly through the testimony of witnesses
that the events [of the Holocaust] could be reproduced in court, and
thus conveyed to the people of Israel and to the world at large’ (Hausner
1967: 292). For him, the Nuremberg Trials — albeit successful in a
juridical sense — failed because they did not ‘reach the hearts of men’
(291) and let the events remain a ‘fantastic, unbelievable apparition’
(292). Only with the help of testimonies, Hausner argues, can ‘the
whole extent of the Jewish catastrophe’, which actually ‘surpasses
human comprehension’, be made comprehensible (292):
The story of a particular set of events, told by a single witness, is still
tangible enough to be visualized. Put together, the various narratives
of different people about diverse experiences would be concrete enough
to be apprehended. In this way I hoped to superimpose on a phantom
a dimension of reality (Hausner 1967: 292).
Segev conjures the ghosts of the past when phoning De-Nur in
1987; Hausner brings them out in his testimonial theatre. The Attorney
General’s memoirs speak of the trial as a sort of stage where the dead can
— through the living witnesses — become alive once more in order to
impeach the accused. In his opening speech, Hausner stated that he was
not standing alone before the Judges of Israel ‘to lead the prosecution
of Adolf Eichmann. … With me, in this place and at this hour, stand
six million accusers’ (Hausner 1967: 323). When the surviving victims
tell about their fate, these accusers would — according to Hausner —
‘come to life for a moment before our eyes, vivid as a scream in the
night’ (328). The witnesses supposedly ‘plunge’ the audience into their
past experience which becomes, once again, presence:
It seemed that the courtroom itself was now engulfed in the poisonous
vapors of the crematoria. At times I could almost smell the lethal gases
and the stench of burnt flesh. As the witnesses tonelessly gave their
testimony, we relived the nightmare with them (Hausner 1967: 346).
Hausner’s description of the testimonies emphasises their visceral
dimension, mirroring Segev’s description of De-Nur’s ‘voice and
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tone’. Although Hausner’s claim, that ‘in order to merely secure a
conviction, it was obviously enough to let the archives speak’ (291), can
be understood as an exaggeration to prove his point, it hints at a new
testimonial concept that is neither restricted to establishing evidence
nor to the ‘truth’ effect of testimonial performance. Just as Arendt’s
disapproval of witnessing does not do away with witnessing completely
(she would admit any number of witnesses as long as their narrative
was directly related to the defendant), Hausner’s testimonial theatre
does not entirely leave the ‘dramatic function’ of legal proceedings
behind. With the Eichmann trial, however, a testimonial concept gains
momentum that puts its emphasis on the transmission rather than on
the establishment of facts. In contrast to Nuremberg, Felman (2002)
writes, the Eichmann trial sought:
… not only to establish facts but to transmit. … The tool of law
was used not only as a tool of proof of unimaginable facts but, above
all, as a compelling medium of transmission — as an effective tool of
national and international communication of these thought-defying
facts (Felman 2002: 133).
Thus, De-Nur’s interrupted testimony can become the most
important moment of the trial for Felman, as well as for Segev and
Hausner. The testimony’s bodily aspect (the witness’s ‘tone and voice’,
his actual collapse) serves as the best proof that the past continues to
haunt the present. Segev’s claim that ‘all Israel held its breath’ (1993:
4) emphasises the affective power of testimony, making it something
bodily for the witness and also for the audience.
The Unconscious Witness or The Theatricality of
Bodies
In their seminal work on the relation between testimony and trauma
after the Holocaust, Felman and Laub (1992) define testimony ‘not
as a mode of statement of, but rather as a mode of access to [the] truth
[of an event]’ (Felman and Laub 1992: 15-16). In other words, truth
does not have to be told in a representational manner but can lie in
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the distortions and gaps of a narrative. In the book, Laub gives an
example that has since become famous. A Holocaust survivor is relating
her memories as an eyewitness of the Auschwitz uprising; memories
that are — as a group of historians points out to Laub — not true to
the historic facts. For instance, the woman misrepresents the number
of chimneys that have been blown up during that revolt. Thus, the
historians refuse altogether to accept the survivor’s account of the
events. Laub contradicts them, arguing that the truth of the event
appears, precisely, through the distorted perspective of the woman’s
memory — a memory that is acted out bodily:
… a sudden intensity, passion and color were fused into the narrative.
