Punishing International Crimes committed by the persecuted: The Kapo trials in Israel (1950s-1960s)

Journal of International Criminal Justice

Volumn 4, Issue 1, 2006, Pages 128-178

  Ben Naftali, Orna ^a   Tuval, Yogev ^a  

^a The College of Management ^*  (Israel)

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EID: 33645018160     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqi022     Document Type: Article

References (271)

1. Attorney General v. Eichmann, 36 International Law Reports (ILR) (Dist. Ct) (1968) 18 (hereinafter 'Eichmann trial')
2. Eichmann v. Attorney General, ibid., 277 (Isr. Sup. Ct) (hereinafter 'Eichmann Appeal').
3. Nazi and Nazi Collaborators (Punishment) Law, 1950, 4 Laws of the State of Israel (LSI) (1949-50) 154.
4. In the Israeli collective consciousness has been inscribed since then, the infinity of the loss and the related internalization of a victim position as the most fundamental edict of Israel's civil religion: A term coined to represent the public and official dealing with the Holocaust by C. Lieberman and E. don-Yehiya, Civil Religion in Israel (Berkley/New York/London: Berkeley Univ. Press, 1983), 100-107, 137-135.
5. There are very few publications in Hebrew, mostly written by historians, which discuss these trials. See T. Segev, HaMilion HaShvi'I (The Seventh Million) (Jerusalem: Keter Publishing House and Domino Press, 1991), 246-247
6. I. Zertal, Ha'Um'ma Ve'ha'mavet (Death and the Nation: History, Memory, Politics) (Or Yehuda: Dvir, 2002), 81-133
7. H. Yablonka, 'Ha'hok Le'asiyat Din Ba'natzim Ve'ozreihem' (The Nazi and Nazi Collaborators Law: Another Aspect of the Question of Israelis, the Survivors and the Holocaust), 82 Cathedra (1997) 135
8. Y. Weitz, 'Ha'hok Le'asiyat Din Ba'natzim Ve'ozreihem Ve'Yahasa Shel Ha'Hevra Ha'Ysraelit Be'Shnot Ha'Hamishim La'Shoah Ve'Nizoleyha' (The Nazi and Nazi Collaborators Law and the Attitude of the Israeli Society in the 1950s to the Holocaust and Its Survivors), 153. There is also a documentary film, by Dani Siton and Tor Ben-Mayor, Kapo (2000). The subject is not part of the curriculum in the Israeli educational system. Indeed, over the past four years, we have regularly asked students at the law school whether they are familiar with these trials. Not one person was aware of them. In English, we have found a reference to these cases in one article and a citation of two such cases in a judgment by the international Criminal Tribunal for the Former Yugoslavia (ICTY).
9. See J. Wenig, 'Enforcing the Lessons of History: Israel Judges the Holocaust', in T.L.H. McCormack and G.J. Simpson (eds), The Laws of War Crimes: National and International Approaches (The Hague/Boston: Kluwer Law International, 1997), 103, 118-121
10. See ICTY, Kupreskić (IT-95-16), Trial Chamber II, 14 January 2000, §564, respectively.
11. Other than Eichmann, the only non-Jew tried on the basis of the Nazi and Nazi Collaborators Law during the 1950s to the mid-1960s was the Slovakian priest, Banjek. The reason for his presence in Israel is attributed to a bitterly ironic legal twist: The lack of a legal basis for the trial of Nazi criminals, until the adoption of the Nazi and Nazi Collaborators Law in August 1950, encouraged some Nazi and non-Jewish Nazi collaborators to seek refuge in Israel. Banjek, who was charged with having been responsible for deportations of Jews to concentration camps, was one of them. See Yablonka, supra note 4, at 146
12. Weitz, supra note 4, at 154.
13. Between the mid-1960s and 1986, when Ivan Demjanjuk, the last person to date to have stood trial on the basis of this law, was tried, there were no such trials. See Cr.A. 347/88, Demjanjuk v. Israel, 47(4) Piskey Din (PD) 221.
14. The term 'Kapo' refers to inmates in Nazi Lagers and ghettos (Jews and non-Jews) who were appointed by the Nazis to serve in various functions, mainly in the areas of discipline, order, policing and hygiene amongst the inmates. The term 'Judenrat' refers to the Jewish councils under the Nazi occupation. See I. Trunk, Judenrat: The Jewish Councils in Eastern Europe Under Nazi Occupation (New York: Macmillan, 1972). The reference to the 'Kapo trials'throughout this article incorporates all the Jewish functionaries who stood trial in Israel for having collaborated with the Nazis, as most of them were Kapos.
15. P. Levi, The Drowned and the Saved (R. Rosenthal trans., New York: Vintage Books, 1989), 40-42 (hereinafter 'The Drowned and the Saved'). 'The Drowned and the Saved' already appears as a title of a chapter in Levi's earliest memoirs of Auschwitz. See P. Levi, Survival in Auschwitz: The Nazi Assault on Humanity (Stuart Woolf trans., New York: Touchstone, 1996), 87-100 (originally appeared in English under the better title: If This is a Man).
16. Article 1(a)(1) and (b) defines the following seven acts as comprising such crimes, if committed (a) during the period of the Nazi regime (Art. 16 specifies that 'the period of the "Nazi regime" means the period which began on the 3rd Shevat, 5693 (30 January 1933) and ended on the 25th Iyar, 5705 (8 May 1945)); (b) in an enemy country (Art. 16 defines 'enemy country' as Germany during the period of the Nazi regime; any other Axis state during the period of the war between it and the Allied Powers; any territory which. during the whole or part of the Nazi regime was de facto under German rule and for its duration; and any territory which was de facto under the rule of any other Axis state during the whole or part of the period of the war between it and the Allied Powers and for the duration of such rule); and (c) with intent to destroy the Jewish people in whole or in part: (1) killing Jews; (2) causing serious bodily or mental harm to Jews; (3) placing Jews in living conditions calculated to bring about their physical destruction; (4) imposing measures intended to prevent births among Jews; (5) forcibly transferring Jewish children to another national or religious group; (6) destroying or desecrating Jewish religious or cultural assets or values; (7) inciting hatred of Jews.
17. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 United Nations Treaty Series (UNTS) 277.
18. Israel signed the Genocide Convention on 17 August 1949 and ratified it on 9 March 1950. See Kitvei Amana No. 5 of 15th Kislev, 5710 (6 December 1949), 66.
19. The Crime of Genocide (Prevention and Punishment) Law, 1950, 4 LSI (1949-50) 101.
20. Note that the Convention was incorporated with one major change: The imposition of a death penalty (and a minimum sentence of ten years). This is significant as, at the time, the discussion, which eventually led to the abolition of the death penalty in Israel in 1954, was already underway. Israel abolished capital punishment in 1954 for all crimes except crimes under Art. 1 of the Nazi and Nazi Collaborators Law, and treason in time of war, defined in Arts 97-99 of the Israeli Penal Law (1977), and in Art. 43 of the Israeli Military Penal Law (1955). See Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 8 LSI (1954) 63.
21. This nexus is evident already in the founding document of the state of Israel, its Declaration of Independence. See Declaration of the Establishment of the State of Israel, 1 LSI (1948) 3,
22. wherein it defines itself as a 'Jewish' as well as a 'democratic' state. Later laws reiterated this link, most notably the Law of Return, 1950, Sefer Hahukim (SH) 51, and the Basic Law: Human Liberty and Dignity, 1992, SH 1391.
23. Charter of the International Military Tribunal, 59 Stat. 1544, 82 UNTS 279, EAS No. 472.
24. Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, 31 January 1946 (hereinafter 'CCL No. 10').
25. The IMT held that in order to constitute crimes against humanity, such acts 'must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal', meaning that crimes against humanity were only cognizable when undertaken in connection with crimes against peace or war crimes. Thereby, acts committed prior to 1 September 1939 were excluded from the jurisdiction of the IMT. See United States v. Hermann Goering et al. (indictment), reprinted in 1 Trial of the Major War Criminals Before the International Military Tribunal (1948), 27, 498 (hereinafter 'Nuremberg Judgment').
26. See also M. Lippman, 'Crimes Against Humanity', 17 Boston College Third World Law Journal (1997) 171, 1788
27. Q. Wright, 'The Law of the Nuremberg Trial', 41 American Journal of International Law (1947) 38, 61-62
28. B. Van Schaack, 'The Definition of Crimes Against Humanity: Resolving the Incoherence', 37 Columbia Journal of Transnational Law (1999) 787, 804.
29. CCL No. 10 did not contain such a requirement, but was nevertheless construed by some of the tribunals as retaining a nexus to the war. See, e.g. United States v. Friedrich Flick, reprinted in VI Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council No. 10 (1942) 1187, 1213.
30. Other tribunals, on the other hand, held that CCL No. 10 had in fact severed the link between the two. See United States v. Josef Altstoetter, reprinted in III Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council No. 10 (1951) 954, 974.
31. This is evidenced in Art. 1(b)(6): 'destroying or desecrating Jewish religious or cultural assets and values'. The preparatory work discloses that the drafters were aware that the Genocide Convention did not include such acts within its definition of the crime, and decided on such inclusion in the definition of the crime to emphasize the unique nature of the Jewish genocide, which encompassed not only the physical but also the cultural existence of the Jewish people. See Protocol B/2 of the meeting of the sub-committee for the Nazi and Nazi Collaborators Law, 12 June 1950, 3.
32. On 'cultural genocide', see also M. Lippman, 'The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later', 15 Arizona Journal of International and Comparative Law (1998) 415.
33. The latest determination, to the effect that neither the Genocide Convention nor customary international law includes a prohibition on cultural genocide, was made by the ICTY's Appeals Chamber in the Krštić case. See Judgment, Krštić (IT-98-33), Appeals Chamber, 19 April 2004, §25.
34. Indicated in Art. 1(b)(7): 'inciting to hatred of Jews'. Note that 'incitement to hatred' is quite distinct from 'incitement to genocide': while the latter is the only form of incitement under criminal international law that is punishable, even if not followed by the commission of the crime, it is nevertheless far narrower than 'incitement to hatred' of a particular group. It is interesting to note that while hatred, as such, is not a crime under international law, the latter advances its incorporation into domestic criminal law. See Art. 20 of the International Covenant on Civil and Political Rights (ICCPR, 966) which states: Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.'
35. See, e.g. 3 Divrey Knesset (Parliamentary Records) (hereinafter 'PR'), 26 December 1949, 317 (Haim Ben-Asher, MP; Pinkhas Rosen, Minister of Justice).
36. Meeting of the Constitution, Law and Justice Committee, 6 PR, 14, 17, 29 March 1950, 2353-2365.
37. A point underscored by the temporal proximity of both laws: The Nazi and Nazi Collaborators Law was brought before the Knesset for a first vote on 29 March 1950, a mere two days prior to the final adoption on the Law for the Prevention and Punishment of the Crime of Genocide.
38. See discussion in supra note 15.
39. Article 16 defines the 'period of the Second World War' as the period which began on 1 September 1939 and ended on 14 August 1945.
40. It is clear from the text, from the preparatory work (36 Hatza'ot hok (Legislative Proposals), 28 February 1950, 122 (hereinafter 'LP')), and from the parliamentary debates which preceded the Law's enactment (20 PR mtg no. 131 (first vote) 27 March 1950, 1147
41. ibid. mtg. no. 173 (second and third vote), 1 August 1950, 2393) that the Israeli legislator intended to echo the definitions of both 'crimes against humanity' and 'war crimes' as they existed in the Charter of the IMT.
