Historical Adjudication: Courts of Law, Commissions of Inquiry, and “Historical Truth”

This is a story about a trial, possibly the greatest trial since the Nuremberg Trials, a trial that may dictate anew the history books, wipe off old legends, smash to smithereens adorable idols, when on top of the ruins the cruel truth will stand alone.

Perhaps even more than that: while at the Nuremberg Trial every effort was made to evade the atrocities of the extermination of the Jewish People in Europe and circumvent it, in this trial the aim to explore the whole truth took over.

Here the traditional privilege of the historians to adjudicate history was denied. In their place this time the writing of history was done through the judicial system of Israel.

—Emanuel Pratt

I. History and Law

When the State of Israel was established and the Supreme Court inaugurated in Jerusalem, dozens of Christian clerics implored President Smoira to allow the Supreme Court, as the successor of the Great Sanhedrin, the supreme Jewish court during the time of Roman rule, to retry Jesus Christ and thereby rectify the injustice caused to him. [1] It is interesting that after two millennia of flourishing Christianity, in the course of which thousands upon thousands of books have been written about Jesus—and more than sixty thousand of which have been written since the beginning of the nineteenth century [2] —his followers still feel the need to achieve his judicial rehabilitation, [3] if only because a court’s determination of a man’s guilt or innocence has a mystical significance, the impact of which retains its force even after the passage of many years.

The attempt to bring about a retrial of Jesus brings to the fore two controversial issues: the ability of courts of law to ascertain the truth and the role of judicial and quasi-judicial institutions in establishing historical facts. I examine these questions against the background of two painful episodes in the short legal history of Israel—the investigation into the murder of Haim Arlosoroff and the trial of Israel Kastner.

The Commission of Inquiry into the Murder of Arlosoroff

In 1933, Dr. Haim Arlosoroff, head of the political department of the Jewish Agency and one of the prominent leaders of the Zionist Socialist Party, Mapai, was murdered on a Tel Aviv beach. The murder breached the dams of hatred between Mapai and the Revisionists, the right-wing Zionist movement, founded in the mid-twenties, that called for a reversal of the conciliatory policy of the World Zionist Organization toward Britain. The Revisionist Movement opposed the Zionist leadership whom it accused of putting up with British regression from the Balfour Declaration and the League of Nations Mandate over Palestine supporting the establishment of a Jewish National Home in Palestine. It also accused them of not engaging in international struggle against the British policy of imposing limitations on Jewish immigration to Palestine. The Revisionists fostered a political offensive to induce Britain to adapt its policy in Palestine to the Balfour Declaration. It advocated the adoption of a settlement regime designed to encourage Jewish mass immigration and settlement that would lead to a Jewish majority in the Jewish state to be established on both banks of the Jordan river. Moreover, the Revisionist Movement opposed the policy of compromise with the Arab population, especially following the Arab riots against Jews in 1929. The Revisionists favored private economy, supported the outlawing of strikes and lockouts, and advocated compulsory arbitration of labor disputes, thus clashing with the workers union, the Histadrut, ruled by Mapai and under the leadership of David Ben-Gurion. [4] Upon Hitler’s accession to power in Germany, a bitter controversy arose between the two camps as to the relations with Germany. Ze’ev Jabotinsky, founder of the Union of Zionist-Revisionists, declared a moral and economic boycott of Germany. Arlosoroff, on the other hand, being aware of the catastrophe awaiting the Jews in Germany, initiated negotiations with the German government to enable the immigration of the Jews to Palestine with their property. In order to reach this goal Arlosoroff suggested increasing the import of German goods to Palestine in order to transfer in this way Jewish wealth. [5] Indeed, two days before his murder Arlosoroff returned from a two-month trip to Europe, having spent most of the time in Germany trying to further his plan. Arlosoroff’s initiative aroused vigorous criticism from within the Revisionists. The extreme faction of this movement accused Arlosoroff of betrayal and one of its leaders called upon him to step down from the Jewish stage. On June 15, Arlosoroff reported on his trip at a session of the Mapai. A few hours later he was assassinated. Mapai leaders blamed the Revisionists for the murder, whereas the Revisionists charged Mapai with disseminating a blood libel against them. It was even alleged that the leaders of the underground force of the organized Jewish community in Palestine, the Hagana, had played a part in the murder and that the murder was the result of a collaborative effort at provocation by the British Secret Police and the heads of Mapai, designed to vilify the Revisionist movement. [6]

Two members of the Revisionist camp, Abraham Stavsky and Zvi Rosenblatt, were tried for the murder in the Serious Crimes Court in Jerusalem. Abba Achimeir was charged with advising and inciting the commission of the murder. (Achimeir was founder of Berit ha’Biryonim, an underground group formed to fight British policy in Palestine and bearing the name of a group that fought the Romans and their Jewish collaborators.) All three were acquitted; however, only the acquittal of Abba Achimeir was unequivocal, to the extent that it was held that he could enjoy the defense of “no case to answer,” after the court found that insufficient incriminatory evidence had been presented against him. [7] Rosenblatt and Stavsky were also acquitted, the former at first instance and the latter by the Supreme Court sitting as a Court of Criminal Appeal. Their acquittal was primarily technical, as the lower court had fully accepted the testimony of Mrs. Arlosoroff, who identified the accused as those who had committed the murder, [8] and the Appeal Court saw no reason to interfere in this finding. The accused were acquitted because Mrs. Arlosoroff’s testimony was not corroborated, as required by the prevailing Palestinian law. Nonetheless, the Appeal Court left no doubt as to the events of the murder. In regard to Stavsky’s acquittal, the Appeal Court even went so far as to state that had the case been heard in England itself, or in most of the territories of the British Empire, the conviction would rightly have been upheld, as under those legal systems there was no requirement of corroboration of an individual’s testimony. [9]

The findings of the court did not put an end to the dispute concerning the guilt of the two accused and of the political party to which they belonged. As the chairperson of the commission of inquiry into the murder of Arlosoroff, Judge Bechor, put it, “It is clear that the acquittal of Stavsky and Rosenblatt in these circumstances did not exonerate them from a public and moral point of view, even if from a legal point of view they were acquitted.” [10] Stavsky was killed on the deck of the Altalena, an ammunition ship brought to the shores of Tel Aviv by the Revisionist military force Etzel, known also as the Irgun, during the War of Independence and bombed by order of the Israeli government. Rosenblatt, too, was not cleared of the stigma placed on him. Twice the matter was even raised in defamation suits brought by Rosenblatt against Shaul Avigor and Edwin Samuel, respectively. [11] In the first case judgement was rendered against the defendant who failed to bring evidence in support of his claim that Stavsky and Rosenblatt did commit the murder. In the second case the defendants issued an apology and declared there was no ground to accuse them of the murder.

In 1982, Shabtai Teveth, the biographer of David Ben-Gurion, the leader of Mapai, published a book entitled The Arlosoroff Murder, in which he tried to throw new light on the crime. [12] In response, the government decided, in accordance with the proposal of Prime Minister Menachem Begin, leader of the Likud, the heir to the Revisionist Movement, to establish a State Commission of Inquiry “to investigate claims and allegations … some of which have now been published for the first time, to the effect that Abraham Stavsky and Zvi Rosenblatt, or one of them, participated in the murder of Dr. Haim Arlosoroff … and to submit a report of the findings of its investigation to the Government.” [13]

A commission of inquiry—known also as a “state commission of inquiry,” as opposed to a parliamentary commission of inquiry—is established “when it appears to the Government that a matter exists which is at the time of vital public importance and requires clarification.” [14] The composition of the commission is determined by the president of the Supreme Court, and it is chaired by a judge or former judge of the Supreme Court or the District Court. The power of the commission to summon witnesses is that of a court. However, it is not subject to the rules of procedure and laws of evidence applied by the courts. At the conclusion of its proceedings, the commission submits a report to the government “of the results of its inquiry and, if it sees fit to add recommendations, of such recommendations.” These recommendations are not binding. Nevertheless, the government must consider them seriously. [15]

A petition was submitted to the Supreme Court sitting as the High Court of Justice against the decision to establish a commission of inquiry. [16] The petitioner contended that the establishment of the commission was in the nature of “an improper intervention in a final act of the judicial branch.” The petition gave rise to a stormy debate among the panel trying the petition and within the legal community of Israel as to whether the judicial proceedings were capable of unearthing the truth. Expressions such as “legal truth,” “historical truth,” “scientific truth,” and “factual truth”—and the dispute as to which “truth” was more genuine—were at the core of the debate.

It is not my intention to delve into these questions and discuss which of these “truths” is more reliable, not because the questions are uninteresting, but because vast quantities of ink have already been devoted to these issues and it is clearly impossible to encompass all their aspects within the scope of a short article. However, I do wish to refer to the view, which underlines some of the statements, that inherent to the legal discipline are measures, the entire purpose of which is to reach findings that contradict reality. It is true that on occasion the law aspires, for reasons of public policy, to attain certain results, even if these results do not accord with reality. This is so, for example, of the aspiration of the Halacha (Jewish religious law) to prevent the finding of a child being born to a married woman out of wedlock. In order to reach this result, the law makes assumptions that do not always conform to reality, a type of “legal fiction,” [17] or it may place obstacles in the path of proving the truth or even preclude it. [18] This is done to prevent the severe outcome to such a child, who is termed a mamzer (inaccurately translated “a bastard”) under the provisions of Halacha and is prevented from marrying a “kosher” spouse. Likewise, the law may prefer to restrict the extent of the evidence brought before the judge in order to preserve the confidentiality of the evidence. [19] The same applies to the prohibition on exercising pressure and physical violence on a suspect in order to force him to furnish an incriminatory admission, [20] or the prohibition on violating a person’s physical integrity in order to cause him to emit incriminatory evidence, [21] so as to protect his dignity and physical integrity. Nevertheless, as a rule, the law of evidence is intended to assist in the investigation of the truth and not to undermine it: [22] “The law stands on the truth. The judicial procedure is based on finding the truth.” [23] The purpose of the proceeding is “to let justice be seen.” [24] The evidentiary exclusionary rules—such as hearsay evidence, opinion testimony, and evidence of similar prior acts—were created because of the slight weight of this type of evidence and because of the fact that in our legal system we do not rely on evidence that is not open to cross-examination. [25] The exclusionary rules are likely to remove essential evidence from the court’s purview. However, experience has shown that, as a rule, this evidence is of only dubious value. [26] Likewise, the requirement of corroboration, in certain cases, springs from doubts as to the incriminatory material, doubts that have their origin in human experience. [27]

The judgment of the Mandatory Supreme Court in the case of the Arlosoroff murder itself proves the truth of this argument. As noted, the court was convinced of the guilt of Stavsky. However, the rules of evidence that required corroboration of Mrs. Arlosoroff’s testimony prevented him from being convicted. Prima facie, this caused a miscarriage of justice, and the court was forced to arrive at a finding that was contrary to reality only because of an arbitrary, formal, evidentiary rule. Nonetheless, after more than fifty years, the commission of inquiry into the murder of Arlosoroff—the Bechor Commission—reached the categorical conclusion that “Abraham Stavsky and Zvi Rosenblatt were not the murderers of Haim Arlosoroff and did not have part in the murder.” [28] Indeed, the commission of inquiry was not bound by the rules of evidence and to that extent, prima facie, had an advantage over the court. Accordingly, if the factual finding of the commission is correct, not only did the formal rules of evidence not prevent the court from acting justly but actually ensured that it did not arrive at conclusions that were not accurate.

It is true that the legal discipline is divided on the question of which is the most efficient way to reach the truth. [29] In particular, there is a division between the inquisitorial method, applied in continental countries, and the adversarial system applied under the common law. These systems are divided with regard to the functions allocated to the judge in conducting the trial and in investigating the facts, and with regard to the admissibility of evidence in court. In addition, they differ as to what extent one may place confidence in testimony as opposed to physical evidence. Nevertheless, these disputes do not revolve around the question: should the court seek the truth?, but are the result of the difficulty in doing so. If there is a basic distinction between the two approaches, it is found in the extent to which it is asserted that the court is capable of achieving this goal. The inquisitorial system relies more on the discretion of the judge and on his ability to establish the truth, whereas the adversarial system admits a priori its limitations and circumscribes its function to a determination of whether the party before it has succeeded in proving his contentions. [30]

Let us now consider “legal truth” versus “historical truth” or any other truth. It is submitted that the division of truth into a large number of “truths” to some extent leads to its distortion. There is only one truth, although it is concealed from us, and our limitations as human beings prevent us from determining it with certainty. Were we to possess the “breastplate of judgment” [Urim ve’ tummim] of the high priest of the Temple in Jerusalem or even the Oracle of Delphi, there would no longer be doubt as to the definitive truth. However, as we do not have such preternatural means available to us and since we must seek the truth using only our fragile powers, many “truths,” or more precisely, many versions of the truth, are possible. The dispute among the various disciplines, in so far as it relates to the determination of the truth, refers, prima facie, to the question of which method will more safely attain that goal. In practice, because of the inherent assumption that there is no guarantee in any of the systems that this goal will be achieved, the investigative techniques are a product of the purpose of the determination. An important component in this determination is the security margin, which we wish to apply in determining the truth. The military commander in the field is not analogous to the historian immersed in the tomes of academe, and neither of them is analogous to the judge sitting on the seat of judgment. The military commander is required to make swift factual findings and draw immediate conclusions from those findings. His fate and the fate of his comrades, as well as the success of essential objectives, are in his own hands. Naturally, he will tend not to take exorbitant risks, in case the factual situation is other than what he thinks and does not require the precautionary measures that he selected. In contrast, the historian controls his own time. Generally, he is not required to make decisions within a defined period of time and he is able to wait for the disclosure of additional relevant information and thereafter reexamine his findings. Additionally, he has no responsibility in terms of his findings except to his own conscience and to his readers. By their nature, his findings will not be fateful, and accordingly he will not see himself as forced to take into account a safety margin beyond being persuaded that the probability of his version being correct is greater than the probability that it is mistaken.

The judge is positioned between these two. Unlike the military commander, he is not required to make decisions in situ. Unlike the historian, he does not have unlimited time on his hands. Nevertheless, the characteristic that distinguishes the judicial decision from that of the historian’s consists primarily of the official nature of his judgment and its normative ramifications, whether in the civil or in the criminal sphere. It is within the power of a judgment to transfer economic wealth from one person to another, to determine the fate of a family that is in turmoil and impose sanctions, some of which may be harsh and painful, on a person convicted of a crime. Beyond this, the judicial determination per se has far-reaching consequences because of the great public confidence in its validity and the public’s identification of that determination with the “real” truth. In the natural course, the judge will subordinate himself to a high safety margin, particularly with regard to determinations in criminal matters and decisions that tend to affect the fate of a person or tarnish his or her character. To a certain extent the judicial system evades the censuring of a person’s character, particularly in the adversarial system, where the judge will generally not be required to determine what is the truth, but only whether the party on whom the burden of proving a certain fact has indeed met that burden. Thus, with regard to suits for defamation, wherein the defendant raises the defense of the truth of his statement, the judge is not bound to decide that the version of the defendant is fraudulent. In order to hold in favor of the plaintiff, it is sufficient that he is persuaded that the defendant has not succeeded in proving the truth of his statement.

The judicial system escapes from the harsh penal consequences, which may perhaps be imposed on an innocent man—in addition to the aspersions cast on his character—by requiring a high level of proof “beyond a reasonable doubt.” The determination, that a person should not be convicted of a crime unless his guilt has been proved to such a high degree of certainty, does not originate from the assumption that only in this way may one arrive at the truth. It is a value decision to the effect that it is right to acquit the accused not because he is innocent but because there is not sufficient confidence in his guilt. The assumption that underlines this determination is that it is preferable to have a system that results in the acquittal of the guilty than a system that tends to convict the innocent, to the extent that the court is unable to conclude with the necessary certainty that the guilt of the accused has indeed been proved. [31] The distinction between the high level of proof needed in a criminal trial and the lower level needed in a civil trial is connected with the interests being protected, as “when the protected interest is ‘the sanctity of human life,’ broader safety margins should be created than when the interest being protected is ‘the sanctity of contracts.'” [32] Accordingly, where a party to civil litigation accuses another of having committed criminal offenses— or acts “which impugn his character and contain an element of disgrace”—he must prove his allegation at a level of proof that exceeds that which is customary in civil cases, or, at least, he must bring a greater quantity of evidence. [33] Thus, in view of the high value society places on a person’s reputation, many legal systems impose on one who publishes defamatory statements to prove the truth of his statements, rather than on the plaintiff to prove their fallacy as is the rule in civil suits. Moreover, the defendant will usually be required to offer a higher degree of proof than is common in civil cases.

