The Kastner Affair

 

THE KASTNER AFFAIR

 

                           I. GETTING STARTED

 

            On this occasion I felt the need to ask for Theophil’s help. I knew that mankind in general regarded him as the epitome of evil: Satan or Asmodeus. To me, though, he had been kind and helpful. I knew I could rely on him just as I had on previous occasions.

            “So, you have decided to discuss the Kastner Affair with me, Peter’le? But you watched how it unfolded. It took place during your days as a legal cadet. Why do you need my assistance?” As expected, he had chosen to assume his Peppi image. I had met the late Peppi in London, where he ran an antiques shop, and he had befriended me until his demise.

            “I want to ensure that I remain objective. This is not easy: like most Israelis of my generation, I felt strongly during the entire episode. I need your assistance, Maestro!”

            “I’ll be pleased to oblige, Peter’le. But, before we start, have you already made up your mind? Are you certain you wish to proceed? All actors of that sad episode are dead. In a sense, it is over.”

            “I know, Maestro. But like most tragedies, the plot ends but many issues remain clouded or unresolved. I do not think that my analysis will settle these. But it may be an unemotive reconsideration of the sad series of events. Most treatments I have read are either biased or emotively charged. My aim is to provide an objective discussion. And for that I need your calming voice.”

            “Is that the only function you want me to assume?”

            “That and, in addition, I may occasionally stray from the main point as I progress. And I may frequently assume that facts are generally known, whilst they aren’t or have been largely forgotten. You are, unquestionably, able to hold my hand and also act as my literary conscience, Maestro.”

            “Am glad to oblige. But we have to tread slowly: you must be careful not to exhaust yourself. You are 93 years old. Raking up the past is bound to tax you.”

            “I know this. And I knew to whom to turn!”

            “Let us then start by planning our dialogue, Peter’le.”

“Our first point must be the fate of Hungary and its Jewry during WWII [World War Two]. Many people are unfamiliar with these facts. We must then turn to Kastner’s operations, especially to his ‘train’. The next part of the jigsaw is his escape and migration to Mandatory Palestine followed by his rise during the Labour (Mapai) regime in Israel.”

“Mandatory Palestine?”

            “Quite so, Maestro. Until 1918   Palestine was part of the Ottoman Empire. At the end of WWI the League of Nations gave the United Kingdom a mandate, affirming the conquest of the country by General Allenby. The mandate was affirmed by the United Nations after the end of WWII.”

            “I see, well, let us turn back to the Kastner Affair.” Said Peppi.

 “The next steps are Gruenwald’s Pamphlet, the disastrous criminal libel action and Kastner’s tragic assassination. It ends with the Court of Appeal’s judgment and the public reaction in its wake.”

“A sound plan,” confirmed Theophil. “Well, do start.”

 

II. HUNGARY’S JEWS DURING WWII

1. Hungary in WWII

            “Well, Peter’le, let us turn to Hungary’s position during WWII.”

            “At the outbreak of WWII, Hungary was a sovereign state that increasingly aligned itself with Nazi Germany. It formally joined the Axis in November 1940.”

            “How did the Jews in Hungary fare at that time?”

            “Hungary enacted some anti-Jewish laws as from 1938. But, although Hungary was aligned with the Axis, there were no mass deportations to concentration camps or exterminations until March 1944. In this respect, Hungary did not pursue the Nazi official policy.”

            “And then?” asked Peppi. 

            “In February 1943, Field Marshal Friedrich Paulus – the commander of Germany’s Sixth Army which was fighting in Stalingrad – surrendered. German defeat was, thereupon, predictable, especially as the United States had by then entered the war. Early in 1944, Hungary started to send out feelers to the Allies with the hope of making a peace deal of its own. It was also reluctant to continue fighting the Soviet Union. In March of that year, Germany overran Hungary. Its Prime Minister was kept in place but was stripped of real power. And a pro-German government was imposed.”

            “How did this development affect the Hungarian Jews, Peter’le?”

            “Effectively, Hungary came under German occupation and control. Adolf Eichmann arrived within a few days. His orders were clear: Jews still residing in Hungary were to be transported to concentration camps, primarily to Auschwitz-Birkenau. Deportations commenced within a few weeks.”

            “Let us, then, turn to Kastner’s role, Peter’le. This is the heart of the matter.”

 

2. Kastner’s involvement

            “At the time of the Nazi takeover of Hungary, Maestro, Rudolf (Rezsö) Kastner occupied a leadership role within Budapest’s Jewish community. He was an ardent Zionist and a member of the Budapest Aid and Rescue Committee.”

            “Could he and the Committee as a whole have organised resistance to the Nazi design?”

            “Not really, Maestro. The German extermination machinery was effective and ruthless. The manner in which it crushed the Ghetto Warsaw Resistance tells its own tale. After the German takeover, Jews in Hungary had, in practice, only two realistic options: escaping or yielding to the inevitable.”

            “And how did Kastner get involved?”

            “He sought out Eichmann, who presented himself as a pragmatist, even as a moderate Nazi, and floated the idea that Jews could be exchanged for money, goods or political leverage. Kastner suspected that Eichmann was lying and that his real object was to smooth the deportation procedure, or in other words, to forestall resistance or escapes. Nevertheless, Kastner  kept negotiating. The final deal was that a train carrying 1684 Jews would be allowed to leave Hungary and would proceed to Switzerland.”

            “Was it negotiated in its entirety between Kastner and Eichmann?”

            “It wasn’t. Himmler’s own representative, Kurt Becher (an SS man), was dispatched to Budapest and bargained. Substantial amounts of money as well as goods and jewellery were given  to him. Most went into the coffers of the Nazis but Becher took a ‘commission’.”

            “In the event, did a rescue train really leave? And who boarded it, Peter’le?”

            “Yes, the ‘Kastner train’ was allowed to proceed. The occupants were mainly Zionist leaders, orphans, some Rabbis, wealthy Jews who could pay and Kastner’s own relatives. Initially, this train went to Bergen-Belsen – a notorious concentration camp venue – but was diverted to Switzerland.   In exchange for this salvage operation, Kastner did not warn the Jewish population directly and did not urge mass flight or resistance.”

            “Did Kastner himself board?”

            “He did not. He remained in Budapest and tried to negotiate for further rescues. He was unsuccessful.”

            “What happened to those left behind?”

            “They – a total of some 430,000 Jews – were deported. Proceeding on the misguided   belief in salvation, they showed no resistance.”

            “What do you, yourself, feel about the events we have covered so far?”

            “Hard to express, Maestro. The point is this: I find it difficult to put myself in Kastner’s position. Probably, I would have tried to save my own skin or, in other words, to escape. Negotiating with persons whose object was to exterminate people like me, would have appeared too risky. There are situations, Maestro, which are hard to imagine in retrospect. But then, I would have never been a prominent leader like Kastner.”

            “And suppose you had to judge him in open court?”

“Touchy question. What troubles me, Maestro, is not so much Kastner’s conduct as the realisation that any judicial assessment of it must inevitably import standards of judgment that were unavailable, and perhaps inapplicable, at the time the decisions were taken.”

“Please continue, Peter’le. What happened to Kastner?”

