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A Man Lost in the Gray Zone

Published online by Cambridge University Press:  28 October 2011


The Rudolf Kastner trial was one of the three great scandals that rocked Israeli party politics in the 1950s (the others were the negotiations with Germany for Holocaust reparations and the so-called “Lavon affair”). Although Leora Bilsky describes it as an “almost forgotten trial,” it has not been forgotten by subsequent writers: it makes an important cameo appearance in Arendt's Eichmann in Jerusalem; it features prominently in Tom Segev's The Seventh Million (1991); Yehuda Bauer's Jews for Sale? (1994) takes pains to refute the charges against Kastner; and it inspired two novels—Amos Elon's Timetable (1980) and Neil Gordon's cerebral thriller The Sacrifice of Isaac (1995). But the legal opinions have never until now attracted the thought or analysis they warrant, and Bilsky deserves gratitude for remedying this omission. With admirable insight and ingenuity, Bilsky focuses on the construction of the legal opinions as a form of literature. Her reading of Judge Halevi's and Justice Agranat's opinions centers on the way in which law is driven by metaphor—in Halevi's case, the metaphor of contract; in Agranat's, the metaphor of administrative decision making. Her article is a major contribution to our understanding of the Kastner case and to the way that, in a situation of intense moral ambiguity, legal analysis can be predetermined by a choice of metaphors.

Forum: Comment
Copyright © the American Society for Legal History, Inc. 2001

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1. Bilsky, Leora, “Judging Evil in the Trial of Kastner,” Law and History Review 19 (2001): 118.CrossRefGoogle Scholar

2. Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. ed. (New York: Viking, 1963), 197.Google Scholar

3. All the quotations come from Levi, Primo, The Drowned and the Saved, trans. Rosenthal, Raymond (New York: Vintage, 1988), 43, 60, 64.Google Scholar

4. All passages quoted from Davidowicz, Lucy S., The War against the Jews, 1933–1945 (New York: Bantam, 1975), 348, 352, 353.Google Scholar

5. Quoted in Hilberg, Raul, The Destruction of the European Jews (New York: New Viewpoints, 1973), 543Google Scholar, from Life, 5 Dec. 1960, 146. The six million pengö figure also comes from Hilberg. I have not examined the newly released Eichmann memoirs on this episode.

6. Bilsky says 1685 (“Judging Evil,” 126), but the sources I have consulted all say 1684.

7. Quoted in Hilberg, Destruction of the European Jews, 724 – 25, from Weissberg, Alexander, Die Geschichte von Yoel Brand (Cologne: Kiepenheuer and Witsch, 1956).Google Scholar

8. Hilberg, Destruction of the European Jews, 542–44, 723–28; Segev, Tom, The Seventh Million: The Israelis and the Holocaust, trans. Watzman, Haim (New York: Hill and Wang, 1993), 94.Google Scholar For a detailed discussion of the complex deliberations and machinations of the Allies in the trucks-for-blood deal, see Bauer, Yehuda, Jews for Sale? Nazi-Jewish Negotiations, 1933–1945 (New Haven: Yale University Press, 1994), 172–95.Google Scholar

9. Hilberg, Destruction of the European Jews, 728.

10. Ibid., 545.

11. Quoted in Segev, The Seventh Million, 269. Segev claims that Becher's help to the Jews was merely an effort to create an alibi for himself, and Bauer reaches the same conclusion. Becher, who had substantial blood on his hands, lived out his years as a “respectable” multimillionaire bon vivant, with a taste for horseback riding and adultery.

12. I am taking this account of the trial from Segev, The Seventh Million, 266–71.

13. The most famous of the paratroopers was the twenty-three-year-old poet and Israeli national heroine Hannah Senesh, who was captured by the Nazis, tortured (bearing up with legendary bravery and dignity), and executed.

14. Segev, The Seventh Million, 272.

15. Ibid., 282.

16. Quoted in ibid., 282–83.

17. Arendt, Eichmann in Jerusalem, 42, 143.

18. Ibid., 42. However, elsewhere in the book, apparently without noticing the inconsistency, Arendt also accepts Kastner's version that the deal was a strict cash-for-lives trade. Ibid., 143.

19. Ibid., 117, 118, 132.

20. Ibid., 132.

21. Bauer, Jews for Sale? 259.

22. Arendt, Eichmann in Jerusalem, 125.

23. Ibid., 47–48. This central idea of the book was elaborated in her essay “Thinking and Moral Considerations,” Social Research 38 (1971): 417–46, perhaps her most important contribution to moral theory.

24. Arendt, Eichmann in Jerusalem, 42.

25. Ibid., 54.

26. Quoted in Segev, The Seventh Million, 28. To be fair to Ben-Gurion, at the time he made this statement (December 1938), almost no one actually believed that Hitler meant to murder all the Jews. On the efforts of Ben-Gurion and the Jewish Agency to save Jews, even at the cost of nation building in Palestine, see Bauer, Jews for Sale? 184, 188.

27. Quoted in Segev, The Seventh Million, 100.

28. Bauer, Jews for Sale? 199.

29. Segev, The Seventh Million, 40–45, 99–109.

30. On this theme in the Kastner trial, see Maoz, Asher, “Historical Adjudication: Courts of Law, Commissions of Inquiry, and ‘Historical Truth,’Law and History Review 18 (2000): 598–99.CrossRefGoogle Scholar

Notice that Tamir's is a different accusation against the Judenräte than Arendt's. She never indulged in Tamir's fantasy that the Jews might have fled or resisted, and in fact she argued that to accuse them of going like lambs to the slaughter is merely cruel. Her point was not that the Judenräte undermined resistance, but that they actively, if unwittingly, facilitated slaughter.

31. Bauer convincingly refutes all Tamir's assumptions; see Jews for Sale? 150–61.

32. According to Bauer, the answer is yes, although Brand was never under any similar illusions. See Bauer, Jews for Sale? 170.

33. Hilberg, Destruction of the European Jews, 544.

34. On this motivation, see Bauer, Jews for Sale? 167, 178, 186.

35. Bilsky, “Judging Evil,” 154–55.

36. Why did Kastner help Becher? His accusers intimated that it was to buy Becher's silence, while Segev quotes a friend of Kastner's who believed that Kastner wanted to experience one more time the power over life and death. See Segev, The Seventh Million, 268. Bauer believes that Kastner simply thought Becher deserved help because he had helped to save lives. See Bauer, Jews for Sale? 250.1 suspect Kastner had to believe that Becher was a worthy partner in order to believe that he himself played an honorable role working with him.

37. Levi, The Drowned and the Saved, 40, 44.

38. As Maoz explains, this point was made in Justice Goitein's opinion in the Kastner appeal. See Maoz, “Historical Adjudication,” 593–94.