Our system of law assumes, necessarily, that the findings of the court do not always reflect objective reality. This possibility is inherent to the principle of acquittal by virtue of doubt. [34] Nevertheless, because of the logic that underlies the conviction and the possibility that not all the factual matrix was available to the judge, the possibility of a wrong factual determination is also compatible with a positive conviction. The institution of a retrial has been created for just such an event, enabling a retrial of the guilt of a person who has been convicted—upon the discovery of new evidence that may prove exculpatory. [35] In any event, a judicial finding does not shut the door before the casting of doubt as to its accuracy.

The question that emerged in the Alon case was whether it is possible to allow this doubt to be resolved by a commission of inquiry. In my opinion, this question should be answered in the negative.

There are a number of reasons for this conclusion. First, under the Israeli system, the institution of the commission of inquiry is not designed by its nature to provide answers to questions relating to the criminal responsibility of a person for acts that he is alleged to have committed. [36] A commission of inquiry may indeed reach findings of a personal nature during the course of its investigation and it is even competent to make recommendations concerning individuals. However, these are by-products of its examination of the issue that is subjected to its inquiry. The issue that may be competently examined by the commission of inquiry is, in the words of the Law, “a matter” and not the question of the guilt of a person. In such a question, at least in so far as it relates to the criminal liability for an act, exclusive jurisdiction is given to the courts.

Moreover, because of the policy of liberalism that the commission of inquiry follows when adducing evidence and making findings, the commission is actually not suited to determining the guilt or innocence of a person. It is for this that the judicial process is designed. [37] This is evidenced by the fact that once the Commission of Inquiry into the Bank Share Regulation Affair (the “Bej’ski Commission”) [38] held that, prima facie, the bankers had committed criminal offenses, the findings of the commission were submitted to the attorney-general for his review, in order that he could weigh whether legal steps should be taken to allow the courts to decide the matter. [39]

In particular, it is inconceivable that criminal liability, which has been determined in judicial proceedings, should be subject to reexamination by a commission of inquiry. It is indeed true that the findings of a commission of inquiry cannot derogate from the finality of a judgment. [40] However, the issue of the correctness of a judgment should not be referred for examination by a state body, which is not part of the judicial branch at all. [41] If there is a possibility of mistakes within the judicial system that the latter cannot rectify under present legal conditions, such as findings against the accused, even if subsequently acquitted, [42] there is perhaps room to consider the grant of such competence to the judicial system itself. The idea of achieving this result indirectly, by means of another state institution, is clearly flawed on its face. [43]

The primary reason that united all the judges in dismissing the petition against the establishment of a commission of inquiry was the recognition that the commission would not be established only to decide the guilt of Rosenblatt and Stavsky, but also to consider the allegations that the Revisionist movement stood behind the two and was connected, in one way or another, with the murder. [44] Arguably such an issue is suitable for examination by a commission of inquiry. In fact, it is the court that would not be the appropriate arena for conducting such an examination. Yet, the matter of the establishment of a commission of inquiry must be one “which is at the time of vital public importance and requires clarification”; not necessarily, one that occurred at “that time,” but rather one that is of public importance “at the time.” Such public importance occurs when there is “wide public disquiet, at the root of which is a crisis of confidence in the system of government by reason of an act or omission on its part … to the extent that there is a vigorous public demand for the establishment of a commission of inquiry.” [45] It is difficult to see what public importance—and a fortiori vital importance—existed in the year 1982 in respect of the array of allegations against the Revisionist movement, which were made five decades earlier. In a display of frankness, one of the members of the Bechor Commission admitted: “Fifty years have elapsed since the incident. There was no public criticism or grievances in recent years before the appointment of our Commission and the matter attracted interest after Mr. Shabtai Teveth wrote his book.” [46] Can a book written by an author or historian give rise to “a matter” that justifies the establishment of a commission of inquiry, even if such a book contains, in the wordings of the writ of appointment of the Arlosoroff Commission, novel “claims and findings”? More properly, one historian’s researches should be criticized by another historian, and not be made the subject of an examination by a state institution possessing an official status. [47] It would appear that Prime Minister Menachem Begin relied on Teveth’s new book to cause the establishment of a state body that would rehabilitate the camp with which he was affiliated, a step he had wished to take long before. [48]

This issue also troubled the chairperson of the commission, Justice Bechor:

The appointment of this Commission is the subject of a sharp difference of opinion among the public, on the question whether there is actually an issue which should properly be considered by a State commission…. it is not our function to consider these claims…. nevertheless, we think it is right to say this: It is argued, inter alia, that this issue should be the subject of an examination by historians and not investigation by a State commission…. when historians come to consider questions of this sort, they examine all the evidentiary material which was before the Court and the legal proceedings, and also the evidentiary material … which was not produced in the Court by reason of it being legally inadmissible, as well as additional material which has since been discovered. The historians will also examine, in so far as necessary, the entirety of the subject-matter in the light of data and perceptions which prevailed at the time of the trial, in contrast to those prevailing at the time of the examination. In practice, that is what has happened … in the various books and articles which were published over the years on the Arlosoroff affair…. There is a great similarity between the above approach and the function of the current Commission, which has to attempt to arrive at the factual truth, without being fettered by the laws of evidence and other limitations which bind the Court. The books and articles which were published profess or lean in part towards one version and in part towards another version, and each party, which represents each of the camps, professes its own version…. it is our function to examine all the existing evidence and material, and to assess all the data with the greatest degree of accuracy and objectivity and to draw the necessary conclusions. [49]

These comments are somewhat strange. Is it indeed the function of a state commission of inquiry to arbitrate between disputing historians and determine the history of the state “with the greatest degree of accuracy and objectivity”? Obviously, a regime that establishes a commission of inquiry to determine the accuracy of the contentions of a researcher or author places a question mark on the freedom of research and creativity. [50] Furthermore, in the Israeli system the state commission of inquiry is part of the executive branch. As such, its scope must be limited to the sphere of executive functions. It has, moreover, been suggested that the legitimacy of the appointment of a commission of inquiry depends on the government’s intention to take action on the basis of its findings and not “merely to satisfy an idle curiosity.” [51] It is hard to conceive any connection between the investigation of a controversial affair from pre-statehood and the sphere of executive function in Israel. It is certainly hard to foresee any executive action that might have taken place following such investigation. However, even if the members of the commission sat in the capacity of quasi “official historians,” they failed in their task. The commission members were unsuitable, in terms of their qualifications, for the task that was imposed on them. This was so particularly following the resignation of Dr. Yoav Gelber, the only historian among the panel, as an act of protest against the refusal of the government to establish a commission of inquiry into the events of the massacre of refugees by Christian militia, which took place in the camps Sabra and Shatilla, during the Lebanon War. [52]

The findings of the commission were few. In its conclusions, it stated as follows:

We unanimously hold that Abraham Stavsky and Zvi Rosenblatt were not the murderers of Haim Arlosoroff and they did not abet the murder. The evidence and the material placed before us do not allow a decision as to:
1) who were the murderers;
2) whether this was a political murder on behalf of any party whatsoever or not. [53]

Yet, the assumption that the commission was intended to examine the allegations made against the Revisionist Movement was the court’s reason for rejecting the petition against its establishment. [54] Moreover, it is doubtful whether even the determination of the commission in relation to the innocence of Rozenblatt and Stavsky possessed practical effect. Could it really change the opinions of those who were convinced of the guilt of the two? Would any researcher change the conclusions of his research merely because they were disproved by a commission of inquiry? [55]
One of the commission members, Judge Kennet, wrote about the difficulties of the commission:

In an enlightening lecture given by Sir Cyril Salmon … the lecturer indicated the attributes characterizing the findings of commissions of inquiry…. the method is inquisitorial…. generally there is no prior evidence…. Our situation is different…. fifty years have elapsed since the incident…. of the witnesses one may say that almost all were older people who possibly remembered the events or thought they remembered them…. if we had not had all the aforesaid material, [56] we would have been faced with a hopeless situation. No inquisitorial system would have been capable of deciphering the mysteries of fifty years ago, like the material which was before us. [57]

If this was the case, in what way was the commission superior to the professional historian?

It seems that the commission of inquiry into the murder of Arlosoroff proves that not only did its establishment to arbitrate between conflicting historical opinions lack legal foundation—it was actually destined to failure from the beginning.

The Kastner Trial

The question of responsibility for the murder of Arlosoroff was presented for determination by a state commission of inquiry. In contrast, the question of the responsibility of the Jewish leadership for the events of the Holocaust was presented to the court in the affair known as the “Kastner Trial.” [58]

The roots of this controversial affair lay in criminal charges brought against Malchiel Gruenwald for defamation of Dr. Israel Kastner. Gruenwald, an eccentric Jew born in Vienna, immigrated to Israel about two years before the outbreak of the Second World War, yet most of his family perished in the Holocaust. Gruenwald made his living from a small hotel in Jerusalem. He was accustomed to distributing newsletters under the heading Michtavim el haveray be’Mizrahi [Letters to my Friends in the Mizrahi (a political movement that later became part of the National Religious Party)]. These contained unrestrained attacks “on leaders who were corrupt, on religious officials who in his opinion were not worthy of their positions, on greedy public officials and on people in authority.” [59] One of his newsletters was devoted to Dr. Kastner. In this newsletter he called for the elimination of Kastner [60] and accused him of collaboration with the Nazis; of the indirect murder of the Jews of Hungary and of laying the groundwork for their murder; of collaboration with Kurt Becher, a Nazi war criminal; of embezzling the assets of Hungarian Jews; and finally, after the war, of saving Becher from punishment in the Nuremberg Trials.

Dr. Israel Rudolph Kastner, a native of the town of Cluj in Transylvania, was a Zionist leader and journalist and a member of the World Union of Mapai. In 1941, he moved to the capital Budapest, following the annexation of Cluj to Hungary. Dr. Kastner was involved in Zionist activities in Budapest. He acted as deputy chairperson of the Hungarian Zionist Organization and was one of the founders of the Relief and Rescue Committee and served as its deputy chairperson. This committee was established in order to assist the masses of Jewish refugees who had escaped the horrors of the Nazi regime in neighboring countries. Following the German invasion, Kastner headed the negotiations with the Nazis for saving the lives of Hungarian Jewry. Within this context, he conducted negotiations with S.S. officers, including Adolf Eichmann. Of the plans for saving the Jews, two are particularly well known: one, which succeeded—was “the rescue train” or the “prominents’ train,” also known as the “Bergen-Belsen train”; and the other, which failed—was “blood for goods” [Blut für Ware]. The latter plan, which was proposed by Eichmann, was to save all Hungarian Jewry and possibly Jews from neighboring countries as well in return for ten thousand trucks loaded with goods. These trucks were to have been supplied by the Allies. In order to implement this plan, Joel Brand, a colleague of Kastner in the Relief and Rescue Committee, was sent to Constantinople to conduct negotiations with the leaders of world Jewry and representatives of the Allies. It seems that the Nazis used this offer to initiate separate peace talks with the Western Allies, thus “dividing H.M.G. and U.S. from the Soviet Government.” [61] The proposal was rejected by the Allies and Brand himself was arrested by the British. In contrast to this grandiose scheme, the rescue train plan met with greater success. Eichmann allowed 1,684 Jews to leave for Switzerland, in return for ransom paid to the Nazis. [62] In his report to the Zionist Congress in 1946, [63] Kastner described the train as “Noah’s ark” because it carried “a crosscut” of the community [“einen Miniatur-Querschnitt der damals in Ungarn lebenden Juden dar”], with an emphasis on those who dedicated their lives to public service. The train contained indeed Jews from various circles—from the extreme religious Orthodox to members of the Neologist [Reform] Community, from the Zionist youth to members of the Revisionist Movement—yet, among them was a large contingent—comprising about a quarter of the whole group—made up of inhabitants of Cluj, Kastner’s city. Among the passengers there were leaders of the Jewish community with their families and a considerable representation of Kastner’s own family, including his wife and her parents. A significant proportion of the contacts relating to the rescue were conducted between Kastner and the S.S. officer, Kurt Becher. After the war, Kastner submitted a written report to the Office of Strategic Services (OSS) about the Nazi destruction machinery. Later he made an affidavit before the office of the American prosecutor that was submitted to the International Tribunal at Nuremberg. In his evidence Kastner emphasized the role played by Becher and other aids of Eichmann in his own rescue operations in Hungary. [64] Later he assisted the prosecution at the trials before the American Military Courts at Nuremberg during which he interrogated Becher in person and took advantage of this opportunity to throw light on his own efforts to save Hungarian Jewry. [65] During his stay in Nuremberg Kastner made affidavits on behalf of senior S.S. officers, including Becher himself. In his affidavit on behalf of Becher, Kastner described Becher’s efforts to save Jewish lives and recommended that he be accorded “full possible respect by the German and Allies’ authorities.” [66] In a letter to the treasurer of the Jewish Agency, Kastner credited himself for Becher’s release by the occupying forces in Germany. [67] The reasons for Kastner giving evidence on behalf of S.S. officials remain unsolved. The explanations offered range from genuine gratitude to officers who assisted in saving Jewish lives, even if for egoistic motives in order to create an alibi for their participation in the Nazi machinery, to an effort to emphasize his own role in the rescue operation, to a means to buy Becher’s silence. [68]

At the end of 1947, the Kastner family emigrated to Israel. There, Kastner became involved in the political activities of Mapai and even joined that party’s list of candidates for election to the National Assembly, Israel’s first parliament, and thereafter to the second Knesset. To earn a living he became the assistant of Dov Yoseph in the ministries that he headed, and, in his last office, acted as spokesman for the Ministry of Supply and Allocations. Concurrently, he served as editor of the Hungarian weekly issued by Mapai and thereafter joined the Hungarian language newspaper Uj Kelet and was in charge of the Hungarian language broadcasts of Israel’s state radio, Kol Yisrael [the voice of Israel].

As a result of Gruenwald’s publications, the Attorney-General Haim Cohn, who at that time also occupied the position of minister of justice, decided to file criminal defamation charges against Gruenwald. This decision was made against the wishes of many public figures, including the person who later reoccupied the post of minister of justice, Pinhas Rosen, and the minister in charge of Kastner, Dov Yoseph. Cohn forced this decision on Kastner himself by giving him the alternative choice of resigning from his governmental position. Cohn rationalized his decision by stating that “in our new, pure, ideal State … a man cannot officiate in a senior position … when there is a stain on him, or even only a grave suspicion of collaboration with the Nazis.” [69]

This reasoning is not convincing. If indeed there were merits in Gruenwald’s accusations, then the prosecuting authorities should have considered instituting criminal charges against Kastner under the Nazi and Nazi Collaborators (Punishment) Law (1950). [70] But this would not require the trial of the person engaging in the libelous publication. Indeed, in the decision on the appeal against the judgment given in the Gruenwald case, [71] Justice Cheshin stated that “it would have been more fitting had this trial not been brought than brought.” The judge pointed out the anomaly that “at a time when the world nations are trying the murderers themselves … we, the brethren of the victims, who are incapable of bringing the murderers to justice, pick upon tattlers and rumormongers for their tales.” Altogether, the striving of the state to protect the dignity of an individual is strange, particularly when the individual is willing to endure the slight to his dignity. The matter of defamation should remain firmly within the scope of the relations between the person publishing the libel and his victim, a fortiori, where the defamation relates to public figures. It is particularly in the latter cases that utmost freedom must be given to critics. [72]

The accusations launched against Kastner were not detached from the wave of condemnation against the behavior of the Jewish leadership in Palestine during the period of the Holocaust. On a number of occasions, they were accused of keeping silent about the Holocaust and abstaining from rescue activities. [73] Even in the publication that led to the charges being laid, Gruenwald spoke of the fact that “Kastner continues to boast of himself as the Mapai genius” and noted that Mapai “received [him] with open arms and even placed him on the list of its candidates [to the Knesset].” However, it is because of this very fact that the court was not the appropriate forum to examine these charges.