“Hungary was liberated by the Red Army. But, shortly before this, Kastner proceeded to Switzerland. In 1947 he migrated to Mandatory Palestine. But prior to his ‘ascent’ he gave evidence  in which he confirmed that Becher acted as a humanitarian intermediary, who tried to save Jews. Kastner also downplayed Becher’s responsibility of Nazi war crimes. His affidavit  played a significant role  in shielding  Becher from prosecution at Nuremberg.”

“Did Kastner do well in Israel?”

“He did. He joined the ranks of the Labour Party (Mapai), which won the elections and, in due course, became a senior civil servant.”

“Up to now, Peter’le, your account is accurate and quite objective. If matters had rested there, a political storm was unlikely.”

“I agree, Maestro. But, at this stage, we have to turn to Gruenwald and his role.”       

 

III. GRUENWALD’S PAMPHLET

 

1. Gruenwald’s Background and intervention

            “Why don’t you start by covering Gruenwald’s background?” suggested Peppi.

            “Gruenwald was an Austrian Jew. He ran a small hotel in Vienna. He was also provisionally a low level diplomat in the imperial service. His aspiration of a journalistic career materialised in 1934, when he  became the editor of a Mizrachi-orientated bulletin, using it for sharp political polemics. Then, in 1937, he was severely beaten in an antisemitic attack. After recovering he migrated to Mandatory Palestine and settled in Jerusalem.”

            “Not a pivotal, or distinguished, career, Peter’le? Well, what was his occupation in Jerusalem?”

            “He bought and ran a small hotel. And he became known for self-published pamphlets – most of them political broadsides – mailed at his expense to people connected to Mizrachi and Poalei Mizrachi circles.”

            “I think, Peter’le, you must explain the orientation of Mizrachi.”

            “Mizrachi was – and has remained – a party supporting traditional Judaism with a Zionist orientation. They are, basically, orthodox. Poalei Mizrachi is the workers faction thereof.”

            “Does this mean that Gruenwald was orthodox?”

            “He would more accurately be described as ‘observant’. In many regards, though, he remained his own man.”

            “What was his stature like prior to the famous Kastner Trial?”

            “It was known that his pamphlets were not based on hard core or eye-witness evidence. As you know, Maestro, I was an avid newspapers and local essays reader. But I had never heard Gruenwald’s name prior to the Kastner Trial. And I am certain that this was true as regards most people.”

            “Would it be correct to describe him as obscure?”

            “I think so, Maestro. Israel of those days had many eccentric persons, who were quick to accuse Holocaust survivors. The general tendency was to ignore them.”

            “The Holocaust was, however, still fresh in mind, Peter’le.”

            “It was and I’ll deal with it later. I recall that my then Israeli Passport was ‘valid for all countries except Germany’. This tells you a great deal about  the Israeli atmosphere of the three decades following the end of WWII.”

            “Point taken, Peter’le. You are somewhat dismissive of Gruenwald at this stage. Let us turn to the fatal pamphlet.”

 

2. Gruenwald’s Kastner’s Pamphlet

            “The 17^th pamphlet, issued by Gruenwald on 1 August, 1952, attacked Rudolf Kastner. It was written in an accusatory and moralising tone and made four core claims. The first accused Kastner of collaborating with the Nazi authorities rather than resisting them. The second alleged that he had withheld information about the imminent deportations  from the Hungarian Jews and thereby prevented resistance or escape. Gruenwald alleged that this silence was intentional and morally criminal.”

            “Serious allegations but, Peter’le, involving acts not performed in Palestine.”

            “True, Maestro. But they concerned the behaviour, or record, of a senior civil servant. Effectively, Gruenwald disputed Kastner’s suitability for holding office in Israel.”

            “What were the remaining charges or claims made in the pamphlet?”

            “The third, and perhaps most damning, was that Kastner helped arrange the rescue of a small privileged group whilst abandoning the majority. Gruenwald alleged that this was a betrayal of communal responsibility motivated by political or personal considerations. One of the facts highlighted by him was that Kastner’s own family and friends were amongst the passengers of Kastner’s train.”

            “I can see that would reflect on Kastner’s suitability for office,” nodded Peppi.

            “The last accusation related to Kastner’s testimony on behalf of Becher after the  end of WWII. Gruenwald portrayed this as postwar collaboration with the regime.”

            “From what you have said up to now, Peter’le, it becomes clear that you do not have high regard for Gruenwald. Why? Don’t you think that a whistleblower’s efforts deserve consideration? Is it not a citizen’s right – perhaps even duty – to fight or at least highlight any untoward act of a civil servant?”

            “It is, indeed, his right or perhaps duty to speak up. But, before he does so, he must have solid evidence and not mere hearsay or rumours. In our case, Gruenwald relied on or voiced the latter. And a whistleblower  should take into consideration the full picture or matrix. Gruenwald failed to do so. Further, he closed his eyes to the horrid situation facing Kastner, who stayed behind in the hope of saving more Jews.”

            “An arguable point, Peter’le. Quite a few historians assert that Gruenwald gave voice to facts and accusations others failed to express. But be this as it may, what were Kastner options at this stage?”

            “Here his position was that of any person, who is defamed. One way out is simply to ignore what has been asserted. This is a sensible course if the libel is not widely published. You simply trust potential readers to distrust what has been said and to continue to believe in you.”

            “Was this course realistically open to Kastner?” asked Peppi.

            “Difficult to say. Collaborators with the Nazis were despised in Israel. Calling a person a ‘capo’ [collaborator in a concentration camp] was worse than calling him a thief or murderer. And, of course, Gruenwald did his best to publicise the pamphlet. On balance, this course would have been hard to follow.”

            “I agree, Peter’le. Are there cases in which this is the best option?”

            “Am thinking about the Oscar Wilde case. The Earl of Queensbury left an insulting note, reading ‘to Oscar Wilde, posing as a somdomite (sic)’, in a club. If Wilde had trashed  it instead of prosecuting the Earl, he would have avoided ruin and disgrace. But, in the Kastner case, the circulating of the pamphlet ruled out such a course.”

            “I agree with you, Peter’le. And there is a point you overlook. Gruenwald’s pamphlet might have been led to a question about the events raised in the Knesset – the Israeli Parliament. A mere refutation without further action would, in that case, have looked like evasion. It follows that, right from the start, the first course was unsuitable. Well, what was the second course?”

            “Kastner could have drafted a pamphlet refuting Gruenwald’s charges or explaining his conduct.”

            “What would have been the contents of such a retort, Peter’le. And to whom should it have been dispatched?”

            “Kastner should have referred to the horrible situation confronting him and all  leaders of the Hungarian Jewish community after the German takeover and declare that he acted conscientiously. And he should have circulated his retort to people whom he knew to have received Gruenwald’s pamphlet as well as to the leading politicians of his day. Another possible avenue would have been its publication in a newspaper. In this manner, though, he would have given publicity to the pamphlet.”

            “Would you have recommended this course, Peter’le?”

            “In hindsight, I would. But, Maestro, this very course was mentioned to me in a conversation I had with a leading Israeli lawyer shortly after the prosecution had been instituted. I recall how this lawyer – let me refer to him as L – told me that, whenever possible, a matter should not be taken to court.”