42. Yet, it is important to note that the attachment of a mandatory death penalty to these offences deviates from Art. 27 of the Charter of the IMT. The latter authorized, but did not mandate, the Tribunal to issue this penalty (Art. 27 IMT Charter: 'The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just'). Given that there are various degrees of acts which may fall under the broad headings of these crimes, the imposition of a mandatory death penalty is as problematic as it is perplexing. This is particularly so in light of the fact that the original legislative proposal retained the permissive language of the Charter of the IMT, and that its substitution for a mandatory death penalty entailed neither an explanation nor a parliamentary debate. See Mouflah, 'Ha'hok Le'asiyat Din Ba'natzim Ve'ozreihem (Toldot Kishalon Ha'rutz)' ('The Nazi and Nazi Collaborators Law 1950: The Chronicle of a Complete Failure'), 9 Hapraklit (1952/53) 61, 65-66 (in Hebrew). The Parliamentary discussions debates did explain the rationale for a death penalty for such offences but failed to explain its mandatory imposition or discuss its implications given the diverse severity of acts that may be construed as constituting these offences.
43. Article 3 of the Nazi and Nazi Collaborators Law.
44. See Arts 9 and 10 IMT Charter, supra note 13.
45. See Art. II(d) CCL No. 10, supra note 14.
46. The IMT designated seven Nazi organizations as criminal; see Judgment of October 1, 1946, International Military Tribunal Judgment and Sentence, 41 American Journal of International Law (1947) 172, 252.
47. Article 3(b)(2) of the Nazi and Nazi Collaborators Law.
48. See 20 PR mtg no. 131, supra note 23, at 1150 (Arie Sheftel, MP).
49. See, supra note 6.
50. It is interesting to note that Art. 2 requires that the criminal offences be directed against 'a persecuted person as a persecuted person', whereas Art. 4, which is concerned with felonies, acts of a lesser severity, requires that they be directed at 'a persecuted person', but omits the requirement of 'as a persecuted person'. The logic behind this distinction is not clear, as the net result may be that he who commits a criminal offence against a persecuted person in a place of confinement, without there being evidence of the special intent to commit the act 'against the persecuted person as a persecuted person', would be convicted only of a felony. It seems more reasonable to provide higher, not lesser, protection to a persecuted person in place of confinement. The explanation may be that the legislator assumed that a persecuted person in a place of confinement is, ipso facto, 'a person persecuted as a persecuted person'
51. This offence is defined in Art. 5 as follows: 'A person who during the period of the Nazi regime, in an enemy country, was instrumental in delivering up a persecuted person to an enemy administration, is liable for imprisonment for a term not exceeding ten years.'
52. Protocol A/2 of the meeting of the sub-committee for the Nazi and Nazi Collaborators Law, 23 May 1950, 8 (Mr H. Wilkenfeld, representative of the Ministry of Justice) (unless otherwise indicated, translation of citations from preparatory work documents and from judicial decisions is ours).
53. The argument advanced for lack of distinction was articulated by the representative of the Ministry of Justice as follows:'...it would be difficult to do so. Assuming a Nazi in a concentration camp used to hit people and in the same camp a Jewish kapo used to do the same thing, how could we have different provisions apply to each of them.' (The proposal was made by MP Werhaftig; it was countered by Mr Winkelfeld, ibid., at 8-9.) Thus, this lack of distinction does not reflect an oversight; it signifies a deliberate decision to conflate these offences.
54. The preparatory work discloses that it was inserted into the Nazi and Nazi Collaborators Law to appease the one member of the legislative subcommittee whose proposal to distinguish between the Nazis and prosecuted persons in the substantive definitions of the crime was rejected: Ibid., at 4.
55. The two grounds for mitigating punishment are:'(a) that the person committed the offence under conditions which... would have exempted him from criminal responsibility or constituted a reason for pardoning the offence, and that he did his best to reduce the gravity of the consequences of the offence; (b) that the offence was committed with intent to avert, and was indeed calculated to avert, consequences more serious than those which resulted from the offence; however, in the case of an offence under section 1, the court shall not impose on the offender a lighter punishment than imprisonment for a term of ten years.'
56. Article 8. Note, however, that this exclusion is mitigated in Arts 10 and 11.
57. Article 9.
58. Article 12.
59. Article 13.
60. Article 15.
61. See supra note 23.
62. See, e.g. Australia, War crimes Act 1945, No. 48, 1945
63. Canada, War Crimes Act 1946, SC 1946, c. 73
64. Federal Republic of Germany, German Criminal Code, § 220A and 211
65. Ninth Criminal Law Amendment Act, 4 August 1969, Art. 1
66. France, Ordonnance of 28 August 1944, Art. 1, Law No. 64-1326 of 26 December 1964, Sole Article;
67. Soviet Union, Decree of the Presidium of the USSR Supreme Soviet, 4 March, 1965.
68. Only high-ranking Nazis, who were considered to be major war criminals, were indicted under the IMT Charter. See generally L. Sadat Wexler, 'The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again', 32 Columbia Journal of Transnational Law (1994) 289, 306
69. S. Fogelson, 'The Nuremberg Legacy: An Unfulfilled Promise', 63 South California Law Review (1990) 833
70. M. Lippman, 'Nuremberg: Forty-Five Years Later', 7 Connecticut Journal of International Law (1991) 1, 45-46.
71. E.g. The Netherlands Penal code, Art. 27a;
72. Poland Decree of 31 August 1944, Law of 22 April 1964, Art. 1.
73. E.g. Australia, War crimes Act 1945, No. 48, 1945
74. Canada, War Crimes Act, 1946, SC 1946, c. 73
75. War Crimes Regulations (Canada), Art. 2(f). Note that Canada enacted in 1987 an act to amend the Criminal Code, The Immigration Act, and the Citizenship Act, giving Canadian courts jurisdiction to try acts which constituted war crimes and crimes against humanity, see Act to amend the Criminal Code, the Immigration Act, 1976 and the Citizenship Act, SC 1987, c. 37
76. Ibid., Art. 1
77. Criminal Code, RSC 1985, c. C-46, as amended, s. 7, and also enacted recently the Crimes Against Humanity and War Crimes Act, SC 2000, C. 24
78. Australia also adopted similar legislation in order to prosecute war criminals under ordinary criminal courts, see War Crimes Amendment Act 1988, No. 3,1989.