She was fully there [in Auschwitz]. … There was a silence in the room
against which the woman’s words reverberated loudly, as though
carrying along an echo of the jubilant sounds exploding from behind
barbed wires, a stampede of people breaking loose, screams, shots,
battle cries, explosions (1992: 59).
Similar to Hausner’s attempt to have the audience ‘relive the
nightmare’ together with the surviving victims (1967: 346), in Laub’s
example the barriers between the present and the past seem to break
down — producing what might be perceived as a traumatically defined
testimonial truth emerging at the expense of historical facts or a
testimonial truth that is defined legally in Arendt’s sense.
From this perspective, the movements between ‘good’ and ‘bad’
theatricality in the ‘theatrical’ history of the Eichmann trial do not just
illustrate the general aporetic condition of witnessing, as described by
Derrida, in which fiction and truth constitute and haunt each other.
More than that, the movements themselves bear witness to a specific
historical moment during which — for a limited time — the bodily
presence of the witness could be understood as ultimate bearer of truth.
If Hausner summons the witnesses not ‘to merely secure a conviction’
(1967: 291) but to represent a traumatic history, the absent reality of the
Holocaust is brought back as it were, not in order to judge Eichmann
but to offer an experience — with the bodily dimension of witnessing
symbolised by De-Nur’s collapse serving as proof that the distance
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between present and past can be overcome in this juridical setting.
Arendt’s objection to De-Nur’s testimony is based on the fact that
for her, this bodily authorisation and affective power detaches itself
from any narrative that could be relevant to the trial. Thus, an integral
element of witnessing — the need for authorisation — becomes a means
in itself instead of serving the ‘higher’ dramatic function of making
justice visible. Paradoxically, this objection can neither be sustained
nor overruled but constitutes part of the affective power in question.
Theatricality — neither good nor bad — is at work in witnessing
since the traumatic recall and bodily dimension, which constitutes the
truth of testimony in Felman’s (2002: 163) reading, is dependent on
a distance that has to be overcome. As Derrida (2000: 41) observes,
testimony, due to its very structure, must allow itself to be haunted
by the possibility of fiction that cannot be suspended by a traumatic
definition of testimony. Contrary to what Felman’s reading suggests, the
bodily dimension of witnessing — when De-Nur supposedly testifies
‘through his unconscious body’ (2002: 163) — cannot be reduced to
its testimonial truth effect. It needs contextualisation as, for instance,
the drama that Arendt seeks to rewrite. The very idea of unconscious
testimony being truer than spoken testimony only makes sense as a
displacement of theatricality, that is, a ‘bad’ theatricality overcome
by a ‘good’ one. De-Nur’s spectacular suffering fulfils its ‘dramatic
function’ only if understood against the background of a perceived
‘bad’ theatricality of witnessing in which the witness is at a distance
from the related event.
Concerning the Holocaust, this distance has been primarily
associated with narrative representation (Adorno 2002). Elie Wiesel,
for instance, describes his fear ‘that words might betray’ what he needs
to describe as a writer and witness (2002: 70). His imaginary solution to
the problem is a silent testimony, a moment of ‘pure’ corporeality like
De-Nur’s collapse, which would be able to communicate its message
without betraying it. Wiesel’s paradigm for the silent witness is the
founder of Chassidism, Baal Shem Tov:
It used to be said that when the Baal Shem Tov came into town
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his impact was so strong, he didn’t have to speak. … I think a real
messenger, myself or anyone, by the very fact that he is there as a
person, as a symbol, could have the same impact (2002: 70).
The ‘good’ theatricality of witnessing as it appears in Felman’s,
Hausner’s and Segev’s accounts of the Eichmann trial relies on an
interrupted narrative in favour of ‘pure’ bodily performance. However,
it cannot do without the ‘drama’ that Arendt reads into the trial. For her,
the legitimacy of testimonial theatre is restricted to aiding a formalised
narrative of guilt and innocence. If ‘theatre’ (the affective power of
witnessing) and ‘drama’ (its relevant content) are both constituents
of testimony, the Eichmann trial can also be read as a reversal, as I
have argued, of this relation between theatre and the drama of law as
understood by Arendt. The ‘theatrical’ history of the Eichmann trial
is the story of this shift in interpretation.
