Transformative Justice: Israeli Identity on Trial (Law, Meaning & Violence) - Softcover

Bilsky, Leora Yedida

Softcover

ISBN 10: 047203037X ISBN 13: 9780472030378

Publisher: University of Michigan Press, 2004

Synopsis

Can Israel be both Jewish and democratic? Transformative Justice, Leora Bilsky's landmark study of Israeli political trials, poses this deceptively simple question. The four trials that she analyzes focus on identity, the nature of pluralism, human rights, and the rule of law-issues whose importance extends far beyond Israel's borders. Drawing on the latest work in philosophy, law, history, and rhetoric, Bilsky exposes the many narratives that compete in a political trial and demonstrates how Israel's history of social and ideological conflicts in the courtroom offers us a rare opportunity to understand the meaning of political trials. The result is a bold new perspective on the politics of justice and its complex relationship to the values of liberalism. Leora Bilsky is Professor of Law, Tel Aviv University.

About this title

About the Author

Leora Bilsky is Professor of Law, Tel Aviv University.

Excerpt. © Reprinted by permission. All rights reserved.

Transformative Justice

Israeli Identity on TrialBy Leora Bilsky

The University of Michigan Press

Copyright © 2004University of Michigan
All right reserved.
ISBN: 978-0-472-03037-8

Contents

Acknowledgments.........................................................................xiIntroduction: Transformative Trials and Dilemmas of Democracy...........................1The Kastner TrialChapter 1. Performing the Past: The Role of the Political Lawyer........................19Chapter 2. From Faust to Kastner: The Judge as Storyteller..............................41Chapter 3. The Poet's Countertrial......................................................67The Eichmann TrialChapter 4. A Tale of Two Narratives.....................................................85Chapter 5. Reflective Judgment and the Spectacle of Justice.............................117Chapter 6. Social Criticism in the Shadow of a Transformative Trial.....................145The Kufr Qassem TrialChapter 7. Between Ordinary Politics and Transformative Politics........................169The Yigal Amir TrialChapter 8. "A Jewish and Democratic State" Reconsidered.................................201Conclusion: Between Transformative Trials and Truth Commissions.........................237Notes...................................................................................259Bibliography............................................................................343Table of Cases..........................................................................365Index...................................................................................369

Chapter One

Performing the Past

The Role of the Political Lawyer

It was not the trials of Nazi perpetrators such as Adolf Eichmann that first brought the Holocaust to the attention of Israeli courts but rather trials involving their Jewish victims. In the 1950s the Israeli Law of Punishment of the Nazis and Their Collaborators led to a number of trials in which judges were obliged to confront the actions of Jewish leaders and functionaries during the Holocaust. These trials did not receive much public attention and were mainly discussed in the communities of survivors involved in them. One trial, however, stands out as the exception: criminal case 124/53 Attorney General v. Malchiel Gruenwald, better known as "the Kastner trial," which took place in the district court in Jerusalem during the years 1954-55. This was the first Holocaust trial that succeeded in making itself relevant to the Israeli public at large. No doubt, the Kastner trial differed in important respects from other "Holocaust trials." Not only was it the first (and only) trial that dealt with the actions of a Jewish leader as opposed to those of low-ranking Jewish functionaries (kapos and policemen), but the central issue it raised-the negotiations Rudolf Kastner conducted with Adolf Eichmann in the hope of saving Jewish lives-had the power to capture the imagination of ordinary people. Moreover, the fact that this case was brought to court as a criminal libel trial concerning the free speech of an Israeli citizen endowed it with far more immediate interest for the Israeli public than the trials judged under the retroactive and extraterritorial Law of Punishment of the Nazis and Their Collaborators. Nonetheless, these differences were not sufficient in themselves to explain the fierce political debate about Israeli collective identity and memory that the Kastner trial engendered. In order to understand the dynamics of public interest around the trial, I suggest reading it as a political trial in which the parties engaged in a heated debate about the historical lessons that the Holocaust held for the ethos of the new state and its future code of behavior. Although the politicization of the trial began with the insistence of the attorney general, Haim Cohn, that criminal charges of libel be pressed against a man who had accused a public official of collaboration with the Nazis, it did not end there. Rather, it was a brilliant defense lawyer, Shmuel Tamir, one of the founders of the right-wing Revisionist party (Herut), the main opposition to Mapai, who was largely responsible for its transformation from a trial about past events in a distant land into a full-blown political trial perceived by the Israeli public as touching on the most urgent issues of the day. This chapter is devoted to exploring that transformation and the role of the defense lawyer in effectuating it.

