Nazis and Nazi Collaborators (Punishment) Law
The Nazis and Nazi Collaborators (Punishment) Law (
The law criminalizes
Under the law, around forty alleged Jewish collaborators were put on trial between 1951 and 1972, of whom two-thirds were convicted. Such trials were highly controversial and have been criticized by judges and legal scholars due to the
Background
Following World War II, some alleged collaborators were subject to extrajudicial violence and even murder from other Holocaust survivors.
While some Holocaust survivors preferred to leave the past behind them, others thought that the new state should be pure of collaborators with the Nazis.[9] Beginning in 1948, some Holocaust survivors brought petitions to the Israel Police alleging that other Holocaust survivors were Nazi collaborators, but there was no legal basis for prosecution in these cases. According to legal scholars Orna Ben-Naftali and Yogev Tuval, the drafters of the Nazis and Nazi Collaborators (Punishment) Law saw its purpose in pragmatic terms as assuaging the anger among Holocaust survivors in Israel.[10] This is disputed by other writers who argue that there were only a few dozen complaints among a large number of survivors, which could not be considered popular demand.[11] Understanding of how the Nazi genocide was carried out was limited in Israeli society at the time the law was passed.[12]
Legislative history
An "Act against Jewish War Criminals" was drafted in August 1949 by Deputy Attorney General Haim Wilkenfeld.[13][14] On 26 December 1949, the Crime of Genocide (Prevention and Punishment) Law was introduced to the first plenary session of the First Knesset. A law without retrospective application that would codify the 1948 Genocide Convention into Israeli law, it was eventually passed on 29 March 1950.[15][16]
On 27 March 1950, Minister of Justice
Knesset members debated exactly what form the punishment of Nazi collaborators would take.
Lawmakers explicitly rejected a proposal by
The law originally carried a 20-year statute of limitations from the time the offense was committed for offenses less serious than murder, which was retroactively repealed in 1963.[26]
Provisions
Article 1 covers
Articles 2 to 6 define offenses that do not carry a mandatory death penalty.
Article 10 enumerates the circumstances that would lead to the acquittal of the defendant: if he acted to save himself from the danger of immediate death, or if his actions were intended to avoid worse consequences. Such circumstances did not excuse any of Article 1 crimes or murder. Article 11 lays out the only two circumstances that can be taken into account for the mitigation of sentencing: "that the person committed the offence under conditions which... would have exempted him from criminal responsibility or constituted a reason for pardoning the offence", assuming that the accused tried to mitigate the consequence of the offence, or that it was committed with the intent to avoid a more serious outcome.[34][35]
Several provisions in the law are considered "exceptional":[36][37][38]
- It applies to past events (
- The law applies extraterritorially to crimes committed exclusively outside of Israel;[36][38]
- A mandatory death sentence is instituted for crimes under Article 1;[36]
- Trying a defendant twice for the same offense is allowed;[36][38]
- Many usual
- The court may deviate from the usual
Trials
Kapo trials
Within fifteen months of the law being passed, the Israel Police received at least 350 complaints from Holocaust survivors.
According to
Between 1951 and 1972, around 40 trials were held against Jews accused of collaborating with the Nazis.[49][50] The exact number is not known because many of the records are sealed by a 1995 court order.[51] In the known cases, two-thirds of defendants were convicted and all but one sentenced to prison, with an average sentence of 28 months.[50] No Jewish defendant was charged with "crimes against the Jewish people".[52] The trials relied almost entirely on witness testimony as most of the alleged crimes left no documentation.[53] Israeli judges and prosecutors, however, realized that not all the witness testimony was reliable as some witnesses' memories were distorted by trauma and others added unverified information to their testimony, for reasons such as desire for retribution.[54] None of those questioned or tried admitted responsibility for wrongdoing.[41]
Israeli historian Idith Zertal writes that the trials
exposed the routine regime of terror, oppression, and abuse in the ghettos and camps, where inmates’ human character and moral stamina were obliterated long before their bodies were consumed, and brought to light the existential and moral hell created by the Nazis, the monstrous upside-down world which had transformed persecuted into persecutors, victims into reluctant wrongdoers and accomplices in their own oppression.[55]
In 2014 journalist Itamar Levin sought access to the files but was refused on privacy grounds.[56] Levin took it to court, but a police officer assigned to examine the files had not reported as of early 2021.[56] Yaacov Lozowick, the state archivist at the time, read 120 of the files himself and believes that public release of the files would for the most part exonerate the people who had been suspects.[56]
Trials of non-Jews
Only three non-Jews were tried under the law.