Notes
1	 Created in 1948, during the end of the British Mandate, the Israeli legal
system was originally based on English common law but has since become a
pluralistic system, combining the former with civil law and Jewish religious
law (Yablonka 2004: 141). It is an adversarial system without a jury, that
is, the evidence is brought before the court by prosecution and defence,
while the case is decided by professional judges.
2	 Notable plays based on the Eichmann trial include Heinar Kipphardt’s
documentary theatre piece Bruder Eichmann (Brother Eichmann 1983)
and American playwright Donald Freed’s The White Crow: Eichmann
in Jerusalem (1984). In his recent survey of dramas based on the Shoah,
Holocaust Drama: The Theater of Atrocity, Gene Plunka (2009) underscores
the importance of the Eichmann trial for the history of Holocaust drama,
referring to Arendt’s study as ‘an ennobling treatise that changed the way
Nazis were depicted on stage’ (2009: 20). Also see Skloot (1998).
3	 From the perspective of a theatre historian, Rudolf Münz offers a critique
of theories like Goffman’s, arguing that they usually have a narrow
understanding of theatre by confining the latter to its dramatic model
(Münz 1998: 82-103). Instead, Münz proposes a view of theatricality
as a system of different layers (Theatralitätsgefüge) that encompasses (a)
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theatre as institutional art form; (b) representation and self-presentation
in everyday life; (c) ‘non-theatre’, for example, censorship and writings
against the theatre; (d) theatricality as a self-reflexive mode of exposing
the role-play in theatre and everyday life.
4	 Julie Stone Peters (2008) gives an overview of how the idea of ‘theatricality’
figures in theoretical writings on the law as, for instance, in Felman (2002)
or in the Leçons of French psychoanalyst-lawyer Pierre Legendre (1989).
While Peters does not account for the conceptual history of drama and
theatre in relation to law, she positions ‘the oscillation between theatricality
and antitheatricality’ at the heart of legal history (Peters 2008: 198), thus
pointing towards a deeper conceptual history behind my discussion of
‘good’ and ‘bad’ theatricality.
5	 The full transcript of the Eichmann trial has been published in English
translation by the Israeli Ministry of Justice (1992-1998). It may also
be accessed online through the Nizkor Project: www.nizkor.org/hweb/
people/e/eichmann-adolf/transcripts/. Since the Eichmann trial was
broadcast in Israel and throughout the world, a large quantity of audiovisual
material exists and has formed the basis for documentaries such as
Eyal Sivan’s Un spécialiste: portrait d’un criminel moderne (1999).
6	In The Drowned and the Saved, Holocaust survivor Primo Levi (1989) states
a testimonial paradox according to which only the absent victims of the
Shoah would have been its ‘true witnesses’. However, they could never
have testified, ‘just as no one ever returned to describe his own death’
(Levi 1989: 84). Thus, survivors have to report on behalf of these absent
witnesses, speaking ‘in their stead, by proxy’ (84). As I have attempted
to show elsewhere (Bachmann 2009), this bifurcation — that might be
related to the case of De-Nur/Ka-Tzetnik — concerns the traumatised
survivors themselves in that they have experienced the Holocaust directly,
but their experience is buried inside them as an absence. Thus, the survivor
who talks or writes about the Shoah is a stranger, an ‘absent witness’ to
him- or herself.
7	 Felman’s (2002) The Juridical Unconscious, from which these quotes are
taken, collects a series of essays evolving around the idea that after 1945
a ‘hidden link between trials and traumas’ has emerged (Felman 2002:
1). Two of the four chapters expand on previously published articles
about the Eichmann trial: ‘Theaters of Justice: Arendt in Jerusalem, the
Eichmann Trial, and the Redefinition of Legal Meaning in the Wake
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of the Holocaust’ (Felman 2002: 106-30) and ‘A Ghost in the House of
Justice: Death and the Language of Law’ (131-68).
8	 Of course, the change brought about by the Eichmann trial did not occur
in historical isolation. There are developments leading up to this shift —
such as the institutionalisation of the Israeli Holocaust Remembrance
Day during the fifties — and others aimed at consolidating the status of
survivors, for example, the foundation of the Yale Fortunoff Video Archive
for Holocaust Testimonies in 1979.
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