Vol. 15 No.5 (May 2005), pp.465-470
TRANSFORMATIVE JUSTICE: ISRAELI IDENTITY ON TRIAL, by Leora Bilsky. Ann Arbor: University of Michigan Press, 2004. 392pp. Cloth. $65.00. ISBN: 0-472-11422-0. Paper. $24.95. ISBN: 0-472-03037-X.
Reviewed by Allan E. Shapiro, Kibbutz Degania Alef, E-mail: email@example.com
This is a very ambitious study of a category of political trials that encapsulate transformative moments in the life of a nation. Leora Bilsky, a professor of law at Tel-Aviv University, has built a solid reputation through her work in children’s law. Perhaps this is the reason that the process she tracks in putting together an account and analysis of four political trials in Israel seems to this reviewer somewhat parallel to the narrative of growing up, with an optimistic spin to it. Bilsky provides a measure of confirmation, concluding the pro forma introductory acknowledgments with a particularly moving declaration: “Giving birth to my child and to this book simultaneously symbolizes, maybe more than anything else, my belief in the future of this country and its people” (p.xiii).
The four political trials analyzed in this book involve collective traumas. Two deal with the Holocaust – the Kastner trial, a criminal libel suit for publication of allegedly false charges of collaboration with the Nazis in Hungary, in the shadow of the mass deportations to the gas chambers, and the Eichmann case, in which the SS commander in charge of the Final Solution of the extermination of European Jewry was tried in Jerusalem, found guilty, and executed. The third case dates from the outbreak of the Sinai war in 1956, when innocent Arab villagers of Kafer Kassem, returning home without knowledge of the imposition of a curfew, were killed by members of the Border Guard, purportedly acting pursuant to orders. The last case is the murder trial of Yigal Amir, who assassinated Prime Minister Yitzhak Rabin.
In telling the tales of these four political trials, narrative and rhetoric play an important part. Adding to the dramatic appeal, there is a dual focus. The adversary nature of the judicial process provides the structural support for two major accounts of history and the conflicting judgment each appears to warrant. Moreover, criminal trials have a high public profile, drawing far more attention than most civil proceedings, even those involving weighty constitutional issues that produce learned landmark judicial opinions. They, therefore, are likely to draw a higher degree of public attention and have much greater impact on public consciousness.
It is the impact on consciousness that provides the transformative element, rather than substantive change in the legal universe. It is transformative because it touches the heart of things. Core values of the society and its political system are on trial. The results may, in effect, provide legitimacy to the existing order. They may also suggest the limits of the legal system in effectuating fundamental change. [*466]
Bilsky’s TRANFORMATIVE JUSTICE claims, according to the sub-title, that it is Israeli identity that is on trial. Use of the term, “identity,” is somewhat ambiguous. The Kastner trial, revolving around charges that a Jewish community representative collaborated with the Nazis, involves a confrontation between conflicting images: the traditional Diaspora Jew who seeks an accommodation with a hostile environment and the “new Jew” rooted in the soil of the homeland, whose behavior, according to the Zionist narrative, exemplifies physical courage and self-sacrifice. The failure to resist appears as a fault of the victims, for which the leadership is guilty, running parallel to the failure of leadership of the young state in arousing international reaction to the horrors of the Holocaust and in challenging British control of mandatory Palestine. The issue is addressed in particularistic Jewish terms, with the concrete historical condition and the wider humanistic implications largely ignored.
The Eichmann trial, by way of contrast, presents the survivors as heroes who have withstood the suffering inflicted by the Gentiles. Deemphasized are divisive issues, such as Jewish collaboration, which Judge Halevi, who had sat on the bench in the Kastner case, as he did on the three-judge trial panel in the Eichmann trial, sought to raise, and which were so prominent in the Kastner trial. The Holocaust is placed firmly in the age-old tradition of Jewish victimization, and the defendant is guilty primarily of crimes against the Jewish people and only incidentally against humanity. Again the emphasis is particularistic, rather than humanistic, which Justice Simon Agranot’s opinion in the appeal to the Supreme Court somewhat redressed.
