11
Changing Legal Perceptions of
“Nazi Collaborators” in Israel, 1950–1972
DAN PORAT
It was a hot summer day in July 1949 when a group of young Israel Defense Forces
soldiers stopped for refreshments at a small coffee shop in Ein-Karem, a neighborhood on the outskirts of Jerusalem. The group sat down at one of the tables, and
the shop owner, Joseph Paal, approached them to take their order. At the sight of
the one-eyed Paal, one of the soldiers, Yerachmiel Y.,1 became visibly agitated. He
recognized the owner. He was “Blinder Max” who had served as his Blockältester
(block elder) in Block 10 of the Jaworzno concentration camp, an auxiliary camp of
Auschwitz, a man who had beaten and tortured Yerachmiel and his fellow prisoners. Yerachmiel confronted Blinder Max, but Paal categorically denied the accusation, insisting that he had never in his life heard of Jaworzno and that he was not
Blinder Max. Paal’s wife of three years, whom he had married after the Nazis had
murdered his first wife and children, turned to the soldiers and commented that it
was time to forget the past now that they were in their new land.2
But the Holocaust survivor Yerachmiel Y. could not and did not want to forget his tormentor. Four months later, in October 1949, he met with a friend from
Block 10, David L., and shared that he had seen Blinder Max. The two approached
the Israeli police and filed a complaint with the Jerusalem station. In February 1950
the police ordered Paal in for questioning. In the investigation room Paal was adamant that he had never served as a Blockältester in Jaworzno. The policeman called
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DAN PORAT
Yerachmiel into the investigation room and confronted the two men. Hearing Paal’s
denial, Yerachmiel lost his cool and screamed in Yiddish, “You don’t know me? You
didn’t hit me? You don’t know that I was one of the inmates in Block 10 in Jaworzno?
You dare tell me that you are not Blinder Max?” Paal paled and answered, “Yes, I was
in Jaworzno, and if I was there, does that make me a criminal?”3
Holocaust survivors did not want to forget their tormentors. Likewise, Israeli
authorities felt an obligation to confront the culprits. The Paal incident was just
one of dozens of such incidents that took place in Israel in the two decades
following the Holocaust, confrontations in which surviving Jews accused other
Jews of tormenting them. The police investigated the cases and in some instances
arrested suspects. As in Paal’s case, all the accusations addressed events that had
occurred before the establishment of the State of Israel and were outside its
territory and jurisdiction. The police and judicial system could not act on these
matters, and this lack of response angered and distressed many survivors. In one
instance, in February 1949, the morning newspaper Ha-boker published an open
letter from a reader named Dov to Minister of Justice Pinchas Rosen in which
he described encountering an individual named Julius Siegel, whom he accused
of collaboration with the Nazis. He filed a complaint with the police force, which
investigated and arrested the suspect. At the moment of his arrest, the letter continued, Siegel brandished a document signed by Yerachmiel (Yaron) Lustig, head
of the Israel Police Criminal Investigation Unit, which indicated, “One cannot
prosecute a person in Israel for crimes conducted outside the State of Israel.”
Seeing Siegel walk away scot-free, Dov’s only recourse was to turn to the Polish
consulate in Tel Aviv and demand that Poland submit an extradition request to
the State of Israel to have Siegel sent back to stand trial there.4
The police investigations in all these cases had no legal basis. Still, the police
continued to investigate. On July 6, 1949, Police Inspector Joseph Gorski wrote
to Lustig and to Israel police commissioner Sahar Yechezkel about those whom
he defined as “war criminals.”
Due to the lack of sufficient laws on the books in Israel, [criminals] are
not being penalized here for crimes they committed in Europe. On the
contrary, the paradoxical situation is that many war criminals . . . find
a calm shelter in Israel. There are a large number of Jewish “kapos” and
other “privileged” individuals who are already in Israel and the heads of
security forces and the courts cannot penalize them. I will ask you, Sir,
to take the steps needed . . . so as to create appropriate laws that will
allow bringing these criminals to court.5
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Lustig in turn wrote to Ram Salomon, the director general and legal adviser of the
Police Ministry, with a request to initiate legislation on the issue. Salomon replied
in October 1949: “I wish to inform you that the Ministry of Justice is preparing a
proposal for a law related to war criminals and collaborators.6 It is anticipated that
the bill will be brought to the Knesset [the Israeli legislature] in its next sitting.”7
As these interactions demonstrate, the initiative for prosecuting Jews deemed
putative Nazi collaborators came from two directions: Holocaust survivors on the
one hand, and the State of Israel on the other. Survivors who identified their own
tormenters or individuals who had harmed members of their family, friends, and
acquaintances demanded justice. Similarly, the State of Israel, which saw itself as the
heir of the Nazis’ innocent victims, demanded justice from those whom it viewed
as betrayers of the nation by having colluded with the Germans. Still, it took the
state—both its executive and judicial branches—years before it changed its approach
to those Holocaust survivors it considered “war criminals” and “collaborators.”
In this chapter I discuss the dramatic paradigm shift in the view of Israel’s
legal system toward Jews who allegedly collaborated with the Nazis. First, I focus
on the Knesset’s deliberation of the legislation of the Nazis and Nazi Collaborators (Punishment) Law of 1950, and then I examine some of the trials that resulted
from it.8 Initially, in the early 1950s the prosecutors aimed to apply the harshest
components of the law, such as “war crimes” and “crimes against humanity,” in
cases of Jewish collaborators, in a manner that corresponded with the Knesset
members’ original intentions in legislating this law. Yet from the beginning and
contrary to the legislators’ intention, the courts expressed concern regarding the
limited applicability of these components of the law to Jewish defendants. Following these initial verdicts, prosecutors throughout the remaining years of the 1950s
treated defendants only under sections of the law that were less harsh in nature.
Only after the Eichmann trial did these trials come to an end, culminating
in the exceptional 1964 Supreme Court decision in the case of Hirsch Barenblat,
when it concluded that Jewish collaborators could be judged only in the court
of history and not in the court of law. The justices interpreted the law in a way
that made it almost inapplicable to Jewish victims even if they had played a
privileged role in the concentration camp system or in the ghetto police, a view
that contradicted the original view that Jews who had assisted the Nazis were
their collaborators.
The 1950 Nazis and Nazi Collaborators (Punishment) Law
In March 1950 Minister of Justice Rosen presented the Israeli Knesset with a proposed piece of legislation, the Nazis and Nazi Collaborators (Punishment) Law.