            “Did he convince you?”

            “Not at that time. But, later on, I got his point. By then, I appreciated that it would have been difficult, if not impossible, to recreate before any court  the atmosphere of horror and dismay of 1944.”

            “It follows that this second course might have been the best one. What other venues were available?”

            “Kastner could have started a civil law action, seeking damages for libel. Gruenwald’s only defence would have been ‘justification’, that is, the assertion that the statement was true and that its publication was in the interest of the public.”

            “What do you think of such a step?” asked Peppi.

            “It is, I believe, the course our law firm would have recommended if consulted. It has strategic merit. As the defendant concedes the defamatory nature of what he wrote, he might have to open that case. This means that he would have to prove it – usually by establishing  his belief that the public should have been made aware of the facts – before the plaintiff (the defamed party) took the stand. This means that the defendant has to submit himself to cross-examination before the plaintiff opens his case.”

            “Can such a reversal of procedural roles be forestalled by the defendant?”

            “It can, Maestro. The defendant’s best course would be to concede that the pamphlet or circular was his but deny its slanderous nature and the plaintiff’s ‘injury’. This means that the plaintiff would have to open his case.”

            “Would that usually be done by an experienced lawyer?”

            “It would. But, at that early stage, all the plaintiff would have to establish is his loss. He would not have to prove that the words were untrue. He could leave this as evidence brought to refute [rebut] the defendant’s justification plea.  Issues respecting ‘truth’ would be raised in the cross-examination, but the plaintiff would not supply details during the first stage, which is his examination-in-chief by his own counsel. If the plaintiff is not crushed in the cross-examination, the dispute is often settled at this stage.”

            “Settled, Peter’le?”

            “Yes, Maestro. For instance, by the defendant’s apology or retraction plus the payment of a moderate amount by way of damages.”

            “I can see the advantages in such a course, Peter’le. But I can sense that, all in all, you are uneasy about it. Why? Does it have anything to do with Israel’s legal world?”

            “To explain this in detail we have to consider the legal framework related to the proceedings. My fear is that such a detailed and lengthy  analysis may involve a diversion from the main subject. It may appear pedantic.”

            “But it may  be  unavoidable: you must lay the foundation for your discourse!”

            “You are right, Maestro.  Let me then explain: the two basic legal systems in the Western world are the common law and the civil law. The former is adversarial. The issues are defined by the pleadings of the two parties. The judge’s function is  presidential or supervisory. He has to ensure that the parties do not step outside the defined boundaries.”

            “Is his role confined to pronouncing or applying the law and delivering judgment, Peter’le?”

            “Not in all common law systems. Where trial is by jury, issues of fact are left to it. The judge is expected to remain neutral and impartial throughout the proceedings. After the parties have represented their respective cases, his ‘summing up’ is confined to the elucidation of points of law.  Points of fact have to be decided by the jury.”

            “And where there is no jury?” asked Peppi.

            “The judge has to decide points of law and of fact. And this is the position in Israel. Trial by jury was repealed in Mandatory Palestine.  Nevertheless,  the distinction between issues of fact and of law remains fundamental in common law systems.”

            “And in civil law countries?”

            “Basically, the judge, or panel of judges, conducts the trial. Whilst the parties present their conflicting case, the judge assumes an inquisitive approach. He is not confined to pleadings and is expected to enquire and determine issues that might have been overlooked by the parties. He is expected to examine the witnesses and can put to them any questions he considers relevant.”

            “I get your point, Peter’le. But you must explain the special problems that have caused your feeling of unease about the legal scene in Israel!”

            “Quite a few lawyers studied civil law prior to their migration to Israel and were admitted to the local bar after passing a crash course on common law. At their heart, though, their initial training continued to motivate them.”

            “Why is this important, Peter’le?”

“When such lawyers were elevated to the Bench, they often intervened where a judge trained purely in common law would remain constrained and detached. If a case like Gruenwald’s were to land before such a judge, the courtroom could become an inquest into history itself.”

            “How did you become so familiar with this problem, Peter’le?”

            “My boss was a common lawyer. His second in command was a German Jew who had a degree from Heidelberg and passed a Foreign Lawyers Course  after escaping to Palestine in 1936. Frequently, their views on legal matters differed.”

            “But why did all this matter in the Kastner Affair, Peter’le?”

            “We would have had to reckon with the possibility of the trial of a libel action by a judge trained, initially, as a civil lawyer. A responsible lawyer, advising Kastner, would have to tell Kastner that such a judge, if hearing the case, might blow it wide open. In a libel action, even if brought as a private law action, such a judge may step outside the  areas defined by the parties.”

            “Would all these considerations have occurred to you at the time Gruenwald published his pamphlet?”

            “I can’t be certain, Maestro. In hindsight, though, they appear evident. So, all in all, the bringing of a private libel action would not have been the best course. The refutation procedure, mentioned by lawyer L, was better.”

            “I get the drift,” Peppi spoke emphatically. “So, let us turn to the fourth option.”

            “It is the institution of a ‘criminal law’ libel action.”

            “Can such a prosecution be instituted by a person other than the state?”

            “Originally, under the common law of England this course was open to private citizens. In Israel the scope thereof was narrowed down.”

            “Well, was this course open to Kastner?”

            “It was; but most lawyers would have advised strongly against it. When brought, the plaintiff assumes the duty to prove his case beyond reasonable doubt. This is a heavy burden – and hence a poor option.”

            “Am I then right in sensing that from these four options, you would have preferred the second?”

            “I would – in hindsight. Lawyer L, though, saw it right from the start!”

            “I see. Well, what did Kastner do, Peter’le?”

            “On the facts, the matter was taken out of his hand. The Attorney General took the initiative and charged Gruenwald. In other words, he instituted a criminal law libel prosecution, in which the State figured as plaintiff.”

            “Prior to considering the Attorney General and his handling of the case you must  cover, in detail, the general mood prevailing in Israel about the Holocaust at the relevant time, Peter’le.”

 

 

IV. THE DEFAMATION TRIAL

 

1. The position of Israel at the relevant period

 

            “To discuss this atmosphere, Maestro, I may have to explain the period involved,” I started.

            “Go ahead,” approbated Peppi.

“Israel became an independent state in 1948. Following what had become known as ‘the Independence War’ launched by the Arab world and won by Israel, there were no challenges to Israel’s sovereignty.”

“Surely, the Arab League countries banned all trade with Israel,” pointed out Peppi.

“They did. But no wars were initiated until the Suez Crisis (occasionally called the Second Israel-Arab War) of 1956. The ‘Kastner Trial’ took place before it: in 1954.”

“And what was the atmosphere in Israel at that time, Peter’le?”

“On the one hand, it was an era of post-independence euphoria. On the other, it was a period of economic strife. The Arab Ban meant that the young State could not trade with its neighbours. Food could no longer be imported from them and our manufacturers lost one of their markets. Further, the British Army had been a major employer and purchaser of our goods, such as textiles. Economically, their departure from the country was felt by many.”

“How did the Israeli government solve the problems?”

“Largely, by introducing ‘Tzena’, that is, a government-imposed austerity regime involving food rationing, price controls, and strict limits on consumer goods.  By and large, consumers had to produce vouchers when transacting any business.”

