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Judging Evil in the Trial of Kastner

Published online by Cambridge University Press:  28 October 2011

Leora Bilsky
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Extract

When Hannah Arendt came to Jerusalem in 1961 to attend the Eichmann trial she expected to find Evil incarnated in the person of Eichmann. How surprised she was to see the man in the glass booth. The word she used repeatedly to describe him was “mediocre,” referring to the very average qualities of his person. To Arendt the dissonance between Eichmann's horrifying actions and the bureaucratic character of the man demanded an explanation. Like so many of us, Arendt's conception of evil had been informed by great works of art, but the reality of this villain did not fit her expectations.

Type
Forum: Judging Evil. New Departures in Israeli Legal History, Part Two
Information
Law and History Review , Volume 19 , Issue 1 , Spring 2001 , pp. 117 - 160
Copyright
Copyright © the American Society for Legal History, Inc. 2001

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References

1. The two epigraphs at the beginning of this article are from Arendt, Hannah, Eichmann in Jerusalem (New York: Penguin Books, 1994), 287Google Scholar, and Mann, Klaus, Mephisto, trans. Smyth, Robin (New York: Random House, 1977).Google Scholar For Arendt's physical description of Eichmann, see Eichmann in Jerusalem, 5. “Adolf Eichmann … medium-sized, slender, middle-aged, with receding hair, ill-fitting teeth, and nearsighted eyes, who throughout the trial keeps craning his scraggy neck toward the bench … and who desperately and for the most part successfully maintains his self-control despite the nervous tic to which his mouth must have become subject long before this trial started.” See also letter from Arendt on April 13, 1961, in Hannah Arendt/Karl Jaspers Correspondence, 1926–1969, ed. Kohler, Lotte and Saner, Hans (New York: Harcourt Brace Jovanovich, 1992), 434.Google Scholar (“Eichmann is no eagle; rather, a ghost who has a cold on top of that and minute by minute fades in substance, as it were, in his glass box.”)

2. For detailed descriptions of the Kastner affair, see Segev, Tom, The Seventh Million: The Israelis and the Holocaust, trans. Watzman, Haim (New York: Hill and Wang, 1993), 255–320Google Scholar; Weitz, Yehiam, Ha-Ish she-Nirtsah Paamayim [The Man Who Was Murdered Twice] (Jerusalem: Keter, 1995)Google Scholar; Bauer, Yehuda, Jews for Sale? Jewish Negotiations, 1933–1945 (New Haven: Yale University Press, 1994), 145–71.Google Scholar For a discussion of the decisions in the trial and appellate courts, see Lahav, Pnina, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (Berkely: University of Califonia Press, 1997), 123–25, 132–33, 142–44.Google Scholar

3. Weitz, Ha-Ish she-Nirtsah Paamayim, 60–61.

4. For a detailed examination of the negotiations, see Bauer, Jews for Sale? 145–71.

5. Translated by Lahav, Judgment in Jerusalem, 123. The Hebrew quotation is in Rosenfeld, Shalom, Plili 124: Mishpat Gruenvald-Kastner [Criminal Case 124: The Gruenvald-Kastner Trial] (Tel Aviv: Karni, 1955), 16–17.Google Scholar The full version is quoted and translated into English by Segev, The Seventh Million, 257–58.

6. In Israel there is no jury system. Judges of a trial court sit either as sole judges in minor cases or in groups of three judges in the more important or complicated cases. (Article 37 of the Courts Law [consolidated version], 5744–1984.) Since Kastner's libel trial fell under the category of minor criminal offenses and did not seem to involve complicated issues of law in the outset, a sole judge was assigned to it. This initial perception of the case is confirmed by the fact that the state prosecution appointed the inexperienced attorney, Amnon Tel, to the case. See Weitz, Ha-lsh she-Nirtsah Paamayim, 107, 115, 122–23. Later on, after Tamir had managed to transform the trial proceedings into a most complicated case, addressing the whole issue of the behavior of Jewish leaders during the Holocaust, Judge Halevi did not ask for a panel of three judges to be appointed. (This was in contrast to the state prosecution that replaced Tel, an inexperienced criminal prosecutor, with the attorney general, Haim Cohen.) With the benefit of historical hindsight we see that a panel of the judge's peers could have supplied a deliberative framework for judging the Holocaust by allowing the judges to consult each other. Indeed, on Kastner's appeal five judges were appointed to sit on the case, instead of the three who normally preside at the appellate court. (Article 26[1] of the Courts Law specifies that the Supreme Court will sit in panels of three justices and authorizes the president of the court to extend the panel.)