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DAN PORAT
This was the first Holocaust-related law considered by the Knesset. In its first
clause the bill focused on “crimes against humanity” that had taken place in the
Nazi era, crimes including “murder, extermination, enslavement, starvation, or
deportation and other inhumane acts committed against any civilian population,
and persecution on national, racial, religious, or political grounds.” The following
clause focused on “war crimes,” which constituted “murder, ill-treatment, or deportation to forced labor or for any other purpose, of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas;
killing of hostages; plunder of public or private property; wanton destruction of
cities, towns or villages; and devastation not justified by military necessity.” As the
explanatory notes to the bill indicated, the formulation of these two sections emanated from the wording of the sixth principle of the “Principles of International
Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment
of the Tribunal,” which defined war crimes and crimes against humanity.9
In presenting the law, Rosen explained its target: “Nazi criminals who are
guilty of the crimes presented in this law will not dare come to Israel.” “In reality,” he stated later, “the law will apply less to Nazis than to Jews who collaborated with the Nazis and are here in the State of Israel.”10 Because the bill had
to be presented in neutral language, it did not use the word Jew, not even once,
in either its definition of “perpetrator” or its definition of relevant crimes. The
Ministry of Justice, which had drafted the proposed law, used completely neutral
language that made no distinction between, for example, a Jewish policeman, a
Latvian collaborator, and a German SS man who had served the Nazis.
None of the Knesset members seated that day in the chamber disputed
Rosen’s assertion that the law aimed to punish those from within the Jewish
people whom it defined as collaborators. In their deliberation of the bill, Knesset
members accepted the neutral language suggested by the Ministry of Justice when
it came to perpetrators, whether Jewish or German. However, they criticized it
when it came to victims. According to some, the lack of any distinction in the
proposed law between crimes committed against members of the Jewish nation
and those committed against members of other groups was unacceptable. In an
op-ed piece that reflected the criticisms he and others had leveled against the
proposed law from the podium of the Knesset, Knesset member Yaakov Gil of
the centrist party General Zionists (Ha-tsiyonim ha-kelali’im), wrote:
It is surprising that the government of Israel did not mention in this
law, which primarily affects us, even once the “Jewish people,” as if it
were the Nuremberg court which spoke about the slaughter of millions
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
of people, at the same time that it was the Jewish people who were the
greatest victims of this crime. . . . After two thousand years without a
state, the government of the State of Israel needs to appear and assert:
“[a crime] committed against Israel and humanity.”11
In Gil’s view the Israeli government’s failure to explicitly make a distinction
between crimes against the Jewish people and crimes against humanity indicated
the mentality of Diaspora Jews and hesitations, he believed, the State of Israel had
to rid itself of. On the contrary, the government of Israel owed it to Israelis and
Jews in the Diaspora alike to define the crime for which Nazis and their collaborators deserved to be punished under Israeli law as a crime against the Jewish people.
The Knesset decided to refer the law for consideration to the Constitution,
Law, and Justice Committee, a committee that in turn established a subcommittee to deliberate the law’s details. The subcommittee heeded the criticism
expressed by Knesset members when it added a new clause titled “Crimes
Against the Jewish People” to Section 1 of the law, which already sanctioned war
crimes and crimes against humanity. This clause included crimes such as “killing
Jews,” “placing Jews in living conditions calculated to bring about their physical
destruction,” and “inciting hatred of Jews.” Like the two other clauses included
in Section 1 of the law—crimes against humanity and war crimes—this one also
carried mandatory capital punishment.12
Disagreement among Knesset members emerged surrounding the clause
that focused on sentencing (Section 10), a debate that reflected diverging views
on the purpose of trying and punishing Jewish collaborators. The argument
focused on the question of whether or not the court should consider leniency for
a Jew, “a persecuted person,” when it sentenced him or her. According to the proposed law, the sentence of a persecuted person would be reduced if he or she had
acted under duress or had attempted to prevent, through said action or lack of
action, worse consequences.13 One group, which included Knesset members Yaakov Klibanov of the General Zionists and Moshe Ben-Ami of the Sephardim
and Oriental Communities Party (Sefaradim ve’edot ha-mizrah>), argued that
the courts should not only reduce the sentence but even “release [the individual]
from criminal responsibility” entirely. Knesset member Nahum Nir, the chair of
the committee who sided with this group, explained, “In the bill it is written that
[a persecuted person found guilty of violating the law] will not bear criminal
responsibility; it does not say that he did not commit a crime.”14
Knesset member Joseph Lam also sided with this group in the committee.
In a speech to the Knesset’s general assembly, he recounted his own experience
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DAN PORAT
of being arrested by Nazis in 1938 and interned at Dachau before he immigrated
to Mandatory Palestine in 1939.
I myself was a prisoner in a camp, and I know how many crimes the people who were responsible committed—not only the Nazis, but also their
collaborators, who were prisoners themselves in the camps. But I know
many instances in which these people, who themselves were persecuted,
did everything possible to prevent crimes. There were different instances
in which a kapo had to take an action that in our view was an act that
helped the Nazis, all this in order to prevent the people under his authority from harsh wounds that might cause their death. If, for example, in
a room of one hundred people, two did not keep order—and this happened frequently—there was the danger that the Nazi responsible would
find the disorderly cabinet of so-and-so and would take out hundreds of
people and make them stand barefoot for many hours outside in temperatures of minus seventeen or eighteen Celsius or that he would punish
the entire block with harsh punishments, and all of this since two of the
prisoners did not keep order. . . . And thus, in this kind of case there was
no other choice but to impose on the disorderly one a specific punishment so as to prevent the danger of death to the entire group.15
The opposing group of Knesset members, who strongly identified with the Jewish resistance movement in German-occupied Eastern Europe and who were
influenced by the Soviet Union, was not swayed by this personal account. These
members argued that the court should not be obliged to release a defendant
from criminal responsibility because of his or her acting under duress. On the
contrary, the group, which included Yisrael Bar-Yehudah and Hannan Rubin,
both members of the United Workers Party (Mapam), argued that the extreme
circumstances of the Holocaust demanded that each and every Jew act in an
extraordinary fashion and place the good of the nation above his own personal
and selfish interests. “I refuse to release this person [from criminal responsibility],” asserted Knesset member Bar-Yehudah, “because he did what he did
out of cowardice.”16 This group of Knesset members saw the law as a means of
achieving historical justice with Jewish collaborators—first and foremost with
the members of the Judenräte, whom they saw as traitors. In the words of Knesset member Yaakov Gil, the intention of the law was “first and foremost revenge,
although only a symbolic revenge for the blood of Israel.”17 Furthermore, the law
served as a means of educating the nation, as it “will tell the Jews [worldwide]
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
how they need to act if it [a Holocaust] were to happen again.”18 Whereas the
first group of Knesset members aimed, by way of the law, to achieve calm in the
survivor community, the opposing group saw the law as a means of revenge and
education to prevent a future genocide of the Jews.
On July 12, 1950, the Constitution, Law, and Justice Committee convened.
Haim Cohn, the attorney general who, according to his own account, took part in
initiating the law, expressed his opposition to the suggestion that the defendant
be released “from legal responsibility.”19 Contrary to Cohn’s advice, the committee
formulated a compromise, wording Section 10 in a manner that allowed the court
to release the defendant from criminal responsibility, but only under specific and
limited circumstances, which were much stricter than the original wording. The
new formulation allowed release from criminal responsibility in two cases:
(a) if the defendants did or omitted to do the act in order to save themselves from the danger of immediate death and the court is satisfied that
they did their best to avert the consequences of the act or omission; or
(b) if the defendants did or omitted to do the act with intent to avert consequences more serious than those which resulted from the act or omission, and actually averted them; however, these provisions shall not apply
to an act or omission constituting an offence under Sections 1 and 2(f ).20
The compromise between the two groups resulted in the final line of this paragraph, which permitted the court to consider leniency in lesser crimes mentioned in the law, such as common assault or unlawful compulsory labor, but not
in those related to the first paragraph of war crimes, crimes against humanity,
and crimes against the Jewish people, as well as the case of murder.