A significant factor in broadening the reach of the trial was the participation of Shmuel Tamir, a member of the Revisionist movement and a former commander in Etzel. Tamir was one of the founders of the Revisionist party Herut. Twice he left the party after failing in his challenge to Begin’s leadership. Later he was one of the founders of the Likud party, under the leadership of Begin. He then left to join the newly formed Democratic Movement for Change and represented this party in Begin’s cabinet as minister of justice.

From the beginning, Tamir refused to undertake the defense of Gruenwald unless Gruenwald agreed that the trial would turn into “the trial of the Jewish leadership during the period of the Holocaust” and consented to grant him “not only a formal power of attorney, but an absolute power of attorney.” [74] Rosenfeld describes it in his book [75] as follows:

As soon as he took upon himself the defence of the accused, Malchiel Gruenwald, Tamir’s political intuition told him that here for the first time was an opportunity to raise before a Court in Israel—and through it, before the entire public—the whole web of political and ethical problems involved in the Holocaust and rescue … problems, which for the last ten years had burdened the heart and mind of every Jewish person.

Among these were the following questions:

How did the Nazis succeed in implementing their satanic programs without meeting organized resistance on the part of the Jewish masses? What was the function of the Jewish bodies, and, first and foremost, of the “judenräte” [Jewish councils appointed by the German occupying authorities to administer the affairs of the Jewish communities and implement the Nazi orders affecting Jews] in the task of reassurance? To what extent, if at all, was contact permitted with the enemy in the desperate effort to save life and property? And what are the limits of such contacts? What was the passive contribution of the Allied powers in the destruction of European Jewry? What part did Britain, the Mandatory power over Palestine and author of the “White Book,” play in the Holocaust? and in particular: what did the Jewish Community and the Yishuv—in Eretz Yisrael [Palestine] do or not do to save their brothers in Europe? What part did the Christians, Righteous Gentiles, have in the rescue measures? [76]

Ironically, it was the prosecution that enabled Tamir to turn the focus of the trial away from the publication about Kastner to the responsibility of the Jewish leadership. This occurred when the prosecution chose to call Kastner himself as the first witness, to describe through him “the chronicle of the Holocaust of Hungarian Jewry and the chronicle of the rescue activities,” [77] and, thereafter, to call witnesses to testify on these general matters. In doing so the prosecution must have been aiming at a parallel target to that of the defense—to shed light on the rescue activities of the Jewish leadership in Palestine with the hope of exonerating it from the accusations raised against it. It was probably for this reason that the prosecution chose to prove the fallacy of Gruenwald’s accusations rather than to leave it for the defense to prove their truth.

A decisive contribution to this development in the trial was made by President Benjamin Halevy, who allowed the introduction of “irrelevant testimony … matters which were raised in the trial by the party who presented them for all sorts of reasons, but in no case in order to prove the truth of the libel … matters which were totally irrelevant to the defamation of Kastner.” [78] Halevy, an able yet controversial judge, submitted a letter of resignation from the bench to the minister of justice a week prior to the opening of the Kastner trial. He did so in protest against the nomination of four new justices to the Supreme Court, two of them colleagues of his from the District Court with less seniority than Halevy’s. Three weeks after the beginning of the trial, Halevy withdrew his resignation following a meeting with the minister. These events were accompanied by a most questionable act by Halevy, which was not made public at the time. A letter, found in the archives of The Ben-Gurion Research Center, was written by Halevy to Prime Minister Ben-Gurion urging him to intervene in order to ensure his nomination to the Supreme Court. [79] This was most unusual in itself as in Israel judges are selected by an independent committee of which the prime minister is not a member. Moreover, the grounds elaborated in the letter make Halevy’s action even more problematic. He accused members of the judiciary of expressing “a non-patriotic approach to the problems of the State” and assured Ben-Gurion that his promotion to the Supreme Court would assist in Halevy’s struggle to change this attitude. Halevy referred, moreover, to talks he had had with Ben-Gurion in the past on this matter. He expressly referred to such contacts following the “Sarafend Underground Trial,” which took place in a military court in the army compound of Sarafend near Tel-Aviv, just a few months prior to the Kastner trial. In this case fifteen radical nationalists, supporters of the establishment of “The Kingdom of Israel” in its biblical promised boundaries, who engaged in violent attacks on embassies of the pro-Arab Eastern Block countries, were accused of membership in a terrorist organization. The court was presided over by Halevy. The trial ended with harsh sentences imposed on the accused, which aroused much criticism from the right wing, including Menachem Begin. Begin was especially annoyed by the fact that the judges regarded the terrorist acts of the accused a continuation of pre-statehood activities. He blamed Halevy for trying to please Ben-Gurion “who nominated the judges” to the trial. [80]

The Sarafend Underground trial was the first encounter of the main figures in the Kastner trial: Haim Cohn was the prosecutor while Tamir represented the accused. Their paths were to cross again in the future. In 1963 Halevy was appointed to the Supreme Court where he joined Cohn who had been nominated to that court three years earlier. Halevy, who was dominant in the District Court, did not leave his imprint on the Supreme Court. After six years on the bench, Halevy, in an unprecedented move, resigned his position in the court to join the Herut-Liberal Block headed by Begin and was elected in its list to the Knesset. Later he was one of the founders of the Likud party, which was formed as an amalgamation of this block with several other political parties. Four years later he left the Likud and joined the Democratic Movement for Change and served as an MP on its list. In his new party Halevy found himself inferior to Tamir who was one of its leaders and served as minister of justice, much to the disappointment of Halevy who was hoping to be appointed himself to this post. In 1981 Halevy left the political life and retired to live quietly until his death.

Like many decisions to bring suit for defamation, this one, too, resulted in a greater loss than gain, despite the fact that, ultimately, the majority of Gruenwald’s allegations were repudiated. The trial was one of the strangest in Israel’s legal history. Shalom Rosenfeld, who followed the trial closely and chronicled it in his book, described it thus:

Criminal case 124/53 was the strangest trial in the country. A trial in which, in the words of the Attorney-General himself, “from day to day the accused therein multiplied”; a trial in which the prosecutor became the defender, the defender—the prosecutor, and the witnesses turned into the accused. [81]

This trial–The Attorney-General of the Government of Israel v. Malchiel Gruenwald—became known as “the Kastner trial,” [82] even though Kastner was not the accused. He was not even a party in the case. He was merely one of the fifty-nine witnesses who appeared therein. Notwithstanding this, it was clear from the beginning that Kastner’s fate, not Gruenwald’s, hung on the results of the trial. [83] After all, Haim Cohn filed the indictment against Gruenwald in order to clear Kastner of the accusations made against him.

Not only the fate of Kastner hung in the balance. In the same way as Tamir wished to use Kastner as a means of striking at the leadership of the Yishuv (the Jewish community in pre-statehood Palestine), the prosecution was also motivated otherwise than by the mere desire to convict Gruenwald. By absolving Kastner they would also be absolving the Yishuv leadership of the accusations raised against it.

Testifying to the marginal role played by Gruenwald—”the formal accused” [84] in the trial—is the fact that after numerous hearings conducted in his case, Judge Halevy found it difficult to even remember his name. [85] However, even Kastner played only a secondary role in the trial. On the firing line was the behavior of the Jewish leadership during the period of the Holocaust. As the leadership of the Yishuv at the time was now the leadership of the country, the banner headline chosen by Time to lead its report of the case was not surprising: “Israel—On Trial.” [86]

The best illustration of this is that while the accused and the witnesses appeared under their full names in the judgment at first instance, throughout his 235-page judgment Judge Halevy chose to refer to Kastner as “Dr. K,” as if Kastner did not possess a personality of his own, but was merely a prototype of the Jewish leadership during the period of the Holocaust. [87]

Through the personality of Kastner, not only were his activities and the activities of the Jewish leadership during the period of the Holocaust put on trial, but also Jewish history. Beyond the aspersions cast on the activities of Kastner and the leadership of the Yishuv, Tamir succeeded in drawing Halevy into deciding between two philosophies that have been in conflict throughout Jewish history and that may be defined as the philosophy of Ben-Zakkai in contrast to the approach of Ben-Yair. Rabbi Yohanan Ben-Zakkai earned his place in the annals of history by surrendering to the Roman ruler. At the height of the Great Revolt, he succeeded in preserving the future of Jewry in Eretz Yisrael. [88] Elazar Ben-Yair, the leader of the rebels in Masada, fought the Roman legion for over a year. Realizing that the Roman forces were about to break into their besieged fortress, Ben-Yair called upon his men to slay their wives and children and then kill themselves so as to die as free people rather than becoming slaves to the Romans. [89] Ben-Yair’s act became a symbol of bravery and resistance to the foreign conqueror. [90] The philosophies of these two figures have accompanied the history of the Jews throughout the generations and have been reflected in stories passed down to us from different ages.

These two approaches were prominently expressed during the period of the Holocaust by the contrast between the uprising of the ghettos and the appeasement and intercessions with the Germans. [91] Kastner was perceived by the public as the quintessential representative of the approach of capitulation and appeasement, and this in a country that was founded and educated its people on the principle of uprising and courage, and that derived its inspiration from the acts of bravery of the besieged of Masada and the ghetto fighters. [92]

Occupying the center of the Kastner trial were his contacts with the Germans who had conquered Hungary and, at their head—Adolf Eichmann. The main issues that arose in the hearings were the affairs known as “blood for goods,” the “prominents’ train,” the affair of the parachutists from Eretz Yisrael who were sent to Hungary and were persuaded by Kastner to surrender to the Gestapo, the accusations relating to the abandonment of one of them, Hanah Senesh, [93] and finally, the affair of the relationship between Kastner and the S.S. officer Kurt Becher and the testimony given in the latter’s favor during the Nuremberg trials.

After intensive hearings extending over a period of nine months, and after an additional nine months in which he secluded himself in his home in order to write his judgment, Judge Benjamin Halevy delivered one of the most provocative and controversial judgments in the history of the State. In his judgment, Halevy acquitted Gruenwald of three of the four charges of defamation on which he had been tried and held that he had succeeded in proving their truth. Halevy convicted Gruenwald on only one charge, which was marginal compared to the others, after holding that the accused had not succeeded in proving the truth of his claim that Kastner had connived with Becher to embezzle the assets of Hungarian Jewry. [94]

In his judgment, Halevy held that Kastner knowingly collaborated with the Nazis and assisted them. This collaboration was expressed in the fact that he had concealed the truth from Hungarian Jewry, and in particular from the Jews of Cluj, regarding the destination of the deportation trains. In so doing, Kastner paralyzed the Jewish rescue operation in Hungary and thereby “oiled the destruction machine as a whole, prevented possible interference with its operation and made an important contribution to its overall efficiency.” He also prevented Hungarian Jewry from escaping to neighboring Rumania, rising up against the Germans, and at least sabotaging the deportations. [95] Kastner acted thus in return for the opportunity to save but a few people—among them, members of his family, relatives, and friends as well as “public dignitaries.” The rescue of the few “prominents” was “an inseparable part of the plan for the extermination of 800,000 Hungarian Jews.” Thus “the rescue of the ‘prominents’ was an inseparable part of the genocide.” [96] Kastner “knowingly collaborated with Eichmann and knowingly assisted him in carrying out the total deportation,” while being aware that “Eichmann was using him as an instrument to destroy the Jews.” [97] Whether Kastner should be regarded as someone who “actually surrendered in the full sense of the word (‘gave’ or ‘delivered up’) the Jews of Cluj and others into the hand of the murderer,” or whether matters did not reach that conclusion, “the behaviour of K … was no different from a moral, public, and even legal point of view to the yielding up of most of the Jews to the murderers, for the purpose of saving a few.” [98] In a shocking sentence, which retains its stunning impact whenever the Kastner affair is mentioned, Halevy held that “Kastner had sold his soul to the devil.” [99] It was probably this sentence, more than anything else, that led to the attack on Kastner and his fatal injuries two years after the delivery of the judgment. [100]

About a month before the assault on Kastner, the arguments were concluded on the appeal brought by the attorney-general against the decision handed down by Halevy. [101] About a year later, the judgment on the appeal was delivered. All five justices upheld the appeal relating to the second charge of defamation, which referred to the accusation that Kastner had been guilty of indirect murder or laying the groundwork for the murder of Hungarian Jewry, and dismissed the appeal in respect of the fourth charge, relating to saving the war criminal Becher from punishment after the end of the war. Four of the justices—Shimon Agranat, Yitzhak Olshan, Shneur Zalman Cheshin, and David Goitein—also upheld the appeal on the first charge of defamation, in respect of which Halevy had held that Kastner had collaborated with the Nazis. Moshe Silberg disagreed with the opinion of his brethren and adopted the finding of Halevy, that “in order to implement the plan to rescue the small number of ‘prominents’—[Kastner] knowingly and in bad faith, fulfilled the wishes … of the Nazis, and thereby made it easier for them to perform the work of mass destruction.” [102]

It is instructive that the Supreme Court reached different conclusions than those reached by the District Court, in spite of the fact that, in general, it did not dispute the “factual findings” made by Halevy on the basis of the evidence presented to him. The difference lay in the inferences drawn from those facts and from conflicting basic assumptions made by the judges regarding the events that were the subject of the hearing. [103] Accordingly, Deputy President Cheshin wrote in his judgment: “On the basis of the extensive and diverse material which was compiled in the course of the hearing, it is easy to describe Kastner as blacker than black and place the mark of Cain on his forehead, but it is also possible to describe him as purer than the driven snow and regard him as ‘the righteous of our generation.’ A man who exposed himself to mortal danger in order to save others.” [104]

Following suit, Justice Goitein held: “The person who, in the eyes of Dr. Halevy in the lower Court, had sold his soul to the devil, appears to … Justice Agranat … as a man whose actions may also be excused on the assumption that he was a good Jew, and did the best he could to rescue what could be rescued.” [105]

The special difficulty facing the court in the Kastner affair was well expressed by Justice Goitein. Whereas in an ordinary defamation action, the question posed to the court is a factual question per se, which may usually be proved “easily,” the situation was different in the case of Kastner: “One cannot find absolute truth or falsehood if the subject-matter of the investigation are the thoughts of a Jewish leader, in the year 1942, in Hungary occupied by the Nazis, and his intentions. The matter depends on the personal impressions of every investigator of the facts unrolled before him.” [106]

The judge even expressed the opinion that the plea of truth, which Gruenwald employed against the defamation charges, was not applicable at all “to the difficult and complex web of facts in the instant case,” [107] and he added: “it is not for us as judges to judge the intentions of Dr. Kastner and his thoughts.” [108] The judge noted that the questions that were made the subject of the hearing “are more of an evaluative nature than of a factual nature.” [109] He added that whereas it would have been proper to exclude a large part of the evidence that was brought during the course of the trial, “the majority of the requisite testimony was actually never brought before the Court,” and it would only come into the open in future years. In the opinion of the judge, “upon the indictment of the Respondent, the Court was placed under a duty to do today what only historians will be able to do in another 50, 100 or even more years,” and he concluded, “the Court of today cannot fulfill the function of an historian far in the future.” [110]

Justice Silberg’s opening statement is a poignant expression of the difficulty facing the court. The judge wrote: “A most difficult task has been imposed upon us in this appeal—to scrutinize deeds and occurrences which seem to have happened on a different planet, and to pronounce judgment on the behaviour of men, hovering in the claws of Satan himself…. Are we capable—as fallible human beings—of sitting in judgment on the moral or immoral actions done by Kastner?” [111]

The judge brought the difficulty into focus: “Is a balanced view possible here—between blood and blood, between injury and injury—or can we look past the terrible vision of this valley of death at the moral or immoral nature of the acts committed by [Kastner] about 13 years ago?” [112]

The central judgment in the appeal was written by Justice Agranat. At its beginning , Agranat already hinted at a basic flaw in Halevy’s judgment. Agranat emphasized that the acts of Kastner should be judged “against the general background of those times … within the context of the external circumstances then occurring in Hungary,” as these “imparted to his public behaviour its character.” [113] Agranat warned against allowing the subjective perceptions of the judge to influence the appraisal of the conduct that was the subject of the hearing. This danger was particularly grave in view of the nexus of the events. This gave rise to the fear that the adjudicator “would not always be capable of placing himself in the position of … ‘the parties’… ; to assess the problems which faced them as they themselves saw them; to take into account sufficiently the conditions of time and place in which they lived their lives; and to understand that life as they themselves understood it.” [114] The difficulty of severing oneself from his preconceptions arose from the nature of the allegations made against Kastner, which had the effect of “inflaming the spirit and public opinion,” particularly where one was considering a population, of which a large section had experienced the horrors of the Holocaust at first hand and lost close family members therein. [115]