7. Kastner was shot near his home in Tel Aviv on the night between March 3 and 4, 1957. The assassin belonged to an underground right-wing organization that was involved in the planning of terrorist attacks. The assassin (Zeev Ackshtein), the driver (Dan Shemer), and the head of the organization (Yosef Menks) were tried and convicted of murder. Weitz, Ha-Ish she-Nirtsah Paamayim, 332–36.

8. Douglas, Lawrence, “Wartime Lies: Securing the Holocaust in Law and Literature,” Yale Journal of Law and the Humanities 7 (Summer 1995): 367–96.Google Scholar

9. Cr.C. (Jm.) 124/53 Attorney General v. Gruenvald, 44 P.M. (1965) 3–241, 8. Unless otherwise noted, all translations from this source are mine.

10. The defense attorney proved allegation four by providing the affidavit Kastner had written in support of Kurt Becher. The court decided that allegation three had not been proved in the trial.

11. Attorney General v. Gruenvald, 51.

12. In an interview to the newspaper Ma'ariv on 3 October 1969 Judge Halevi stated: “This sentence was misinterpreted. In the judgment's context where it appears it refers to the 600 emigration permits that Kromey gave Kastner in order to bind him to him, to make him dependent on Eichmann and the Gestapo. I explain there the extent of the temptation that was involved in Eichmann's ‘gift’ … This literary allusion was not understood correctly, and if I had known in advance that it would be understood in this way I would have given up the literary term. It was not necessary.” Cited in Weitz, Ha-Ish she-Nirtsah Paamayim, 245.

13. The very structure of the judgment is such that after the “introductory” chapter (pp. 7–26) in which the judge presents the unsolved question (How is it that common people were led to Auschwitz without knowledge of their destination, while the leaders who encouraged them to board the trains found a safe haven in Switzerland?), he begins the judicial answer (the legal narrative) with the chapter entitled: “The Contract between Kastner and the S.S.” See Attorney General v. Gruenvald, 26.

14. Contrast Halevi's binary approach to that of the historian Yehuda Bauer who surveys the spectrum of options that were open to the Va'a'dat and discusses them within the historical context of the time, Bauer, Jews for Sale? 145–71.

15. Ibid., 154.

16. Attorney General v. Gruenvald, 29–30.

17. Ibid., 65. Bauer, Jews for Sale? 163–71.

18. Attorney General v. Gruenvald, 34.

19. Ibid., 111.

20. The judge divides his story into three subchapters: “Preparation to the Temptation,” “The Temptation,” and “The Dependence of K. on Eichmann.” Ibid., 49–51. The description of the temptation is a dramatic moment in the judgment: “The temptation was great. K. was offered the opportunity to save six hundred souls from the impending Holocaust and a chance to somewhat increase their numbers through payment or further negotiations. And not just any six hundred souls, but those very people who were most important and deserving of rescue in his eyes, for whatever reason—if he wished, his relatives; if he wished, members of his movement; and if he wished, the important Jews of Hungary.” Ibid., 51.

21. Lahav, Judgment in Jerusalem, 134.

22. Ibid, 135–41.

23. Attorney General v. Gruenvald, 111.

24. My emphasis. A letter dated 14 May 1944 written by Kastner and Brandt to Sali Meir conveying a report on the development of the matter since their last letter of 25 April 1944. Quoted in Attorney General v. Gruenvald, 68.

25. Ibid., 93.

26. In her testimony at Eichmann's trial, Hanzi Brandt, Kastner's partner, testified to Eichmann's moral deficiency, describing the “clean” commercial language that he used to block himself from the reality of his crimes. See The Eichmann Trial: Testimonies (Jerusalem, 1974) part B [Hebrew], p. 914: “My impression was that he was asking for a pure commercial environment, a simple transaction, we are two parties to this transaction.”