Adolf Eichmann
In 1960, the major Holocaust perpetrator Adolf Eichmann was kidnapped in Argentina and brought to Israel to stand trial.[62] His trial, which opened on 11 April 1961, was televised and broadcast internationally, intended to educate about the crimes committed against Jews, which had been secondary to the Nuremberg trials.[63] Prosecutor Hausner also tried to challenge the portrayal of Jewish functionaries that had emerged in the earlier trials, showing them at worst as victims forced to carry out Nazi decrees while minimizing the "gray zone" of morally questionable behavior.[64] Hausner later wrote that available archival documents "would have sufficed to get Eichmann sentenced ten times over"; nevertheless, he summoned more than 100 witnesses, most of them who had never met the defendant, for didactic purposes.[65]
Eichmann was charged with fifteen counts of violating the law, including multiple counts of crimes against the Jewish people, crimes against humanity against both Jews and non-Jews, and war crimes.
Ivan Demjanjuk
The last trial under the law was that of
Reception
Validity of the law
Eichmann's defense lawyer, Robert Servatius, challenged the jurisdiction of Israeli courts over Eichmann's crimes and the validity of the law because it was ex post facto and extraterritorial. Judge Moshe Landau responded that it was a valid Israeli law. In its judgement the district court extensively justified the law based on precedents in English law.[73] The verdict also stated that "The jurisdiction to try crimes under international law is universal."[74] Servatius also argued that law was invalid because the victims of the crimes punishable by the law were not Israeli citizens at the time. In response, the court stated that it was "the moral duty of every sovereign State... to enforce the natural right to punish, possessed by the victims of the crime whoever they may be, against criminals" who had violated international law.[75]
Servatius again challenged the law during Eichmann's appeal to the Supreme Court, arguing that the law was inconsistent with international law because it tried foreign citizens for actions committed on foreign soil before the creation of Israel. The Supreme Court dismissed the appeal, stating that "The District Court has in its judgment dealt with [these] contentions in an exhaustive, profound and most convincing manner."[76] Nevertheless, the court proceeded to give a full justification for the law according to the international and English law that Israeli law is based on.[76] The court ruled that there was no international principle prohibiting retroactive laws or those which applied to foreign nationals on foreign territory. Furthermore, the law was consistent with international law because it sought to establish international principles in Israeli law.[77]
Demjanjuk's lawyers also challenged the validity of the Israeli law during his extradition proceedings in
Application to Holocaust survivors
Judges and prosecutors
Attorney General Haim Cohn filed dozens of indictments under the law. Later, he stated: "[I came] to believe that those of us who did not experience the Holocaust ourselves, have no ability or the right to try a person for his actions, intentions and constraints when he [was trapped in] that Hell".[80] Although Israeli judges were not of one mind about applying the law to Holocaust survivors (those who were more lenient to the accused tended to be survivors themselves), "the verdicts squirm with disquiet about the delegated task at hand", according to law professor Mark A. Drumbl.[81] Among the complaints was that judging the collaborators diminished the guilt of the Nazi perpetrators.[81] Overturning the conviction of Barenblat, Supreme Court judge Yitzhak Olshan found that "this is a question for history and not for the courts".[82]
In his judgement of the same case, Landau wrote:
[I]t would be presumptuous and self-righteous on our part, us who never walked in the shoes of those [who were there] ... to criticize those 'little people' who did not rise to a supreme level of morality, while they were subject to rampant persecution by a regime whose the primary purpose was to wipe out their humanity. We must not interpret the law ... according to a measure of moral behavior that only few were capable of ... [C]riminal law prohibitions, including the Nazi and Nazi Collaborators Law, were not written for exceptional heroes, but for ordinary mortals, with their ordinary weaknesses.[83][12]