With the Kafer Kassim case, the book turns from the Holocaust (Jews versus Gentiles) to the Arab-Israel confrontation. The Kafer Kassim trial points to the exclusion of the Israeli Arabs from the national collectivity. Sitting as a judge in a military court, Judge Halevi determinedly rejected the defense that the border police who were on trial were obeying orders. Military personnel, he declared, were not only permitted, but even obligated, to refuse an order over which flew a “black flag” of immorality, a clear appeal to humanistic authority and a sense of decency. The testimony of the Arab villagers was given full credence, although their lack of status, other than as witnesses, left them without representation by counsel. Their language disabilities served to accentuate the point that they were a foreign element, a distinct “Other,” both in the courtroom and in Israeli society. The failure to impose appropriate punishment detracted from the value of the trial, whose importance should not be minimized. Not only did it recognize the Israeli Arabs as possessing basic rights, but it also clearly placed the defense forces under the rule of law and of morality. However, the result made little change in the definition of the Israeli collectivity.
Yigal Amir, Rabin’s murderer, places a claim to religious justification for his act – Rabin’s collaboration in the territorial concessions of the Oslo Accords, relinquishing part of the ancestral patrimony was, in the view of nationalist religious circles, in violation of religious law. A particularly extreme [*467] fundamentalist interpretation of religious law is then invoked by the murderer, a law student, as trumping the injunctions of secular law and conventional morality and justifying the murder. Amir’s position was supported by very few in the nationalist religious camp to which he belonged – itself a small minority in a country in which the largest single group, estimated at some 40% of the population, is decidedly secularist. Clearly aimed at promoting national unity, two of the three trial judges embraced the myth of Jewish non-violent settlement of disputes and pointed to the dire consequences in Jewish history for violating this tradition. The court also encouraged another myth: a purported unity of secular and religious Zionism, which had minimal historical basis. Again, both the problem and the solution are particularistic, without examination of the broader humanistic implications of political extremism from the political Right, against the background of modern totalitarianism.
Bilsky asks, in the opening sentence of the book, “Can Israel be both Jewish and democratic?” (p.1) and continues with the affirmation that, in the Rabin assassination, the two fundamental values of Israel, the ”Jewish” and the “democratic,” “seemed to be clashing in a violent life and death struggle” (p.1). She regards the redrawing of the territorial boundaries and the ethnic barriers of political participation by Israeli Arabs as raising “identity” issues that divided public opinion, made the old rules of the game inadequate, and required judicial intervention, beyond the normal limits, in the transformative situation thus created.
But was there a true crisis of identity? Bilsky’s reading of the historical record is open to question. For example, she suggests that the court appeared “to be avoiding the hardest challenge posed by the murder: what value should prevail when the ‘Jewish’ seems to contradict the ‘democratic’ and what is the hierarchy of secular law and Jewish law in the State of Israel” (p.202)? A more reasonable interpretation might be that the hierarchy of secular and Jewish law in the relevant subject area is well settled and required no additional judicial pronouncement. But, even more, no court in Israel would seriously consider the contention that the murder of the prime minister exemplified a “Jewish” value or that the murderer’s act had sacrificial value, as in the biblical tale of the aborted slaying of Isaac (Yitzhak).
If it is not precisely Israeli identity that is on trial, it is perhaps a stereotyped image, national or sectoral, as the case may be. The Israeli author, Amos Oz, published his collection of essays, ALL OUR HOPES, which appeared only in Hebrew, with a double title page. In the Hebrew page, the book has the subtitle (literally translated) “Thoughts on Israeli Identity.” In the English title page, the subtitle is “Essays on the Israeli condition.” At least in English, the distinction is critical.
Stereotyped images may also have literary sources, without particular relevance to Israeli (or Jewish) identity or condition. In the Kastner case, involving the issue of collaboration during the Holocaust, trial judge Benyamin Halevi concluded that Kastner, in his dealings with the Nazis, had sold his soul to the devil. Bilsky closely traces the literary allusion to the [*468] Faustian bargain in the court’s judgment (although the explicit charge – whose importance Halevi later belittled, after Kastner had been assassinated and after Halevi’s decision had been reversed on appeal - appears only in one sentence). Thus, the court repeatedly refers to Kastner as Dr. K, stressing his formal title of Doctor (although also referring to him simply as K., which suggests a different literary allusion that does have Jewish associations). In the Faustian tradition, he is somehow “infected” by his dealings with the Nazis, an infection combining pride and ambition to separate him from his own people. He is endowed with superior knowledge (the impending deportations to Auschwitz). He accepts Eichmann’s characterization of their bargain as a sort of alchemy, turning “worthless Jews” into a source of Nazi wealth (by the exchange of ten thousand trucks for a million Jews) and plays God in deciding who will live (by inclusion in a list prepared by Kastner) and who will die in the gas chambers, a decision in which Kastner’s self-interest is a factor.