The Knesset approved the newly worded Nazis and Nazi Collaborators
(Punishment) Law on August 1, 1950. In Section 2 the law focused on “crimes
against persecuted persons,” which it defined as “an act by which had he
committed in Israeli territory, he would have become guilty of an offence under
one of the following sections of the Criminal Code.” These offenses included
“rape,” “grievous harm,” and “robbing.” In Section 4 the law repeated many of
these crimes but this time in relation to “offences at places of confinement,”
that is, ghettos and concentration camps and the like. Section 5 focused on
the case of “a person who, during the period of the Nazi regime, in an enemy
country, was instrumental in delivering up a persecuted person to an enemy
administration.” Finally, Section 6 focused on instances of blackmailing
persecuted individuals.21
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DAN PORAT
War Crimes, Crimes Against the Jewish People,
and Crimes Against Humanity in the Courthouse
The police conducted hundreds of investigations in the years preceding passage
of the Nazis and Nazi Collaborators (Punishment) Law.22 As a result, within
weeks of the passage of the legislation, the Office of the Attorney of the State of
Israel had ample investigation material immediately at its disposal and was able
to file charges against more than ten alleged Jewish collaborators.
Upon the addition of the category of crimes against the Jewish people, Section 1 of the law consisted of three provisions: war crimes, crimes against the
Jewish people, and crimes against humanity. Only one case involved a charge of
crimes against the Jewish people as part of the indictment. Although the police
leveled this charge against a few suspects, prosecutors did not use it against any
Jews, because a member of the Jewish nation cannot be a member of the nation
and at the same time have “intent to destroy the Jewish people in whole or
in part.”23 They did, however, apply it to the sole case of a non-Jew who was
indicted, Andrej Banik. He was accused of the following: “As a member of the
Hlinka Guard in Slovakia and with the intention of destroying the Jewish people, he caused on the Hungarian-Slovakian border . . . dire physical damage to
Jews, among others, he trampled the belly of a child approximately three years
old . . . [and] beat a Jew named Liush Louis Grossman and knocked out his
teeth.” At trial the witnesses turned out to be unreliable, and in June 1951 the
court acquitted Banik of all charges; he then immigrated to Canada.24
Although the prosecution did not indict Jews of crimes against the Jewish
people, it did indict them of war crimes. In the September 1951 case of Attorney
General v. Hezekiel Jungster, the state attorney accused Jungster of committing
war crimes when, as a kapo in charge of Jewish prisoners at a labor camp in
Germany, he abused “a civilian population in an occupied territory, causing [its
members] grave injury, pain and suffering.”25 The district court, however, dismissed the charges, explaining, “We have no hesitation to determine that the
actions of the accused . . . constitute cases of ill-treatment as defined in the definition of war crimes [in the law]. Yet we accept the argument of the defendant’s
attorney that one should not convict the defendant of war crimes if he and his
victims belong to the same persecuted nation.”26
Of the three clauses included in Section 1 of the law (war crimes, crimes
against the Jewish people, and crimes against humanity), the prosecution used
the last one most frequently. In Attorney General v. Elsa Trunk the indictment
asserted that the defendant committed four such crimes against humanity. These
included accusations that Trunk had “tortured T. R., of an age of about 45, when
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
she forced her to kneel for two hours in a puddle of water with her hands raised
with blocks in each of her hands.”27 In her October 1950 decision, Judge Mina
Shamir implicitly criticized the legislators for their formulation of the law in
general and specifically for their formulation of what constituted crimes against
humanity, stating, “Within the defined terms, the legislator used flowery words
of a very broad meaning.” She then went on to define crimes against humanity as crimes conducted against “a group of people as a group and not against
individuals as such—there being numerous individual cases does not matter. . .
. Whenever there is no connection between one case and another and it is not
committed against a body, a group, a population . . . it is not a crime against
humanity as it is intended in the law.” She therefore ordered the removal of
three of the four charges of crimes against humanity from the indictment against
Trunk. In contrast, she approved presenting the charge of crimes against humanity in one instance in which Trunk was accused of forcing an entire block of
women prisoners to kneel on their knees for hours.28
The courts, however, convicted a defendant of crimes against humanity
only once, a conviction that carried with it mandatory capital punishment. This
was the aforementioned case of Attorney General v. Hezekiel Jungster, which was
brought before the Tel Aviv District Court in November 28, 1951. Jungster was
accused of torturing prisoners by beating them repeatedly with a rubber stick.
The court majority rejected the defense argument that it was necessary to prove
intent of “persecution on national, racial, religious, or political grounds” in order
to obtain a conviction for crimes against humanity.29 However, the judges construed the law as requiring proof of intent only in a case in which a defendant was accused of persecution but not in the other cases mentioned later in
same section of the law, including murder and “inhuman actions,” which also
fell under crimes against humanity. The judges defined Jungster’s repeated hitting of prisoners with a rubber stick as an inhuman action that did not demand
proof of intention. The court convicted Jungster of crimes against humanity and
sentenced him to death.
Judge Joseph Lam, the Knesset member who had been an inmate in Dachau
and advocated defining the law in more lenient terms, dissented from this ruling. Lam held that for a conviction of crimes against humanity, two conditions needed to be present: first, that the actions were inhuman, as they indeed
were in this case; and second, that the actions were “aimed at the destruction
of a population in its entirety or partially.” In this case, Lam stated, it was clear
that the accused did not intend to destroy a human population in part or as a
whole. All three components of Section 1 of the law, he determined, demanded
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DAN PORAT
identification of the accused with the Nazis’ motivation to destroy a group. He
held that all other sections of the law, such as Section 2, covering “crimes against
persecuted persons,” or Section 5, “delivering up a persecuted person to enemy
administration,” did not demand such a common motivation and thus applied
to Jewish collaborators.30
The court sentenced Jungster to death. Nevertheless, it was clear that the
majority found this verdict inappropriate.
Since we found the defendant guilty of a crime against humanity, the
law does not leave us any choice but to sentence him to death. This
result is against our better judgment, as we believe that it was better for
the legislator to leave to the court the authority to sentence a defendant to a lighter sentence. . . . It is quite clear that it is not the same [to
impose the death sentence] in the case of a Nazi criminal who identified himself as a Nazi or identified with the barbaric Nazi regime and
[in the case] of this defendant who himself was a persecuted person and
lived in inhuman conditions like his victims.31
In April 1952 the Supreme Court acquitted Jungster of crimes against humanity
and let his crimes based on Section 6, Paragraph 4 (“assault causing actual bodily
harm” of four individuals), stand. The court reduced his sentence to two years
of imprisonment. The Supreme Court ruling, which seems to have adopted the
dissenting view of the District Court, reduced the reach of the law. Although
no explanation of the verdict seems to have ever been published, the ruling did
indicate that Section 1, which carried with it capital punishment, should not be
applied to Jewish collaborators.32 From 1953 onward, with only a few insignificant
exceptions, the State Attorney avoided charging defendants under the clause of
crimes against humanity or any of the other clauses from Section 1 of the law,
that is, crimes against the Jewish people and war crimes.