27. Friedlander, Saul, Reflections of Nazism: An Essay on Kitsch and Death (Bloomington: Indiana University Press, 1993), 95.Google Scholar

28. Ibid., 91.

29. Ibid., 92, 102.

30. Cited in ibid., 102–3.

31. Ibid., 103–4.

32. The straightforward application of contract law to the negotiations between Kastner and the Nazis also overlooks the fact that Kastner's contract was with the “law” itself. For this reason Kastner could not rely on the “law” to enforce his “contract.” Kastner was in the position of an illegal gambler (for whom the law does not offer enforcement). As we shall see below, Kastner preferred the metaphor of a “game of roulette” as describing the nature of the relationship with Eichmann much more accurately. See below, note 56.

33. Cr.A. (Jm.) 232/55. Attorney General v. Gruenvald, 1958 (12) P.D. 2017, at 2043, 2076, cited by Lahav, Judgment in Jerusalem, 135.

34. Attorney General v. Gruenvald, 95.

35. See, for example, ibid., 92.

36. Ibid., 105.

37. Arendt, Hannah, The Human Condition (New York: Anchor Books, 1959), 212–19.Google Scholar See also Minow, Martha, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), 25–51.Google Scholar

38. We can perceive here a connection between time and narrative. Contract law expels time and encourages us to view Kastner as an archetype. When we are introduced to the archetypal story of how he “sold his soul to the Devil,” we grasp at once the beginning and end of Kastner's story—there is no need for us to listen to the details as they unfold over time, and there is thus no need to listen to Kastner's narrative. For an elaboration of the connection between time and narrative, see Carr, David, Time, Narrative, and History (Bloomington: Indiana University Press, 1986).Google Scholar

39. Attorney General v. Gruenvald, 56 (citing from Kastner's report).

40. For a discussion of the elimination of the category of “chance” from the historical scholarship during the nineteenth century, see Koselleck, Reinhart, “Chance as Motivational Trace in Historical Writing,” in Futures Past: On the Semantics of Historical Time, trans. Tribe, Keith (Cambridge: MIT Press, 1985), 116–29.Google Scholar

41. Attorney General v. Gruenvald, 90.

42. Ibid., 43.

43. Trachtenberg, Joshua, The Devil and the Jews: The Medieval Conception of the Jew and Its Relation to Modern Antisemitism (Philadelphia: Jewish Publication Society of America, 1943), 23–26Google Scholar: “The earliest German version of the Faust legend pits a Jew against the devil, to whose wiles, of course, the Jew succumbs … Here it is the Jew's refusal to accept the true doctrine that renders him defenseless against Satan” (23). Trachtenberg traces the source of the Faust legend to another well-known legend about Theophilus where the Jew is depicted as a magician operating through the agency of Satan and introduces Theophilus the Christian to the Devil. These legends spring from the medieval fascination with the Devil and his association with the Jews.

44. The judge affirmatively quoted Moshe Kraus, the head of the “Israeli office” in Budapest, who described Kastner's immoral character to explain why he did not warn the people about the impeding catastrophe: “When it concerns his own interests … he also lacks conscience. He has no conscience and no regard for others.” Attorney General v. Gruenvald, 93.

45. See Butler, E. M., The Fortunes of Faust (Cambridge: Cambridge University Press, 1952).Google Scholar

46. The first literary version known is found in the Faust Chapbook published by Spiess in Frankfurt am Maine in 1587. Butler, The Fortunes of Faust, 3–13.

47. Marlowe, Christopher, Doctor Faustus, with an introduction by Sylvan Barnet (New York: New American Library, 1969)Google Scholar; Mann, Thomas, Doctor Faustus, trans. Woods, John E. (New York: A. A. Knopf, 1997).Google Scholar

48. The exact phrase used by Eichmann, “[t]o extract necessary labor from Hungarian Jewry and sell the balance of valueless human material against valuable goods,” appears in War Refugee Board [United States], McClelland's report to Washington 8/11/44, cited in Bauer, Jews for Sale? 196.

49. See Butler, The Fortunes of Faust; see also Smeed, J. W., Faust in Literature (Westport: Greenwood Press, 1987).Google Scholar

50. Attorney General v. Gruenvald, 27.

51. Ibid., 28–30. According to Freudiger's report (cited in agreement by the judge), Kastner deliberately provided incomplete reports so that no one could have a general perspective like his and compete with him for the leadership role. Ibid., 46.