Because the law applied exclusively to past events, it has been characterized as retributive justice.[84][38][a] According to Supreme Court justice Shneur Zalman Cheshin , the law's purpose was "revenge on Israel's enemies".[38]
Journalism
The kapo trials attracted relatively little press coverage, but many Holocaust survivors attended court to observe the proceedings.[85][86] According to Israeli journalist Tom Segev, newspapers were reluctant to report on stories considered "filthy and embarrassing".[85] Rivka Brot writes that the framing of the law turned the cases into disputes between survivors which did not interest wider Israeli society.[87]
Following the quashing of the death sentence of Enigster, the editor-in-chief of
According to a 1962 article in Davar, the Mapai party newspaper, many Israelis felt ambivalent about the trials. "After all, to some degree, they too [the defendants] were, in carrying out their crimes victims of the Nazi beast—moral victims who in their weaknesses participated in an unprecedented crime, and a crime against their people."[90]
Academic analysis
In a book that they coauthored, law professors Michael Bazyler and Frank Tuerkheimer were unable to agree on a conclusion to the chapter on the kapo trials. Bazyler condemned the "bad law that should never have been passed by the Knesset". He disagreed that any Jewish survivor should be tried under criminal law for such offenses, "because of the extreme, in fact, inconceivable circumstances of Jews in the concentration camps".[91] In contrast, Tuerkheimer argued that "even in the horrid environment of the camp, kapos could make choices. Those who opted for the brutal should not escape punishment simply because they were Jews or concentration camp inmates."[92]
In a separate article, Bazyler and Julia Scheppach argue that the law's "intention most likely was to distance Israelis from what they regarded as the shameful response of Europe’s Jews to their destruction", and should be viewed in light of general hostility and contempt for Holocaust survivors in Israel, who were seen as having gone "like sheep to the slaughter".[15] Zertal argues that trials "in every sense of the word, were purges" and that the law would have been more accurately titled "Law for Punishment of Minor Collaborators of the Nazis".[55] She highlights the fact that for a decade after it was passed, "not one of the defendants tried under the law was charged with or found guilty of directly or indirectly causing the death of a single person".[93][85]
Porat finds that some prosecutors who took part in the trials forgot them or misleadingly omitted them from discussion of the law.[94] Furthermore, he charges that Israeli institutions such as Yad Vashem omit the issue from their public presentations and in fact "have been suppressing the memory of the kapo trials for fear of tainting the image of the victims".[95] Porat sees this omission as part of a broader trend in which Israelis identify with Holocaust victims, in his view excessively.[96]
Rivka Brot notes that "criminal law recognizes only two outcomes: innocence or guilt". In her view, this is an insufficient frame to deal with the phenomenon of the "gray zone" which existed between these two poles.[87] According to Drumbl, "[l]aw lacked the vocabulary or finesse; the courtroom was a poor conduit" for reckoning with the behavior of kapos[97] and the law's "quest for condemnation, finitude, and clarity effectively constructed the persecuted Jew as a Nazi".[52] Ben-Naftali and Tuval conclude that the law was drafted without consideration for ordinary humans and set out to expel "collaborators" (who in historical terms were also victims) from the imagined community of survivors and instead classify them "into the only other remaining category that the Law recognized: the Nazis".[98]
According to Israeli law professor
Explanatory notes
- ^ One judge commented, "This law has almost no intention of deterrence, not in regard to the defendant or another person. I see the rationale of the law… in payback."[84] According to Supreme Court justice Shneur Zalman Cheshin , "The stipulated punishments ... were not, in the main, meant to reform the offender or deter potential offenders, but – as the law’s name suggests – to take revenge on Israel’s enemies."[38]
Citations
- ^ "Introduction to the Holocaust: What was the Holocaust?". United States Holocaust Memorial Museum. Retrieved 7 November 2020.