“In essence, Peter’le, a similar rationing system applied in the United Kingdom during WWII.”

“I know. Well, in Israel a widespread ‘Black Market’ emerged before long. I recall it vividly.”

“You might as well narrate the anecdotes you recall,” grinned Peppi.

 “One,” I told him “concerned toilet rolls, which – at one stage – were not made available to unmarried persons. When, after a public outcry, the provisions were changed, a spirited girl expressed her appreciation in a letter to a newspaper. She thanked ‘those in charge’ for recognising that spinsters and bachelors had calls of nature. The other related to my bosom pall, P. – who was a well built and hefty fellow – and to myself – a lean, gaunt and unhealthy looking individual. In the annual carnival (Purim), P. dressed up as the ‘Black Market’, displaying inter alia covers of toilet roles attached to his arms and photos of beef and chicken dishes displayed on his chest and back. I dressed up as Tzena. My costume comprised ordinary clothes, covered with ration-coupons.”

“Did you get a good laugh or applause?”

“Didn’t we ever! We were (unanimously) awarded the ‘best costume’ prize! I recall that evening with affection, Maestro. But now I have to turn to another feature or development experienced during this period.”

“Demographic, I think. Well, go ahead, Mr. Tzena.”

“During the first decade of independence there was mass migration. Some ‘ascended’ from countries in the Arab world – like Iraq – but most came from post WWII Europe. Their arrival exacerbated our economic problems and in addition, strengthened the deep hatred for anyone who collaborated with the Nazi regime.”

“Was this true even in the case of Oriental Jews?”

“Perhaps to a lesser extent, although they learnt by osmosis. You see, the news media persistently recorded Holocaust horror stories including the condemnation of collaborators.”

“How about Jews who migrated prior to the outbreak of WWII?”

“Many of these ‘ascended’ – that is, migrated to Mandatory Palestine – after Adolf Hitler won the general elections in Germany in 1933. Most of them had the same outlook as Holocaust victims.”

“So, this was the general political or cultural orientation of the Israeli population, Peter’le. Am glad you spelt it out. It explains many aspects of the Kastner affair. Just one more point. It is personal in nature but might have had wide application. You see, you read German literature, spoke the language at home and loved German music, for instance, Mozart and Beethoven. How did you reconcile these with the Holocaust? And how did your parents and other secular Austrian and German Jews?”

“I believe that even then I (and others) realised that the Holocaust was an aberration. But all of us hated the Nazis and those who collaborated with them. In this regard, all Israeli parties, politicians and ordinary Jewish citizens were ad idem.”

“Alright, Peter’le. You have covered the background. Let us now turn to the events that followed the publication of Gruenwald’s pamphlet.”

 

2. The steps leading to the Criminal Libel Action

 

“I understand that the pamphlet came to the Israeli government’s attention,” said Peppi.

“It did. I assume that Gruenwald saw to this. There is no evidence suggesting that Kastner consulted the government’s legal department, headed by Haim (Hermann) Cohn [pronounce ‘Cohen’], whose title was ‘The Legal Adviser to the Government of Israel’.”

“Akin to the role of an Attorney General?” asked Peppi.

“Basically. But it was wider. He was not just the Head of the Legal Department. He was a counsellor. And this extra function mattered in the Kastner case, Maestro.”

“In what way?”

“When Gruenwald’s Pamphlet was considered by the government, Cohn had to discern and advise about the best manner to proceed. The function of an Attorney General would have been confined to one issue: to prosecute or desist.”

“This, Peter’le, leads me the next question: what avenues were open? Surely, desisting, or leaving the matter to Kastner’s own decision, was not on. Kastner was a senior civil servant.”

“I agree: Gruenwald’s Pamphlet cast doubts on the government’s appointment policy and perception. Nonaction was out of the question unless Kastner had taken the initiative, for instance, by bringing a private action against Gruenwald or by publishing a forceful refutation. As he did not resort to either, the government had to step in. Cohn advice was, of course, needed.”

“One obvious course was prosecution. Was there any other?”

“There was! Cohn could have advised the government to refer the matters to a Public Enquiry Committee. Such a step would have taken the heat off the government whilst leaving it largely in control.”

“How? Please explain.”

“The government would have been able to appoint its members. Undoubtedly, some opposition MPs would have had to be included. But the government – through its Knesset majority – would have been able to nominate the chairperson, that is, the person in control of proceedings.”

“But was such a course open? Was there any precedent?”

“There was, Maestro. In 1936 the ruling British Mandatory Government appointed the Palestine Royal Commission (known as the Peel Commission), whose members were selected to a very clear extent from leading but neutrally disposed persons.  The Commission, whose   task was to investigate the causes of the unrest in the country, was well remembered during the first decade following the creation of Israel.”

 “Point taken. But isn’t the function of such a body to investigate and report on matters of public interest rather than the propriety of the background and record of just one person?”

“Usually, the affairs respecting one person would not justify the appointment of such a committee. But Gruenwald’s Pamphlet about the Kastner affair became a matter of public interest. In the circumstances, the appointment of such a committee was a viable option.”

“Why didn’t Cohn recommend it, Peter’le?”

“It is, of course, possible that this option did not occur to him.”

“Did others mention it? Aren’t you clever in hindsight, Mon Cher Pierre?”

“On my part, it is, Maestro. Remember, at that time I was a young legal cadet specialising in commercial law. But I am certain the many leading practitioners thought about it. I recall that both lawyer L (whom I have already mentioned) and my boss referred to this possibility.”

“Why, then, didn’t Cohn consider it, Peter’le? Wasn’t he a capable lawyer?”

“He was, Maestro. But, having conceded that, I would – in blunt language – describe him as too sure of himself and dismissive of the opinion of others!”

“Watch your words, Peter’le!  I thought your aim was ‘detached objectivity’ and restrained language?”

“It is, Maestro. But Cohn, whom I knew, struck me as overconfident in his own analysis and insufficiently attentive to dissenting views.  He was a fine legal analyst. If you consulted  him on a purely legal issue, he was bound to find an appropriate answer.  But his legal brilliance was not matched by political or sociological judgment. Further, his civil law background – studies at   Frankfurt – must be emphasised. He did not consider  the difficulties and  legal traps of a criminal libel action brought in a country governed by common law.”

“I know you did not feel deep respect for him. I want to have  the reason expressed by yourself!”

“Cohn was not a good legal strategist. He tended to ramble and was unable to read the judge’s mood. For instance, he failed to appreciate that questions raised by a judge often displayed doubts and unease about the case at bar.”

“Did he handle many cases?”

 “He didn’t. During his years as Attorney General, he usually delegated cases to subordinates or briefed counsel. When he appeared in person, the lawyers of the other party tended to heave a sigh of relief. Many tended to bait him with the hope of his damaging his own case. He was far more accomplished when arguing appeals. But even in such instance, he often irritated the court by belabouring a point or by rambling.”

“I get your point. Why didn’t he delegate the prosecution against Gruenwald?”

“As already pointed out, the case was of large public interest. I believe that it was the type of case in which the government’s top legal adviser had to appear in person. In plain language: once the prosecution had been launched Cohn had to conduct it.”