The prosecution avoided Section 1 and mostly used Sections 2, 4, and 5 of
the law. These sections focused on a person who “committed certain offenses
against a persecuted person because of [or in connection with] his being a
persecuted person” under the Nazi regime (Section 2) or a person who “during the
period of the Nazi regime, in an enemy country, was instrumental in delivering
up a persecuted person to an enemy administration” (Section 5) or on actions
performed “in a place of confinement on behalf of an enemy administration or
of the person in charge of that place of confinement” (Section 4). For conviction
on the basis of these sections there was no need to prove identification with
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
and motivation similar to that of the Nazis. The courts continuously convicted
defendants on these lesser counts of the law.33
The Barenblat Case
The approximately forty trials at the district court level against collaborators
continued uninterrupted until the early 1960s. It was the case of Attorney General
v. Hirsch Barenblat, which began as a typical case against a collaborator, that
would mark, with one exception, the end of the collaborator trials and the end of
the implementation of the Nazis and Nazi Collaborators (Punishment) Law as
it pertained to putative Jewish collaborators.34
On February 5, 1964, the Tel Aviv District Court convicted the assistant
conductor of the Israeli Opera House, Hirsch Barenblat, on five counts of serving as a Nazi collaborator in occupied Europe. The court found that between 1941
and 1943 Barenblat served first as deputy commander and then as commander of
the Jewish police in the ghetto of Będzin in the Zagłębie region in Upper Silesia,
where he surrendered dozens of orphaned Jewish children to the Nazis, prevented Jews from escaping during a Nazi selection for deportation to Auschwitz,
beat Jewish residents in two instances, and in a different event turned Jews over
to the Nazis for shipment to forced labor camps.
Defense attorney Aryeh Rosenblum argued that in accordance with the
interpretation of Section 1 of the law by the courts, it was also necessary, in
the case of turning Jews over to the Nazis for forced labor, to prove that the
defendant shared the Nazis’ motivations. The court rejected this claim: “It is not
a fundamental part of the offense that the defendant have the same malicious
motivation with regard to the persecuted person like the hostile regime had
with regard to the handing objective, but it is enough that his action assist that
handing over.”35 In this the court upheld the precedent that outside Section 1
all other offenses included in the Nazis and Nazi Collaborators (Punishment)
Law did not require parallel motivation. The verdict continued in the same vein.
Indeed, what is astonishing and typical of this historical period is that
in this extraordinary pressured time all moral judgments and values
had changed and small people, educated and pleasant people, did not
refuse a saving anchor even if it meant taking part in the handing over
of their brethren Jews to the murderous Nazis. . . . The Israeli legislator
who spoke in 1950 in the name of the people did not want to forgive
these pleasant people, normal in normal times, who sinned towards the
nation for selfish reasons in abnormal times.36
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DAN PORAT
The Tel Aviv District Court sentenced Barenblat to five years in prison.
Between the lines of the verdict one can also read a condemnation of another
offender: the Judenrat as an institution. In the twelfth count of the original
indictment, the prosecution charged Barenblat with having “held a position in
a hostile organization ‘on behalf of the Judenrat and the Nazi administration,’”
an offense based on Section 3 of the law.37 For the first time in the collaborator
trials, a prosecutor attempted to have the Judenrat categorized as a hostile
organization, but after presenting his case, and in all likelihood because of
political pressure, David Libai, the prosecutor in this case, informed the court
that he would remove this charge. However, in its verdict the District Court
indicated that it viewed the Judenrat of Będzin in negative terms and would have
pronounced it a hostile organization had it been given the opportunity to do so.
Indeed, in the eyes of the judges, the Jewish councils represented the epitome of
the Nazis’ deployment of “human weaknesses” for their own purposes. According
to the District Court:
Those Jewish councils, Judenräte in their language . . . as if they were the
continuation of previous Jewish communities—[the Germans] forcibly
enslaved them to do their will and gradually turned them, through threats,
great pressure, extortion, and punishment, on the one hand, and false promises, acts of treachery, and promotion of false hopes, on the other hand, into
tools in their hands, which eased their despised business. [The Germans]
gave them [the Jewish councils] the sort of internal autonomy granted to
submissive serfs and turned them into persecutors of their brothers. And
the power they placed in their hands was the Jewish police.38
The District Court saw in Jewish councils in general and Jewish policemen like
Barenblat in particular “submissive serfs” of the Germans, who out of “human
weakness” served the Nazis and assisted them in their murderous task.39
The Supreme Court’s Barenblat Verdict:
An End to the Collaborator Trials
Upon hearing the pronouncement of the verdict of the Tel Aviv District Court,
which sentenced him to five years in prison, Barenblat immediately appealed to
the Israeli Supreme Court in Jerusalem. In all previous appeals of Nazi collaborators, the Supreme Court had not once overturned a conviction in its entirety;
it had only overturned one count or commuted sentences. The Barenblat case,
however, would change this.40
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
In refuting the decision of the District Court, the Supreme Court justices
cited the twelfth count of the original indictment, which asserted that as the deputy commander and commander of the Jewish police the defendant had “held a
position in an enemy organization” “on behalf of the Judenrat and the administration one of whose aims was to assist in carrying out the activities of an enemy administration against persecuted persons,” a count that, as mentioned earlier, had been
removed from the indictment by the prosecution.41 In his concurring opinion to
the lead opinion that was written by Justice Cohn, Justice Yitzhak Olshan, the
president of the Supreme Court, lashed out at the prosecution for the wording of
this charge: “For all the criticisms leveled against the methods of the Judenrat, or
the Jewish police, I have yet to hear an opinion that their existence resulted ‘from
the aim’ they set themselves of ‘assisting in the carrying out of the activities of an
enemy administration against persecuted persons.’”42 Although the Judenrat did
“assist” the Nazis by fulfilling their commands, the Supreme Court asserted, the
Judenrat had never shared the “aims” or intentions of the Nazis. Justice Moshe
Landau wrote in his concurring opinion that “the prosecution committed a mistake in dealing with this particularly sensitive issue when it placed in the District
Court indictment a charge which sought to declare the Jewish militia of Będzin
a ‘hostile organization.’”43 The court took this uncommon move of criticizing a
count that the prosecution had dropped, probably because it reflected in their
mind the zeal of the prosecution to convict a Jewish collaborator, a viewpoint the
Supreme Court aimed to change in this verdict.
Ultimately, the Supreme Court acquitted Barenblat on all counts, an acquittal that in my reading emanated more from the court’s goal of putting an end to
the trials against Nazi collaborators than from a strict reading of the law. Some of
the reasoning, especially that of the lead opinion by Justice Cohn (who, as mentioned earlier, was one of the initiators of the law but appeared to have changed
his mind), rested on splitting hairs between the wording and the structure of
the law. The strongest example of this fine reading is reflected in the Supreme
Court’s criticism of the lower court’s conviction of Barenblat for “delivering up”
(mesira in Hebrew) to the Nazis a “persecuted person” during an Aktion that took
place at the Będzin sport field on August 12, 1942. The District Court found that
Barenblat had prevented a group of Jews selected by the Nazis for a transport to
Auschwitz from escaping to a group destined for release or to one destined for
forced labor. At the end of the selection, the Nazis deported those thousands of
Jews who were in the first group to Auschwitz.