79. E.g. Canada, since 1987
80. Australia, since 1989, ibid.
81. E.g. UK; see, e.g. R. v. Steane [1947] 1 All England Law Reports 813, [1947] King's Bench 997. Steane was accused of committing an act likely to assist the enemy (Nazi Germany) with intent to assist the enemy, or causing grievous bodily harm with intent to do some grievous bodily harm, Offences against the Person Act 1861, s. 18.
82. Note that later on, the UK enacted in 1991 a specific act, defining specific offences, such as murder, manslaughter or culpable homicide, committed in violation of the laws and customs of war in German or German-held territory, retroactively (between 1 September 1939 and 5 June 1945), see s. 1(1)(a)(b) of the War Crimes Act 1991, 'Public General Acts and Measures of 1991'. at 1-83.
83. E.g. Poland Decree of 31 August 1944, Law of 22 April 1964, Art. 1 Canada, War Crimes Act 1946, SC 1946, c. 73
84. Australia War crimes Act 1945, No. 48, 1945.
85. E.g. Bulgaria Penal Code (1991), Arts 6, 93(11), chapter 4, available online at http://www.umt.edu/lawinsider/library/lawbyjur/bulgarpc.htm (visited 7 February 2005). Crimes against peace, crimes against customs and laws of war, genocide and apartheid, are incorporated in c. 4 of the Bulgarian Penal Code. These crimes can be applied retroactively, and there is no time limit for charging persons for these crimes.
86. Poignantly, MP Arie Sheftel, in commenting on the Draft Law during the parliamentary debate, said: 'It is as if the Nazi criminals committed the crime on Israeli territory', 20 PR mtg no. 131, supra note 23, at 1149 (emphasis added).
87. The term 'the other planet' was coined by the author, Ka. Tzetnik, in reference to Auschwitz as the prototypical site where human beings were subjected to a different set of laws of nature. This term is engraved in the Israeli collective consciousness. See Ka. Tzetnik, Salamandra (Tel-Aviv: Hakibbutz Hameuchad, 1987).
88. Most notably, Art. 25 of the Statute of the International Criminal Court (ICCSt.) enumerates the following bases of responsibility - perpetrator: he that orders, solicits, induces, facilitates, aids, abets, assists and contributes to or takes part in a common purpose to commit a crime. See Rome Statute of the International Criminal Court, adopted 17 July 1998, Arts 25, UN doc. A/CONF.183/9,1 July 2002.
89. See Judgment, Furundžija (IT-95-17/1), Trial Chamber II, 10 December 1998, § 190-249
90. Judgment, Kunarac (IT-96-23 and IT-96-23/1), Trial Chamber II, 22 February 2001, § 391-393
91. Judgment, Aleksovski (IT-95-14/1),Trial Chamber I, 25 June 1999, § 59-65
92. Judgment, Tadić (IT-94-1), Trial Chamber II, 7 May 1997, § 666-669
93. United Kingdom v. Tesch et al. (Zyklon-B Case), reprinted in I Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1946), 93
94. United States v. Otto Ohlendorf and Others (Einsatzgruppen Case), reprinted in IV Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10 (1949), 569-585
95. Judgment, Akayesu (ICTR-96-4), Trial Chamber I, 2 September 1998, § 691-694
96. United Kingdom v. Rohde et al, reprinted in V Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council No. 10 (1946), 56
97. United Kingdom v. Schonfeld et al, reprinted in XI Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council No. 10 (1946), 64
98. Judgment, Musema (ICTR-96-13-A), Trial Chamber I, 27 January 2000, § 111-126.
99. Judgment, Blaskić (IT-95-14), Trial Chamber I, 3 March 2000, § 278-282
100. Judgment, Kordic and Čerkez (IT-95-14/2), Trial Chamber III, 26 February 2001, § 377-388
101. Canada v. Kurt Meyer, reprinted in IV Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council No. 10 (1945), 840.
102. International criminal law usually admits no distinction between offenders on the basis of their national identity; whether they belong to an occupied or an occupying nation; whether they were victims or perpetrators; and indeed, as a matter of positive law, although not necessarily judicial practice, provides for no differentiation in the punishment of offenders on the basis of their role as principal or secondary culprits. See generally A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 179-183. An exception to this rule is the war crimes category, which traditionally distinguishes between the nationality of the perpetrator and that of his victim. This distinction, however, has gradually been abandoned in recent years, with the development of international rules concerning non-international conflict. Thus, the ICTY has construed the requirement found in Art. 4 of the Fourth Geneva Convention, that the nationality of the protected person be different from that of the enemy power, as irrelevant when the source of the rivalry is based on ethnic, not national, grounds.
103. See Judgment, Tadić (IT-94-1), Appeals Chamber, 15 July 1999, §168 (hereinafter 'Tadić Appeal')
104. Judgment, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, § 151-152
105. Judgment, Delalić (IT-96-21), Appeals Chamber, 20 February 2001, § 82-84.
106. Cr. A. 22/52, Honigman v Attorney General, 7 Pesakim Elyonim 336, 342-343 (hereinafter 'Honigman Appeal'). Parts of the judgment are reproduced in English in 18 ILR (1957) 543.
107. 20 PR mtg no. 131, supra note 23, at 1147-1148 (emphasis added) (translated from Hebrew).
108. See Yablonka, supra note 4, at 139.
109. See B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, rev. ed., 1991), 5-6.
110. Anderson notes that nations are imagined entities because 'the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion', ibid., at 6.