“So, on this point you endorse him, Peter’le”

“I do. If he had delegated it, many lawyers and politicians would have raised their eyebrows.”

“One further point, Peter’le. Wasn’t Kastner consulted before the prosecution was launched?”

“I believe he was summoned to Cohn’s office several times. Kastner expressed unease about the imminent case. Cohn, though, made up his mind and went ahead.”

“What should Kastner have done, Peter’le?”

“Kastner should have realised that, in the ultimate, Cohn and himself were at cross purposes. Cohn’s primary – perhaps even sole – interest was the purification of the government’s name and employment policy. Kastner’s main interest was to safeguard his own standing. He did not appreciate that Cohn was not his appointed lawyer.”

“But suppose Kastner had taken independent legal advice. What would he have achieved?”

“A well established and perceptive lawyer, like L or my boss, might have taken over the discussions with Cohn. He might have been able to convince Cohn to advise that the government appoint an enquiry committee or commission. I suspect that Kastner did not consider this alternative.”

“Kastner was not a lawyer, Peter’le. Can you really blame him for failing to see this point?”

“I do not, Maestro. All I can do is to express my regrets. But as you are bound to observe, even legally trained individuals, like me, often see things far too late!”

“Quite so. Hindsight is easy. Well, let us turn to the next part of the tragedy.”

 

3. The Preliminary Procedural steps preceding First Instance Hearing

            “When the prosecution was launched, Gruenwald had to appoint a legal representative,” I started.

            “Would established law firms have wanted to tackle the case, Peter’le?”

            “I don’t think so Maestro. Firms like ours got a steady flow of work from the government and its many bodies. We would not have risked losing this bread-and-butter source of income and so would have rejected the brief on the basis of ‘conflict’. Others would have demanded a hefty down payment which, I suspect, Gruenwald would have been unable to raise.”

            “So, what did he do?”

            “He looked for a good and approachable court room advocate. His choice – and an excellent one  at that – was to brief Shmuel Tamir.”

“You seem to admire the man, Peter’le. Do tell me more about his standing at that period.”

“Tamir  was already a prominent and controversial figure in Israeli public life. Trained as a lawyer in Mandatory Palestine, he had gained a reputation as a fine courtroom advocate with exceptional rhetorical flair and an instinct for politically charged cases. Tamir had been associated with the Revisionist camp and with the underground Irgun movement, experiences that shaped his combative style and his distrust of Mapai. By the early 1950s he was known less as a conventional jurist than as a crusading attorney willing to challenge the government and to turn legal proceedings into platforms for public debate.”

“Would you have briefed him in commercial or general common law cases in torts, such as road or industrial accidents?”

“I don’t think so, Maestro. In cases of this type a competent lawyer avoids  acrimony and rhetorics. To the very end, he leaves the door to open to a settlement. The proceedings must, therefore, be firm but temperate. Tamir would, accordingly, have been the wrong man.”

“But why?”

“Tamir was respected for his intellectual sharpness and fearlessness. His practice attracted clients who felt marginalised by the dominant political culture; and he cultivated an image of defender of the ‘little man’ against bureaucratic power. In commercial or simple cases, his approach would have been counterproductive. He would have  antagonised the other parties and would have rendered a settlement difficult. But when Gruenwald sought representation, Tamir appeared an inspired choice: an advocate capable of transforming a seemingly obscure libel prosecution into a dramatic examination of Israel’s moral reckoning with the Holocaust. And he did!”

“Let us turn to the next step, Peter’le.”

“At this stage, it was still procedural or administrative. The prosecution was, rightly, instituted in Jerusalem. The pamphlet was published there, and it was Gruenwald’s place of residence. The Registrar of the District Court – which had jurisdiction comparable to that of the English High Court – assigned the case we are dealing with to Justice Benjamin Halevi.”

“Was he well known prior to the Kastner Affair, Peter’le?”

“He was, Maestro. He was a fine jurist. Nevertheless, he was considered a mercurial judge who let his temper show. Frequently, he scolded lawyers appearing before him, was known not to suffer fools lightly and often intervened to such an extent, that parties felt that he attempted to conduct the case.”

“Was he not concerned about allegations of misconduct?”

“He wasn’t. You see, his basic training was in civil law, which he had studied at the Universities of Freiburg, Göttingen and Berlin. His instincts and approach were incompatible with the philosophy of the common law.”

“You do portray him, Peter’le, as extremely intelligent and intellectually impressive but – at the same time – as short fused.”

“Precisely, Maestro. You see our law firm (in Tel Aviv) was closely associated with one in Jerusalem. We heard a great deal about judges sitting there.”

“Let me then have your final assessment of him, Peter’le. We need to remain objective.”

“I agree, Maestro. On the one hand, Halevi was an irascible interventionist. But beneath the sharp tongue stood a jurist of uncommon intellect and courage. He had helped to shape the young Israeli judiciary. My reservations concern not his motives but his method: he instinctively approached cases as an inquisitor whereas the common-law framework required a more restrained and detached role.”

“How far did this matter, Peter’le?”

 “In an ordinary dispute this difference might have been of little moment; in a trial that touched the rawest nerve of Israeli society – like everything concerning the Holocaust – it proved decisive.”

“I get your point,” observed Peppi. “I suggest we turn to  the trial itself. You have been leading up to it, Peter’le: a lengthy, but  necessary introduction.”

 

4. The First Instance Hearing

“The case was opened by Haim Cohn,” I started.

“Bu Peter’le, wasn’t Cohn entitled to ask that Tamir open  the case because Gruenwald’s defence was justification?”

“He was but, on this point, he made the correct decision. His main concern was to clear the government’s name. Resorting to technicalities would have been regarded – by most Israelis – as inappropriate.”

“Very well, Peter’le. Do continue.”

“Cohn called Kastner as his first witness. Many practitioners thought that he should have confined himself to a few questions, comprising a denial of collaboration and a brief narration of the horrible situation prevailing at this time. Instead, Cohn opened the case widely by a prolonged and detailed examination-in-chief in which he took Kastner through the entire episode and his conduct.”

“Do you think this was the correct course of action?”

“I think it was. I am aware that by doing so, Cohn provided evidence Tamir needed. In a way, Cohn prepared the ground for Tamir’s cross-examination. Tactically, this might have been unwise. But this was not an ordinary libel action. It concerned the integrity of a senior civil servant and, by extension, the moral authority of the young State. Whilst Cohn’s approach might have been unwise from a purely legal and tactical point of view, he had to proceed in the manner he did: the public interest required this.”

 “It is common knowledge, Peter’le. That Tamir crushed Kastner in  a searching and sharp cross-examination.”

“It was indeed.  Kastner was on the witness stand for some 12 days. A friend of mine who attended part of the hearing, told me that Kastner looked harassed for quite a few days. He was relieved when Tamir said: ‘no further questions’.”

“Did Cohn call other witnesses?”

“Mainly witnesses attesting Kastner standing and some that described the hopeless situation of Hungarian Jews at that time. Tamir cross examined all of them relentlessly. He turned the case into a moral indictment of Kastner’s war time decisions rather than a strict defence of his client.”

“Did Halevi try to restrain him?”