52. Ibid., 51.

53. Segev, The Seventh Million, 265.

54. This is again reminiscent of the Faustian tradition that depicts the contract with the Devil as a kind of “infection.” See Stem, J. P., History and Allegory in Thomas Mann's Doktor Faustus (London: H. K. Lewis, 1975), 11.Google Scholar

55. Attorney General v. Gruenvald, 223: “From January till April 1945 K. resided in Vienna without a Jewish backing. He did not act any longer as the head of the Rescue Committee of the Jews of Hungary and was dissociated from any Jewish public. In Vienna K. did not stay in the house of the Jewish community or in the Jewish hospital where a few hundred Jews still remained. Instead he lived in a hotel where S.S. officers stayed, and in which a room was ordered for him by the de-facto head of the Gestapo.” Kastner's travels in his attempts to save the lives of Jewish inmates in concentration camps (especially toward the end of the war) and his moving from one hotel to the next resembles the life of Faust, who did not have a permanent home and stayed in successive inns. Faust is depicted in the different versions of the story as a loner. He is not married, and his dealings with Satan to further his ambition and interests gradually drive him away from the company of ordinary people. Kastner, according to Halevi, similarly separated himself from the Jewish community by choosing to reside in hotels where Nazi officials stayed.

56. “We could not look behind Eichmann's cards”; We chose “the German card”; “The loser in this game [of roulette] will also be called a traitor.” Attorney General v. Gruenvald, 49, 56.

57. Ibid., 228–40. The association of Kastner, the Jewish leader, with greed also has an anti-Semitic tinge.

58. The judge relied on an analogy to the Nazi and Nazi Collaborators (punishment) Law, 5710–1950, article 15 that permits diversions from ordinary rales of evidence in order to get at the historical truth of the period.

59. Attorney General v. Gruenvald, 195–206. “The release [from prison] of this courageous, strong-willed, and rebellious young woman … would have been harmful to Kastner's interests and contradict his collaboration with the Nazis. Hannah Senesh never surrendered to pressures of others and did not give up her mission” (205). Note that the contrast between heroism (Senesh) and betrayal (Kastner) acquires here a gendered structure, implying that an Israeli Woman is morally superior to a Diaspora Man.

60. Compare this to Kastner's description of himself as Eichmann's puppet: “We knew that in front of us stands the general editor of the destruction of the Jews. But also the possibilities of rescue were in his hands. He—and he alone—decided on life and death.” Here it is Eichmann who plays God (Kastner's report, p. 38, cited in Attorney General v. Gruenvald, 52).

61. Attorney General v. Gruenvald, 206–38. The transformation of literary fantasy into harsh reality under Nazi totalitarianism is discussed by Arendt, Hannah, The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1973).Google Scholar A recent movie by Roberto Benigni, Life Is Beautiful, attempts the opposite by trying to counter the harsh reality in the Nazi camps with an imaginative fantasy shared by a father and his child. The film tells the story of an Italian Jew who keeps alive his little boy's innocence in a Nazi concentration camp by pretending that the routines of the camp are no more than an intricate game staged for his son's benefit. In my opinion, this attempt fails, but while failing it nevertheless exposes the fantastical element in Nazi imagination.

62. “We did not have any illusions about the Nazi proposals, but we did not sit as judges, our role was to save the lives of Jews, and we had a duty to pass the proposal to the Jewish highest authorities for them to decide. We evaluated the chances as balanced, but not impossible. But we hoped that the Jewish agencies together with the Allies would find a way to continue the negotiation that we began, and to buy a lot of time by doing so.” Kastner's testimony, pp. 42, 44, quoted in Attorney General v. Gruenvald, 66.

63. Ibid., 68–69.

64. Hoelzel, Alfred, The Paradoxical Quest: A Study of Faustian Vicissitudes (New York: Peter Lang, 1988), 160.Google Scholar

65. This message, however, is delivered in an outline of Lessing's version of Faust that was not developed any further. See Butler, The Fortunes of Faust, 113–25.

