Über die Autorin bzw. den Autor

Leora Bilsky is Professor of Law, Tel Aviv University.

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Transformative Justice

The University of Michigan Press

Contents

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

Chapter One

The Role of the Political Lawyer

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

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

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

It was at this time that Malchiel Gruenwald embarked on a campaign against Kastner. A devoted member of Ha-Mizrahi (the religious wing of the Zionist movement) and a refugee who had lost most of his family in Hungary, Gruenwald had a political as well as a personal agenda. In addition to seeking to expose Kastner's crimes, Gruenwald hoped to denounce Mapai, demand Kastner's removal, and facilitate the appointment of a commission of inquiry to investigate the events that had led to the decimation of Hungary's Jews. The target of his...