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The Collected Courses of the Academy of European Law;Includes Details on Genocide, But Omits the Important Israeli Trials of Jewish Kapos

jan peczkis|Tuesday, November 22, 2016

Israel's Nazi and Nazi Collaborators (Punishment) Law 1950, best known for its application in the trial of Adolf Eichmann, was originally enacted to punish Jews who had collaborated with the Nazis against other Jews. (pp. 128-129). The law stemmed from the following: There were 200,000 Holocaust survivors in the young State of Israel, and they angrily wanted the collaborators to be brought to justice. (p. 144).

                                    ver The various authors of this work focus on international law, as especially relative to wartime or war-consequent situations. Two works stand out. Ben-Naftali (pp. 130-on) examines the legality of Israel's continued rule of territories it had acquired in the June 1967 War. Ana Filipa Vrdolyak focuses on genocide (pp. 291-on). She notes the coining of the term by Rafael Lemkin, and use of the term genocide to encompass the destruction of the culture of a people as well as the peoples themselves. This was first applied, in post-WWII Poland, in the ARTUR GREISER case. Genocide thus included the destruction or prevention of use of libraries, museums, schools, historic monuments, places of worship, etc., aimed to destroy the language, religion, or culture of a group. (p. 294).

Unfortunately, editor Ben-Naftali does not follow up her thought-provoking study of the trials of Jewish KAPOS. For this reason, I review her earlier article below:

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Ben-Naftali, O., and Y. Tuval. 2006. Punishing International Crimes Committed by the Persecuted: The KAPO Trials in Israel (1950's--1960's). JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 4:128-178.

Israel's Nazi and Nazi Collaborators (Punishment) Law 1950, best known for its application in the trial of Adolf Eichmann, was originally enacted to punish Jews who had collaborated with the Nazis against other Jews. (pp. 128-129). The law stemmed from the following: There were 200,000 Holocaust survivors in the young State of Israel, and they angrily wanted the collaborators to be brought to justice. (p. 144).

Some 30-40 trials of Jewish collaborators took place between 1951 and 1964 (pp. 128-129), but very little is publicly known about them. Court judgments, in Israel, are normally available. With some exceptions, the trials of Jewish kapos are not. They have been sealed, as recently as the 1990's (when interest in them increased), for many decades. (pp. 150-151). Is the privacy of those involved the only consideration?

Ben-Naftali and Tuval point out that the trials have been expunged from Israel's collective memory, and this matter has been the subject of deliberate collective forgetting. (p. 128). They are not part of the curriculum of the Israeli educational system. (p. 129). Ironic to accusations that Poles do not want to face up to "dark chapters" in their history, is it possible that it is the Jews who do not want to face up to "dark chapters" in their history?

The authors complain that the Nazi Collaborators law legally equated the Jewish traitors with the perpetrators without distinction--although this consideration met with legal dissension. (p. 137, 147, 153). However, the sentences imposed by the judges were relatively lenient, and the authors suggest that this stemmed from judges actualizing the distinction between Jew and Nazi perpetrator. (p. 168).

The authors suggest that the Nazi Collaborators law functioned the way it did because the Holocaust had been so recent that its implications had not yet been fully appreciated. Could it be, instead, that there was a growth of Jewish identity politics relative to the Holocaust, and that this new identity made it possible to see Jews only as victims but never as victimizers?

It very much appears that the authors, in this article, are trying hard to re-define terms such as Nazi collaboration, and perhaps to make Jews special, in order that Jews who collaborated with the Nazis not be seen as such. I examine their contentions below.

THE UNUSUAL CIRCUMSTANCES

Ben-Naftali and Tuval argue that the Holocaust may as well have happened on another planet (p. 140), because the customary human norms did not apply. For this reason, the Jewish kapos should not be reckoned as collaborators.

To be consistent, much the same considerations should apply to other genocides. Consider, for example, the brutal German occupation of Poland. Is it surprising that some Poles denounced Jews, were "greedy" over the acquisition of Jewish property, became SZMALCOWNIKI (blackmailers of fugitive Jews for their belongings), etc.? Should they, too, be excused in some way?

CAN VICTIMS OF NAZIS BE COLLABORATORS?

The authors argue that the Jewish kapos were not collaborators because they were themselves members of a victim group (Jews), because they never adhered to Nazi ideology, because they were never seen by the Germans as fellow Nazis, because they lived under the same inhumane conditions as their victims, and because they were nothing more than order-fulfillers. (p. 157, 167-168). This, too, is problematic.

The Poles were a despised victim group (UNTERMENSCHEN) situated only one rung above the Jews in German thinking. Polish collaborators, as well as other Poles, lived under very inhumane conditions. Virtually no ethnic Polish collaborators (as opposed to VOLKDSDEUTSCHE--Polish-speaking Germans) adhered to Nazi ideology. The Germans, most certainly, never saw Polish collaborators as fellow Nazis! Members of the Polish Blue Police (POLICJA GRANATOWA) who participated in the JUDENJAGD (as emphasized by neo-Stalinist Jan Grabowski) were also direct or indirect order-fulfillers. Should Polish collaborators, therefore, be exonerated?

MITIGATING CIRCUMSTANCES: FEAR OF DEATH, AND MINIMIZING DEATHS

Let us consider an auxiliary matter. Ben-Naftali and Tuval (p. 138) note that, in a criminal proceeding involving charges of collaboration, saving oneself from the threat of immediate death, or to avert worse consequences, can serve as mitigating circumstances. However, they do not specify when these mitigating circumstances would be valid.

Let us focus on facing death for non-compliance. Consider, for example, the following three situations: 1). The Jewish ghetto policeman, at a ghetto in German-occupied Poland, is in the first half of 1942 or so. He believes the German claim that the Jews he is daily loading upon the trains are being resettled for labor. Both he and the Jewish community are confident that the vast majority of Jews will survive the war, just as Jews had survived past wars and persecutions. He is hardly thinking of death. 2). The Jewish ghetto policeman, now in the second half of 1942 or later. He strongly suspects that the Jews he is boarding on trains are being put to death, and the Jewish community suspects that, unless the war ends very soon, nearly all the Jews will be exterminated. However, at this point, there is no direct or imminent threat to his own life. 3). The same situation as (2), but now the Germans have promised to shoot the policeman, his family, and additional hostages, if he does not fulfill his train-loading tasks. Do the exculpations mentioned by the authors apply only to situation (3), or also (2) and even (1)?

How would fear of death inform the conduct of Poles at Jedwabne, as made known by neo-Stalinist Jan T. Gross? Could it be said that Poles were under immediate fear of death because armed Germans were standing away not far from them? Alternatively, would the Poles actually have to be looking down the barrels of German guns before they would be recognized as being in a death-threatening situation?

Now consider the commission of untoward acts in order to forestall worse ones. Consider, for example, the controversial Chaim Rumkowski (Rumkovsky), the head of the Lodz Ghetto. There is no consensus among Holocaust survivors as to whether it was all right for JUDENRAT leaders to obey Germans in sending some Jews to their deaths in hope that other Jews would be spared.

This quandary can be extended to peoples under relatively mild German occupation, such as Norway. Vidkun Quisling, whose very name has become synonymous with collaboration, argued that his acts were noble ones, in that they actually reduced the German-made harm that befell the Norwegians. Should Quisling have been exonerated?

In conclusion, the issues raised by Ben-Naftali and Tuval require further analysis. If applied to reduce or eliminate the guilt of Jewish kapos that served the Nazis, they, if applied fairly and consistently, would also reduce or eliminate the guilt of non-Jewish Nazi collaborators.
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