66. Hoelzel, The Paradoxical Quest, 81.

67. Ibid., 86 (ray emphasis). An interesting comparison can be made to Arendt's rejection of Kant's notion of “radical evil” as inadequate to describe Eichmann's moral fault and its replacement with the notion of “the banality of evil.” See letter from Hannah Arendt to Karl Jaspers, New York, December 2, 1960, in Correspondence, 409–10. For further discussion of this issue, see Bernstein, Richard J., Hannah Arendt and the Jewish Question (Cambridge: MIT Press, 1996)Google Scholar; Bilsky, Leora, “When Actor and Spectator Meet in the Courtroom: Reflections on Hannah Arendt's Concept of Judgment,” History and Memory 8.2 (Fall/Winter 1996): 137–73 at 150.Google Scholar

68. A letter dated February 13, 1831, quoted by Hoelzel, The Paradoxical Quest, 106.

69. Hoelzel, The Paradoxical Quest, 168–69.

70. “Timeo Danaos et dona ferentis,” meaning “do not trust all acts of apparent kindness,” comes from Virgil's Aeneid 2.49. Having besieged Troy for more than nine years because their admired Helen was a captive there, the Greeks pretended to abandon their quest and left the Trojans a “gift” of a wooden horse; once the horse was taken within the walls of Troy, Greek soldiers poured out of its hollow interior and destroyed the city. See Virgil, , The Aeneid, trans. Humphries, Rolfe (New York: Macmillan, 1987).Google Scholar For a retelling of the story, see Warner, Rex, Greeks and Trojans (London: Macgibbon and Kee, 1951), 177–84.Google Scholar

71. Attorney General v. Gruenvald, 36.

72. Rose, Carol M., “Giving, Trading, Thieving, and Trusting: How and Why Gifts Become Exchanges, and (More Importantly) Vice Versa,” Florida Law Review 44 (1992): 295–326.Google Scholar This mistrust of gifts is also apparent in the anthropological literature that demonstrates how what appears to be a gift can be explained as a contractual exchange (obligatory and self-interested). See for example Mauss, Marcel, The Gift: The Form and Reason for Exchange in Archaic Societies, trans. Halls, W. D. (New York: W. W. Norton, 1990).Google Scholar

73. Rose, “Giving, Trading, Thieving, and Trusting,” 298, 300. (Rose suggests taking the opposite direction and discovering the “gift” element in ordinary contractual transactions.) For a reflective essay about the need to retain the singularity of “gift” as a distinct category from “contracts,” see Derrida, Jacques, Given Time: I. Counterfeit Money, trans. Kamuf, Peggy (Chicago: The University of Chicago Press, 1992).Google Scholar

74. This “dark side” of gifts can be traced back to the etymology of the word dosis in Latin and Greek, which means both “gift” and “poison.” “The Latin and especially Greek use of dosis to mean poison shows that with the ancients as well there was an association of ideas and moral rules of the kind we are describing.” Derrida, Given Time, 36, referring back to his note to “Plato's Pharmacy” in Dissemination, trans. Johnson, Barbara (Chicago: University of Chicago Press, 1981), 131–32, 150–51.Google Scholar

75. The moral blame of the Trojans is traced back to the warning given to them by the prophet Laocoön (“Are you crazy, wretched people? Do you think they have gone, the foe? Do you think that any gifts of the Greeks lack treachery? … Do not trust it, Trojans, do not believe this horse. Whatever it may be, I fear the Greeks, even when bringing presents” [lines 50–60]), a warning that they ignored. Likewise, Judge Halevi blamed Kastner for ignoring a warning given by Moshe Kraus, the head of the “Israeli office” in Budapest, that the negotiations were a “dangerous Nazi plot.” Attorney General v. Gruenvald, 32.

76. Ibid., 39.

77. The judge overlooked an important distinction between “gift” and “contract” that lies in their relation to time. Mauss (as interpreted by Derrida) reminds us that in a barter society, the idea of gifts introduces into the relations of people the interval of time. In other words, the difference between a barter-contract and a gift is that while the former demands immediate reciprocity, the latter “gives time” to the recipient before returning the (value of) the gift. The real element of gift in a gift turns out to be time. Derrida, Given Time, 41: “The gift is not a gift, the gift only gives to the extent it gives time.” Eichmann's proposal to Brand and Kastner that they exchange “trucks for blood” returned them to a barter society (the subject of Mauss's study). Kastner and Brandt, who did not have the trucks at their disposal, could only hope from this bargain for the “gift of time” as a way of saving the Jews. Their whole bargaining was aimed at gaining time. Judge Halevi missed the point of the bargaining by reducing it into a quid-pro-quo transaction devoid of any “deferral” in time.