Agranat dismissed the conclusion reached by Halevy, to the effect that it had been proved that Kastner had collaborated with the Nazis to destroy Hungarian Jewry by withholding from them knowledge of the transports to Auschwitz. “It is clear,” held Agranat, “that Kastner did not intend—i.e., wish—at any time to bring about the destruction of Hungarian Jewry.” [116] Agranat found that Kastner had grounds for assuming that he would succeed in delaying the transports and acted for this purpose. [117] The collaboration of Kastner with the Nazis was intended to assist in the rescue of Hungarian Jewry, and the judge added: “not every act of cooperation may be called ‘collaboration’ and not every person who maintained contacts with the Nazis and gave them certain assistance will be tarnished with the name ‘collaborator’: everything depends on the motives which spurred him to behave in the way he behaved.” [118]
Agranat rejected Halevy’s finding that Kastner’s actions were motivated only by his desire to save the small group of “prominents” in the “Bergen-Belsen train.” Agranat stated unequivocally that “at all times, Kastner’s goal was to save the Jews of Hungary in general, and the implementation of the “Bergen-Belsen plan,” which was intended for only a small group of Jews, always remained just a part of this goal and never became for him an exclusive objective.” [119]

Beyond the conflict of opinion on the question of Kastner’s motives in cooperating with the Nazis, Agranat disagreed with Halevy on the definition of the role of a leader. Halevy compared Kastner’s conduct to that of a sentry in a military camp who is surprised in the middle of the night by an enemy surrounding the camp. The enemy warns the sentry that if he attempts to awaken the soldiers, few will manage to escape. Instead, the enemy makes an offer to the sentry: to save the lives of some of his friends in return for the sentry not alerting the other soldiers and not making any effort to save them. “The act of the sentry,” stated Halevy, “is a betrayal of his comrades and his function, collaboration with the enemy and aid in the destruction of the camp.” [120] Agranat rejected the analogy of the sentry as being inapplicable to the case of Kastner: the duty of the sentry to sound the alarm in the camp upon the arrival of the enemy “is a ministerial duty … from which he is not entitled to deviate an inch.” [121] The duty of a leader is different. As a leader, Kastner owed “a duty of rescue towards the Jews of Hungary as a whole and not to each one of them separately.” This duty was “to act to save as many of the Jews of Hungary as was possible—taking into account the conditions of time and place.” Accordingly, as Kastner was of the bona fide opinion that conducting financial negotiations with the Germans offered the greatest prospect of saving most of the Jews living in rural areas, it was his moral duty to follow this path. And as he feared that “warning [the Jews] of the risks facing them and calling them to escape and rebel” would sabotage the chances of rescue, even if it led to the saving of individuals, he was right in not revealing to them the truth about the transports to Auschwitz. The fact that his hope was frustrated, and that his acts made the deportation and destruction easier, did not mean that he failed to fulfill his moral duty toward the Jews of Hungary, but only that he failed to fulfill his function “from a public point of view.” [122]

Justice Silberg’s opinion differed. Even if there was no chance of “a nationwide, organized … rescue operation … thousands or tens of thousands [would have] succeeded in saving themselves by multiple, partial, sporadic or individual rescue activities.” “How,” wondered Silberg, “did a man of flesh and blood allow himself to reject, with absolute certainty, with an unequivocal ‘no,’ the utility of all the numerous methods of rescue … did he take the place of God?!!” [123] By preventing the masses from knowing the fate that awaited them, and thus hindering each individual from taking whatever steps he could to save himself, Kastner played “a game of hazard of mighty proportions.” [124]

What distinguished the Kastner trial was that it entailed “a blurring of boundaries between law, morality and social and public values.” [125] Silberg wrote, in the introduction to his judgment: “We are not dealing here with a normal trial of Reuben and Shimon! The eyes of the general public are upon this Court, [a public] which is interested also—and primarily—in the moral aspect of the problem. And avoiding giving an answer to questions which, within the framework of our hearings, we can answer, will be in the nature of a betrayal of our functions.” [126]

Silberg again emphasized: “Here we … are not dealing with the criminal guilt of Kastner, but with his moral guilt…. it is our duty to state what is in our hearts, and not to justify conduct and acts which appear to us to be wrong from a moral point of view.” [127]

Cheshin came out strongly against this approach and held: “We have not been required in these hearings to determine the stature of Kastner as a leader, as a guide, and as a high public figure. We have also not been asked to evaluate his virtues and moral standards.” [128] Cheshin rejected the demand to measure Kastner “on the yardstick of an ideal leader rather than otherwise,” and he clarified:

the opposite of a great leader is not necessarily a “traitor” or a person who “has sold his soul to the devil” or “aided the Nazis.” Between one and the other, there are also leaders of intermediate levels: an average leader, an “unsuccessful leader” and a bad leader. And there is also a leader of doubtful morality. Nevertheless, it will not be said of him, because of this only, that he is a traitor, and he will not be put on trial for treason. No law, national or international, provides for the duties which must be fulfilled by a leader at a time of emergency towards those who rely on his leadership and who are subject to his command. [129]

Cheshin attacked the judgment of Halevy and wrote: “If the learned President was right in his judgment, then the fate of Kastner is death, in accordance with the Nazi and Nazi Collaborators (Punishment) Law—1950.” [130] And the judge added: “I refuse to believe that a judge in Israel would sentence Kastner and others like him to death, on the basis of the evidentiary material which was filed in this case.” [131]
The differences of opinion between the lower court and the appellate court also touched on the way in which the Jews should have chosen to act at the time of the Holocaust. Tamir waged a campaign of criticism against “the mentality of Jews of the Exile” that was displayed by the Jews of Hungary; against the “mentality, the form of life [which] accepted the reality of the Exile and the need, in time of trouble, to resort to bribery and special pleading.” [132]

In the opinion of Tamir—as interpreted by Cheshin in the appeal—”the Jews of the Ghettos in the rural towns of Hungary should have fought and died for the sake of God and the people,” in the way chosen by the fighters of the Warsaw Ghetto. [133] Halevy, too, did not conceal the contempt he felt for the way in which the Jews of Hungary went like sheep to the slaughter. In the cross-examination to which he subjected one of the witnesses, Halevy tried to force him to say that had he known that the train on which he was to be transported was destined for Auschwitz, he would not have boarded it. And when the witness stated that he could not answer this speculative question in hindsight, as such an answer would be “a partial answer or an inaccurate answer which would be inappropriate to that reality,” Halevy did not hide his reservations about the answer. He even saw in the attitude of the witness evidence of evasiveness about answering and evidence of the doubtful quality of his testimony. [134] In a newspaper article, Moshe Carmel, a veteran general and leader of a political party from whose circles many Partisans emerged, applauded the judgment of Halevy, which “raised the curtain revealing, on the one hand, Jewish bravery, and, on the other hand, collaboration with the Nazis.” [135]

Silberg, too, noted in his judgment on appeal that “there was an objective possibility that the historical event of the uprising in the Warsaw Ghetto would also provide a model and example to the ‘complacent’ Jewry of Hungary.” There was a “potential of resistance on the part of Hungarian Jewry,” as, in contrast to “the assimilated bourgeoisie of Budapest,” the Jews who were annexed to Hungary were “believers in ancient Jewish national tradition…. and they were hewn of the very same material from which sprang the fighters of the Warsaw Ghetto.” [136]

Agranat’s position was different. He indeed joined the view that “the acts of bravery of the fighters [in the Warsaw Ghetto] added a glorious page to the chronicles of the Jewish People [and] became an inseparable part of our national achievement.” He noted that it was in the power of this historical event to “strengthen … the feeling of national pride.” Nevertheless, he wrote: “The philosophy which states that in the Diaspora too—and not only in the Homeland—the Jews have a duty to conduct themselves ‘out of a willingness to risk their lives in order to defend them’—and that this should be done ‘without looking for gain’ … this philosophy relates only to long-term interests of the Jewish People.” Accordingly, “the question whether the Jews of Hungary were also obliged to act in the way in which the fighters of the Warsaw Ghetto acted” has significance in this context only “as a clear political question,” and as such “it had no place in this trial.” [137]

Justice Cheshin was even more categorical in his reservations about the Warsaw Ghetto model, proposed by Tamir, as the sole legitimate solution. Cheshin stated: “This too is a possible point of view. The blood-soaked history of the People of Israel has much to tell about such brave idealists. But there is also another opinion, different and opposed to it, and this different opinion too has roots in the pages of our history.” Cheshin recalls the exhortation of the Prophet Jeremiah “to surrender to the enemy and enter into a treaty of peace with him,” and the choice of Rabbi Yohanan Ben-Zakkai “to save what can be saved in a time of trouble.” Cheshin emphasized: “Notwithstanding this, none has accused them of selling their souls to the devil.” [138]

II. Law and History

In his judgment, Justice Agranat delineated the inadequacy of the legal system to cope with the weighty issues that were placed before it in the Kastner affair. Such problems had to occupy “the historian who wishes to evaluate ‘the achievements’ or ‘failures’ of the figures who stood at the centre of the events which took place at a particular time in the past.” [139] Unlike a judge, a historian is equipped with tools that enable him “to make his ‘historical’ judgment, in so far as possible, without any preconceptions,” as “in the hands of the historian all the three functions of gathering the factual material, filtering it and evaluating it, are apprehended and focused.” The position of the judge is different. He must “give judgment … only on the basis of the evidence and proof produced in the trial.” Accordingly, “we are limited and restricted, regarding the basis of our determination, to the same factual material which each of the litigants chose to present in the trial, in order to achieve the result which he was interested in obtaining from the beginning.” Thus, a selection process is conducted on the evidence and proof produced in the court, arising out of the “preconceptions” of counsel for the litigants. In this manner, the task of a judge is also distinguished from the “‘objective’ task imposed on the historian,” a distinction that is subject to “greater importance in an ‘historical’ trial such as the one before us.” [140]

Arguably, the fact that the selection of the material is performed by the parties interested in the results of the trial itself ensures that the court will have the full picture laid out before it. However, the adversarial legal process gives the parties the power to delimit the borders of the dispute between them and to compel the court to accept them. [141] Needless to say, this limitation is incompatible with historical research as the latter must be carried out free of limitations imposed from the outside.

Thus, the court was confined to the material brought before it by the parties and in this way its ability “to reach true results” was narrowed. In addition, there was no doubt that the parties and their counsel were also unable to reach “all the sources from which it would have been possible to draw substantial material important to the issues on trial.” [142] Finally, Agranat emphasized the risk arising from preconceptions of the judge himself. He could not have a sufficient perspective on events happening only a decade earlier. A time distance was essential in order to “observe those events not on the basis of his own perceptions of the problems prevailing in his world and not on the basis of his own subjective feelings.” [143]

All the reasons raised by Agranat for the court’s difficulties in considering the fate of Hungarian Jewry speak against depositing this issue in the hands of the judiciary. Nevertheless, it appears to me that there are two main reasons why it was inappropriate to bring the Kastner affair before the court. First and foremost, a judicial proceeding is not designed for historical judgment and it is not suited to that purpose. A judicial proceeding is designed to resolve a conflict between litigants—not to evaluate historical events and not even to judge the actions of human beings that have no concrete legal ramifications. This is also the reason why our legal system entrusts the conduct of the case to the parties: they are the ones who know, better than anyone else, how to present the issues and they have the right to delimit the boundaries of the dispute between themselves. It is needless to emphasize that these grounds are inapplicable to a determination of historical questions. Any attempt on the part of the court to exceed these limits and to purport to “cloak itself in the mantle of an historian,” will inevitably force it to deliver a “semi-historical opinion which has little to offer of significance.” [144] Secondly, it is the official character of the judgment that precludes it from being an arbiter of historical events. It is true that a historian may also meet some of the difficulties encountered by the court in the Kastner affair. However, the historian who stumbles because of these difficulties is likely to reach conclusions that his colleagues will dispute—something that is not true of a legal decision. The latter remains in effect until it is overturned in a manner provided for by law. [145] The findings of a historian carry with them only the prestige, conscience, and skill of the person standing behind them. A judgment relies on the force of the law. In a country where history is not rewritten or dictated by the regime, no foothold should be given to the law to determine historical questions and a judge—the person interpreting and implementing the law—should not be permitted to do so. One may even say that, as a rule, the perceptions of a judge in relation to historical events and the evaluation of how public figures function are irrelevant and cannot properly be referred to in his judgment.

All the judges were united on two matters: first, that it was inappropriate to submit Gruenwald’s allegations against Kastner to judicial determination; and secondly, that the proper place for conducting such an inquiry was in a commission of inquiry. When Haim Cohn claimed that Kastner should not be judged until his accusers were in his shoes, Silberg lectured him, saying that this warning was indeed appropriate; however, where the matter was already before the court “and the Attorney-General knows who is to be blamed for that—it is our duty to say what we think.” [146]

Cheshin held in the preamble to his judgment that “it would have been more fitting for this trial not to have been brought than brought.” The main reason for this was that even though Gruenwald had accused Kastner of “real criminal offences,” it was not his intention “that Kastner be put on trial for them.” His purpose was “to place his public stature in question.” On this ground, Gruenwald himself and his lawyer demanded “that the determination of these questions be placed in the hands of a neutral public commission.” Cheshin “regrets the rejection of the proposal.” 147]

Goitein concluded his judgment with the comment that “this is not the time or the place to examine weighty, complex and sensitive questions, such as those raised in this affair,” and he rebuked the instigators: “it is a pity that those responsible for this, chose the route of initiating proceedings and did not decide, as requested [by Gruenwald] in the defamatory pamphlet, that the problem be brought before a public commission which has more efficient tools to discover what has to be discovered.” [148] Agranat also emphasized that “those responsible for filing this libel action would have acted more properly at the time had they brought about … the appointment of a public commission, comprising also historical experts, which would have had the task of conducting an in-depth and complete investigation into the subject-matter at hand.” [149]

The choice of the judicial platform to examine Gruenwald’s accusations did not put an end to the demands for the establishment of a commission of inquiry. On the contrary, the incriminatory judgment of Halevy gave new impetus to these demands. Following delivery of the judgment, representatives of the General Zionist faction in the government demanded “to establish a public commission of inquiry which will consider the various affairs which were raised by the judgment.” [150] This demand, which was even accompanied by the party abstaining from a vote of no-confidence in the government, led to the resignation of the government and the departure from it of the General Zionists. [151] The judgment on the appeal also failed to put an end to the demand to institute a commission of inquiry on the matters raised by it. [152] And it failed to terminate the public controversy surrounding the figure of Kastner. This controversy, on occasion, rises to the surface and is accompanied by the other issues raised in the trial—the behavior of the Jews during the Holocaust and the activities of the Zionist leadership. At the same time, it has acquired new characteristics, which are the product of historical research and new discoveries and the result of traumas that have affected the country since then. [153]

Clearly, the issues that were raised by the Kastner trial warranted investigation by a commission of inquiry. In comparing the judicial process to the commission of inquiry, Segal wrote:

It is the function of the Court to determine the dispute (lis) between the parties. It adjudicates only where its decision is necessary to put an end to a dispute between individuals or between an individual and the Government. There is no judicial process except where there is a dispute between the parties. The need for the existence of a dispute for the purpose of activating the legal mechanism has become a universal principle … whereas in our context there is no dispute in the legal sense. In this context, there is no plaintiff or defendant, and there is no accuser or accused. There is no statement of claim or indictment. All that exists is an issue, which warrants investigation, on the basis that the Governmental system as a whole would think it undesirable that the matter under investigation remain a mystery.” [154]

In describing the circumstances that warrant the establishment of a commission of inquiry, Sir Cyril Salmon wrote:

[T]his machinery … should be reserved for pressing matters of vital importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such circumstances the use of this machinery is justified because it alone is effective to establish the truth. And it is only by establishing the truth that the purity and integrity of public life can be preserved. [155]