In explaining the reasoning for Barenblat’s acquittal of the charge of “delivering up” a “persecuted person” (Section 5 of the law), Cohn did not dispute any
315
DAN PORAT
of the testimonies or facts established by the District Court. Rather, he drew two
distinctions to support the acquittal. First, wrote Justice Cohn, when Barenblat
prevented Jews from escaping from one group to another at the sports field, Nazi
soldiers had already surrounded them. Thus the Jews were already in the hands
of the Germans, and even by preventing them from escaping from one group
to another, Barenblat did not hand them over. Cohn chose to ignore the fact
established by the lower court that in keeping the two groups separate from one
another, Barenblat had determined which individuals would be turned over to
the Germans and which would be saved.44
A second distinction that Cohn drew was that the notion of “delivering up”
as stated in the law was unlike the “prevention of escape” (meniat-berichah in
Hebrew): “May we say that the prevention of escape from an enemy administration is equivalent to delivery up to that administration? I am afraid that in so
doing we exceed by far the widest meaning which the word ‘delivery’ bears.”45
Yet Cohn never explicated what qualitative distinction he saw between the two
terms. After all, in every handing over there is also a component of prevention
of escape, and because Cohn drew a distinction between the two, it would have
been reasonable to expect that he would have explained the distinction between
them, but he did not.
The Supreme Court also justified overturning the lower court’s verdict on
grounds that Barenblat had been convicted of surrendering orphaned children
to the Nazis on the basis of a single testimony. Yet the district courts had previously convicted defendants based on single testimonies and the Supreme Court
had upheld those convictions. For example, in the 1952 case of Jacob Honigman
v. Attorney General the Supreme Court upheld various convictions of Honigman
that had been supported by the testimonies of single witnesses. In Honigman’s
case the Supreme Court justified reliance on sole testimonies given years after
the event by distinguishing these testimonies from regular testimonies. “No,
these kinds of acts do not easily erode from the mind of a person, and if the
[District] Court says it believes the [single] witnesses who described this, we
shall not come and contradict its view,” wrote the justices.
Furthermore, Section 15 of the Nazis and Nazi Collaborators (Punishment)
Law explicitly allowed, “in an action for an offence under this law, [that] the court
may deviate from the rules of evidence if it is satisfied that this will promote the
ascertainment of the truth and the just handling of the case.”46 In scores of Nazi
collaborator trials the courts accepted evidence based on hearsay and rumors.
Given that the courts relied on such testimonies, it seems that the District
Court had a basis for its legal conviction of Barenblat for surrendering dozens
316
CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
of orphaned children to the Nazis, a guilty verdict based on the single testimony
of Abraham F., a witness whom the lower court had found to be reliable; however, the Supreme Court’s justices chose to overturn the conviction of Barenblat
because it was based on a single testimony.
In his verdict Chief Justice Olshan articulated a new and unprecedented argument not heard in any of the previous trials. The justice asserted that in the case of a
defendant who was a persecuted person himself, as were all defendants in these trials
(save Andrej Banik), such a single testimony could not stand alone. He explained
that unlike the case of a member in a hostile organization, such as the SS, where
the testimony of one witness would suffice for conviction because the accused has
“a blot” on him, in the Barenblat case, “belonging to the camp of the persecuted is
certainly no blot; when the alleged offense is proved against such an accused by only
one witness, manifold caution is required in the nature of things . . . and sometimes
it will be dangerous to convict on the evidence of one witness, however credible.”47
As Hemda Gur-Arie points out, contrary to the basic legal principle that
the court should weigh the quality of the testimonies on their own merit, in the
Barenblat case the Supreme Court based its overturning of Barenblat’s conviction in the lower court on its impressions of the defendant and his social context.
The court’s verdict came in part from Barenblat’s membership in the group of
persecuted individuals, a status that had no direct bearing on his surrendering of
orphaned children to the Germans.48
In the same spirit of the “blot on him” argument, Chief Justice Olshan
gave a novel interpretation of the Nazis and Nazi Collaborators (Punishment)
Law, a law that, according to one scholar, Olshan viewed as “a bad law.”49 This
new interpretation, which had no clear grounding in the law itself (except for
the sentencing phase alone), distinguished between two types of criminals: (1)
the persecutor who was a member of an enemy organization and (2) “‘persecuted people’—the victims of the ‘persecutors,’ who committed offenses against
other persecuted people.”50 By way of this new distinction in the law, the court
demanded a greater burden of evidence from the prosecution when it brought
Jews to justice who were accused of collaboration with the Nazis than in cases of
any other type of other offender.
After describing different contemporary views related to the role of the
Judenräte in the Holocaust, Justice Olshan concluded that the appropriateness
of the actions of Jewish collaborators should not be determined in court. “It is
clear that the question . . . which line should the leader [of the Judenräte] have
followed, is one for history and not for a court before which a persecuted person
is brought to face criminal charges under the law.”51
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DAN PORAT
Although no documentation exists, it is difficult to escape the impression
that the Supreme Court had first determined its goal of clearing Barenblat as
a means of ending the collaborator trials and only then searched for ways to
achieve the goal of overturning the defendant’s conviction in the District Court.
In effect, the Supreme Court deemed the prosecution of people like Barenblat
unfair. Referring to the District Court’s verdict, Justice Landau wrote:
And it is also the bitter truth that “in the atmosphere of [the] extraordinary
pressure of those days, moral concepts and values changed.” But it would
be hypocritical and arrogant on our part—on the part of those who never
stood in their place . . . to make this truth a cause for criticizing those “little
men” who did not rise to the heights of moral supremacy, when mercilessly
oppressed by a regime whose first aim was to remove the image of man
from off their faces. And we are not permitted to interpret the elements of
the special offenses defined in the Nazis and Nazi Collaborators (Punishment) Law, 1950, by some standard of moral conduct which only few are
capable of reaching. One cannot impute to the legislator an intention to
demand a level of conduct that the community cannot sustain.52
Here Landau expressed an opinion that essentially foreclosed the possibility of
sitting in judgment of putative Jewish collaborators with the Nazis, an opinion
that questioned the feasibility and wisdom of trying them in Israeli courts. Landau, who had headed the panel of the Eichmann trial and had heard hours upon
hours of testimonies about life and death under Nazi rule, indicated that judgment of those “extraordinary” circumstances was suited to the realm of history
but not to a court of law.53
The court’s reversal of the view of trying collaborators in Israel came
within the context of a larger social change of their treatment in Israel’s public
sphere. One expression of this change of perspective came in the responses to
an argument put forth by Hannah Arendt in Eichmann in Jerusalem, where she
wrote that the leadership of the Jewish communities was “responsible” for the
devastating results of the Holocaust. In her view:
Wherever Jews lived, there were recognized Jewish leaders, and this leadership, almost without exception, cooperated in one way or another, for
one reason or another, with the Nazis. The whole truth was that if the
Jewish people had really been unorganized and leaderless, there would
have been chaos and plenty of misery but the total number of victims
would hardly have been between four and a half and six million people.54
318
CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
Responding to Arendt, the renowned Jewish scholar Gershom Scholem wrote,
“There were among them [the Jewish leadership] also many people in no way
different from ourselves, who were compelled to make terrible decisions in circumstances that we cannot even begin to reproduce or reconstruct. I do not know
whether they were right or wrong. Nor do I presume to judge. I was not there.”55
Scholem takes an ahistorical viewpoint here, placing the actions of the
Judenräte as standing outside history, beyond comprehension. For Scholem the
events of the Holocaust stand in a unique historical time. When it comes to the
victims (although not necessarily so to the perpetrators), “We cannot even begin
to reproduce or reconstruct.” The argument of “I was not there” would come to
dominate and stifle any debate about the position of the victims.