The Kastner trial began as a libel trial against an elderly Hungarian Jew, Malchiel Gruenwald, who was accused of defaming the Zionist leader, Rudolf (Israel) Kastner, by alleging that he had collaborated with the Nazis. Kastner lived in Budapest during World War II and organized, together with other Zionist activists (among them Joel and Hansi Brand), a committee for the rescue of Jewish refugees who were fleeing to Hungary in an attempt to escape the Nazi terror in neighboring countries (known by its Hebrew name of Va'adat Ezrah Vehatzalah). After the 1944 German takeover of Hungary, Kastner served as chief negotiator with Adolf Eichmann, the top Nazi official responsible for the deportation of Jews to German concentration camps, and with other Nazi officials on behalf of Hungary's Jewish community (although he was never a member of the Judenrate-the Jewish councils appointed by the Nazis in the ghettoes). The "blood for goods" deal sought by Kastner and seriously considered by the Nazis was intended to save the lives of nearly a million Jews in exchange for ten thousand trucks to be delivered to the German army. Although Joel Brand was even sent to Turkey to persuade members of the Jewish Agency to tell the Allies of the proposal, this ambitious goal was not achieved and approximately 400,000 Hungarian Jews were eventually sent to their deaths in Auschwitz. Kastner did succeed in saving a group of 1,685 Jews, who were shuttled to safety in Switzerland. This transport included a disproportionate number of Kastner's friends and relatives.

After the war Kastner's involvement in this capacity was questioned; at the 1946 Zionist Congress he was accused by a Hungarian activist of being a cynical opportunist who had selfishly sacrificed Hungarian Jewry in return for his personal safety. Kastner responded with a libel suit against the accuser, submitted to the Congress's Honor Court. He also wrote a long report accounting for all his wartime activities in Hungary. However, the panel decided that it did not have enough evidence to reach a conclusive decision and recommended that the matter be investigated in depth in the future. Thereafter, Kastner emigrated to Israel and became active in the ruling labor party, Mapai; by 1952 he was serving as spokesman for the Ministry of Trade and Industry. Kastner was also on the Mapai candidate list for the first and second elections to the Knesset (Israeli parliament). Although he was not elected, there was a good chance he would be successful in the third elections, to be held in 1955.

It was at this time that Malchiel Gruenwald embarked on a campaign against Kastner. A devoted member of Ha-Mizrahi (the religious wing of the Zionist movement) and a refugee who had lost most of his family in Hungary, Gruenwald had a political as well as a personal agenda. In addition to seeking to expose Kastner's crimes, Gruenwald hoped to denounce Mapai, demand Kastner's removal, and facilitate the appointment of a commission of inquiry to investigate the events that had led to the decimation of Hungary's Jews. The target of his criticism was the negotiations that Kastner had conducted with Adolf Eichmann, which Gruenwald asserted had facilitated the destruction of Hungarian Jewry while benefiting Kastner personally. In a pamphlet he sent to Ha-Mizrahi members in the summer of 1952 Gruenwald phrased his charge that Kastner had collaborated with the Nazis in vivid and offensive terms.

The smell of a corpse scratches my nostrils! This will be a most excellent funeral! Dr. Rudolf Kastner should be eliminated! For three years I have been awaiting this moment to bring to trial and pour the contempt of the law upon this careerist, who enjoys Hitler's acts of robbery and murder. On the basis of his criminal tricks and because of his collaboration with the Nazis ... I see him as a vicarious murderer of my dear brothers.