Despite all this, one may doubt whether it was even within the power of a commission of inquiry to lay the dust in respect of these two issues. It is not only that at the time of the Kastner affair, we lacked much of the information that became available later on; it is not only that the issues that were debated at the time were complex. Rather, it is doubtful whether the profound emotional involvement in them would have allowed the public to accept the conclusions of the commission, whatever their content. The dispute underlying the Kastner affair “is bound with philosophical, historical and sociological aspects—perhaps the hardest that man has ever been called to rule upon. Courts may touch on these issues but are not capable of ruling on them.” [156]

It is possible that the same would hold true of a commission of inquiry. In particular, these comments are applicable to the behavior of the Jews who acted under the impact of the horrors of the Holocaust. With regard to these, it is appropriate to apply to the matters we have discussed the warning offered by Justice Silberg: “We, complaisant of Zion and confident of Jerusalem, we who have not been subjected to that cup of poison—do we have a license to judge the deeds of men who acted in the inhuman and super-human conditions of that tragic period? … It would seem true that it was not before us—who are so far removed from the dead—that this affair should have unfolded.” [157]

The remarks of David Ben-Gurion are similar: “The affair of the judenräte (and perhaps the Kastner affair) should, in my opinion, be left to be tried by history in future generations. The Jews who kept themselves safe during the time of Hitler should not take it upon themselves to judge their brethern who were burned and slaughtered and also the few who survived … the tragedy is bottomless, and our generation which did not taste this hell—would act more wisely to keep silent in sorrow and humility.” [158]

From Jesus’ Trial to Kastner’s Trial

A retrial for Jesus, a commission of inquiry following accusations regarding the murder of Arlosoroff, a trial for Kastner. What characterizes the three different episodes is an attempt to make use of legal institutions to accomplish nonjudicial goals: the clerics who applied for a retrial for Jesus were not driven by a genuine desire to determine whether Jesus indeed engaged in political treason against Rome; Menachem Begin did not establish a commission of inquiry in order to find out whether the Mandate courts erred in acquitting Stavsky and Rosenblat; even Haim Cohn did not institute criminal charges against Gruenwald in order to find out whether Kastner was guilty of the accusations thrown at him. They were all driven by exterior motives. They all wished those institutions to approve their narratives of historical occurrences. They wanted to impose their narratives on those who adopted different ones. They expected a historical arbitration between conflicting narratives based on the authority of the court and of the commission of inquiry. They wished their narratives to become the “official” and ultimate historical stories. It is in this respect that their efforts were not convincing. Judges are not capable of ruling on such issues. Judges should not engage in such activity. One may doubt whether there exists such a concept as “historical truth”; one may doubt whether historians are capable of reaching it; one may argue that it is not facts but narratives that historians offer us. Regardless of what conclusions one draws, it is submitted that the task to adjudicate history should not be imposed on courts, nor on commissions of inquiry. If indeed a historian is doomed to fail in his efforts to establish “historical truth,” the more so the judge. This is not only because the judge lacks the necessary skills for the mission; it is because he must come up with “an objective truth” on an issue where no such truth is obtainable. Moreover, it is the official characteristic of the judicial activity that precludes it from getting involved in this area. History and philosophy should remain in the open market where people are free to debate and differ. Judges should stick to their important function—to rule where ruling is needed and is appropriate.

Asher Maoz is an associate professor of law and director of the Taubenschlag Institute at Tel Aviv University. All translations from the Hebrew are the author’s. The epigraph of this article is taken from Ha’mishpat ha’gadol: Parashat Kastner [The Great Trial: The Kastner Affair] (Tel-Aviv: Or, 1955), 9.

Notes
1. Michael Shashar, Haim Cohn shofet elyon: Sihot im Michael Shashar [Haim Cohn Supreme Court Judge: Talks with Michael Shashar] (Jerusalem: Keter, 1989), 237. Smoira transmitted the request to the state attorney of the time, Haim Cohn. This served as a trigger for Cohn’s research for his book, The Trial and Death of Jesus (New York: Harper and Row, 1967). In fact the attempts to initiate a retrial of Jesus by a Jewish court preceded the establishment of Israel; see Josef Blinzler, Der Prozess Jesu, 4th ed. (Regensburg: Friedrich Pustet, 1969), 16. See also Yitzhak Olsan, Din u’devarsim: Zichronot [Discussion: Memories] (Jerusalem and Tel Aviv: Schocken, 1978), 219-21.

2. Joel Carmichael, The Death of Jesus (London: Pelican Books, 1966), 9-10.

3. The petitions were presented to the State of Israel, even though Jesus was tried and sentenced to death by a tribunal set up by the Roman governor, Pontius Pilate, and most theologians and historians are of the opinion that no trial took place before the Sanhedrin. See Cohn, Trial and Death of Jesus, 97; Blinzler, Der Prozess Jesu, 33-38; Paul Winter, On the Trial of Jesus (Berlin: Walter De Gruyter, 1961); Solomon Zeitlin, Who Crucified Jesus (New York: Bloch, 1942); Samuel G. F. Brandon, The Trial of Jesus of Nazareth (London: B. T. Batsford, 1968), 140; William R. Wilson, The Execution of Jesus: A Judicial, Literary and Historical Investigation (New York: Charles Scribner’s Sons, 1970), 168.

4. For the history and ideology of the Revisionist movement, see Joseph B. Schechtman and Yehuda Benari, History of the Revisionist Movement (Tel Aviv: Hadar, 1970).

5. See Miriam Getter, Haim Arlosoroff: Biographia politit [Haim Arlosoroff: A Political Biography] (Tel Aviv: Hakibbutz Hameuhad, 1977), 181-86.

6. See Va’a’dat ha’hakira le’hakirat retzah Dr. Haim Arlosoroff, din ve’heshbon [The Commission of Inquiry into the Murder of Dr. Haim Arlosoroff, Report] (Jerusalem: The Government Press, 1985) (hereinafter, The Commission of Inquiry Report), 154; Shabtai Teveth, Retzah Arlosoroff [The Arlosoroff Murder] (Jerusalem and Tel Aviv: Shoken, 1982), 237, 240. For a quasi-official version of the events from the Revisionist Movement’s point of view , see H. Ben-Yeroham (H. Merhavia), Ha’a’lila ha’gdola: Lifney retzah Arlosoroff u’le’aharav [The Great Libel: The Arlosoroff Case] (Tel-Aviv: Machon Jabotinsky, 1982). Cf. Abba Achimeir, Ha’mishpat [The Trial] (Tel-Aviv: The Committee for the Publication of Achimeir’s Works, 1968). See also Ben-Zion Katz, Ha’e’met kodemet la’shalom: Aharei shihrur kol ha’ne’e’shamim be’retzah Arlosoroff [The Truth Precedes Peace: After the Release of All the Accused of the Murder of Arlosoroff] (Tel Aviv: Eretz Press, 1936). One writer suggested that the British were interested in eliminating Arlosoroff in order to frustrate his negotiations with Nazi Germany, which might have led to a mass immigration of Jews to Palestine. For a similar reason—opposition to Jewish immigration and the purchase of Arab land by the Jewish National Fund—the Arabs too had an interest in Arlosoroff’s death; Arye Bechar, ed., Be’ikvoth ne’e’lamim: Le’parashat Arlosoroff [In the Hidden Footsteps: The Arlosoroff Case] (Tel-Aviv: Lipsha Zjamson, 1989), 6.

7. The procedure of “no case to answer” amounts to a determination that the prosecution has failed to prove even the prima facie guilt of the accused; the latter is therefore not required to bring evidence in his defense and must be acquitted without the case for the defense being heard. See Adrian A. S. Zukerman, The Principles of Criminal Evidence (Oxford: Clarendon Press, 1989), 42.

8. Countering this, the defense argued that it was Mrs. Arlosoroff herself who committed the murder. See the Commission of Inquiry Report, 151, 153; Teveth, Retzah Arlosoroff, 238-41.

9. The judgment of the Court of Criminal Assize (Cr. Assize 3/34 Attorney General v. Stavsky) was published in the Palestine Post on 22 July 1934 and also in the volume Mishpat retzah Arlosoroff: Neumei ha’kateigor ve’ha’saneigor u’mismachim [The Arlosoroff Murder Trial: Addresses of the Prosecutor and the Defence Lawyer and Documents] (Jerusalem: Published on Behalf of the Defence Committee, 1934), 171. The Supreme Court judgment (Cr. Assize App. 7/34, Stavsky v. Attorney General) was published in 2 P.L.R. [Law Reports of Palestine], 148.

10. The Commission of Inquiry Report, 32.

11. See Joseph Nedava, “Almoni bemoked shel se’ara historit [Anonymous in the Focus of a Historical Storm],” Ha’ne’e’sham ha’sheni: Ma’a’vako shel Zvi Rosenblatt le’giluy ha’e’met [The Second Accused: Zvi Rosenblatt’s Struggle for the Truth], ed. Joseph Nedava (Tel-Aviv: Machon Jabotinsky, 1986), 9, 13-15; Zvi Rosenblatt, “Ha’ne’esham ha’sheni ma’a’shim [The Second Accuse Accuses],” ibid., 74. The article was originally published in the daily Ma’áriv on 1 March 1982. In between, two writers who repeated the charges published apologies and in one case even paid damages. In one of the cases Kennett Love accused the “Zionist Revisionists” of murdering Arlosoroff (Suez: The Twice-Fought War; A History [New York: McGraw-Hill, 1969], 50). In the other case, Christopher Sykes raised a similar accusation (Cross Roads to Israel [London: Collins, 1965], 154). Following suit, the Israeli publisher of the book (Mi’Balfour ad Bevin: Ma’a’vakim al Eretz-Yisrael [Cross Roads to Israel: Palestine from Balfour to Bevin] [Tel-Aviv: Ma’arachot, 2d ed., 1975], trans. Shlomo Gonen) added, on Collins’s request, a clarification stating that the author was not aware of the acquittal of the members of the Revisionist Party from the murder charge: “Following this belated information one must regard all apparent accusation void.” In the following edition (1978) the whole passage referring to Arlosoroff’s murder has been omitted though the reference in the index was left untouched. See also Zviya Granot, “Milhamto shel Zvi Rosenblatt al ha’e’met [Zvi Rosenblatt’s Fight for the Truth],” Ha’ne’e’sham ha’sheni, 95, 97.

12. Teveth, Retzah Arlosoroff, 5. As a matter of fact, the report of Arlosoroff’s murder was meant to be included in the biography of Ben-Gurion, yet in view of the length of the report Teveth decided to publish it separately. Ibid.

13. Excerpt from the writ of appointment of the commission. The Commission of Inquiry Report, 2. This commission is known as “the Bechor Commission,” nicknamed after its chairperson.

14. The Commission of Inquiry Law, 5729-1968, S.H. (Sefer Ha-Hukkim [Laws of the State of Israel]), 28, 23 L.S.I. (Laws of the State of Israel, official translation) 32, Section 1. On commissions of inquiry according to the Commission of Inquiry Law, see Avigdor Klagsbald, Va’a’dot hakira mamlahtiyot be’Yisrael (lefi hok va’a’dot hakira, 5729-1968) [Tribunals of Inquiry in Israel (According to the Commissions of Inquiry Law, 5729-1968)] (Ph.D. diss., Tel-Aviv University, 1978); Ze’ev Segal, “Va’a’dat hakira mi’koah hok va’a’dot hakira. 5729-1969: Ma’a’ma’da ha’konstituzioni u’mitham ha’legitimiyut le’peulata [Commissions of Inquiry According to the Commissions of Inquiry Law, 1968; Its Constitutional Status and Its Legitimate Scope of Action],” Mehkerey Mishpat [Bar-Ilan University Law Review] 3 (1982): 199.

15. H/C 935, 940, 943/89 Ganor v. the Attorney-General of Israel, 44 (2) P.D. [Piskei Din=Judgments of the Supreme Court] 485, 520.

16. H/C 152/82 Alon v. the Government of Israel, 36 (4) P.D. 449.

17. This gives rise to the presumption that “most of her intercourse is with her husband,” Babylonian Talmud, Tractate Hullin, p. 11B. This presumption applies even if there is a rumor that a married woman had committed adultery while living with her husband, and everyone gossips about her; even then “no apprehension need be felt that her children may be bastards, since most of her intercourse is with her husband,” The Code of Maimonides, The Book of Holiness, Treatise 1, Laws Concerning Forbidden Intercourse, ch. 15, sec. 20, (Yale Edition).

18. Thus, for example, Israeli Courts prevent proof being brought that the father of a child born to a married woman is other than her husband, even though science has developed accurate tests of paternity. See C/A 1354/92 The Attorney-General v. Anon., 48 (1) P.D. 711. This is so since in Israel religious law applies in matters of marriage and divorce; hence the harsh outcome of such a finding.

19. This is so with regard to the privilege granted to certain professionals, releasing them from the obligation to testify in court on information that has come to their knowledge as a result of their profession. This privilege is intended to allow people to freely seek the services of such professionals and is even entrenched in “the need to protect the individual, his honour, personality, liberty and safety.” See Shoshana Netanyahu, “Al hitpathuyot besugyat ha’hesyonot ha’miktzoiyim [On Developments Relating to Issues of Professional Privilege],” Sefer Sussman: Le’zichro shel Yoel ha’Cohen Sussman nesssi Beit Ha’mishpat Ha’elyon [Sussman Book: In Memory of Yoel Ha’Cohen Sussman President of the Supreme Court] (Jerusalem: n.p., 1984), ed. Aharon Barak, Itzhak Zamir, Haim Cohn, Naftali Lipchutz, Gabriela Shalev, 297, 310. Cf. Ha’va’a’da le’hisayon itonai, Doh ha’va’a’da [The Commission on Journalist Privilege: Report of the Commission] (The Maoz Commission) (Jerusalem: Ministry of Justice, 1994).

20. Cr./App. 115, 168/82 Moadi v. the State of Israel, 38 (1) P.D. 197.

21. Such as carrying out an enema without his consent (H/C 373, 391 355/79 Katalan v. The Prison Services, 34 (3) P.D. 294) or forcing him to drink salt water in order to cause him to eject dangerous drugs concealed in his body (F/H 9/83 The Military Court of Appeal v. Vaknin, 42 (3) P.D. 837).

22. With sharp irony, Haim Cohn, former deputy president of the Supreme Court, wrote: “It appears that the rules of evidence … are nothing other than prohibitions of discovery and permission to conceal. In other words, it seems that the rules of evidence were created, and they have no use nor have any purpose, except to put obstacles before the judge in his effort to ascertain the truth—because ascertaining the truth is not equivalent, apparently, in the eyes of the legislature, to the individual’s rights or other superior interests such as State security, if they may be impaired in the course of ascertaining the truth.” See Haim H. Cohn, “Din emet le’amito [The True Justice],” Gevuroth le’ Shimon Agranat [Essays in Honor of Shimon Agranat] (Jerusalem: n.p., 1986), ed. Ruth Gavison and Mordechai Kremnitzer, 35, 57.

23. Aharon Barak, “Al mishpat, shiput ve’e’met [On Law, Adjudication, and Truth],” Mishpatim [Law Review of the Hebrew University, Jerusalem] 27 (1996): 11. See also his comments in App./LA 6546/94 Union Bank of Israel Ltd. v. Azulai, 49 (4) P.D. 54, 61; and in App/LA 1412/94 Hadassa Medical Organization v. Gilad, 49 (2) P.D. 516.

24. Cr./ App. 1/48 Silvester v. The Attorney-General of Israel, 1 P.D. 5, 18.

25. See Barak, “Al mishpat,” 12-14. See also Asher Maoz, “The Rule Excluding Evidence of Similar Facts with Special Reference to Non-Jury Trials,” Israel Law Review 8 (1973): 506, 521-22.

26. There is a controversy regarding the rationale behind the rule invalidating admissions that were not made by the free will of the accused. Under one approach there is a fear that the admission will be unreliable; whereas under another approach, the invalidation results from the infringement of the rights of the accused. According to the latter view, it is, therefore, proper to invalidate an admission obtained through wrongful means, even when the court has no doubt as to its truth. See the judgment in Mo’a’di v. the State of Israel.