In a 1963 publication Ernst Simon wrote: “One should completely deny the
formulation that creates a parallel between ‘the Nazi authorities’ and ‘the Jewish
authorities,’ as it comes to blur the basic distinction between those commanding
the murder in light-headedness and the situation of those who in all probability
in most instances attempted with bad conscience to minimize and slow down
the pace of killings.”56 To the members of the Jewish councils Simon attributed
a role of subversion against the incentives of the Nazis, of aiming to minimize as
much as possible the result of their murderous goals. This was a view new to the
period, one that placed the Judenräte on a different moral ground from that previously seen and portrayed its members as individuals who implicitly sabotaged
the German plan and thus as resisters to the Nazis.
In an article from the same year titled “Eichmann in New York,” Marion Mushkat, a professor of international law at the Hebrew University of
Jerusalem, expressed a similar opinion, viewing the Judenräte as an institution whose motivations and actions focused on the good of the wider Jewish
populace. How had Arendt come to the conclusion of Jewish cooperation
with the Nazis, asked Mushkat. “These arguments . . . have no basis. . . .
Any harm that arose from these quisling-like governments came not out of
bad intention in the first place; even in the cases of treason and attempt to
save individuals at the cost of the masses—everything was done out of true
dedication, so as to lighten the burden and allow the saving of the persecuted, to act against the hunger and sickness and to give a [supportive] hand
to the underground,” he wrote.57 Beyond Scholem’s “I was not there” argument, Simon and Mushkat present here a new image of the Judenräte and
of the Jewish police under their control. Unlike earlier times, after the war
these groups were seen, first and foremost, as victims and as those who acted
against the motivation and intentions of the Nazis. In instances in which
319
DAN PORAT
Jewish policemen had turned Jews over to the Nazis, the critics argued, they
acted to counter the Nazis’ goals.58
In this newly expressed view the critics defined true collaborators as those
individuals with motivations equal to those of the perpetrator, which clearly was
not the case with the Judenräte. This view went beyond the outcome of the Jungster trial, which demanded identification with the perpetrators only for crimes
against humanity. In the view of the critics all actions taken by Jews during
World War II, including assault, abduction, murder, or any other acts against
individuals, demanded a motivation equal to that of the Nazis in order to qualify
as collaboration. For the first time a view held by key figures in Israel’s intellectual elite portrayed all these actions as outside the responsibility of Jewish
collaborators and thus as actions that were not criminal and not morally dubious.
As David Engel points out, this view is quite surprising given the harsh
criticism and hatred that surfaced in the 1950s toward the Judenräte in the public
sphere in Israel.59 However, the trial and conviction of Adolf Eichmann presented the Israeli public, as well as the world public, with an image of a “total
villain,” one who epitomized true evil in the eyes of many. This image of Eichmann replaced the previous image of the archetypical villain, that of the Jewish
Nazi collaborator. Following the Eichmann trial, an image of “pure victims” took
shape, which saw all Jews under Nazi rule as heroic and morally superior, as
victims who, in their efforts to survive, had not acted in ways that jeopardized
other victims, even if they had served as Jewish policemen or Blockälteste. The
victims’ image stood in clear and direct contrast to that of the total villain, Adolf
Eichmann. Within this framework the view of Judenrat members and kapos as
collaborators could not be upheld.60
In the legal arena the reversal of Barenblat’s conviction brought an almost
complete end to trials against accused Jewish collaborators with the Nazis. In
May 1964 the Office of the Attorney General received an anonymous letter that
alleged collaboration of a certain R. G. with the Romanian fascist regime. In
the internal correspondence of the Ministry of Justice, Israel’s attorney general,
Moshe Ben-Zev, wrote that “in light of the result of the Barenblat appeal, I do
not believe that there is room to open an investigation in a complaint like this
that addresses the actions of surrendering Jews by a Jewish policeman as part of
his job in the years 1942–1944.”61 In June of that year the Ministry of Justice
sent a letter to all district attorneys, according to which, “One should not submit
a criminal indictment based on the Nazis and Nazi Collaborators (Punishment)
Law 1950 without prior consent from the Attorney General.”62 With this, the
collaborator trials in Israel for all intents and purposes came to an end.
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CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
Epilogue
On the evening of August 5, 1971, Sonia P., who had immigrated to Israel from
the Soviet Union just a few years earlier, finished watching a TV program and
went into her kitchen in her Rishon LeZion apartment. She stood by the kitchen
window and looked out. A car stopped in front of her neighbor’s home. Two
teenage boys emerged, followed by a red-haired woman, all evidently tourists.
“That moment I fainted,” she said a day later at the police station. The red-haired
woman who stepped out the car was Loba Meschkup (Gricmacher), Sonia’s
Lagerälteste—camp senior—in the Landsberg concentration camp in Germany.63
On that day Sonia not only phoned the police but also informed her sister.
The word about the arrival in Israel from Germany of “Red-Haired Loba,” as
she was known by former inmates, spread to several survivors. Some of these
survivors showed interest in Red-Haired Loba not only for who she was but
also for who her husband was, Isaac Gricmacher, a notorious former kapo. The
police arrested her, and the prosecution deliberated whether to present another
case of a collaborator after it had decided to stop these cases following the
Barenblat trial. Probably because she lived in Germany and because influential
people pursued her, among others, District Court Judge Aryeh Sagalson and
Dov Shilansky, who would later become a Knesset member and its chairperson,
the Attorney General’s office decided to make an exception in this case and filed
charges against Loba Gricmacher at the Tel Aviv District Court.64
At the culmination of Gricmacher’s trial in September 1972, the court
convicted her on two counts, one of assault and the other of breaking the finger of
an inmate. The judge sentenced her to three months of imprisonment. With this
case the trials in Israel of Jewish collaborators with the Nazis came to an end.
Notes
I wish to thank and acknowledge the support of the Gerda Henkel Stiftung, the Aharon
Barak Center for Interdisciplinary Legal Research at the Hebrew University, the National
Endowment for the Humanities (NEH), and the Memorial Foundation for Jewish Culture. I would also like to thank the following individuals for reading and commenting on
this chapter: Raanan Forshner, Joshua Schoffman, and Douglas Morris. The opinions and
views expressed in this chapter are strictly mine.