111. Rosen's call, at the end of his speech, 'let our camp be pure', underscores this point. The term is idiomatic in Hebrew and reflects a secularized version, quite commonly used in Israel, of a theological edict: 'For the Lord thy God walketh in the midst of thy camp... therefore shall thy camp be holy: That he see no unclean thing in thee, and turn away from thee', Deuteronomy 23:14.
112. See 20 PR mtg no. 131, supra note 23, at 1148-1149 (Mordechai Norok, MP). Norok was a Holocaust survivor, and he and others were expressing their innermost sentiments - sentiments that they believed represented those of the majority of the survivors' community.
113. See Yablonka, supra note 4, at 139-140.
114. See supra note 58.
115. See, e.g. 'Our point of view is that the purpose of this legislation is to take score with World War II's war criminals, people who committed crimes against humanity, and especially those who committed crimes against the Jewish people', PM Nachum Nir-Refalx, mtg no. 173 (second and third vote), 1 August 1950, 2393.
116. For a discussion of these two approaches, see generally Y. Elkana 'Be'Zechut Ha'Shihecha' ('On the Right of Forgetfulness'), HA'ARETZ, 2 March 1988, at 13 (Hebrew).
117. See text at supra note 58.
118. E.g. Minister of Justice Rosen further stated that 'The current law deals with the past. We will not forget nor forgive'. See similarly: 'It is our duty to cherish and respect the memory of our saints who delivered their soul in martyrdom.... We will admire and sanctify their memory, at least in this law', MP Mordecahi Nurok, 20 PR mtg no. 131, supra note 23, at 1147.
119. Ibid.
120. Ibid., at 1150 (Arie Sheftel, MP)
121. Zertal, supra note 4, at 96.
122. E.g. 'Just a few months ago I was in Germany, and I have seen this terrible sight of fifty thousands Jews still living in Germany, living in a disgusting and corrupt way. In spite of the decision of the Israeli government, the Jewish Agency and German political parties, and in spite of our decision here, those fifty thousands that reside in Germany have no intention of leaving.... As long as there are fifty thousands Jews in Germany, they are weakening and degrading the value and the honour of our people with its enormous historical grievance against the German people', Y. Kosoy (PM), 20 PR mtg no. 131, supra note 23, at 1147.
123. See M. Andre Bernstein, Foregone Conclusions: Against Apocalyptic History (Berkeley and Los Angeles, CA: University of California Press, 1994).
124. See discussion at text and supra notes 53-56.
125. See text in supra notes 33-34.
126. 'Collaboration applies to anyone who joins the Judenrat or become a kapo believing that thereby he would save himself. Furthermore, there is no person who would not admit that a kapo had to prove his loyalty to the Nazis... if one was a kapo for two or three years he could not have been anything but a criminal'; see meeting of the Constitution, Law and Justice Committee, supra note 19 (Eliezer Perminger, MP).
127. Meeting of the Constitution, Law and Justice Committee, supra note 19.
128. The origin of the metaphor 'as a lamb that is led to the slaughter' is in Isaiah 53, 7. The metaphor is often used in Israel to describe the Jews who perished in the Holocaust.
129. See Yablonka, supra note 4, at 137
130. Zertal, supra note 4, at 44-67.
131. See, e.g. D. Diner, 'Historical Understanding and Counterrationality: The Judgment as Epistemological Vantage', in D. Diner (ed.), Beyond the Conceivable: Studies on Germany, Nazism and the Holocaust (Berkeley and Los Angeles, CA: University of California Press, 2000).
132. Arendt felt the focus on rebellion, in so far as it applied only to exceptional people, was misplaced, whereas the possibility of lack of cooperation was open to ordinary people. Arendt's analysis, too, is controversial, as it is not proven that such lack of cooperation would have made a difference. See H. Arendt, Eichmann Be'Yerushalaim (Eichmann in Jerusalem: A Report on the Banality of Evil) (Arie Uriel trans., Tel-Aviv: Babel, 2000), 134-136, 240-241.
133. See Zertal, supra note 4, at 44-67, 96, 123-133
134. Weitz, supra note 4, at 159-161.
135. 20 PR mtg no. 131, supra note 23, at 1159 (Meir Villner, MP).
136. Ibid., at 1153. Note that MP Ari Jabotinski called for establishing a commission of inquiry in this context.
137. See Yablonka, supra note 4, at 146.
138. Cf. Segev, supra note 4, at 245
139. Zertal, supra note 4, at 100.
140. Cr. C.9/51, Attorney General v. Enigster, 5 Psakim (Dist. Ct) 152 (hereinafter 'Enigster')
141. Cr. C 2/52, Attorney General v. Tarnek, 5 Psakim (Dist. Ct) 142 (hereinafter 'Tarnek') (for excerpts from these two judgments in English, see 18 ILR (1957) 538-542).
142. Cr. A. 119/51, Pal v. Attorney General, 6 PD 498 (hereinafter 'Pal Appeal') (for excerpts from this appeal in English, see 18 ILR (1957) 542)
143. Honigman Appeal, supra note 57
144. Cr. A. 159/58, Hanoch Beisky v. Attorney General, 13 PD 1056
145. Cr. A. 77/64, Barnblatt v. Attorney General, 18(2) PD 70 (hereinafter 'Barnblatt Appeal').
146. In the Barnblatt Appeal, the last available record of these judgments, the Court determined the essential non-justiciability of such cases. See Barnblatt Appeal, supra note 86, at 101. It is reasonable to assume that this decision marked the end of these trials. Interestingly, in 1967, a request to initiate proceedings was rejected on the grounds of lack of public interest.