27. See the comments of Justice Witkon in Cr./App. 435/78 Begin v. the State of Israel, 32 (3) P.D. 169, 173: “With all our vast experience as professional judges, we do not have a special sense of distinction and we do not possess a ‘polygraph’. This is the reason for the demand in suitable cases … for corroboration, and indeed, it is possible that the corroboration will help the judge to be persuaded of the reliability of the witness’s testimony, even if without that corroboration, there would have been room for doubt.”

28. Commission of Inquiry Report, 202.

29. See: Cohn, “Din emet le’amito,” 52 and following.

30. For an analytical comparison between both systems, see Marvin E. Frankel, “The Adversary Judge,” Texas Law Review 54 (1976): 465; idem, “The Search for Truth: An Umpireal View,” University of Pennsylvania Law Review 123 (1974-75): 1031; Monroe H. Freedman, “Judge Frankel’s Search for Truth,” ibid., 1060; H. Richard Uviller, “The Advocate, The Truth and Judicial Hackles: A Reaction to Judge Frankel’s Idea,” ibid., 1067; Mirjan Damas�ka, “Presentation of Evidence and Factfinding Precision,” ibid., 1083; idem, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure,” University of Pennsylvania Law Review 121 (1972-73): 506; idem, “Structures of Authority and Comparative Criminal Procedure,” Yale Law Journal 84 (1974-75): 580; Mordechai Kremnitzer, “Hat’a’mat ha’halich ha’mishpati la’matara shel giluy ha’emet, o haim lo higia ha’et lesayem et onat ha’mishakim [Rethinking Criminal Process],” Mishpatim 17 (1987): 475.

31. See the comments of Justice Dalia Dorner in her judgment in FCH 2316/95, Cr.Applic. 537/95 Ganimat v. State of Israel, 49 (4) P.D. 589, 645: “The accused is acquitted even if the Court concludes that the balance of the probabilities is weighted towards the incriminatory version. This is because it is a fundamental constitutional principle in our criminal law that a person may not be convicted and punished unless his guilt has been proved beyond a reasonable doubt, even though this means the acquittal and release of accused persons who in all likelihood committed the acts alleged…. ” Cf. Emanuel Gross, “Psak-din Demjanuk ve’heker ha’emet [The Demjanuk Judgment and the Search for Truth],” Plilim [Israel Journal of Criminal Justice] 4 (1994): 299, 303.

32. C/A 475/81 Zikari v. “Clal” Insurance Company. Ltd. 40 (1) P.D. 589, 604-5, per Barak J.

33. Ibid., at 599, per Bach J.

34. It is for this reason that Scottish courts may render, in such a case, a verdict of “Not Proven,” rather than a verdict of “Not Guilty.” In such a case, the accused may still be sued in torts for the very same act, as the standard of proof in civil cases is merely “proof upon a balance of probability.” See George Gebbie, Sverre Erik Jebens, and Antonio Mura, “‘Not Proven’ as a Juridical Fact in Scotland, Norway, and Italy,” in European Journal of Crime, Criminal Law and Criminal Justice 3 (1999): 262, 266.

35. See Basic Law: Judicature, 1983/4 S.H. 78, Section 19; 38 L.S.I. 101; The Courts Law [Consolidated Version] 5744-1984, Section 31, 1983-1984 S.H 198; 38 L.S.I. 271. In 1996 this section was amended to waive the requirement that the “new” evidence be discovered after the trial and replaced it with the condition that “facts or evidence were presented which may … alter the outcome of the case in favour of the sentenced person”; 1995/6 S.H. 108. This amendment, which followed the recommendations of the Goldberg Commission, (Ha’va’a’da le’inyan harsha’a al smach hoda’a bilvad u’le’inyan ha’ilot le’mishpat hozer: Din ve’heshbon [The Committee on the Matter of Conviction Based on Confession and on the Matter of the Grounds for Retrial: Report] [Jerusalem: Government’s Publisher, 1994]), added a novel ground for a retrial: “A substantial possibility arose that the conviction of the sentenced person might have resulted in miscarriage of justice.” This provision received a favorable interpretation by the president of the Supreme Court. See Retrial 6148/95 Azarya v. The State, 51 (2) P.D. 334; Retrial 7929/96 Kozali v. The State ( forthcoming). When there is doubt about the reliability of a conviction and there is no ground for a retrial, the miscarriage of justice may be rectified through the institution of pardon. See the comments of Justice Ben-Porat in Alon v. the Government of Israel, 458.

36. “A commission of inquiry should not be set up, if its task is to fulfill the functions allocated to the Court, that is to say, to determine the guilt or innocence of a person, who is suspected of having committed a criminal offence.” From the judgment of Kahan J. in Alon v. the Government of Israel, 455. See also the comments of Justice Ben-Porat, ibid., 456. A similar rule applies in New Zealand, England, and the United States. A different rule was adopted in Australia. See, generally, Klagsbald, Va’a’dot hakira, ch. 4: “Ha’hakira ha’mamlachtit–samchut u’matara: Ha’yahas bein hakira mamlachtit le’halich pelili [The State Inquiry—Authority and Object: The Relations between State Inquiry and Criminal Proceedings],” 161-283.

37. In a commission of inquiry, preference is given to “an open and comprehensive examination of the truth.” Accordingly, it is unrestricted by “rules of civil procedure customary in a court and in its work it is not subject to the rules of evidence.” For this reason, the law provides that “the report of a commission of inquiry shall not be evidence in any legal proceeding.” The same is also true of any testimony given before a commission of inquiry. See Sections 22 and 14 of the Commissions of Inquiry Law. See also Cr./App. 2910, 2912, 2922, 2929, 3737/94 Yaphet v. the State of Israel, 50 (2) P.D. 221, 290-91.

38. This commission was established by the State Comptroller Committee of the Knesset, by virtue of its power under Section 14 (b) of the State Comptroller [Consolidated Version] Law 5718-1958, 1957-1958 S.H. 92; 12 L.S.I. 107. A commission of inquiry such as this is governed by the provisions of the Commissions of Inquiry Law, mutatis mutandis. See H/C 381, 390/85 Bank Leumi Le’yisrael Ltd. v. the Commission of Inquiry into the Regulation of Bank Shares, 39 (4) P.D. 225.

39. See Va’a’dat ha’hakira le’inyan visut menayot ha’beankim: Din ve’heshbon [The Commission of Inquiry into the Bank Shares Regulation Affair] (Jerusalem: 1986), 361, 365. See also the comments of Justice Barak in Ganor v. the Attorney-General of Israel, 521. Cf. the comments of Justice Ben-Porat in her judgment in Alon v. the Government of Israel, 521: “In the absence of justified grounds, the suspicions raised in the Commission Report should not be left hanging without judicial clarification, as it and only it is able to establish the true facts.” The possibility that the inquiry or its results may injure a person raises difficulties. Indeed, as a result of the dissatisfaction with the way the Agranat Commission (“A Commission of Inquiry into the Information Which Existed in the Days Preceding the October 1973 War, and the Preparations of the IDF in the Days Preceding It Through to the Stopping of the Enemy”) treated the likelihood of harm to various office holders, Section 15 (Commissions of Inquiry Law) was reformulated widely. It now provides a mechanism designed to widen the opportunities for such persons to protect themselves against possible harm. Notwithstanding this, the opportunity is narrow compared to the possibilities open to an accused to defend himself against charges brought against him. Moreover, the rules of judicial decision making in criminal proceedings, which were designed to ensure, in so far as possible, that an innocent person would not be convicted, do not apply to commissions of inquiry. The stigma that a person may suffer if a commission of inquiry finds that he has prima facie committed a criminal offense is balanced by his being put on trial. Whereupon he is given the benefit of all the guarantees that criminal procedure affords an accused, and the decision of the court will be a final decision in relation to his guilt. If it is decided not to try him, despite the findings of the commission, the attorney-general must provide him with the reasons for his decision and even make them public, if so requested by the person in question (Commissions of Inquiry Law, Section 21). This section is intended “to prevent the situation whereby the conclusions of the commission of inquiry will be used as a basis for a ‘public conviction’ without the guilt of the person having been proved in a court of law”; Justice Dov Levin in his judgment in the Yaphet v. the State of Israel, 297.

40. See the comments of Justice Kahan in Alon v. the Government of Israel, 455, and the comments of Justice Elon, ibid., 465.

41. Cf. the comments of Justice Shlomo Levin, ibid., 464. See also Segal, “Va’a’dat hakira,” 228-29.

42. See H/C. 188/96, L/Cr./App.8226/96, Tsirinski v. Deputy President of the Magistrate Court, Hadera 52(3) P.D. 721; C/A 53/74 Bristol-Myers Co. v. Beecham Group Ltd., 29(1) P.D. 372, 377. What made it easier for the judges to unite behind the affirmation of the decision of the government was the negligent nature of the legal proceedings and the conviction, in the lower court, of a person for a capital offense without the court troubling to give its reasons for its grave findings. See the comments of Justice Ben-Porat in Alon v. the Government of Israel, 460-61.

43. These remarks are not directed at the question of the legitimacy of external review of the judicial system and the examination of its functioning. In a democratic regime, in which the rule of law prevails, no authority is immune to review and scrutiny.

44. See the remarks of Justice Ben-Porat in Alon v. the Government of Israel, 460. The counsel for the petitioner agreed that there was no impediment to establishing a commission of inquiry when there was doubt as to the guilt of a person convicted of a serious offense and there was no judicial way to examine the matter. Two of the justices noted that this destroyed the foundations of his arguments; see the remarks of the president, ibid., 455. Justice S. Levin even emphasized that the petition had raised “a very weighty argument, possessing constitutional importance,” although in the light of the petitioner’s approach, “we are no longer considering a matter of substance but a matter of degree” (ibid., 464). I myself doubt whether the consent of a litigant is indeed capable of legitimizing the establishment of a commission of inquiry if its establishment is contrary to law or public order.

45. Segal, “Va’a’dat hakira,” 218. See also the judgment in the Yaphet v. the State of Israel, 290, and also D.K. [Divrei ha’Knesset (Records of the Knesset Proceedings)] 53 (1959): 903.

46. The Commission of Inquiry Report, 174.

47. Indeed, following the publication of Teveth’s book, Ben-Yeroham, a Revisionist historian, republished his book, Ha’alila Hagdola [The Great Libel]. This was a reprint of his essay “Ha’Aqedah [The Sacrifice],” included in his book Sefer betar: Korot u’mekorot [The Betar Book: Chronicles and Sources], vol. B, pt. 1 (Tel-Aviv, Ha’va’ad Le’hotza’at Sefer Betar, 1973). This time he added a new part entitled “Olelot he’akuka [The Evils of the Libel]” that was written following the debates that accompanied the publication of Teveth’s book. In a supplement the author argued with Teveth’s specific statements. Begin himself exchanged several articles with Teveth, in daily newspapers, following the publication of Teveth’s book.

48. See Joseph Ahimeir, “Hirhurim beikvot doh va’a’dat ha’hakira shel retzah Arlosoroff [Reflections Following the Report of the State Commission of Inquiry into the Murder of Arlosoroff],” Be’ikvoth ne’e’lamim, 18, 20-21. Ahimeir, the son of Abba Ahimeir, says that Begin had demanded twice in the past to establish such a commission, yet his demand was rejected. But as prime minister he had the power to establish the commission and Teveth supplied him with the cause to do so ( ibid., 21). Indeed, in 1956 the Herut party, the predecessor of the Likud party, submitted a bill to appoint a commission of inquiry “to investigate the circumstances and accusation regarding the murder of Dr. Haim Arlosoroff (Divrei ha’Knesset 20 [1956] 1957). On July 25, 1973, Begin demanded in the Knesset the appointment of such a commission of inquiry (Divrei ha’Knesset 68 [1973] 4315). Two weeks earlier, M. K. Benjamin Halevi raised a similar demand (ibid., 3816). As a matter of fact, the World Zionist Congress established an investigation commission soon after the Arlosoroff afair, yet it never convened due to the resignation of its leading members. See Katz, Ha’emet kodemet la’shalom, 33.

49. The Commission of Inquiry Report, 3.

50. In commenting on tribunals of inquiry, Sir Cyril Salmon wrote: ” … this machinery should never be put in motion for deciding … questions of history.” See Salmon, Tribunals of Inquiry (Jerusalem: Magnes Press, 1967), 21; published also in Israel Law Review 2 (1967): 313, 329.

51. Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 C.L.R. [Commonwealth Law Reports], 25,156, per Brennan J. (High Court of Australia). See also, Alon v. the Government of Israel, 454, per Ben-Porat. See, generally, Klagsbald, Va’adot hakira, 258-64. A suggestion to omit the requirement, that the issue of inquiry must be of public importance “at the time,” so as to enable “an investigation of an historical affair” has been rejected by the Knesset; D.K. 53 (1969): 908.

52. Later, the government retracted its decision and, under public pressure, agreed to establish such a commission: The Commission of Inquiry into the Events at the Refugee Camps in Beirut, 1983 (The Kahan Commission): see Y.P. [Yalkut Ha’Pirsumim = Government Notices] 5743-1982-83, 34. An unauthorized translation of the commission’s report was published in the Jerusalem Post 9 Feb. 1983.

53. The Commission of Inquiry Report, 202.

54. See the comments of Justice Ben-Porat in Alon v. the Government of Israel, 460-61. Ahimeir, on the other hand, argues that Begin was careful not to authorize the commission to investigate “who did commit the murder,” as he realized that by establishing the commission “he took upon him some chance.” See Ahimeir, “Hirhurim beikvot doh va’a’dat ha’hakira,” 19.

55. In an interview conducted fourteen years after the submission of The Commission of Inquiry Report, Ada Zevidov, the granddaughter of Abba Ahimeir, complained that while the Ahimeir family was hoping that the libel would finally die away following the commission’s report, “unfortunately we still hear people who decline to relinquish it”; Shahar Ilan, “Hasmicha shel ha’rabanit Ada [The Inauguration of Rabbi Ada],” Ha’aretz [The Land (an Israeli daily)], 7 March 1999, section B, p. 2. Joseph Ahimeir admits that it would be an illusion to assume that the commission’s conclusions might convince everybody (“Hirhurim beikvot doh va’a’dat ha’hakira,” 27), yet “the Arlosoroff’s Commission Report was designed for the members of the families of Stavsky, Rosenblatt and Ahimeir, for the members of the national camp and for many others” (ibid., 21).

56. Reference here was to the investigation files of the police and court files, as well as to “studies made by skilled people … who investigated the event.”

57. The Commission on Inquiry Report, 174. For the lecture given by Sir Cyril Salmon, see Salmon, Tribunals of Inquiry, 21.

58. See, generally, Asher Maoz, “Kastner—Trial and Assassination,” Crisis and Reaction: The Hero in Jewish History (Omaha: Creighton University Press, 1995), ed. Menachem Mor, 279. There were many points of similarity between the two affairs: at the center of both stood a leader accused of accommodating the foreign regime and deserting the Jews; in both charges of conducting contacts with Nazi Germany were raised; in both cases it was alleged that they “provided evidence of the traitorous and collaborative character of Mapai, on its willingness to subvert elementary law, morality and justice in order to obtain the doubtful mercy of the foreign ruler, British or German, mercy which was an essential precondition to obtaining power and keeping it.” See Yechiam Weitz, “‘Tenuat ha’Herut’ u’mishpat Kastner [‘The Herut Movement’ and the Kastner Trial],” Yahaduth Zemanenu [Judaism in Our Time] 8 (1993): 243, 254. In a report about the activities of the Relief and Rescue Committee in Budapest submitted by Kastner to the Zionist Congress in 1946, he described his negotiations with Nazi leaders as a continuation of “the ‘Transfer Agreement’ with the Third Reich initiated by Haim Arlozoroff”; Rezsö Kasztner, Der Bericht des jüdischen Rettungskomitees aus Budapest, 1942-1945 (Basel: Va’a’dat Ezra Vo-Hazalah, 1946 [Stencil]), 3. A revised version of the report was published, following the Eichmann Trial, under the name: Der Kastner-Bericht über Eichmans Menschenhandel in Ungarn (Munich: Kindler, 1961), 14 (hereinafter references will be made to the 1946 publication and in brackets to the 1961 publication). Referring to Shmuel Tamir, defense counsel for Gruenwald, the accused in the Kastner trial, it is said that “his struggle in the Gruenwald trial was nothing other than a continuation of the struggle he waged as a child during the period of the murder of Haim Arlosoroff and the Stavsky trial.” See Yechiam Weitz, Ha’ish she’nirtzah pa’a’mayim: Hayav, mishpato u’moto shel Dr. Yisrael Kastner [The Man Who Was Killed Twice: The Life, Trial and Death of Dr. Israel Kastner] (Jerusalem: Keter, 1995), 119. Both affairs cast a shadow over the party in government at the time: in the accusations of Gruenwald—over the Mapai leadership, and in Teveth’s book—over the Revisionist leadership that was then in power under the Likud government of Menachem Begin. The decline of Mapai and the strengthening of Herut, one of the parties that later on formed the Likud, in the elections that were conducted in 1955 were both ascribed to the two incidents—Halevy’s judgment relating to Kastner and the new discoveries about the Arlosoroff affair. This was because of the proximity in time between the delivery of Halevy’s judgment and the elections, concurrently with the press conference given by Yehuda Tennenbaum-Arazi, who was involved as a police officer in the investigation of the Arlosoroff murder, in which he claimed that the heads of Mapai knew at the time that Stavsky and his friends were innocent. See Weitz, “‘Tenuat ha’Herut,'” 254. Finally, in both cases murders took place that were baffling in nature, and, in both, allegations were made of political murder. It is instructive moreover that both Abba Ahimeir, one of those accused of murdering Arlosoroff, and other known Revisionists were members of “The Committee for the Uncovering of the Truth about the Extermination of the Jews of Europe,” established to assist in financing Gruenwald’s defense. See Emanuel Pratt, Hamishpat hagadol: Parashat Kastner [The Great Trial: The Kastner Affair] (Tel-Aviv: Or, 1955), 250.