“Friends that attended the trial told me that he didn’t. One of them said: ‘Halevi gave Tamir a free hand. I think he was biased. He did not show the impartiality and detachment one expects in cases of this type.’ I do remember his words clearly!”

“Did  you agree then? Do you agree now?”

“Hard to say, Maestro. I accepted what my friends said at face value. Today – in the winter of life, when the case is largely forgotten – I feel unease. You see, I firmly believe that justice must both be done and seen to be done. Halevi’s conduct during the trial did not – I think – meet either standard.”

“You sound judgmental, Peter’le!”

“I know. Perhaps I sound harsher than I intend. But in some cases you cannot sit on the impartial fence. And this was one of them.”

“Why?” asked Peppi severely.

“Because the case revived  desperate situations and sought to examine issues without considering the true background. From a mere criminal libel action, it metamorphosed into a moral examination of historical events. And – today – I am inclined to think that the judge was not impartial!”

“This is a harsh statement, Peter’le. Does the judgment delivered by Halevi substantiate your conclusions?”

“It does. Judge Halevi ruled that Kastner  ‘sold his soul to the devil’ and that his conduct in Hungary in 1944 amounted to collaboration with the Nazis. He based his decision mainly on Kastner’s salvation of a limited number of Jews and his failure to warn the wider community about the reality of the extermination camps. Halevi concluded that Kastner had had a duty to warn them and that he sacrificed the majority for a privileged few. In addition, he found that Kastner’s testimony on behalf of Becher proved Kastner’s disloyalty to the Jewish people.”

“Well, did he acquit Gruenwald altogether?”

“No.  You see, Gruenwald testified; but both Tamir’s examination-in-chief and Cohn’s cross were brief. Tamir then called Holocaust survivors and other witnesses who were critical of Kastner’s role in the tragedy. Halevi listened but held that it was not  proved that Kastner had knowingly helped the Nazis deport Hungarian Jews. This accusation had damaged Kastner’s reputation and therefore constituted libel.”

“Was Gruenwald fined?”

“A nominal amount. And Halevi ordered the plaintiffs – the State of Israel – to bear the costs of Gruenwald’s case.”

“Halevi’s judgment was criticized by historians and scholars, Peter’le. But you lived in Israel at the relevant time. Tell me about the public reaction at that time.”

“For most of us, Maestro, life pressed on with more urgent concerns. I, for instance, was busy preparing run of the mill cases for trial.  The Kastner case was something most of us just read about between bus queues and reserve duty. Still, the judgment – or the newspapers’ summary of it – was widely publicised. In general, public opinion was divided. Many sensed that Israel of the 1950s did not provide a forum for judging Kastner’s activities in 1944. And they were also critical of the tone of the decision.”

“And how did others react?”

“They condemned Kastner and were incensed by his having ‘sold his soul to the devil’. I know that members of Kastner’s family were molested and that his wife experienced deep depression.  And Kastner himself became a broken man.”

“Anything you want to add, Peter’le?”

“Many, including me, concluded that Kastner’s condemnation arose to a large extent from the press and the narrow political milieu of a vocal segment of the population. Let me emphasize again: the wider public seemed hesitant and uncertain. What later was presented as a national verdict felt at that time like a media driven storm. And Halevi’s tone was condemned by many. My boss, for instance, said: ‘Halevi does not have an appropriate judicial temperament.’ And lawyer L expressed a similar sentiment.”

“Understood, Peter’le. Let us then turn to the next part of the affair.”

 

 

V. KASTNER’S ASSASSINATION

 

1. Events leading  to the Assassination

            “The next sad event was the murder of Rudolf Kastner by three fanatics, Maestro. A political murder which shook Israel’s population.”

            “Before we turn to it, Peter’le, it is important to consider the events leading up to it.”

            “Right you are, Maestro. Well, let us recall that Benjamin Halevi delivered his judgment on 22 June 1955.  Two months thereafter – on 22 August – Cohn filed his appeal. He challenged Halevi’s findings and the admission of hearsay evidence, asked for reversal and claimed that the ruling was unjust.”

            “Was he entitled to do so?” asked Peppi.

            “He was. Although Halevi found Gruenwald guilty on one count, he exonerated him of most of them. On this basis Cohn was entitled to appeal.”

            “Did Tamir lodge a cross appeal respecting Halevi’s verdict which convicted Gruenwald on one point?”

            “He did not. The fine was meaningless. If he had filed a cross appeal, he might have been asked to speak first. Further, if there had been two appeals, the case might have been sent back to the District Court. Tactically, it was better for Tamir to defend Halevi’s judgment.”

            “When did the Court of Appeal – the Supreme Court (which was at that time Israel’s Court of Last Resort) – hear this appeal, Peter’le?”

            “The first hearing took place on 22 January, 1957. Due to the complexity of the case, it became ‘part-heard’, Maestro.”

            “You better explain this technical term,” suggested Peppi.

            “Usually, Maestro, an appeal is heard in one session. It may stretch over two or even three working days; but the process is ongoing. The  Gruenwald libel action differed. Because of the complexity of the issues involved it was spread over a number of sessions.”

            “Did the press cover them as they were in progress?”

            “It did. The  case and the judgment were also the topic of many conversations and debates in clubs and societies.”

            “Can you recall any?”

            “Actually, I do. I was at that time a member of Yahad, a small  social club comprising mainly young people who had finished secondary school and were pursuing studies at universities or technical colleges. Halevi’s judgment was discussed and the entire affair considered. Some of us described Kastner as a traitor; others defended him and highlighted the horror he faced; and quite a few remained uncommitted and uncertain. I fell into this last group.”

            “Were the discussions acrimonious?”

            “Not really. Kastner’s denigrators emphasised that he had failed to perform his duties as a community leader. But even such denigrators tried to remain objective although, occasionally, lost their temper. Still, disagreement did not disrupt social harmony. I recall that one denigrator was going steady with a fair girl who defended Kastner. Well, they remained a couple and a few months later they tied the knot.”

            “Was this sort of analytical disagreement the norm in the Israeli middle class?”

            “I believe it was, Maestro. You see, for many people – I mean Holocaust survivors – the case opened scars. Many – including Austrians and German Jews – had to remember how they had to flee, occasionally had  to compromise themselves and how they had to continue to fight for survival. My late mother, for instance, had to bribe her own father out of the detention centre in Vienna. Had she failed, he would have been deported to a concentration camp.”

            “I understand,” conceded Peppi. “But, please, tell me: were there more radical segments of society?”

            “There were, Maestro. You see, during the last few years of Mandatory Palestine, that is, just before the foundation of Israel, there was an extreme right-wing group known to us  as Lehi …”

            “Lehi? You better explain,” interjected Peppi.

            “In Hebrew, Lehi is an abbreviation of ‘Fighters for Israeli Freedom’. This terrorist group was also known as the Stern Gang. Whilst it was disbanded in 1948 – with its members joining the forces which fought the Arabs during the Independence War – some continued to congregate in extreme, or fanatic, political clubs.”

            “Did you, or anyone you knew, ever attend such gatherings?”

            “No, Maestro. I didn’t even know that they existed. And I believe that so were most members of Yahad. Extremists of this type were few and rare!”

