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

Law and History Review

Volumn 18, Issue 3, 2000, Pages 559-606

  Maoz, Asher ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 85011486183     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744068     Document Type: Article

References (150)

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'pamshat Arlosoroff [\n 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],” The Commission of Inquiry Report., 74. The article was originally published in the daily Ma'driv 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. “Almoni bemoked shel se'ara historit [Anonymous in the Focus of a Historical Storm],”.
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 hakim mamlahtiyot be'Yisrael (left 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. 1 IB. 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 ofYoel 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. 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.”
27. Commission of Inquiry Report, 202.
28. See: Cohn, “Din emet le'amito,” 52 and following.
29. 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,” “Din emet le'amito,”., 1060; H. Richard Uviller, “The Advocate, The Truth and Judicial Hackles: A Reaction to Judge Frankel's Idea” “Din emet le'amito,”., 1067; Mirjan Damaska, “Presentation of Evidence and Factfinding Precision,” “Din emet le'amito,”., 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.
30. 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.
31. C/A 475/81 Zikari v. “CM” Insurance Company. Ltd. 40 (1) P.D. 589, 604-5, per Barak J.
32. “CM” Insurance Company., at 599, per Bach J.
33. 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.
34. “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, 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.”., 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.
35. 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 custom 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.
36. 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.
37. See the comments of Justice Kahan in Alon v. the Government of Israel, 455, and the comments of Justice Elon, This commission was established by the State Comptroller Committee of the Knesset., 465.
38. Cf. the comments of Justice Shlomo Levin, the comments of Justice Kahan in Alon v. the Government of Israel., 464. See also Segal, “Va'a'dat hakira,” 228-29.
39. 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.
40. 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.
41. 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, These remarks are not directed at the question of the legitimacy of external review of the judicial system and the examination of its functioning., 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” (These remarks are not directed at the question of the legitimacy of external review of the judicial system and the examination of its functioning., 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.
42. 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.
43. The Commission of Inquiry Report, 174.
44. 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.
45. 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 (Begin himself exchanged several articles with Teveth, in daily newspapers, following the publication of Teveth's book., 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 (Begin himself exchanged several articles with Teveth, in daily newspapers, following the publication of Teveth's book., 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.
46. The Commission of Inquiry Report, 3.
47. 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.
48. 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.
49. 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.
50. The Commission of Inquiry Report, 202.
51. 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.
52. 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” (“Hirhurim beikvot doh va'a'dat ha'hakira,”., 21).
53. 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.”
54. The Commission on Inquiry Report, 174. For the lecture given by Sir Cyril Salmon, see Salmon, Tribunals of Inquiry, 21.
55. Shalom Rosenfeld, Tikpelili 124: Mishpat Gruenwald-Kastner [Criminal Case 124: The Gruenwald-Kastner Case] (Tel Aviv: Kami, 1955), 15.
56. “Dr. Rudolf Kastner must be liquidated!” The statement, as quoted in the indictment, appears in Rosenfeld, Tikpelili 124, 16.
57. 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.
58. Levai's figure of 1,648 (Jeno Levai, Eichmann in Hungary [Budapest, 1961], 198) must be a typographical error.
59. Kasztner, Bericht, 61-62 [130].
60. 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.
61. “Yisrael Kastner, OSS ve'teoryat ha'hetz be'Nirenberg [Israel Kastner, OSS and the Arrowhead Theory in Nuremberg],”., 335.
62. Weitz, Ha'ish she'nirtzahpa'a'mayim, 70.
63. Ha'ish she'nirtzahpa'a'mayim., 76.
64. Ha'ish she'nirtzahpa'a'mayim., 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.
65. 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” (The Seventh Million: The Israelis and the Holocaust., 375, n. 74). Nevertheless, there are conflicting accounts of this (The Seventh Million: The Israelis and the Holocaust., 104-7); see also Ruth Bondy, Felix: Pinhas Rosen u ‘emano [Felix: Pinchas Rosen and His Time] (Tel-Aviv: Zemora-Bitan, 1990), 490.
66. 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 shenirtzahpa'amayim, 107.
67. Cr./App. 232/55 The Attorney-General v. Gruenwald, 12 P.D. 2017, 2280 (“The Kastner Appeal”).
68. Cf. the approach of the U.S. Supreme Court in the matter of New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
69. Weitz, Ha'ish she'nirtzah pa'a'mayim, 121.
70. Rosenfeld, Tikpelili 124, 21.
71. Tikpelili., 22.
72. Tikpelili.