59. Shalom Rosenfeld, Tik pelili 124: Mishpat Gruenwald-Kastner [Criminal Case 124: The Gruenwald-Kastner Case] (Tel Aviv: Karni, 1955), 15.

60. “Dr. Rudolf Kastner must be liquidated!” The statement, as quoted in the indictment, appears in Rosenfeld, Tik pelili 124, 16.

61. A telegram by the British Foreign Office to Madrid; USFR, 1944, vol. 1, p. 537. See also Yehuda Bauer, “The Negotiations between Sally Mayer and the Representatives of the S.S. in 1944-1945,” in Rescue Attempts During the Holocaust—Proceedings of the Second Yad Vashem International Historical Conference, Jerusalem, April 8-11, 1974, ed. Yisrael Gutman and Ephraim Zuroff (Jerusalem: Yad Vashem, 1977), 5, 9.

62. Lëvai’s figure of 1,648 (Jeno Lëvai, Eichmann in Hungary [Budapest, 1961], 198) must be a typographical error.

63. Kasztner, Bericht, 61-62 [130].

64. Shlomo Aronson, “Yisrael Kastner, OSS ve’teoryat ha’hetz be’Nirenberg [Israel Kastner, OSS and the Arrowhead Theory in Nuremberg],” Mishpat ve’historiya [Law and History] (Jerusalem: The Zalman Shazar Center for Jewish History, 1999), ed. Daniel Gutwein and Menachem Mautner, 305, 324.

65. Ibid., 335.

66. Weitz, Ha’ish she’nirtzah pa’a’mayim, 70.

67. Ibid., 76.

68. Ibid., 71-76; Tom Segev, The Seventh Million: The Israelis and the Holocaust (New York: Hill and Wang, 1993), 269-70. Aronson makes the point that Kastner wished to prove that it was within the powers of S.S. officials to save Jewish lives and to demonstrate that those who did so, for whatever reason, would be rewarded; Aronson, “Yisrael Kastner,” 324, 336.

69. Weitz, Ha’ish she’nirtzah pa’a’mayim, 102. In a conversation with Weitz, Haim Cohn confirmed that Kastner indeed “vehemently opposed the filing of a defamation action” (ibid., 375, n. 74). Nevertheless, there are conflicting accounts of this (ibid., 104-7); see also Ruth Bondy, Felix: Pinhas Rosen u’emano [Felix: Pinchas Rosen and His Time] (Tel-Aviv: Zemora-Bitan, 1990), 490.

70. S.H. 1949-1950, p. 281; 4 L.S.I. 154. According to Segev, “Kastner was questioned by the police, but no charges were filed” (Segev, Seventh Million, 258). Segev relies on Rosenfeld’s book, although the pages he cites make no reference to this point. Indeed, following his publication, both Gruenwald and Kastner were interrogated by the police (Weits, Haish shenirtzah pa’amayim, 107.

71. Cr./App. 232/55 The Attorney-General v. Gruenwald, 12 P.D. 2017, 2280 (“The Kastner Appeal”).

72. Cf. the approach of the U.S. Supreme Court in the matter of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

73. An example of a biting denunciation is found in M. Vazleman, Ot Kayin [The Mark of Cain] (Tel-Aviv?: Menahem Grilak ed., 1988?). The accusations appear as early as the subtitle of the book: Al parashat mehdalei ha’hatzala ozlat ha’yad ve’atimut ha’lev shel hanhagat ha’Tziyonut ha’Olamit ve’ha’Sochnut ha’Yehudit bishnot ha’Sho’a ve’hahurban, 5699-5705—1939-1945 [On the Affair of the Rescue Failures, Helplessness, and Obtuseness of the World Zionist Leadership and the Jewish Agency During the Years of Holocaust and Destruction, 5699-5705—1939-1945]. For this subject, see Hava Eshkoli (Wayman), Elem: Mapai le’nochah ha’Sho’a—1939-1942 [Silence: Mapai in Front of the Holocaust—1939-1942] (Jerusalem: Yad Ben Zvi, 1994); idem, “Emdat Ha’manhigut ha’Yehudit be’Eretz-Yisrael le’hatzalat Yehudei Eiropa [The Stand of the Jewish Leadership in Palestine to the Rescue of the European Jews],” 24 Yalshut Moseshet (1977), 87-116; Yechiam Weitz, Mudaut ve’hosser onim—Mapai le’nochah ha’Sho’a—1943-1944 [ Awareness and Helplessness–Mapai in Front of the Holocaust—1942-1944] (Jerusalem: Yad Ben Zvi, 1994]; Dina Porat, The Blue and the Yellow Stars of David: The Zionist Leadership in Palestine and the Holocaust, 1939-1945 (Cambridge, Mass.: Harvard University Press, 1990); Idit Zertal, “The Poisoned Hearth: The Jews of Palestine and the Holocaust,” Tikkun 2.2 (1987): 47. Recently the director of the Ben-Gurion Research Center published an extensive research aimed at defying the attacks on the Jewish leadership’s behavior during the Holocaust. See Tuvia Friling, Hetz ba’arafel: David Ben-Gurion, hanhagat ha’Yishuv ve’nisyonot hatzala ba’Sho’a [Arrow in the Dark: David Ben-Gurion, the Yishuv Leadership, and Rescue Attempts during the Holocaust] (Sede Boqer: The Ben-Gurion Research Center, 1998). See also Shabtai Teveth, Ben-Gurion and the Holocaust (New York: Harcourt Brace, 1996); idem, Ha’shanim ha’ne’e’lamot ve’hahor ha’shahor [The Vanished Years and the Black Hole] (Tel-Aviv: Dvir, 1999), pt. 2, Yemei Shoa [Holocaust Days], 125-242.

74. Weitz, Ha’ish she’nirtzah pa’a’mayim, 121.

75. Rosenfeld, Tik pelili 124, 21.

76. Ibid., 22.

77. Ibid.

78. From the judgment of President Olshan, Appeal, Attorney General v. Gruenwald, 2270. In his autobiography, Yitzhak Olshan charged that Dr. Halevy had “let go the reins” and allowed “the Court proceedings to be exploited to create an arena for a party political wrestling match,” turning the trial into “a spectacle trial.” See Olshan, Din u’devarim, 306. Olshan declares, in his memoires, that since the establishment of the State, he was not a member in any political party (ibid., 294), a tradition followed by all members of the judiciary (ibid., 301). Nevertheless, in the past, Olshan was an active member of the Poalei-Zion party, which later formed Mapai, and even served as secretary of its English chapter during the twenties (ibid., 112-23). Olshan was “close to the elite in general, and Mapai in particular.” See Pnina Lahav, “The Supreme Court of Israel: Formative Years, 1948-1995,” Studies in Zionism 11 (1990): 45, 51. See also Elyakim Rubinstein, Shoftei eretz: Le’reshito ve’lidmuto shel beit-ha’mishpat ha’elyon [Judges of the Land: The Beginning and Image of the Supreme Court] (Jerusalem and Tel-Aviv: Schocken, 1980), 62. Olshan was also a personal friend of Moshe Sharett, the prime minister at the time of the trial and one of Tamir’s major targets in his former position as Arlosoroff’s successor as head of the political department of the Jewish Agency.

79. Weitz, Ha’ish she’nirtzah pa’a’mayim, 112.

80. Menachem Begin, “Mishpat Zeriffin [The Sarafend Trial],” Herut [daily of the Herut party], 27 Aug. 1953.

81. Rosenfeld, Tik pelili 124, 24.

82. Cr\C (Jerusalem) 124/53, 44 P.M. [Psakim Mehozi’im = Judgments of the District Courts] 3 (hereinafter Attorney General v. Gruenwald). See Isser Harel, Ha’emet al retzah Kastner—Terror yehudi bi’Medinath Yisrael [The Truth about the Kastner Murder—Jewish Terrorism in the State of Israel] (Jerusalem: Idanim, 1986), 11. The material relating to the Gruenwald trial is located in the state archives, in containers bearing the title “The Kastner Trial”; Weitz, Ha’ish she’nirtzah pa’a’mayim, 375, n. 89. Parashat Kastner [The Kastner Affair] is the subtitle of Pratt, Ha’mishpat ha’gadol, and the Kastner trial appears in the title of Weitz, “Tenuat Ha’Herut’ u’Mishpat Kastner.” The fifth edition of the Hebrew translation of Ben Hecht, Perfidy, Kahash (Tel Aviv: Ladori, 1994), trans. Aviezer Golan, bears the subtitle Parashat Kastner [The Kastner Affair]. In the preface it is stated that “Perfidy is the dramatic description of the most inflammatory trial that ever took place in Israel … the Kastner trial” (ibid., 5). The same applies to the play Kastner, by Motti Lerner (Tel Aviv: 1988), and the television play Mishpat Kastner [The Kastner Trial], (Tel Aviv: Or ve’tzel, 1994), by the same playwright.

83. In his arguments before the Supreme Court, Cohn stated that “the case before us is unusual and extraordinary, as in practice everything has been turned around in it, in other words: the real accused in the trial—in so far as relates to the truth of the accusations which are the subject of the pamphlet under discussion—was not [Gruenwald] but Kastner who was its target”; Appeal, Attorney-General v. Gruenwald, 2060. Justice Agranat held that the “factual background” to Gruenwald’s accusations against Kastner “was like the factual background behind the accusation that a man collaborated in committing a ‘crime against the Jewish People,’ in accordance with the Nazi and Nazi Collaborators (Punishment) Law—1950.” Accordingly, in Gruenwald’s case, it was possible to make use of the rules of evidence provided in that statute; Appeal, Attorney-General v. Gruenwald, 2084-85. The extent to which it was ingrained in the public mind that Kastner was a party to the trial may be seen from a question raised during a government discussion of the trial. The government records describe the question thus: “Minister M. Shapira asked the Minister of Justice about the filing of a claim against M. Gruenwald by R. Kastner.” See Weitz, Ha’ish she’nirtzah pa’a’mayim, 387, n. 82. Even President Olshan, who presided over the court hearing the appeal against Halevy’s judgment, described “the Kastner affair” thus: “Kastner filed a claim against Gruenwald because of his libel against him”; Olshan, Din u’devarim, 301.

84. This characterization was given to Gruenwald by Rosenfeld, Tik pelili 124, 406.

85. Pratt, Ha’mishpat ha’gadol, 113.

86. Time, 11 July 1955, p. 19; “The defence succeeded in turning Kastner into the accused, and placed in the dock together with him the heads of the Jewish Agency and Mapai in the 1940s—who became the leaders of the young country in the 1950s.” See Weitz, “‘Tenuat ha’Herut,'” 245. In his book, Kahash, Ben Hecht “describes, concurrently with the Kastner trial, the acts and omissions of the Yishuv leadership in Eretz Yisrael, in relation to the threat of the destruction of Hungarian Jewry” (from the preface to the Hebrew edition, Hecht, Kahash, 5).

87. Cf. Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkeley: University of California Press, 1997), 125. Lahav notes that in this way Halevy made Kastner “anonymous and indistinguishable from other members of the Judenrät throughout occupied Europe.” Indeed, in Israel of the 1950s, Kastner became the symbol of the Judenrät, even though he did not belong to that organization; Yechiam Weitz, “Was Israel Kastner a Hero? Israel Kastner and the Problematics of Rescuing Hungarian Jewry during the Holocaust,” Crisis and Reaction: The Hero in Jewish History (Omaha: Creighton University Press, 1995), ed. Menachem Mor, 269, 273. Weitz explains this fact by the image acquired by the Judenrät—the Diaspora Jew bowing down before the Gentile.

88. See the event described in the Babylonian Talmud, Tractate Gittin, p. 56 (1).

89. The story of Ben-Yair’s fight against the Romans was recorded by Josephus Flavius, The Wars of the Jews, published in Greek between the years 75-79. An English translation appears in Josephus Flavius, Complete Works (Grand Rapids: Kregel, 1960), trans. William Whiston, 599.

90. Yigael Yadin wrote: “With the national revival in Eretz Yisrael … Masada became a symbol of supreme courage and national sacrifice.” See Ha’encyclopeadia ha’Ivrit [Encyclopaedia Hebraica] (Jerusalem: Hevra le’hotza’at encyclopeadiot, 1972), 24: 104 (entry: “Metzada [Masada]”). Yadin has also written, “It is thanks to Ben Ya’ir and his comrades … that they elavated Masada to an undying symbol of desperate courage, a symbol which has stirred hearts throughout the last nineteen centuries.” See Yigael Yadin, Masada—Herod’s Fortress and the Zealots’ Last Stand (London: Weidenfeld and Nicolson, 1966), 201. See also Pnina Hilman and Amnon Magen, Metzada ke’erech hinuchi [Masada as an Educational Value] (Efal: Yad Tabenkin, 1986). Another writer wrote that by their death the fighters of Masada ignited “a flame which would illumine Jewish history in the future,” which sent us “a message of independence and pride, of devotion to a purpose and dedication to principles. This is an example of bravery and national vision.” It has also been called a symbol of revival that “served as the flag for Zionism.” See Micha Livneh, Maoz aharon: Ha’sipur shel Metzada ve’anasheyha [The Last Fortress: The Story of Masada and Its People] (Tel Aviv: Ministry of Defence, 1987), 198. For a comprehensive study of the ethos of Masada in the Zionist ideology, see Yael Zerubavel, Recovered Roots (Chicago: University of Chicago Press, 1995).

91. While he did not hide the sense of shame at “the humiliation of dying without fighting back, without making any attempt to protect the honour of the person, and the nation, if his life could not be saved,” Yitzhak Greenbaum, a well-known Zionist leader, praised the rebels of the Warsaw Ghetto, as “the Masada heroes of Poland.” See Yitzhak Greenbaum, Biymey hurban ve’Shoa, 1940-1945 [In the Days of Destruction and Holocaust 1940-1946] (Jerusalem: Private publication by friends, 1946), 78-92. The Educational Branch of the Israeli Air Force initiated a book, Lo nichna’nu—Ha’amida ha’yehudit ba’Shoa [We Have Not Surrendered—The Jewish Resistance During the Holocaust] (Tel Aviv: Ministry of Defence, 1985), which was written by Aryeh Barnea. This book was designed to provide an answer to “the question which most preoccupies an Israeli who is not a Holocaust survivor … why did the Jews go to their death like sheep to the slaughter?” The link of the ghetto uprising to the Masada ethos was expressed by several writers. Thus, H. Lazar-Litai entitled his book on the Warsaw Ghetto uprising, Metzada shel Varsha—Ha’irgun ha’tzvai ha’yehudi be’mered Gettho Varsha [Masada of Warsaw—The Jewish Military Organization in the Warsaw Getto Uprising] (Tel-Aviv: Jabotinski Inst., 1963).