147. See Yablonka, supra note 4, at 151.
148. The sealing order was made pursuant to the Israeli Archive Law (1955), 1 Dinim 539.
149. The judgments are Honigman (note that with this judgment being available, this is the only case at present where a complete judicial record comprising both the decision in the first instance and the decision in the appeal is accessible); Cr. C. 7/51, Attorney General v. Friedman;
150. Cr. C 93/52, Attorney General v. Goldstein (hereinafter 'Goldstein'). The reference to these, as well as to records of oral testimonies, written pleadings, Indictments and decisions of an investigative judge as to whether or not there is sufficient evidence to warrant an indictment, a procedure which existed at the time but no longer exists in the Israeli legal system, in Levitzki's files shall include an indication of their source: Levitzki Estate (hereinafter 'LE').
151. The reference to a latency period does not imply silence, but rather lack of public consciousness and theoretical reflection, as well as a concomitant lack of vocabulary. The genesis of Israel's public consciousness of the Holocaust can be traced quite precisely to the Eichmann trial. Arendt, Eichmann in Jerusalem, supra note 80. Arendt's Eichmann in Jerusalem, which first appeared as a series of articles for the New Yorker magazine in February-March 1963, ushered in the first theoretical debate on the Holocaust. Significantly, it was translated into Hebrew only in 2000. Indeed, according to Saul Friedlander, with the notable exception of Theodor Adorno, Arendt and Salo Baron, none of the renowned Jewish historians of the post-War period chose to pursue the Holocaust as their subject of research.
152. Friedlander writes 'Auschwitz as such - not other facets of Nazism - seemed out of bounds'; see S. Friedlander, Trauma and Transference in Memory, History and the Extermination of the Jews of Europe (Bloomington/ Minneapolis, IN: Indiana University Press, 1993).
153. Other than short excerpts from some judgments published in English in 18 ILR (1957) 538-544, we are aware of only one exception to what may otherwise be termed 'legal oblivion', in Kupreskić (Judgment), supra note 4, §564. This reference was made in relation to the term 'other inhuman acts' in the definition of 'crimes against humanity'.
154. For a discussion, see text and infra notes 114-115.
155. Crimes against humanity and war crimes were discussed in three cases: Tarnek supra note 85
156. Enigster, supra note 85
157. Honigman Appeal, supra note 57.
158. See Eichmann trial, supra note 1, at 18.
159. See Barnblatt Appeal, supra note 86, at 73-74.
160. Pal Appeal, supra note 86, at 500-501.
161. Ibid., at 501. This is inferred from the fact that when the court moved to deal with the second argument raised in the appeal, concerning the interpretation of Art. 2, it began the discussion with the words: 'a more serious argument concerns the words....'
162. Enigster, supra note 85, at 168 (Lamm J).
163. Ibid., at 165 (see also 18 ILR (1957), 542 (translated from Hebrew).
164. Ibid., at 164. This interpretation is the accepted one under current international criminal law.
165. See Tadić Appeal, supra note 54, § 281-305. Note however, that it could be argued that by its definition, crimes against humanity implicitly incorporate discriminatory intent, as the crimes are committed against individuals, not on the grounds of their individual attributes, but rather on their affiliation with a population, whichever it may be.
166. See D. Luban, 'A Theory of Crimes Against Humanity', 29 Yale Journal of International Law (2004) 85, 104-105.
167. Note that Lamm J, himself a Holocaust survivor, served as MP and as a
168. Enigster, supra note 85, at 168-177.
169. In his dissent, Lamm J refers to Art. 6(c) of the Charter of the IMT, supra note 13
170. Art. II(c) of CCL No. 10, supra note 14
171. Art. 2 of the Genocide Convention, supra note 16, and the interpretation given by the United Nations War Crimes Commission (UNWCC) to the Nuremberg principles.
172. See United Nations War Crimes Commission, History of the United Nations War Crimes Commission (1948) 120, 169.
173. Lamm J further references the trial of Josef Kramer, noting that this trial was not based on the Charter of the IMT, but the defendants were convicted of war crimes. Lamm J nevertheless relies on that decision which required identification with the Nazi regime in order to prosecute Kapos and block-commanders. (Brit. Milit. Ct, Luneburg, Germany, 17 September 1945-13 November 1945) (1947) 4-5 (The 'Bergen-Belsen Judgment').
174. Enigster, supra note 85, at 175.
175. Ibid., at 172-175. Note that this interpretation of intent into crimes against humanity is similar to the one used by a French Court in the case of Paul Touvier, Klaus Barbie and Maurice Papon. French jurisprudence, however, added that the crimes have to be committed in the context of 'a state practicing a hegemonic political ideology'. This requirement is absent from the definition of crimes against humanity under international law. This additional requirement precludes, in effect, the possibility of charging citizens of a democratic state of such crimes, unless, like Touvier, they act as an arm of the hegemonic state. In this manner, crimes against humanity were dissociated from both the Vichy government and French actions in Algeria.
176. See S. Wexler, 'The Interpretation of the Nuremberg Principles', supra note 44
177. S. Wexler, 'National Prosecutions for International Crimes: The French Experience', in M.C. Bassiouni (ed.), International Criminal Law (Ardsley, NY: Transnational Publishers, 1998)
178. S. Wexler, 'Prosecutions of Crimes Against Humanity in French Municipal Law: International Implications', ASIL Proceedings (1997) 270-276.
179. Enigster, supra note 85, at 175.
180. Enigster, supra note 85, at 164. This interpretation is consistent with the interpretation of crimes against humanity under the Charter of the IMT;
181. see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Boston: Kluwer Law International, 1992), at 58-59, 84-85.
182. Enigster, supra note 85, at 164-165 (18 ILR 1957 (541)).
183. Honigman, supra note 89, §3 (LE).
184. This interpretation is similar to the interpretation given by the UNWCC to the Nuremberg principles. See Bassiouni, supra note 105, at 58-59.
185. Also note that the Statute of the International Criminal Tribunal for Rwanda (ICTR) requires 'a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds'. See Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, 8 November 1994, reprinted in 33 ILM (1994) 1598 (hereinafter ICTRSt.)