            “I see. We might as well proceed to the next event, namely Kastner’s assassination by such fanatics.”

 

2. The Assassination

            “The facts are not in dispute,” I started. “Kastner was shot on 3 March 1957, that is, some 18 months after Benjamin Halevi delivered his judgment. He was rushed to hospital but died of his wounds on March 15. This was about two months after the first hearing of the appeal by the Supreme Court sitting as the Criminal Court of Appeal.

            “How was the shooting organised, Peter’le?”

            “Three men ambushed Kastner. Joseph Menkes and Ze’ev Eckstein waited for him in the stairwell  of the house in which he had an apartment. Eckstein pulled the trigger. The third man, Dan Shemer, waited in the gat-away-car. It malfunctioned and the three were apprehended.”

            “What was their motive” asked Peppi.

            “They felt that Kastner was a Nazi collaborator and regarded themselves as executioners.”

            “So, in your eyes it was a political assassination?”

            “It was, Maestro. Nobody suggested that any one of them made a gain or had a personal grievance against Kastner.”

            “Tell me what you know about these three people?”

“All had been members of Lehi. After its disbandment, Menkes had ties to the Kingdom of Israel [Malchut Yisrael/ Tzrifin Underground]: an extremist group embracing Lehi’s outlook. The other two assassins were connected by association with him and similar political-militant networks but are not clearly documented as formal members of that group.”

“Did any one of them have a Diaspora background, Peter’le?”

“Eckstein and Shemer were born in Israel. Menkes’ position is less clear. One source states that he was born in Kozowa, Poland, on 15 May 1917, and that he immigrated to Mandatory Palestine in 1938. Others imply that he was a Sabre [viz. born in Israel]. If the former is correct, he may be regarded as a Holocaust survivor.”

“Please explain why this matters, Peter’le.”

“Menkes initiated the operation and it would appear that he supplied the gun – the murder weapon. The other two would have been influenced by the radical ideology  of a victim of the regime with which, according to Halevi’s judgment, Kastner collaborated.”

“You tell me that you knew Eckstein. Please elaborate.”

“We went to the same primary school. Ze’ev liked to be felt. For instance, when a teacher called out the attendance roll, pupils replied ‘here’. Ze’ev alone used to answer: ‘sitting in the class’. Naturally, everybody glanced at him. And he liked to be the first to respond to question on substance raised by the teacher. Another feature I recall was his sharp and sarcastic tongue. He liked to score in debates. But his was not violent.”

“Did he enrol in a prestigious secondary school?”

“To everybody’s surprise he did not.  You see, when we graduated from Ahad Ha’Am, Ze’ev had the grades for Tichon Ironi A. Yet he went instead to Max Fein, the technical school of workshops and engines. This was a change of horizon – from notebooks to tools, from argument to action. Years later, when his name surfaced in the Kastner affair, I thought of that fork in the road. I do not pretend to fully comprehend the motives of the man he became. I only recall the boy who wanted to be seen, who preferred doing to waiting. Between those two versions of Ze’ev lies a mystery no court record can fully explain.”

“Well, what do you think, Peter’le? Surely, you were eager to understand.”

“I was; but remained perplexed. My hunch is that Ze’ev (‘Ze’evik’ to friends like me and ‘Oksho’ [meaning: stubborn boy] to the many who feared his tongue) was influenced by Menkes’ oratory and persuasive words  as well by his own need to show off.”

“What can you tell me of the other two?” asked Peppi.

“Only what is clear from the available records. I did not know them personally. As already said, Menkes was the ideological  preacher and instigator. Dan Shemer was older – about 35 years old – was married and had a family. He planned the technical side of the operation.”

“I take it that the charge was murder?”

“It was. The hearing was before the District Sitting of Tel Aviv – the place where the crime was committed – sitting   as A Court of Serious Crimes. The presiding judge  was Natan Kenet, who had served as a District Court Judge even in Mandatory Palestine. He had a clear common law background and was known as a  no-nonsense judge.”

“Did murder carry capital punishment?”

“Capital punishment was on the books for certain crimes, such as high treason.  The penalty for murder was a life sentence. It was pronounced on each of them. Shemer’s plea that he was only an accessory after the fact failed. Still, his sentence was commuted by the President of Israel to 15 years in prison.”

“Did the assassin’s plead guilty?”

“They did not. Menkes tried oratory, claiming they were executioners. The Court had no sympathy for that plea. Eckstein displayed great dignity, conceding the crime but emphasising the political motive. Still, under Kenet’s firm and exemplary presiding role, none had a show.”

“Did they serve out their sentences?”

“They did not. All three were model prisoners and – all of us knew – not dangerous criminals. They were paroled after about six years. Menkes and Shemer vanished into the crowd. I believe Menkes became a taxi driver. Eckstein was the only one to grant interviews. Late in life, he said that he would not shoot Kastner after considering all the evidence that emerged over the years.”

“Did you contact him, Peter’le?”

“I didn’t, Maestro. By the time Ze’ev was released I was in New Zealand. And I don’t think he was inclined to revisit the past.”

“What was the public’s reaction to the assassination?”

“Dismay and disbelief. In Yahad, for instance, even Kastner’s denigrators condemned the assassins for taking the law into their own hands. And the press slammed the murderers. You see, Maestro:  our society – which recalled the horrors of the Holocaust – abhorred  violence.”

“Did this episode conclude the matter?”

“It did not. All of us awaited the decision of our Supreme Court.”

“Let us, then, turn to it,” prompted Peppi.

 

 

VI. THE COURT OF APPEAL’S DECISION

 

1. The Judgments

 

“The decision of the Court of Appeal was handed down on 16 January 1958, Maestro. That was well after the murderers’ conviction. A majority of four reversed most of Halevi J.’s findings.”

“What can you tell me about the judges in attendance?”

“The President of the Supreme Court was, at that time, Yitzhak Olshan, who headed the appeal panel. He had studied law in London University. The leading majority decision was delivered by Shimon Agranat – an American Jew, who had graduated with a degree in law conferred by the University of Chicago. Justice Moshe Silberg dissented. He would have upheld most of Halevi’s findings. The remaining judge, Zalman Cheshin, is best described as sitting in between. The finding of Kastner’s collaboration with the Nazis by helping Becher escape punishment of war crimes by giving him a letter of recommendation was unanimously upheld.”

“Wasn’t this a matter to be left for Kastner’s judgment? Actually, what did he do?”

“He confirmed, inter alia,  that Becher had been instrumental in allowing the ‘Kastner train’ to proceed to Switzerland. And he affirmed that Becher was pragmatic and not ideologically motivated. Kastner did not white wash Becher. But he confirmed that Becher had helped him to save some Jews.”

“Why then was Halevi’s denunciation of this aspect of Kastner’s conduct allowed to stand?”

“Because this was an act committed after the danger of 1944 was long over.”   

“I see. Well, let us have some details of the judgments delivered at Court of Appeal level,” suggested Peppi.

“Agranat’s lengthy judgment – which was endorsed by Olshan and Goitein – emphasized that  ‘collaboration’ required ‘intent’ and that, on the record, the accusations made  by Gruenwald did not meet that legal threshold. He framed Kastner’s wartime conduct as tragically constrained decisions made in extreme conditions, rather than a voluntary ‘deal with the devil’. He drew a clear distinction between attempts to pronounce judgment about tragic historical events and a legal conclusion respecting the criminal libel action before the trial judge and the Supreme Court.”