78. The judge writes: “All the above circumstances come to show that it was very clear to K. from the beginning of his negotiation with the Nazis until the destruction of the ghet to of Kluj, what was the price that was expected and taken by the S.S. for saving his rela tives and friends in Kluj; this price included, with the full knowledge of Kastner, the coop eration of the leaders in Kluj.” Attorney General v. Gruenvald, 105.

79. Ibid., 96: “The leaders of Kluj were not heroes, they did not withstand the strong temptation created by the rescue plan designed by K. and the Nazis. This plan acted on the camp of the privileged Jews like a collective bribe, that brought them, whether they noticed it or not, to collaboration with the Nazis.” In pages 101–15 of the judgment, the judge explains Kastner's full responsibility for securing the collaboration of the Jewish leaders.

80. Ibid., 91–92.

81. Arendt, The Origins of Totalitarianism, 76: “It is well known that the belief in a Jewish conspiracy that was kept together by a secret society had the greatest propaganda value for anti-Semitic publicity, and by far outran all traditional European superstitions about virtual murder and well poisoning.”

82. Attorney General v. Gruenvald, 57.

83. Bauer, Jews for Sale? 168: “The Jews, in Himmler's ideology, were the real enemies of Nazism. They ruled the Western Allies and they controlled Bolshevik Russia … A basic desire to murder all the Jews does not contravene a readiness to use them, or some of them, as hostages to be exchanged for things that Germany needed in its crisis; the negotiations could be held with either the foreign Jews themselves or with their non-Jewish puppets.”

84. For a critical discussion of the use of criminal conspiracy in Nuremberg, see Shklar, Judith, Legalism (Cambridge, Mass.: Harvard University Press, 1964), 171–77.Google Scholar

85. Ibid, 177–78.

86. Since the trial was not a criminal trial against Kastner, but a libel trial against Gruenvald, criminal conspiracy was not a legal charge brought against Kastner. The legal discussion concentrated on the question of whether Kastner “assisted” the Nazis in bringing about the mass murder of the Jews of Hungary. Only in the narration of the facts, and in order to find a causal link between the actions of Kastner and the destruction of Hungarian Jewry, do we encounter conspiracy as an organizing theme of the judge's historical narrative. For the need to distinguish between the meaning of causality in law and in history (and a warning about the conflation of the two through conspiracy law), see Shklar, Legalism, 194–99. Like any good conspiracy story, the language of secrecy is dominant in Halevi's narrative. He refers to the “Reich's secret” and says that “the secret of the rescue was transformed into a secret about the extermination.” Attorney General v. Gruenvald, 57, 62–63.

87. Appeal, Attorney General v. Gruenvald, 2017, 2076.

88. Lahav, Judgment in Jerusalem, 135.

89. Appeal, Attorney General v. Gruenvald, 2099. Interestingly, similar questions about the possibility of equality and free will arise in the literary controversy about Faust's moral blame, given the trickery and lies of Mephistopheles and the enormous inequality between the parties. There are scholars who argue that Faust was simply blind to the invalidity of the contract. Halevi's blindness is similar in this respect to Faust's. (I thank Carol Rose for suggesting this analogy.) Indeed, Goethe, who was aware of this problem, tried to equalize the position of the parties by transforming the “contract” into a “wager.”

90. Appeal, Attorney General v. Gruenvald, 2080–82. Judge Halevi acknowledged at one point in the judgment that the relevant legal question was about a breach of trust by a public official (moving him in the direction of public law). However, he did not elaborate on this point because the signing of the “contract” constituted, in his eyes, a breach of this trust. See Attorney General v. Gruenvald, 110, 111. The difference between Halevi and Agranat can be attributed to their understanding of Jewish life in Europe. While Agranat was willing to see it in terms of self-governance (hence public law), Halevi remained within the framework of private law. (I thank Pnina Lahav for suggesting this point.)

91. It should be noted, however, that Justice Agranat himself was critical of the formalistic division into private and public categories. He exposed the blurring of the categories in the case of a libel trial where criminal law and civil law come together. The relevant question according to Agranat was about what standard of proof (civil or criminal) to apply to a libel trial defense that claims “I told the truth.” Agranat believed that this decision required balancing conflicting interests (free speech and protection of the good name of individuals) and could not be decided by simply choosing the standard of proof according to the legal classification of public and private law. For elaboration, see Lahav, Judgment in Jerusalem, 129–30.