Literary insights conventionally afford enhanced perspective, a deeper understanding. Bilsky suggests, however, that in this case the literary allusion served to constrict the court’s vision. The demonization of Kastner removed that particular chapter of the Holocaust from the domain of human history, permitting the court to ignore Kastner’s concrete situation and the constraints under which he operated. Bilsky points to Halevi’s personal history as a German Jew, confronting the double betrayal of Jewish leadership and German culture. The stereotyped story of the deal between the Nazi devil and the morally corrupt Kastner excluded other perspectives that a deeper examination of the Faustian tradition might have afforded (such as the cultural origins of Naziism) and provided the structural basis for a formalistic contract law analysis of the satanic bargain, endowing Kastner with an equality of status and a freedom of will, necessary for a meeting of the minds, which the concrete reality clearly negated.
A more successful exploitation of literary narrative is in the concluding chapter, in which Bilsky suggests that Israel’s transformative trials and South Africa’s truth commission belong to a common genre—the exploitation of the legal forum for the achievement of catharsis and reconciliation. The truth commission is associated with regime change, transformative trials with less conclusive collective traumas, but Bilsky suggests that there is much in common with regard to their political functions. A lengthy analysis (based primarily on the motion picture directed by Roman Polanski) of Ariel Dorfman’s play, DEATH AND THE MAIDEN is offered as evidence. (Surely there is relevance in the play’s success in Israel, a fact not mentioned by the author.) It tells the story of a South American couple, in which the husband has been appointed to chair the country’s truth commission. What is to be done with his wife’s former torturer and rapist under the previous regime, whom she meets by chance and brings home as prisoner? What is to be the role of due process of law and the function of punishment?
Bilsky’s discussion of the truth commission in countries that have undergone regime change brings additional light and broader perspective to the subject of transformative justice. [*469] However, she fails to mention what might be considered as an intermediate institution, the investigating commission, created by statute in Israel in 1968, primarily in reaction to a truly traumatic regime crisis, the so-called Lavon Affair. With the outbreak of the second intifada in 2000, severe breaches of public order by Israeli Arabs were met with a forceful reaction on the part of the police, resulting in a number of fatalities. The immediate consequence, in a situation that recalls Kefar Kassem, was the creation of an investigating commission chaired by a Supreme Court judge, whose report went beyond the immediate incident and dealt with basic issues of the status of Israel’s Arab minority.
Bilsky does not neglect the role of intellectual commentators, Israeli and foreign. Hannah Arendt (1994), in her reporting on the Eichmann trial, was critical of certain aspects of the due process issue, as well as of particularism with its forebodings with regard to Israel’s future political culture. Bilsky exploits an analysis of Arendt’s position, generally critical of the trial, to suggest an alternative view. In particular, she uses Arendt’s analytical tools to suggest acceptable procedural departures in the proceedings in the Eichmann situation which would permit the court to perform its function without offending basic notions of justice. The narrative of both the Kastner and the Eichmann trials, as it appears in Pnina Lahav’s (1997) monumental biography of Simon Agranat, is also an important background source. Lahav’s striking success suggests that, in using narrative in legal analysis, there is particular value in the narrative of judicial biography. This is largely absent, as Bilsky tells the story, which is a loss in examining the positions of Judge Benjamin Halevi, who played a major role in the Kastner, Eichmann, and Kefar Kassim cases.
An earlier generation of observers frequently postulated a sort of Israeli exceptionalism. The ordinary rules of cause and effect did not apply. Witness the hardiness of the “melting pot” metaphor in dealing with the subject of mass immigration, or the various myths woven around Jewish-Arab co-existence. A later period was marked by debunking, by the demolishing of myths on which Israeli exceptionalism rested. Exceptionalism is one aspect of particularism, which is the bete noir of many of the narratives in the political trials here analyzed. Leora Bilsky’s study takes the facts as they are and examines them on the basis of recognized criteria. She then uses her findings as a basis for proposing theoretical formulae of universal applicability. This search for the universal is based on the particular, but constitutes the antithesis of particularism.
Arendt, Hannah. 1994. EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (rev. ed.). New York: Penguin.
Dorfman, Ariel. 1996. DEATH AND THE MAIDEN. London: Nick Hern Books.
Lahav, Pnina. 1997. JUDGMENT IN JERUSALEM: CHIEF JUDGMENT SIMON AGRANAT AND THE ZIONIST CENTURY. Berkeley: University of California Press. [*470]
Oz, Amos. 1998. ALL OUR HOPES (Kol Ha-Tikvot , Hebrew only). Jerusalem: Keter.
© Copyright 2005 by the author, Allan E. Shapiro.