“Do you wish to add  any point?” Asked Peppi, noticing my expression.

“Yes, I do. Agranat stressed that failure to warn the Jews of Hungary could not, without proof of intent to aid the Nazis, amount to ‘collaboration’. On this point, all agreed.”         

“I understand that this judgment was long and reading it out took a few days. And what did Silberg and Cheshin hold?”  prompted Peppi.

“Silberg upheld Halevi’s conclusion. Cheshin, too, dissented from Agranat on the ‘collaboration’ issue but emphasised that judges should not decide cases of this type in a ‘vacuum’ and wrestled with the unique issue of judging Holocaust era choices. All in all, his powerful and historically self-aware judgment stands closer to Halevi’s conclusion than to Agranat’s.”

“Technically, was Halevi’s verdict reversed?”

“It was not, Maestro. The nominal fine imposed on Gruenwald was not altered.”

 

2. Public Reaction

“How did the public react, Peter’le?”

“By and large, the feeling was relief. I do believe that the   majority accepted Agranat’s conclusion. As far as most people were concerned this was a befitting end to a tragedy.”

“On what do you base this conclusion?” asked Peppi.

“Partly on views expressed in Yahad and amongst the legal fraternity. Further, the press too expressed support for Agranat’s approach and tone.”

“Please specify.”

“Both Davar and Ha’Aretz  published largely supportive editorial. This was significant. Davar was, essentially, Mapai’s organ or, in other words, a paper in tandem with the then majority labour party. Ha’Aretz could be rightly regarded as the vehicle of the middle classes. It continues to function to the present day.”

“Would it be correct to say that  the public at large ceased to pay attention to the Kastner affair?”

“Basically, this was the case. But, a few years later, the trial of Adolf Eichmann in Jerusalem (1961) cast the Holocaust in a very different judicial light. Unlike the Kastner proceedings, the Eichmann trial confronted a principal architect of extermination and allowed survivors to testify at length before the nation and the world. It provided a more appropriate forum for historical reckoning than the criminal libel action that had engulfed Kastner.”

“Did it  push the Kastner Affair into the background?”

“To a certain extent. Still, the Kastner Affair continues to be discussed by scholars and historians. It is not ‘dead’ or ‘forgotten’. But many youngsters know little about it. They have far more pressing immediate issues.”

 

 

VII. CONCLUSIONS

1. Prompted to Express Personal Views.

            “Well, Peter’le, up to now you narrated a sad story. I know you strove to remain objective. But I think you must conclude by voicing your own assessment.”

            “Surely, you can read me, Maestro. And, in any case, the episode took place more than 60 years ago. My views might have changed during such a lengthy period.”

            “I know that your views might have changed. And I want to hear them from your own mouth. You better tell me what you thought when the case was going on and your conclusion at this point of time, when both chronically and geographically you are far away from the scene.” 

“I’ll try, Maestro. But please tell me, are my views of any importance?”

“I think they are,” Peppi spoke emphatically. “All the persons directly involved are dead. And you are one of the very few surviving eyewitnesses of the unfolding of the episode.”

“Before I do so, please tell me what happened to the ‘main characters’, Maestro.”

“Gruenwald faded from public life after the Court of Appeal delivered the judgments. Both Haim Cohn and Benjamin Halevi were, in due course, constituted Supreme Court Judges. Each of them left his mark. You, Peter’le, noted that they were good jurists. Both of them were influential and esteemed.”

“A suitable role for each,” I agreed. “And I understand that Shmuel Tamir moved into politics.  Initially, he became a prominent opposition figure, known to be a fine orator. When the Free Centre Party won the elections, he was constituted Minister of Justice and held the post for three years (1977 – 1980).”

“So, Peter’le, we can conclude that he emerged as the only victor of the affair. Was that the common view in Israel?”

“It was, indeed, Maestro. And I agreed with it.”

“And your view on the other issues?”

“Like most people, I approved of Agranat’s judgment. Still, even at that time, I had unease as regards the decision about Kastner’s affidavit in support of Becher.”

“On what basis, Peter’le?”

“Kastner  was the person who dealt with Becher. He alone could form a moral judgment about the negotiations. Technically, Gruenwald’s pamphlet brought to light facts about its occurrence. But I do not think that the Halevi or the Court of Appeal were in a position to  moralise about it.”

“So, even then, you were inclined to exonerate Kastner altogether.  But what were your views about Gruenwald’s Pamphlet and its publication?”

            “I regarded it as based on hearsay and I doubted Gruenwald’s motivation for publishing it,” I told my mentor and friend, adding: “And I believe that other members of the public took a similar view.”

“So, even at that early stage, you were one  of those inclined to regard Kastner as having been maligned. Why did you take such a view?”

“Because Rudolf Kastner did not make any personal gain, not even in the context of his affidavit respecting Becher. Gruenwald’s pamphlet questioned his motives, if not directly, then by implication. And no evidence was brought to refute Kastner’s words.” 

 “Understood, Peter’le, but tell me: what view would you take today?”

“I think Cohn and Halevi showed poor judgment!”

“Please explain.”

“Actually, I have outlined my views earlier on. I stand by them. But I want  to add one point.”

“About  Halevi?”

“Yes. His correct course would have been to disqualify himself and refuse to hear the case.”

“Do judges ever do this, Peter’le?”

“In certain cases they have to. For instance, a judge must not hear a case if he is related to a party either due to financial or family grounds. Some judges push this to an extreme. I know of a case in which an English Judge declined to hear a case involving Diners’ Club because he had a credit card issued by this firm.”

“Isn’t the last case rather extreme?” asked Peppi.

“I believe it is. But, in the matter under discussion, Halevi appears to have formed a firm moral view early in the proceedings – and this was relevant. It may have been the crux of the matter.”

“I get your point, Peterle. Any further point?”

“There is Maestro. One option available to the Supreme Court was to send the case back for a retrial.”

“Could this be regarded as a realistic option, Mon cher Pierre?”

“It could, indeed. You see, Halevi accepted evidence treated as inadmissible. Prior to Kastner’s assassination the Court of Appeal could have held that the trial judge’s conduct rendered the outcome unjust and that the case should be reheard. After Kastner’s assassination, that option was no longer realistically available.”

“So, in the ultimate the best course was to determine the issues once and for all.”

“It was. And Agranat’s meticulous judgment brought the matter to an end.” 

“Would today’s public agree with the judgment delivered by him and with the course adopted?”

“I don’t know. My impression – based on conversations with Israelis whom I have met here – is that the matter is largely forgotten. Those who knew about it, were impartial and distant.”

“So, for general purposes, we can regard the matter as  over.”

“We can, Maestro; and perhaps this is for the best. But, as an afterthought, I want to add one further reflection: how sad that a pamphlet drafted by Gruenwald – a mere pebble dropped into a pond of apparently calm water – led to a stormy tragedy.”

“Not an altogether unknown process in mankind’s history,” replied Peppi, and the room grew quiet again.