92. Appeal, Attorney General v. Gruenveld, 2063; citing from Williams, Glanville, Criminal Law—the General Part (London: Stevens and Sons, 1953): 36.Google Scholar

93. There is, however, an ambiguity in Agranat's approach of how much legal positivism (i.e., separating law from morality) is required in a judgment that raises such complicated moral dilemmas. On the one hand he insists on their separation (reasonable for the law is not necessarily morally approvable). Appeal, Attorney General v. Gruenveld, 2120: “There will be those who will argue that from a strictly moral point of view, and no matter what the practical considerations are, it was the duty of the head of the Committee to allow the leaders of Kluj to decide for themselves about the significance of the information about Auschwitz and to determine alone the fate of their community members. My answer to this will be that this matter belongs to the question of the reasonableness of the means that were chosen by Kastner to save the Jews of Hungary from destruction. It is a question of whether the line of financial negotiations with the Nazis raised the chance of achieving this mission.” But at other times Agranat seems to argue that also from a strictly moral perspective Kastner should not be condemned. See, for example, ibid., 2082: “My opinion is that even if Kastner did not achieve his aim, one cannot condemn him morally, under one condition –that he was allowed to think, given the circumstances at the time, that the way of commercial negotiations with the Germans offered the best chance—even the only chance—of saving the majority of the Ghetto Jews.

94. Appeal, Attorney General v. Gruenvald, 2064–65 (the choice of the word “reconciling” is even more striking given the fact that Agranat is quoting from an English source that uses the more neutral term “balance”).

95. Ibid., 2058. Translated by Lahav, Judgment in Jerusalem, 132.

96. Bernstein, Michael A., Foregone Conclusions: Against Apocalyptic History (Berkeley: University of California Press, 1994), 12.Google Scholar

97. Instead of Halevi's dramatic subtitles like “Preparation for the Temptation,” “The Temptation,” “K's Dependency on Eichmann,” “The Origins of Secrecy,” Agranat divided the decision chronologically. “From 19.3.44 to 7.7.44 (the holocaust in the provincial towns)”; “From 8.7.44 to 14.10.44 (time of recess)”; “From 15.10.44 to the end of December 1944 (the partial expulsion of the Jews of Budapest).” Appeal, Attorney General v. Gruenvald, 2022.

98. For the difference between narrative and chronology in terms of moral closure, see White, Hayden, “The Value of Narrativity in the Representation of Reality,” in On Narrative, ed. Mitchell, W. J. T. (Chicago: The University of Chicago Press, 1981), 1–23.Google Scholar Bernstein rejects the need to produce historical narratives with closure in order to allow “the point of view of any single moment in the trajectory of an ongoing story [to have] significance that is never annulled or transcended by the shape and meaning of the narrative as a (supposed) whole.” See Bernstein, Foregone Conclusions, 28.

99. Bauer, Jews for Sale? 156: “The official Judenrat leaders were of the upper-middle-class Jewish elite; they were loyal and law-abiding Hungarian citizens whose life styles and views made them utterly unprepared for the calamity.” See also Hansi Brandt's testimony in Eichmann's trial about the illegal activities of the rescue committee, The Eichmann Trial: Testimonies, 911. See also the documentary film Free Fall (director Peter Forgács, Hungary, 1996) based on home-movie footage that was produced between 1939–1944 by a Hungarian Jew (György Peto) from a wealthy assimilated environment. The film demonstrates these observations by juxtaposing images of private life among Szeged's wealthy assimilated Jewish family and written texts (citing the “Jewish laws” passed by the Hungarian Parliament) and voice-overs that situate these happy scenes in their grim historical context.

100. Freudiger, a member of the Budapest Judenrat and an orthodox religious Jew, emphasized this point in his testimony on the “trucks for blood” plan: I told him [Kastner] that it would not be any good. First of all, one cannot provide the enemy with trucks … money can be exchanged … but trucks?! How do you intend to get them? From whom? He [Kastner] said: In Istanbul there is a rescue committee, there are representatives of the Jewish Agency, and we can fix it. I told him that I didn't think this would work. He said: You are not a Zionist, this is why you think it will not work. I said: Yes, I am not a Zionist, but aside from this I do not think this is possible … Attorney General v. Gruenvald, 66 (my emphasis).