186. according to Art. 7(1) ICCSt, supra note 53, crimes against humanity require that the acts be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.' Indeed, the 'widespread or systematic element constitutes the essence of crimes against humanity, and is in fact the element that distinguishes it from war crimes and genocide.
187. See A. Cassese, 'Crimes against Humanity', in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 1 (Oxford: Oxford University Press, 2002), 353, 360
188. S.R Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd edn, Oxford: Oxford University Press, 2001), 58.
189. The requirement of the defendant's knowledge of the greater context within which the crime is committed complements that notion in that it removes the individual nature of the act and links it to the greater pattern of crimes. Thus, the delegates to the Rome conference rejected the original proposal to Art. 7 ICCSt., according to which: '...a crime against humanity means any of the following acts when knowingly committed as a part of a widespread or systematic attack....' The phrase was changed in order to remove any ambiguity with respect to the awareness element, i.e. that it relates to the broader context and not the specific underlying offence committed personally by the accused. See H. von Hebel and D. Robinson, 'Crimes within the Jurisdiction of the Court', in R.S. Lee (ed), The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International, 1999), 98, note 55.
190. See Tarnek, supra note 85, at 148.
191. See discussion in supra note 31.
192. Pal Appeal, supra note 86, at 505-506.
193. Tarnek, supra note 85, at 149.
194. Ibid.
195. Both Segev and Zertal mention this reduction of sentence, the latter without reference and the former with an erroneous reference. Segev, supra note 4, at 245-247
196. Zertal, supra note 4, at 101.
197. Enigster, supra note 85, at 178.
198. Tarnek, supra note 85, at 148
199. Enigster, supra note 85, at 164-167.
200. Enigster, supra note 85, at 167.
201. Cf. Kupreskić (Judgment), supra note 4, §564 (referring critically to this interpretation).
202. Tarnek, supra note 85, at 148-150.
203. Barnblatt Appeal, supra note 86, at 87.
204. Goldstein, supra note 89, at 3.
205. Barnblatt Appeal, supra note 86, at 80.
206. Ibid., at 83.
207. Note, however, that in the earlier Tarnek case, the court decided that the defendant dfd not prove that her actions actually averted more serious consequences. See Tarnek, supra note 85, at 149.
208. Barnblatt Appeal, supra note 86, at 83.
209. See, e.g. Tarnek, supra note 85, at 147
210. Honigman Appeal, supra note 57, at 340.
211. Enigster, supra note 85, at 178-179.
212. The available, though incomplete, sources suggest that fifteen of a total of about forty cases ended in convictions. The sentences tended to be light. and only rarely was a person sentenced to prison for a period exceeding the time he had already been in detention awaiting verdict.
213. The judge's capacity for empathy depended, inter alia, on whether he was a Holocaust survivor. The archetypical case is illustrated by the minority position held by Lamm J, a Holocaust survivor, in Enigster; see supra note 100. Another factor for generating empathy may have been the judge's underlying politics, e.g. his position on the issues discussed in the legislative debates at that time over the Nazi and Nazi Collaborators Law.
214. The Supreme Court, sitting as a court of appeal, is not normally concerned with the facts but with disputed points of law. See Basic Law: Judicial Branch (1984), SH 1110. The result is that, unlike the district courts judges, the judges sitting in an appeals court do not review witness testimonies, and thus lack the resources to construct the picture of life in the camps. This distance from the evidence, from the recreation of 'scene of the crime', may explain appeals court judges' relative freedom to be more willing to take a lenient approach in their sentencing.
215. This kind of decision could have been grounded in the doctrine of substantive non-justiciability.
216. Levi, supra note 7, at 60.
217. Pal Appeal, supra note 86 (emphasis added). Pal appealed the decision of the District Court of Jerusalem of 2 September 1951, which convicted him of various offences under Arts 2 and 4 of the Nazi and Nazi Collaborators Law and sentenced him to ten years' imprisonment.
218. Ibid., at 500 (translated from Hebrew).
219. Ibid., at 502 (translated from Hebrew).
220. See supra text accompanying notes 118-119.
221. Goldstein, supra note 89, at 3 (emphasis added) (translated from Hebrew).
222. See S. Felman, The Juridical Unconsciousness: Trials and Traumas in the Twentieth Century (Cambridge, MA and London: Harvard University Press, 2002).
223. Tarnek, supra note 85, at 146 (emphasis added).
224. A similar structure of judgment, drawing from testimonies - first a general picture of life in the camps and proceeding to focus on the acts attributed to the defendant under these circumstances - is quite common. Together, they provide some of the first such descriptions to have been documented of life in both concentration camps and forced-labour camps - the essential elements of the picture as they pertain to daily hardships (lack of sleep, food, drink and sanitary conditions, combined with hard labour) and to the Kapos and other functionaries, whose role and modus operandi are quite similar. See, e.g. Enigster, supra note 85, at 156-157
225. Honigman (Dist. Ct), supra note 89, §5 (LE) (translated from Hebrew).
226. Tarnek, supra note 85, at 151.
227. At the core of the traumatic experience lies its insistent and literal return. See C. Caruth, 'Introduction', in C. Caruth (ed.), Trauma: Exploration in Memory (Baltimore: John Hopkins University Press, 1995).
228. On the concept of 'bare life', see G. Agamben, Homo Sacer: Sovereign Power and Bare Life (D. Heller-Roazen trans., Stanford: Stanford University Press, 1988).
229. The Drowned and the Saved, supra note 7, at 89.
230. Ibid., at 87.
231. Tarnek, supra note 85, at 151.
232. Enigster, supra note 85, at 158 (translated from Hebrew).
233. J. Derrida, Dissemination (London: Athlone Press, 1981), 71, 99.
234. Enigster, supra note 85, at 161 (translated from Hebrew) (emphasis added).
235. Ibid., at 178-179.
236. Friedman, supra note 89.
237. Beisky, supra note 86; he was sentenced to five years' imprisonment by the District Court, and the sentence was reduced to two years in the appeal.