1. Because of privacy issues, I am prohibited from giving the full names of the witnesses
in the trials, and therefore I use their first names only.
2. Testimony of Yerachmiel Y., March 18, 1951, Attorney General v. Joseph Paal, Magistrate
Court Judicial Inquiry, located in the District Court file, Tel Aviv District Court, Israel
National Archives (hereafter ISA)/Record Group (hereafter RG)/32/LAW/48/51, p. 7.
321
3. Testimony of Yerachmiel Y., 10.
4. Dov, “Question to Minister of Justice,” Ha-boker (February 28, 1949). For more about
Siegel and his trial, see Attorney General v. Julius Siegel, Tel Aviv District Court, September 29, 1951, ISA/RG/32/475/52; for a detailed analysis of this case, see Rivka Brot,
“Julius Siegel: A ‘Kapo’ in Four ( Judicial) Acts,” Dapim: Studies on the Shoah 25 (2011):
65–127. To the best of my knowledge, in no instance did the State of Israel extradite to
any country anyone accused of committing crimes during World War II.
5. War Criminals, July 6, 1949, ISA/RG/74/Israel Police (hereafter IP)/2162/45.
6. The title of the Israeli law uses literarily the term “The Nazis and Their Helpers” to
describe the collaborators. However, I use the term “collaborators” throughout this
article because this is the word used in different documents translated into English
and because it reflects the common view held among legislators, prosecutors, and others at the time.
7. War Criminals, October 21, 1949, ISA/RG/74/IP/2162/45.
8. This set of trials, in which between 1950 and 1972 Israel prosecuted alleged collaborators
with the Nazis, are discussed as a general historical episode by Hanna Yablonka, “The
Law for Punishment of the Nazis and Their Collaborators: Legislation, Implementation, and Attitudes,” Cathedra 82 (December 1996): 135–52; Yechiam Weitz, “The Law
for Punishment of the Nazis and Their Collaborators as Image and Reflection of Public Opinion,” Cathedra 82 (December 1996): 153–64; and Orna Ben-Naftali and Yogev
Tuval, “Punishing International Crimes Committed by the Persecuted: The Kapo Trials in Israel (1950s–1960s),” Journal of International Criminal Justice 4 (2006): 128–78.
Other articles (which I refer to later) center on specific trials and examine them mostly
from a perspective of legal history. In this chapter I focus on the development of the
trials as a whole from a cultural and social perspective.
9. Hatsa’ot hok 36 (February 28, 1950). See also “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal,”
Yearbook of the International Law Commission 2 (1950): par. 97.
10. Devri ha-Knesset (March 27, 1950): 1148, 1161.
11. Yaakov Gil, “The Law for Punishing the Nazis,” Ha-boker (April 13, 1950).
12. For the wording of the law, see www.mfa.gov.il/MFA/MFAArchive/1950_1959/
Nazis%20and%20Nazi%20Collaborators%20-Punishment-%20Law-%20571
(accessed August 18, 2014).
13. Hatsa’ot hok 36 (February 28, 1950): sec. 10.
14. Knesset Archives Jerusalem, Protocols of the Knesset Constitution, Law, and Justice
Committee, protocol 29/2, July 12, 1950, p. 16.
15. Devri ha-Knesset (August 1, 1950): 2394–95.
16. Protocol 29/2, 6.
17. Gil, “Law for Punishing the Nazis.”
18. Protocol 29/2, 18.
CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
19. Protocol 29/2, 18–21. In years to come, Cohn would attempt to minimize his role in
promoting and defining this law aimed at Jewish collaborators. In his autobiography,
he wrote that he aimed the law against Nazi criminals; he portrays himself as the
defender of Jewish collaborators who were put on trial, pointing to his acquittal of
Hirsch Barenblat. See Haim Cohen, Mavo ishi: otobiyografiyah (Or-Yehudah, Israel:
Kinneret, Zmorah-Bitan, Devir, 2005), 336.
20. www.mfa.gov.il/MFA/MFAArchive/1950_1959/Nazis%20and%20Nazi%20Collaborators%20-Punishment-%20Law-%20571 (accessed August 14, 2014).
21. English version of the law, in Attorney General, War Crimes 7/1949–11/1950, ISA/
RG/130/MFA/1884/6.
22. The exact number of investigations remains unknown because the police files in the
Israel National Archives remain sealed. However, in November 1951 one police officer,
Josef Singer, testified in court that he himself had been in charge of 350 investigations.
See Attorney General v. Elsa Trunk, Tel Aviv District Court, November 29, 1951, ISA/
RG/32/2/51, p. 56.
23. English version of the law, in Attorney General, War Crimes 7/1949–11/1950, ISA/
RG/130/MFA/1884/6.
24. Attorney General v. Andrej Banik, Haifa District Court, April 17, 1951, Indictment,
ISA/RG/33/LAW/121/51, p. 1.
25. Attorney General v. Hezekiel Jungster, Tel Aviv District Court, September 9, 1951,
Indictment, ISA/RG/32/9/51, p. 1.
26. Attorney General vs. Hezekiel Jungster, in Peskaim 9/51 (1951), vol. 5, p. 163.
27. Attorney General v. Elsa Trunk, Tel Aviv District Court, September 1950, Judiciary
Inquiry, ISA/RG/32/2/51, p. 1.
28. Attorney General v. Elsa Trunk, Tel Aviv District Court, October 16, 1950, Verdict of
Judiciary Inquiry, ISA/RG/32/2/51, p. 35.
29. Sefer ha-Hukim 57 (August 9, 1950): 282.
30. Attorney General v. Hezekiel Jungster, Tel Aviv District Court, April 1, 1952, ISA/
RG/32/LAW/9/51, pp. 176–77.
31. Attorney General v. Jungster, in Peskaim 9/51 (1951), vol. 5, p. 178.
32. The Supreme Court acquitted Jungster on the same day that the hearing took place
and promised to publish its opinions later; however, it seems that the justices never
did so. Two and a half months after the ruling, Hebrew University professor Benjamin
Akzin requested a copy of the opinions, but the court secretary informed him that it
had not yet been written. Furthermore, in no other court proceedings did I find any
reference to the full Supreme Court opinions from this case. See Hezekiel Jungster v.
Attorney General, April 4, 1952, ISA/RG/30/LAW/7/52. Because of Jungster’s health
condition, Israel’s police minister pardoned him from his two-year sentence in early
July 1952. He died a natural death a few days later in his home. See “Received Pardon
and Died,” Herut ( July 18, 1952).
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DAN PORAT
33. One exception in which the state attorney charged the defendant with crimes against
humanity was the 1959 case of Abraham Tikochinsky; however, he was acquitted. It
remains unclear why in this case the state attorney did file crimes against humanity.
See Tel Aviv District Court, January 30, 1959, ISA/RG/32/LAW/3/59. In two other
cases, those of Alter Fogel and Hanokh Baisk>i, the indictments included crimes
from Section 1 of the law; however, because in both cases a plea bargain was reached,
an uncommon practice at the time, this seems to be part of a negotiation practice.
