Plus Ca Change

By Steve Rodan

In recent years, the state of Israel has undergone a constitutional revolution that has remarkably escaped the notice of most Israelis. With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court's opinion violates normative human rights guarantees.

Aharon Barak's Revolution. Hillel Neuer. Shalem Center

Mainstream historians don't like to write about it. But Israel's judiciary system, particularly the Supreme Court, has never been independent. The Supreme Court has been assigned the role of protector of the Israeli regime -- whether to avoid compensation, release people close to the powerful and wealthy and, most important, remain aligned with the West. That means twisting Israeli laws, and if that doesn't work, simply ignoring them.

The area where the Supreme Court has been most active in disobeying the law is that of the Holocaust. Without batting an eye, the court has defied Knesset legislation and released the worst of murderers during World War II.

In 1950, the Knesset passed the Nazis and Nazi Collaborators Punishment Law, which exposed hundreds and perhaps thousands of Israelis who helped the Germans oppress the Jews during the war. The police would be required to investigate allegations that Israelis, almost all of them Jews, served as German camp guards, ghetto police and Judenrat leaders. Their job had been to facilitate the killing of what turned out to be more than six million Jews.

The anti-collaborators' law was more practical than ideological. After World War II, hundreds of Jewish immigrants were suspected and accused of serving the German extermination machine. Not a few of the immigrants were chased and beaten in the streets. Some were killed. In post-war Europe, hundreds of Jews recognized as kapos were slain by survivors.

The Zionist movement protected the important collaborators. Eliezer Greenbaum was the son of one of the most prominent members of the Jewish Agency. Yitzhak Greenbaum used his connections to spirit his son out of Europe, where he was wanted as a war criminal by France and Poland. The elder Greenbaum counted on the support of David Ben-Gurion, chairman of the agency and in 1948 Israel's first prime minister. Eliezer was accepted by the agency's Haganah and killed in the battle for Jerusalem, rumored to have been shot by a soldier in his unit. Ben-Gurion made sure the young man was commemorated.

Rudolf Kastner, the Zionist leader in wartime Hungary, was identified by survivors as the partner of the SS in the killing of some 500,000 Jews in 1944. Kastner had been threatened both in Europe and later in Palestine, but was close to the leadership of the ruling Mapai Party, also headed by Ben-Gurion. His election campaign appearances were often disrupted by Hungarian emigrants who shouted that he was a collaborator in the killing of their relatives.

120 investigated

In the early 1950s, Israeli courts honored the Nazis and Nazi Collaborators Punishment Law and tried dozens of alleged kapos and others charged with participating in the Final Solution. One of them, Yehezkel Jungster, was sentenced to death. In 1952, Judge Pinchas Avishar ruled that Jungster, a Tel Aviv ice cream vendor, "had made himself a tool in the hands of the barbaric Nazi regime in its plan to annihilate the Jewish people.” In all, police investigated 120 Israelis on suspicion of collaboration.

The Supreme Court, however, came to the rescue. The justices significantly reduced the sentences of all the collaborators, some of whom were convicted of killing Jews in the German camps. Jungster's death sentence was commuted, and he later died in prison.

The 1954 libel trial by Kastner of a journalist who had accused the former of working with the SS to kill the Jews in Hungary led to a profound change in how the Israeli regime responded to collaboration. Prosecutors were ordered to block charges that could result in a death sentence. Jews, regardless of their deeds, were no longer charged with war crimes.

The behavior of the prosecution and the courts was bolstered by those close to Mapai. Publicists such as Nathan Alterman and Aharon Megged saw Kastner, not the dead Jews, as the victim. Alterman even discredited the Jewish resistance in Europe and wrote that he would have preferred to have been a member of the Judenrat.

In March 1957, Kastner was assassinated by a squad that included an agent of Israel's secret police. Still, the state pursued its appeal to overturn the decision that branded Kastner as a collaborator. The Supreme Court condemned the presiding judge in the libel trial and insisted that Kastner was a hero even as he worked with the SS to bring Jews to Auschwitz.

Those alleged collaborators benefited from the new attitude. Prosecutors now ignored suspects and only charged those who were said to have supported the aims of the Final Solution. The judicial system suspended this in the prosecution of Adolf Eichmann, who claimed that he liked Jews and was only following the orders of high-level SS officers, including the man who later became a top official in West Germany.

The conductor

In 1961, Hirsch Barenblatt was arrested after he was recognized by a survivor as being the former deputy police chief of the Bedzin ghetto in Poland. He was accused of handing over dozens of Jewish orphans to the Gestapo in 1942. He was also identified as playing a major role in the deportation of 7,000 Jews to Auschwitz from May to August of that same year. [1]

Barenblatt was sentenced to five years although the judges insisted that Jewish quislings were not dishonorable and that their actions did not come under the Nazi collaborators' law. In 1964, the Supreme Court ordered the release of Barenblatt, supported by at least one senior military commander. The court essentially adopted the argument by the Nazis and their supporters at Nuremberg -- they were only following orders and had they not carried them out somebody else would.

Despite his freedom, Barenblatt, who became deputy conductor of the Israel National Opera, did not feel safe. He moved to West Germany.

The trials of suspected Jewish collaborators ended in 1972. They are not mentioned in Israeli history textbooks. For good measure, the state locked up the transcript of these trials for more than 50 years.

"Let's not fool ourselves that if the acts done by persecuted brothers will be judged criminally by the standards of pure morality, this will ease the agony in the heart of the horrible blow received by our people." [2]

The Supreme Court also blocked German reparations to Holocaust survivors. The most blatant example took place in 2014, when a three-judge panel reversed a decision that awarded 200 survivors 50,000 shekels, or about $12,000, each. The Jewish adolescents had arrived in Palestine in 1943 without their parents. During their 12-year court battle, the plaintiffs, known as Children of Teheran, because they had spent time in the Iranian capital before reaching the holy land, alleged that Israel had stolen 19.1 million shekel in reparations from West Germany.

The high court upheld the state that the Children of Teheran, now nearly 70, deserved nothing because the statute of limitations had expired. The Supreme Court ruled that the reparations agreement of 1952 did not even concern the victims of Hitler. Instead, the judges claimed that the accord marked an effort by Bonn to support Israel's nascent economy. [3]

Today, the identification of the Supreme Court with the interests of the state can be best illustrated by what took place following Knesset passage of a key element of the judicial reform package in late July 2023. The justices had been on an official visit to a European ally to mark 75 years since the establishment of the Jewish state. Their itinerary had called for touring courthouses, meeting their colleagues and praise the bilateral relationship. Instead, the judges rushed home to hear numerous petitions against the new legislation that threatened their monopoly.

Where had the judges been assigned to celebrate Israel's anniversary? Try Germany. [4]

Notes

1. Collaborator or Would-Be Rescuer? The Barenblat Trial and the Image of a Judenrat Member in 1960s Israel." Avihu Ronen, Hadas Agmon, and Asaf Danziger. Yad Vashem Studies. 39(1)117-167. 2011

2. Supreme Court decision on Barenblatt. May 1, 1964.

3. Supreme Court decision on the appeal by the state of Haim Robinson, Zev Mengel and 217 others. 7686/12. Jan. 13, 2014

4. "High Court justices rush back from abroad to hear petitions against 'reasonableness.'" Times of Israel. July 25, 2023. High Court justices rush back from abroad to hear petitions against 'reasonableness' | The Times of Israel

Below: Hirsch Barenblatt