73. 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 (Tikpelili., 294), a tradition followed by all members of the judiciary (Tikpelili., 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 (Tikpelili., 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.
74. Weitz, Ha ‘ish she ‘nirtzah pa ‘a ‘mayim, 112.
75. Menachem Begin, “Mishpat Zeriffin [The Sarafend Trial],” Herut [daily of the Herut party], 27 Aug. 1953.
76. Rosenfeld, Tikpelili 124, 24.
77. 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-Terroryehudi 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 I s r a e l… the Kastner trial” (Tikpelili., 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.
78. 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.
79. This characterization was given to Gruenwald by Rosenfeld, Tik pelili 124, 406.
80. Pratt, Ha'mishpat ha'gadol, 113.
81. 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 Judenrat throughout occupied Europe.” Indeed, in Israel of the 1950s, Kastner became the symbol of the Judenrdt, 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 Judenrdt-the Diaspora Jew bowing down before the Gentile.
82. See the event described in the Babylonian Talmud, Tractate Gittin, p. 56 (1).
83. 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.
84. 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).
85. 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).
86. 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.
87. 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.
88. Attorney-General v. Gruenwald, 114.
89. Attorney-General v. Gruenwald.
90. Attorney-General v. Gruenwald.
91. Attorney-General v. Gruenwald., 112.
92. Attorney-General v. Gruenwald., 51.
93. 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 shenirtzahpa'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, Haish 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.
94. 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.
95. Appeal, Attorney-General v. Gruenwald, 2253.
96. Silberg, Appeal, Attorney-General v. Gruenwald, 2216; Agranat, Appeal, Attorney-General v. Gruenwald., 2084.
97. 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.)
98. Appeal, Attorney-General v. Gruenwald, 2312.
99. Appeal.
100. Appeal.
101. Appeal., 2313.
102. Appeal., 2312.
103. Appeal. 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.” Appeal., p. 2313.
104. 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.” Appeal., 2215.
105. 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.” Appeal.
106. 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.” Appeal., 2022.
107. 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.” Appeal., 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; 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.” Appeal., 2301.
108. 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;., 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.
109. Appeal, Attorney-General v. Gruenwald, 2068.
110. Appeal., 2072.
111. Appeal., 2073. Similarly, Cheshin points out that “there is praiseworthy cooperation… if it is not accompanied by malicious intent and evil thoughts”; Appeal., 2284.
112. Attorney-General v. Gruenwald, 112.
113. 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”; Attorney-General v. Gruenwald., 2251-52.
114. “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., 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?”; “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., 2302.
115. 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.”., 2251.
116. 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.”., 2252.
117. From the comments of Justice Cheshin, 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.”., 2308.
118. From the comments of Justice Cheshin., 2216.
119. From the comments of Justice Cheshin., 2254.
120. From the comments of Justice Cheshin., 2308.
121. From the comments of Justice Cheshin., 2309.
122. From the comments of Justice Cheshin.
123. From the comments of Justice Cheshin.
124. Segev, Seventh Million, 273-74.
125. Appeal, Attorney-General v. Gruenwald, 2308.
126. Attorney-General v. Gruenwald, 86-88.
127. Cited by Weitz, Ha'ish she'nirtzah pa'a'mayim, 290.
128. Appeal, Attorney-General v. Gruenwald, 2050-51.
129. Appeal, Attorney-General v. Gruenwald., 2175-76.
130. Appeal, Attorney-General v. Gruenwald., 2308.
131. Appeal, Attorney-General v. Gruenwald., 2055.
132. Appeal, Attorney-General v. Gruenwald., 2056-57.
133. Cf. the comments of Justice Silberg, Appeal, Attorney-General v. Gruenwald., 2217.
134. Cf. the comments of Justice Silberg., 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”; Cf. the comments of Justice Silberg., 2312.
135. 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., 2058.
136. 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., 2216, per Justice Silberg.
137. Cf. the comments of President Kahan in Alon v. the Government of Israel, 455-56, and the remarks of Justice Elon, 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., 465.
138. Appeal, Attorney-General v. Gruenwald, 2254.
139. Appeal, Attorney-General v. Gruenwald., 2280.
140. Appeal, Attorney-General v. Gruenwald., 2317.
141. Appeal, Attorney-General v. Gruenwald., 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.
142. Weitz, Ha'ish she'nirtzah pa'a'may im, 281.
143. Ha'ish she'nirtzah pa'a'may im., 284-85.
144. 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.
145. 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.
146. Segal, “Va'a'dat hakira,” 207.
147. Salmon, Tribunals of Inquiry, 21 [329].
148. Maoz, “Kastner,” 287.
149. Appeal, Attorney General v. Gruenwald, 2254. Cf. Justice Landu's opinion in the Bernblat case, 101.
150. Weitz, Ha'ish she'nirtzahpa'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. Justice Landu's opinion in the Bernblat case. See also above, note 91.