According to Gruenwald's allegations, Kastner had become friendly with the Nazis through their negotiations and as a result had been allowed to save his relatives and a small number of Jewish dignitaries. In return, Kastner had allowed himself to be used by the Nazis by not informing Hungarian Jews of the real destination of the deportation trains. Gruenwald also alleged that Kastner, in collusion with some Nazis, had stolen Jewish money and after the war had helped save the life of Kurt Becher, one of the Nazi officers with whom he had negotiated, with favorable testimony at the Nuremberg war crimes trials. Warned by Attorney General Cohn that he must either sue Gruenwald for libel or resign from his government post, Kastner sued, and since he was a senior government official he was represented at the trial by the attorney general himself. In the course of the trial, however, it was Kastner, not Gruenwald, who found himself on the defensive.

Shmuel Tamir, the defense attorney, answered the accusation against his client with the response: "He spoke the truth." Tamir did not deny that Gruenwald had written the offending pamphlet. Quite the contrary-he set out to prove that everything in it was true. Tamir claimed that had the Jews been informed of the Nazi extermination plan, many of them could perhaps have escaped to Romania, revolted against the Germans, or sent calls for help to the outside world, all of which could have significantly slowed the Nazi killing process.

Due to the two main protagonists, Cohn and Tamir, the Kastner trial was politicized from its very inception. However, while Cohn wanted to use the legal device as a simple way of refuting and silencing political criticism against a government official, it was Tamir who immediately understood the trial's political potential to serve as a public stage for embarrassing the political authorities. In the background lurked the political controversy over Prime Minister Ben-Gurion's decision to enter into negotiations with Germany over reparations. Herut's leader, Menachem Begin, used this debate as a political tool to delegitimize Mapai's willingness to negotiate with Germany and he succeeded in transforming a political disagreement into a matter of morality.

Tamir's main aim was to turn the proceedings into a subversive political trial and a means of delegitimizing the ruling Mapai party. But here he confronted formidable obstacles. In the 1950s the Israeli public regarded the Holocaust as belonging to "another planet" and saw the survivors who had immigrated to Israel as "Others," outside the Israeli collective. This attitude was supported by the prevailing Zionist ethos of "the negation of the diaspora," according to which the State of Israel epitomized a rupture with two thousands years of Jewish life in the diaspora. It envisioned a "New Jew" who would develop in the Land of Israel with characteristics diametrically opposed to those of the Diaspora Jew. The New Jew was to be connected to the land, leading a productive life and relying on self-help in economic and security matters, as symbolized by the figures of the halutz (pioneer farmer and builder) and the shomer (defender and warrior). This ideological background can explain why the Holocaust trials of the 1950s had until then been perceived by the Israeli public as internal matters involving the communities of survivors alone. Thus, Tamir had to find a way to make a trial that dealt with events that had occurred on that "other planet" of occupied Europe relevant to the political controversies of the day. In this he was greatly helped by the weekly Ha-Olam Ha-Ze, a lively Israeli newspaper that gave extensive coverage to the trial in a way that was sympathetic to Tamir. Until the Kastner trial the press coverage of the kapos' trials had been minimal, and at first this was also the fate of the Kastner trial. The only newspaper that reported on Gruenwald's pamphlet was Herut (which was affiliated with the Revisionist party). But as the trial proceeded other newspapers began to give it more and more coverage, and within a few months the trial had to be moved to a larger auditorium because of the masses of people who came to listen. When the verdict was announced the public's interest reached its peak and the newspapers devoted huge headlines and full pages to the trial. The fact that the verdict was announced only a few weeks before the general elections contributed to its politicization.