- ^ "Jewish Councils (Judenraete)". United States Holocaust Memorial Museum. Retrieved 7 November 2020.
- ^ Brot 2020, p. 92.
- ^ Bazyler & Scheppach 2012, p. 419.
- ^ Bazyler & Scheppach 2012, p. 420.
- ^ a b Porat 2019, p. 6.
- ^ Bazyler & Scheppach 2012, pp. 420–421.
- ^ Bazyler & Scheppach 2012, p. 417.
- ^ Porat 2019, p. 67.
- ^ Ben-Naftali & Tuval 2006, p. 144.
- ^ Bazyler & Scheppach 2012, p. 424.
- ^ a b c d Kremnitzer 2020, p. 168.
- ^ Bazyler & Scheppach 2012, p. 421.
- ^ a b c d e f Porat 2019, p. 77.
- ^ a b c d Bazyler & Scheppach 2012, p. 427.
- ^ Ben-Naftali & Tuval 2006, p. 133.
- ^ Bazyler & Scheppach 2012, p. 426.
- ^ Ben-Naftali & Tuval 2006, p. 143.
- ^ Ben-Naftali & Tuval 2006, pp. 143, 144, 147.
- ^ a b Porat 2019, p. 75.
- ^ a b Porat 2019, p. 76.
- ^ Porat 2019, pp. 74–75.
- ^ a b c Ben-Naftali & Tuval 2006, p. 137.
- ^ a b Zertal 2005, p. 63.
- ^ Porat 2019, p. 78.
- ^ Section 12(b), 1963 amendment
- ^ Ben-Naftali & Tuval 2006, p. 134.
- ^ a b Ben-Naftali & Tuval 2006, pp. 131–132.
- ^ Section 16
- ^ a b c Bazyler & Scheppach 2012, p. 428.
- ^ Ben-Naftali & Tuval 2006, pp. 135–136.
- ^ Ben-Naftali & Tuval 2006, p. 135.
- ^ Ben-Naftali & Tuval 2006, p. 136.
- ^ Ben-Naftali & Tuval 2006, p. 138.
- ^ Bazyler & Scheppach 2012, p. 429.
- ^ a b c d e f g Ben-Naftali & Tuval 2006, pp. 138–139.
- ^ a b Bazyler & Scheppach 2012, pp. 426–427.
- ^ a b c d e f g h Zertal 2005, p. 65.
- ^ Porat 2019, p. 81.
- ^ Porat 2019, p. 82.
- ^ a b c Porat 2019, p. 84.
- ^ a b Porat 2019, pp. 6–7.
- ^ Zertal 2005, p. 64.
- ^ Ben-Naftali & Tuval 2006, p. 157.
- ^ Bazyler & Scheppach 2012, p. 431.
- ^ a b Porat 2019, p. 7.
- ^ Porat 2019, pp. 7–9.
- ^ Porat 2019, pp. 9, 209–210.
- ^ a b c d e Ben-Naftali & Tuval 2006, p. 129.
- ^ a b Porat 2019, p. 5.
- ^ Ben-Naftali & Tuval 2006, p. 151.
- ^ a b Drumbl 2019, p. 246.
- ^ Porat 2019, p. 59.
- ^ Porat 2019, pp. 67, 70.
- ^ a b Zertal 2005, p. 66.
- ^ a b c Yaacov Lozowick (28 May 2021). "70 years later, These Holocaust survivors' names are still tarnished". Haaretz.
- ^ Porat 2019, p. 58.
- ^ Porat 2019, p. 48.
- ^ a b Porat 2019, p. 49.