238. Honigman (Dist. Ct), supra note 89, verdict section (LE).
239. See Yablonka, supra note 4, at 147
240. HA'ARETZ, 24 January 1951, at 2 (translated from Hebrew).
241. Excerpts from this narration are provided, supra note 136.
242. Tarnek, supra note 85, at 149 (emphasis added).
243. Ibid., at 151-152 (translated from Hebrew).
244. Honigman (Dist. Ct), supra note 89, §5 (LE).
245. Ibid., (emphasis added) (translated from Hebrew).
246. Goldstein, supra note 89, at 5 (LE) (translated from Hebrew).
247. Ibid., at 5-6 (translated from Hebrew) (emphasis added).
248. The tension between the rule and the exception formed one of the basic tenets of Carl Schmitt's critique of the liberal state and, indeed, of the very rule of law. See C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (G. Schwab trans., Chicago: University of Chicago Press, 1988). This position was the political theology of the Third Reich.
249. For critical reviews of this position, see e.g. O. Gross, 'Exception and Emergency Powers: The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the "Norm-Exception" Dichotomy', 21 Cardozo Law Review (2000) 1825, 1836-1839.
250. G. Marramo, 'Schmitt and the Categories of the Political: The Exile of the Nomos: For a Critical Profile of Carl Schmitt', 27 Cardozo Law Review (2000) 1567.
251. Barnblatt Appeal, supra note 86, at 101 (translated from Hebrew).
252. The Drowned and the Saved, supra note 7, at 44-45.
253. Barnblatt Appeal, supra note 86, at 95-96.
254. The Drowned and the Saved, supra note 7.
255. See Schmitt, supra note 158.
256. The Schmittian exception, reflecting Agamben in his book, Homo Sacer, has generated the conditions of possibility for the concentration camp - a space created once the exception, i.e. the temporary suspension of the rule becomes the rule. Agamben, Homo Sacer, supra note 139, at 166-180. This space, where the extraordinary and the provisional become the ordinary and permanent condition, says Agamben, is not limited to Nazi concentration camps. It is paradigmatic to every situation where the political machinery of the modern nation state finds itself in a continuous crisis and decides to take it upon itself to defend the biological life of the nation, collapsing human rights into citizens' rights;
257. ibid., at 126-131, 174-176.
258. A point made by Hannah Arendt in a letter to Karl Jaspers: 'The crimes cannot be dealt with in the normal legal manner, which is precisely what makes them so monstrous. There is no fitting punishment for such crimes, to hang Goring is necessary, but it is by no means enough. Such guilt, in contrast to all criminal guilt, goes well beyond, in fact shatters, any legal order... and the innocence of the victims is equally inhuman. Human beings cannot be as innocent as those people were as they stood together before the gas ovens. One can do nothing, either personally or politically, about a guilt that lies beyond crime and innocence that lies beyond good and virtue... we Jews are burdened with millions of innocents because of which, each Jew today looks like innocence personified'. See H. Arendt and K Jaspers, Briefwechsel 1926-1969 (L. Kohler and H. Janer, eds, Munich, 1985),
259. cited in English in D. Diner, 'Negative Symbiosis: Germans and Jews after Auschwitz', in N. Levi and M. Rothberg (eds), The Holocaust: Theoretical Readings (New Brunswick, NJ: Rutgers University Press, 2003), 423, 425.
260. For a study of this phenomenon among the perpetrators, see C.R. Browning, Ordinary Men: Reserve Police Batallion 101 and the Final Solution in Poland (New York: Harper Perennial, 1998).
261. See texts at supra notes 58-61 and 75-78.
262. The term 'monumental history' was coined by Nietzcshe to distinguish it from 'critical theory'; see F. Nietzsche, The Use and Abuse of History for Life (A. Collins, trans., New York: Liberal Arts Press, 1949, 1957), 12-17.
263. Shoshana Felman uses this distinction in her analysis of the Eichmann trial, suggesting that Hausner promoted 'monumental history', whereas Arendt's account of that trial in Eichmann in Jerusalem can be classified as 'critical history'; see Felman, supra note 135, at 106-130.
264. The opening line of Gideon Hausner for the prosecution in the Eichmann trial, which has become idiomatic in Israel, articulates this point: 'When ] stand before you here, Judges of Israel, to lead the Prosecution of Adolf Eichmann, I am not standing alone. With me are six million accusers'. See Attorney-General Hausner's Opening Speech, Session nos 6, 7, 8 of the district court of Jerusalem in Eichmann trial, supra note 1 (17-18 April 1961), available online at http://www.nizkor.org/hweb/ people/e/eichmann-adolf/transcripts/Sessions/Session-006-007-008-01.html (visited 7 February 2004).
265. D. LaCapra, 'Trauma, Absence, Loss', 25 Critical Inquiry (1999), reprinted as Writing History, Writing Trauma (Baltimore, MD and London: John Hopkins University Press, 2001).
266. See generally the excellent discussion in Zertal, supra note 4, at 137-178.
267. M. Zimmerman, Haroshet Ha'Israeliyut: Mitossim ve'ideologia be'Hevera Mesuchsechet (On the Fabrication of Israelism: Myths and Ideology in a Society at Conflict) (Tel-Aviv: Resling Pub. 2001), 79-80, 129-130 (in Hebrew).
268. Z. Baumann, Modernity and the Holocaust (NY: Cornell University Press 1989), 152 (emphasis in the original).
269. See, e.g. E. Santner, 'History Beyond the Pleasure Principle: Some Thoughts on the Representation of Trauma', in S. Friedlander (ed.), Probing the Limits of Representation: Nazism and the Final Solution (Cambridge, MA: Harvard University Press, 1992)
270. C. Caruth, Unclaimed Experience: Trauma, Narrative and History (Baltimore: Johns Hopkins University Press, 1996)
271. S. Zijek, The Sublime Object of Ideology (London: Verso, 1989), 50.