The Kastner affair could have signaled a first questioning of the Zionist ideology that opposed the proud "New Jew" of the Land of Israel to the submissive Jews of the diaspora. After all, Kastner was a Zionist leader who had chosen negotiations and cooperation with the Nazis rather than military resistance. This moment of recognition, when the simplified stereotype of myth confronted the complexities of concrete historical reality, had an explosive potential. It could have led to a searching critique of this aspect of Zionist ideology, and in particular of its disparaging treatment of Holocaust survivors who had not belonged to the resistance. Tamir, however, who had no intention of undermining an ideology he himself upheld, chose to take the trial in another direction, one that could be used to sully the Zionist credentials of his political opponents. Thus, instead of examining the ideology in light of the historical reality of occupied Europe, he chose to interpret the historical facts in accordance with his own ideological beliefs, thus strengthening the blinders that this ideology produced. Tamir sought to show that it was not the ideology that was at fault but the leaders (Kastner and, by association, Mapai) who had failed to live up to it. Tamir skillfully used the legal process to sustain this argument, building his case on three central strategies, which involved (1) adapting historical reality to the binary structure of Zionist ideology, (2) reenacting the past trauma in the courtroom, and (3) manipulating the legal discourse of "truth."

1. A Sociolegal Binary Structure

The legal process of Israeli law is adversarial. The struggle between the two sides-the prosecution and the defense-generates a drama, which is intensified in criminal proceedings that are held on a daily basis and take place within a relatively short period of time. The decision of the attorney general to prosecute forced the complex affair into the binary structure of the trial, which created the impression that there were only two possibilities-acquittal or conviction. However, this structure was also perfectly suited to the story Tamir wished to promote, according to which people were faced with two mutually exclusive choices-heroic resistance or collaboration and treason. The formal positions of prosecution and defense in a criminal trial thus came to symbolize two ideological positions: cooperation versus defiance. Kastner's actions were associated with the cowardly path of collaboration while Tamir's political stance was associated with the heroic path of resistance. The entire intermediate range of actions between these two poles-such as the different ways in which the underground movements had cooperated with the Judenrate-was disregarded. The binary framework thus excluded serious consideration of the issues actually faced by Kastner and other Jewish leaders who had had to take life and death decisions without the benefit of hindsight: the immense difficulties of saving the victims, the impending end of the war, and so on. Moreover, this binary structure (both ideological and legal), which was imposed on the facts, obscured the tragic nature of the decisions taken by people who were forced to make the cruel choice of sacrificing the few in the hope of saving the many.

Tamir presented his arguments within the framework of the prevailing Zionist narrative. According to Tamir, Kastner's compliance with the authorities was typical diaspora behavior, which had led to full collaboration with the Nazis and to the annihilation of the Jewish people of Hungary. The Zionist alternative to "Kastnerism," however, could not come from Tamir's client, Malchiel Gruenwald, himself a typical Diaspora Jew who was ultimately a marginal character in the legal drama. Rather, it was defense attorney Tamir who offered himself as a model of the proud Sabra (native born Israeli Jew). The contrast between the new and old Jew was especially evident in the cross-examination of Kastner. Tamir's eloquent rhetoric and perfect fluency in Hebrew were in stark contrast to the broken Hebrew of Kastner's testimony, which was filled with "foreign" expressions. Moreover, by managing to transform his position in the trial from that of a formal defense lawyer into that of a de facto prosecutor, Tamir reenacted the national myth of heroism-the weak and few overcoming the strong and many by turning a defense into a victorious offensive.

The familiar Zionist narrative, which Tamir so skillfully put to use in the trial, made the Israeli audience receptive to his critique. Although Tamir's criticism failed to reveal, for the most part, the sordid secrets and sensational facts that he had promised, he succeeded in transforming his defense of Gruenwald into a political attack by extending the patterns of behavior he had identified in Nazi-occupied Hungary to the situation in prestate Palestine, implying that the leadership of the Yishuv (the organized Jewish population in Mandatory Palestine) during the war had played the role not of "heroic Zionists" but, like Kastner, of collaborators with the foreign ruler.

(Continues...)

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Edition details

• Publisher: University of Michigan Press
• Publication date: 2004
• Language: English
• ISBN 10: 047203037X
• ISBN 13: 9780472030378
• Binding: Paperback
• Number of pages: 392