- ^ Porat 2019, p. 73.
- ^ Porat 2019, p. 70.
- ^ Bazyler & Scheppach 2012, p. 438.
- ^ Bazyler & Scheppach 2012, p. 439.
- ^ Porat 2019, p. 173.
- ^ Porat 2019, p. 174.
- ^ Bazyler & Scheppach 2012, p. 443.
- ^ Bazyler & Scheppach 2012, p. 449.
- ^ a b Bazyler & Scheppach 2012, p. 453.
- ^ Drumbl 2016, pp. 229–230.
- ^ Bazyler & Scheppach 2012, p. 457.
- ^ Bazyler & Scheppach 2012, p. 456.
- ^ Bazyler & Scheppach 2012, pp. 457–458.
- ^ Bazyler & Scheppach 2012, p. 441.
- ^ Bazyler & Scheppach 2012, pp. 441–442.
- ^ Bazyler & Scheppach 2012, p. 442.
- ^ a b Bazyler & Scheppach 2012, pp. 450–451.
- ^ Bazyler & Scheppach 2012, p. 451.
- ^ Bazyler & Scheppach 2012, p. 455.
- ^ Saxon, Wolfgang (21 October 1994). "Frank Battisti, 72, Federal Judge Presiding Over Demjanjuk Case". The New York Times. Retrieved 22 April 2021.
- ^ Porat 2019, p. 166.
- ^ a b Drumbl 2016, p. 232.
- ^ Bazyler & Scheppach 2012, p. 436.
- ^ Ben-Naftali & Tuval 2006, p. 173.
- ^ a b Porat 2019, p. 137.
- ^ a b c Bazyler & Scheppach 2012, p. 430.
- ^ Zertal 2005, p. 87.
- ^ a b Brot 2020, p. 91.
- ^ Porat 2019, pp. 92–93.
- ^ Porat 2019, p. 93.
- ^ Porat 2019, p. 204.
- ^ Bazyler & Tuerkheimer 2014, p. 224.
- ^ Bazyler & Tuerkheimer 2014, p. 225.
- ^ Zertal 2005, p. 67.
- ^ Porat 2019, pp. 213–214.
- ^ Porat 2019, pp. 214–215.
- ^ Porat 2019, pp. 215–216.
- ^ Drumbl 2019, p. 247.
- ^ Ben-Naftali & Tuval 2006, pp. 147, 173–174.
- ^ Kremnitzer 2020, pp. 168–169.
- ^ Drumbl 2016, p. 221.
- ^ Kremnitzer 2020, p. 169.
Sources
- ISSN 0277-5417.
- Bazyler, Michael J.; Tuerkheimer, Frank M. (2014). "The Jewish Kapo Trials in Israel: Is There a Place for the Law in the Gray Zone?". Forgotten Trials of the Holocaust. NYU Press. pp. 195–226. ISBN 978-1-4798-8606-7.
- .
- Brot, Rivka (2020). "The illusive collective memory: Revisiting the role of law in Israel's Holocaust narrative". Journal of Israeli History. 38 (1): 77–101. S2CID 222136004.
- .
- Drumbl, Mark A. (2019). "Histories of the Jewish 'Collaborator': Exile, Not Guilt". In Tallgren, Immi; Skouteris, Thomas (eds.). The New Histories of International Criminal Law: Retrials. Oxford University Press. pp. 237–252. ISBN 978-0-19-256513-6.
- Kremnitzer, Mordechai (2020). "An Argument for retributivism in international criminal law". In Jeßberger, Florian; Geneuss, Julia (eds.). Why Punish Perpetrators of Mass Atrocities?: Purposes of Punishment in International Criminal Law. Cambridge University Press. pp. 161–175. ISBN 978-1-108-47514-3.
- ISBN 978-0-674-24313-2.
- ISBN 978-1-139-44662-4.
Further reading
External links
- Legislative history (in Hebrew)
- Full text in English translation