For the case against Fogel, see Tel Aviv District Court, March 13, 1956, ISA/RG/32/
LAW/159/56; and for the case against Baisk>i, see Tel Aviv District Court, September
10, 1959, ISA/RG/32/LAW/59/137.
34. As pointed out by Hemda Gur-Arie, the Supreme Court did not draw a distinction
between the Judenrat and the Jewish police and saw them as one and the same entity
(the Judenrat was the Jewish council established by the Nazis, and the Jewish police
was under its jurisdiction to enact and implement Nazi decisions). Hemda Gur-Arie,
“‘Here’ and ‘There’: The Trial of Hirsch Bernbladt,” Iyunei Mishpat 34 (2011): 256n64.
For a close analysis of the Barenblat trial, see Avihu Ronen, Hadas Agmon, and Assaf
Danziger, “Collaborator or Would-Be Rescuer? The Barenblat Trial and the Image of
Judenrat Member in 1960s Israel,” Yad Vashem Studies 39.1 (2011): 117–67. Avihu Ronen
has also published an important book about the events in Będzin as seen through the
diaries of his mother, Haykah Klinger: Avihu Ronen, Nidonah le-h$ayim: yomanah
v$e-h$ayeha shel H$aik$eh K$linger (Haifa: University of Haifa; and Tel Aviv: Yediot
ah>aronot and Sifre h>emed, 2011). Also see Idit Zertal, Ha-umah v$eha-mav$et:
hist$oryah, zikaron, polit$ikah (Or Yehuda, Israel: Devir, 2002). For the historical
context in which Barenblat acted and a discussion of the history of civilian Nazi
administrators and their actions in Będzin, see Mary Fullbrook, A Small Town Near
Auschwitz: Ordinary Nazis and the Holocaust (Oxford, UK: Oxford University Press,
2012).
35. Attorney General v. Hirsch Barenblat, Tel Aviv District Court, February 5, 1964, ISA/
RG/32/15/63, pp. 4–5.
36. Verdict of Tel Aviv District Court, Attorney General v. Hirsch Barenblat, Tel Aviv District Court, February 5, 1964, ISA/RG/32/15/63, p. 11.
37. Barenblat v. Attorney General, Supreme Court Decision, [May 22, 1964], DP: ISA/
RG/30/77/64. English translation available at elyon1.court.gov.il/files_eng/64/770/000/
Z01/64000770.z01.pdf (accessed August 18, 2014), p. 39 (emphasis in original).
38. Attorney General v. Hirsch Barenblat, Tel Aviv District Court, February 5, 1964, ISA/
RG/32/15/63, p. 3. This negative view of the Judenräte by the District Court was also
sensed by Justice Olshan. See Barenblat v. Attorney General, Supreme Court Decision,
p. 40.
39. Attorney General v. Hirsch Barenblat, Tel Aviv District Court, February 5, 1964, ISA/
RG/32/15/63, p. 3.
40. For previous cases in which the Supreme Court commuted the sentence, see, for
example, Jacob Honigman v. Attorney General, 22/52 Piskei Din, vol. 7, pp. 296–305; and
Paal v. Attorney General, 119/51 Piskei Din, vol. 6, pp. 498–510.
324
CHANGING LEGAL PERCEP TIONS OF “NAZI COLLABORATORS”
41. Barenblat v. Attorney General, Supreme Court Decision, 39 (emphasis in original).
42. Barenblat v. Attorney General, Supreme Court Decision, 39.
43. Barenblat v. Attorney General, Supreme Court Decision, 41.
44. The translation of the term “delivering up” into English is based on an English
translation of the law. See www.mfa.gov.il/MFA/MFAArchive/1950_1959/Nazis%20
and%20Nazi%20Collaborators%20-Punishment-%20Law-%20571 (accessed August
18, 2014).
45. Barenblat v. Attorney General, Supreme Court Decision, 11–12.
46. Sefer ha-Hukim 57 (August 9, 1950): 284, par. 15.
47. Sefer ha-Hukim 57 (August 9, 1950): 26.
48. Gur-Arie, “Here and There,” 273–74.
49. Gur-Arie, “Here and There,” 263.
50. Barenblat v. Attorney General, Supreme Court Decision, 26. The law made this type
of distinction between persecutor and persecuted persons, which Olshan addresses
only in the sentencing clause but not in determining the guilt of a defendant. In
fact, Olshan’s interpretation stands in stark contrast to the intention of the Knesset
members who would not allow for such a distinction and in contrast to his own initial
response to the appeal in the Paal case.
51. Barenblat v. Attorney General, Supreme Court Decision, 34.
52. Barenblat v. Attorney General, Supreme Court Decision, 42.
53. Also, Cohn came to change his initial opinion about the wisdom of trying the Jewish
collaborators of the Nazis while legislating the law. See Barenblat v. Attorney General,
Supreme Court Decision, 9–10.
54. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Middlesex,
UK: Penguin Books, 1964), 111.
55. Gershom Scholem to Hannah Arendt, June 23, 1963, in Ron H. Feldman, ed., The Jews
as Pariah: Jewish Identity and Politics in the Modern Age (New York: Grove Press, 1978),
242–43. On the sources of Scholem’s view on the Holocaust as one that emanates in a
mystical view of Jewish history, see Moshe Halbertal, “Banality, Mystification, Radicalism: An Examination of the Problem of Evil in the Wake of the Eichmann Trial,”
Legacy 4 (2011): 38–47.
56. Ernst Akiva Simon, “Hannah Arendt: An Attempt at Analysis—Following Her
Book on the Eichmann Trial and What It Entails,” Molad 21.179–180 ( July–August
1963): 242–43.
57. Marion Muskhat, “Eichmann in New York,” Yediot Yad Vashem 31 (December 1963):
10. In the same spirit, see Jacob Robinson, And the Crooked Shall Be Made Straight: The
Eichmann Trial, the Jewish Catastrophe, and Hannah Arendt’s Narrative (New York:
Macmillan, 1965), 171, 223.
58. Robinson, And the Crooked, 205.
325
DAN PORAT
59. David Engel, Historians of the Jews and the Holocaust (Stanford, CA: Stanford University Press, 2010), 178.
60. Ben-Naftali and Tuval, “Punishing International Crimes,” 177.
61. “Collection of Evidence Against The Nazis,” June 5, 1964, ISA/RG/74/G/5274/11.
62. “Collection of Evidence Against The Nazis,” June 15, 1964, ISA/RG/74/G/5274/11.
63. The State of Israel v. Loba Gricmacher (Meschkup), August 20, 1971, ISA/RG/32/
LAW/1116/71. See also Ahron Priel, “A Jewish Tourist from Germany Will Face Trial
in Israel for Being a Kapo in a Concentration Camp,” Maariv (August 20, 1971).
64. For the prejudice against Jews who lived in Germany, see the work of Anthony D.
Kauders, Unmögliche Heimat (Munich: Deutsche Verlags-Anstalt, 2007), 33–36, 133–38.
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Dan Porat