101. The Nazis on their part used the grand aims of the Zionists against them. For example, when Kastner and his friends approached Eichmann and suggested allowing a limited number of Jews to emigrate, Eichmann reacted by saying that this plan was not big enough to provide a total (in Nazi terms “final”) solution to the Jewish problem. Attorney General v. Gruenvald, 49–50 (quotation from Brand's report, 20–22).

102. Ibid., 178–189.

103. Appeal, Attorney General v. Gruenvald, 2176. (He referred to conditions such as no statehood, no international support, terror and deception, and so forth.)

104. See, for example, Weisberg, Richard, Poetics and Other Strategies of Law and Literature (New York: Columbia University Press, 1992)Google Scholar; West, Robin, Narrative, Authority, and Law (Ann Arbor: University of Michigan Press, 1993)Google Scholar; Posner, Richard, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988)Google Scholar; White, James Boyd, Heracles' Bow (Madison: The University of Wisconsin Press, 1985)Google Scholar; Brooks, Peter and Gewirts, Paul, eds., Law's Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996).Google Scholar

105. Nussbaum, Martha C., “Poets as Judges: Judicial Rhetoric and the Literary Imagination,” University of Chicago Law Review 62 (1995): 1477–1519, 1479.CrossRefGoogle Scholar

106. Ibid., 1480–81.

107. Robert Weisberg, “Proclaiming Trials as Narratives: Premises and Pretenses,” in Law's Stories, 61–83, 65.

108. As early as 1930 the legal realist Jerome Frank identified this function of law: “Man … driven by fear of the vagueness, the chanciness of life, has need of rest. Finding life distracting, unsettling, fatiguing, he tries to run away from unknown hazards … [and] to postulate a legal system … free of the indefinite, the arbitrary and the capricious.” Frank, Jerome, Law and the Modern Mind (1930; Garden City, N.Y.: Anchor Books, 1963), 196–97.Google Scholar For an interesting discussion of the relations between law and literature in this respect, see Craft, Gretchen A., “The Persistence of Dread in Law and Literature,” Yale Law Journal 102 (1992): 521–46.CrossRefGoogle Scholar

109. The first poem (1 July 1955) “Around the Trial” consists of three parts that are devoted to different aspects of the trial (“Two Paths,” “The Nature of the Accusation,” “The Tone of Discussion”); second poem, “More about the ‘Two Paths’” (22 July 1955); third poem, “Judgment by Principle” (29 July 1955); fourth poem, “About the Moral to the Generation” (12 August 1955). The poems appear edited and revised in Alterman's, Ketavim Be-Arbaa Kerachim (Tel Aviv: Ha-Kibbutz Ha-Meuhad, 1962) 3:421–40.Google Scholar For explanations of the poems and a detailed discussion of the Alterman controversy, see the interpretive essay by Dan Laor in Alterman, Nathan, Al Shtei Ha-Derachim [Between Two Roads], ed. Laor, Dan (Tel-Aviv: Ha-Kibbutz Ha-Meuhad, 1989), 114–55Google Scholar, especially 122–23. For a comparison between the Arendt and Alterman controversies in the light of the role of the intellectual in the Holocaust trials, see Bilsky, Leora, “In A Different Voice: Nathan Alterman and Hanna Arendt on the Kastner and Eichmann Trials,” Theoretical Inquiries in the Law 1(2) (July 2000): 509.Google Scholar

110. Alterman, Kastner's Notebooks (private notes, not published) (on file in Alterman's Archives, Tel Aviv University).

111. Barthes, Roland, “Dominic, or the Triumph of Literature,” in Mythologies, trans., Lavers, Annette (London: Vintage, 1972), 43–46.Google Scholar Gaston Dominici, the eighty-year-old owner of the Grand Terre farm in Provence, was convicted in 1952 of murdering Sir Jack Drummond, his wife, and daughter, whom he found camping near his land.

112. Barthes, “Dominic,” 46. In the original French text they are called: “la littérature de repletion” and “la littérature du déchirement.” Barthes, Roland, Mythologies (Paris: Editions du Seuil, 1957), 53.Google Scholar