For the Masada legacy as “a counter-Holocaust model,” see Zerubavel, Recovered Roots, 70-76. Idit Zertal points out the similarity of the Warsaw Ghetto uprising to the Masada uprising: not only did the few fight the many in a lost battle, most of the fighters fell and the reminders died in the headquarters bunker, several of them, including their commander committing suicide. See Zertal, “Ha’meunim ve ha’kedoshim: Kinuna shel marteriologia leumit [The Sacrificed and the Sanctified: The Constitution of a National Martyology],” Zemanim 48 (1994): 28, 35. Zertal also points out the fact that the Yishuv in Palestine adopted the Ghetto uprisings as stemming from Zionist heritage manifested in Eretz Yisrael. She regards this act as making up for the passivism of the Yishuv in view of the Holocaust horrors (ibid., 35-36). A similar stand was taken by Hannah Arendt in her report on the Eichmann trial. She accused the prosecution of elaborating on the uprising in the Ghettos though this matter “had no connection whatever with the crimes of the accused.” Moreover, she detected “the political intention of the Israeli government in introducing it.” This was “to demonstrate that whatever resistance there had been had come from Zionists, as though, of all Jews, only the Zionists knew that if you could not save your life it might still be worth while to save your honor.” See Hannah Arendt, Eichmann in Jerusalem (New York: Viking Press, 1963), 107-8. See, however, Helen Fein, Accounting for Genocide: National Responses and Jewish Victimization during the Holocaust (New York: The Free Press, 1979), 320-21.

92. This dichotomy was also reflected in the Jewish leadership in Eretz Yisrael. When it appeared that the German army would occupy Palestine, Moshe Shapira opposed guerrilla actions against it. It was his view that it would be better to live, even if only in a ghetto. In contrast, Yitzhak Greenbaum stated that “if, God forbid, we arrive at a time of invasion, we must at least ensure that a ‘Masada’ legend is left after us, and we must not resemble the Jews of Germany and Poland, as in such a case there will never be a revival of Zionism.” See Uri Brener, Nochah iyum ha’plisha le’Eretz Yisrael ba’shanim 1940-1942: Mekorot ve’e’duyot [In Face of the Threat of the German Invasion of Palestine in the Years 1940-1942: Sources and Testimony], 2d ed. (Efal: Yad Tabenkin, 1984), 106-7.

93. Between March and September 1944, thirty-two parachutists, members of the Hagana landed in Nazi-occupied territories. They were supposed to gather information for the British intelligence, to encourage the Jews in those countries, and possibly organize them for resistance. Three of the parachutists reached Hungary. Hanah Senesh was arrested immediately and her two comrades were under surveillance. One of them, Peretz Goldstein, hid in a camp where the Jews designated to embark on the “prominents” train were held. The Germans were aware of his presence there and threatened to send the train with all its passengers, including Goldstein’s parents, to Auschwitz if Goldstein did not surrender to them. Kastner met with him and presented him with the harsh dilemma. Following their conversation, Goldstein gave himself in to the Gestapo, was tortured, and eventually perished. See Weitz, Ha’ish she’nirtzah pa’a’mayim, 39-40. Hannah Senesh was tried and executed by the Hungarian authorities. Her mother, Katherine, appeared as a witness for the defense in the Gruenwald case and testified that Kastner refused to assist her daughter, or even meet with her. It is noteworthy that the Goldstein dilemma—should a Jewish community hand over one of its members to the oppressor to be killed or take the risk of all the community perishing—has been extensively dealt with in Halachik literature. See David Daube, Collaboration with Tyranny in Rabbinic Law (London: Oxford University Press, 1965); idem, “Appeasing or Resisting the Oppressor,” in Appeasement or Resistance, and Other Essays on New Testament Judaism (Berkley: University of California Press, 1987), 75. This dilemma was sharpened during the Holocaust when seemingly conflicting Halachic responses were given. See Isaiah Trunk, Judenrat: The Jewish Councils in Eastern Europe under Nazi Occupation (Lincoln: University of Nebraska Press, 1966), 420-36 (originally published in 1972 by Macmillan, New York). See, however, Abraham Fuchs, Ha’Sho’a be’mekorot rabaniyim (Shut u’derashot) [The Holocaust in Rabbinic Sources (Responses and Sermons)] (Jerusalem: by the author, 1995), 329-32; Shlomo David Bleich, “Gidrei mesira ve’hatzala (Tnu lanu ehad mikem) [Restrictions on Handing Over and Rescue (Hand Us Over One of You)],” Tora she’be’al’pe [The Oral Law] 26 (1985): 133-40. See also Melech Westreich, “One Life for Another in the Holocaust: A Singular Point for the Jewish Laws,” 1(2) Theoretical Inquiries in Law (forthcoming, 2000). This conflict arose also in the case of Hirsh Bernblat (Cr/App. 77/64 Hirsh Bernblat v. The Attorney General, 18(2) P.D. 70. The District Court, convicting Bernblat, declared that there was no justification, under the Nazi and Nazi Collaborators (Punishment) Law, for the surrender of even a single Jewish soul in order to save several Jews. In quashing the conviction, the Supreme Court declared that it was justified to sacrifice the few in order to save the many. Moreover, it would have been justified to choose to save the few from immediate death at the price of subjecting the many to possible death in the future; ibid., 85-86, per Cohn, J.

94. The marginal nature of this detail may be learned from the fact that Halevy only imposed “a symbolic penalty” on Gruenwald, namely, a fine of one lira (one Israeli pound). In contrast, the judge ordered the State to pay Gruenwald the sum of two hundred lira “as part of his defence costs,” in view of the fact that “there was no basis for bringing charges on the three particulars”; Attorney-General v. Gruenwald, 241.

95. Attorney-General v. Gruenwald, 114.

96. Ibid.

97. Ibid.

98. Ibid., 112.

99. Ibid., 51.

100. Even the murder was not free of rumors and accusations to the effect that the Israeli Security Services were involved in the act in order to silence Kastner and prevent him from disclosing embarrassing details about the alleged connections of the Mapai leadership with Nazi Germany. This rumor has been cultivated by the fact that one of the three youngsters convicted of the murder was connected in the past with the Israeli Security Services and was sent as an informer to a group, which was connected with the “Sarafend underground.” He was probably won over by the ideology of that group and joined it. See Segev, Seventh Million, 308-9; Weitz, Haish shenirtzah pa’amayim, 327-28; Joel Brand and Hansi Brand, Hasatan ve’hanefesh [Satan and the Soul] (Tel Aviv: Ladori, 1960), ed. Benjamin Gepner, 13, 206-7. Isser Harel, who headed the secret services at the time, published a book that was intended to repudiate these allegations. See Harel, Ha’emet al retzah Kastner. Sulam, the organ of an extreme right-wing group, on the other hand, regarded the accusations on that group “a continuation of the blood-libel, the origins of which lie in the dark days of the assassination of Haim Arlosoroff.” See Weitz, Ha’ish she’nirtzah pa’a’mayim, 336. See also Abba Ahimeir, “Ha’ne’e’sham ha’sheni [The Second Accused],” in Ha’ne’e’sham ha’sheni, ed. Nedava, 41, 43.

Hannah Arendt’s version, as if the assassination was an act of survivors of the Hungarian catastrophe, is groundless. See Arendt, Eichmann in Jerusalem, 127. So also is her statement that the assassination followed the Supreme Court judgment.

101. In his judgment on appeal, Justice Agranat stated that as Gruenwald had been convicted in the District Court in respect of the publication that was the subject of the charges against him, “the question could have arisen whether the Attorney-General had the right to appeal against the judgment at all.” However, “counsel for the Respondent declared, at the beginning of the hearing, that he did not intend to raise any formal objection in this matter, because his client was interested, first and foremost, in obtaining a decision of this Court, which confirms the position of the President in relation to the justification of the three particulars of defamation, the dissemination of which was lawful”; Appeal, Attorney-General v. Gruenwald, 2022. This was after Tamir “did not succeed in preventing the submission of the appeal.” See Weitz, Ha’ish she’nirtzah pa’a’mayim, 321.

102. Appeal, Attorney-General v. Gruenwald, 2253.

103. Silberg, Appeal, Attorney-General v. Gruenwald, 2216; Agranat, ibid., 2084.

104. Appeal, Attorney-General v. Gruenwald, 2281. In his book, A Kasztner-Akci (Budapest, 1995), the historian Peter S. Nagy, asks: “Who really was Dr. Rezco Kastner? ‘The Devil’s advocate,’ the betrayer of Judaism, the mysterious murderer of millions of victims, or a new Messiah, the saviour of many thousands of Hungarian Jews … who almost alone began to fight Eichmann and the murderers of the S.S.?” (The quotation is from the Hebrew translation: Mivtza Kastner [The Kastner Operation][Tel-Aviv: Yaron Golan, 1977], trans., Zvi Herman, 7.)

105. Appeal, Attorney-General v. Gruenwald, 2312.

106. Ibid.

107. Ibid.

108. Ibid., 2313.

109. Ibid., 2312.

110. Ibid. In order to clarify the inability to judge Kastner’s acts, the judge referred to historical events that have been subjected to changing views over the years. This was so, for example, in the case of Shabtai Zvi, who was once regarded as “the righteous and holy Messiah,” and later as a “fraud and charlatan … who sold his soul to the devil.” This was also the case with Dreyfus, who was once considered by everyone to be “a traitor and spy and informant for the enemy,” and after many years “when the truth became known”—the attitude to him changed; ibid., p. 2313.

111. Ibid., 2215.

112. Ibid.

113. Ibid., 2022.

114. Ibid., 2058. Similarly, Cheshin warned against experts, who in hindsight, understand “the strategic routes and means of escape,” and know today what was the best route to adopt at the time; ibid., 2301.

115. Ibid., 2059. In her book, Lahav emphasized that whereas Agranat was not personally injured in the Holocaust, Silberg lost his entire family; see Judgment in Jerusalem, 128, 157.

116. Appeal, Attorney-General v. Gruenwald, 2068.

117. Ibid., 2072.

118. Ibid., 2073. Similarly, Cheshin points out that “there is praiseworthy cooperation … if it is not accompanied by malicious intent and evil thoughts”; ibid., 2284.

119. Ibid., 2088-89. Chesin joins this conclusion and notes that the “prominent agreement” was one link in a chain of rescue efforts made by Kastner. These efforts included—concurrently with the comprehensive effort in the affair known as “blood for goods”—”supplying means to search for ways of escape, the transfer of Jews to work camps or detention camps and keeping Jews in ‘compounds’, in the hope that eventually they too would be saved.” By this, Cheshin was referring to the “Strasshoff camp affair”—a camp that was established near Vienna, to which 15,000 Hungarian Jews were transferred, and who, in the words of Kastner, “were placed on ice” ready to be exchanged for goods that Brand would bring from his mission; ibid., 2300-2301. Halevy dismissed Kastner’s version and held that “the transports to Austria were not the result of any agreement whatsoever between Kastner and Eichmann”; Attorney-General v. Gruenwald, 117. Bauer tends to attribute the Strasshoff rescue operation to parallel negotiations with S.S. officers by Kastner, as well as by representatives of the Hungarian Jewish Orthodoxy, though he states that it is hard to form a decisive conclusion; Bauer, “The Negotiations,” 14, 36. Dov Dinur credits Kastner with an impressive list of rescue activities. See Dinur, Kastner: Giluyim hadashim al ha’ish u’poalo [Kastner—Leader or Villain] ( Haifa: Gestlit, 1987), 36-79.

120. Attorney-General v. Gruenwald, 112.

121. Appeal, Attorney-General v. Gruenwald, 2179. Silberg suggested another comparison: “If the manager of a large hospital allows thousands of patients to die so as to devote himself to the certain saving of one person, he is guilty, at least from the moral point of view, even if it appears that he, from an individual point of view, believes erroneously that all hope of saving the other patients has been lost. He will be cooperating with the Angel of Death. A fortiori in the case before us, where reference is not to an expert manager and lay patients, but to a normal man who—in relation to the rescue of individuals—did not understand, and could not understand, more than all the other thousands of individuals”; ibid., 2251-52.

122. Ibid., 2080-81. Justice Cheshin has no doubt that where “a man sees that a whole group is destined for death … he may seek to save a few, even though part of that effort involves concealing the truth from the many.” In his view, “What do we gain by the blood of a few if all are sent to their deaths?”; ibid., 2302.

123. Ibid., 2251.

124. Ibid., 2252.

125. From the comments of Justice Cheshin, ibid., 2308.

126. Ibid., 2216.

127. Ibid., 2254.

128. Ibid., 2308.

129. Ibid., 2309.

130. Ibid.

131. Ibid.

132. Segev, Seventh Million, 273-74.

133. Appeal, Attorney-General v. Gruenwald, 2308.

134. Attorney-General v. Gruenwald, 86-88.

135. Cited by Weitz, Ha’ish she’nirtzah pa’a’mayim, 290.

136. Appeal, Attorney-General v. Gruenwald, 2050-51.

137. Ibid., 2175-76.

138. Ibid., 2308.

139. Ibid., 2055.

140. Ibid., 2056-57.

141. Cf. the comments of Justice Silberg, ibid., 2217.

142. Ibid., 2057, per Agranat. Goitein notes that our knowledge today is limited: we do not know whether Eichmann is alive and whether he drew up an account of his dealings with Kastner. However, one may assume that numerous German documents exist “which may shed light on the actions of Dr Kastner at the time,” except that these “are not available to us”; ibid., 2312.

143. Ibid., 2058.

144. Ibid., 2216, per Justice Silberg.

145. Cf. the comments of President Kahan in Alon v. the Government of Israel, 455-56, and the remarks of Justice Elon, ibid., 465.

146. Appeal, Attorney-General v. Gruenwald, 2254.

147. Ibid., 2280.

148. Ibid., 2317.

149. Ibid., 2057-58. Agranat pointed to the fact that the government of Holland followed this path in appointing a committee comprising a historian and two foreign ministry officials in order to investigate the rescue work performed during the war by Dr. Kirsten, Himmler’s doctor.

150. Weitz, Ha’ish she’nirtzah pa’a’mayim, 281.

151. Ibid., 284-85.

152. In the meantime, an additional demand was made, namely, to establish a commission of inquiry to examine the question “who” stood behind the murder of Kastner. See the judgment given by Justice Ben-Porat in Alon v. the Government of Israel, 461.

153. See Weitz, Ha’ish she’nirtzah pa’a’mayim, 352-56; idem, “Was Israel Kastner a Hero?” 273-87; Dinur, Kastner, 141. Historical irony marked the end of Tamir’s public life. In May 1985 he was nominated, by the then Defence Minister Yitzhak Rabin, to head the negotiations with the extreme terrorist group of Ahmed Jibril for the exchange of terrorists with Israeli soldiers held by that organization. These negotiations ended with the exchange of 1,100 terrorists for 3 I.D.F. soldiers. The fact that Tamir represented an independent strong Jewish state did not save him from negotiating for the lives of its men; see Weitz, Ha’ish she’nirtzah pa’a’mayim, 355.

154. Segal, “Va’a’dat hakira,” 207.

155. Salmon, Tribunals of Inquiry, 21 [329].

156. Maoz, “Kastner,” 287.

157. Appeal, Attorney General v. Gruenwald, 2254. Cf. Justice Landu’s opinion in the Bernblat case, 101.

158. Weitz, Ha’ish she’nirtzah pa’a’mayim, 259. Ben-Gurion’s position, as expressed in this passage, is different from the position taken by the Zionist leadership in Palestine toward the victims during the dark days of the Shoa. Their attitude was not different substantially from Tamir’s. Yitzhak Greenbaum, chairperson of the Rescue Committee and a former leader of the Polish Jewry, lamented: “The human image was wiped off from the Polish Jews and from the Jews who were expelled there … “; Zertal, “Ha’meunim ve ha’kedoshim,” 36. The editor of the organ of the Labor Movement regarded the death of the masses who went passive and submissive to their death as a “not nice” one, while the death of the rebels who defended themselves was “a nice death” in which they gained eternal fame. Ben-Gurion himself praised the Warsaw Ghetto heroes who “learned the new doctrine of dying a heroic death” from the defenders of the settlements in Palestine. Ibid. See also above, note 91.

BY: ASHER MAOZ

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