The Nazis and Nazi Collaborators (Punishment) Law () is a 1950 Israeli law passed by the First Knesset that provides a legal framework for the prosecution of crimes against Jews and other persecuted people committed in

Nazi Germany Nazi Germany (lit. "National Socialist State"), ' (lit. "Nazi State") for short; also ' (lit. "National Socialist Germany") (officially known as the German Reich from 1933 until 1943, and the Greater German Reich from 1943 to 1945) was ...

German-occupied Europe German-occupied Europe refers to the sovereign countries of Europe which were wholly or partly occupied and civil-occupied (including puppet governments) by the military forces and the government of Nazi Germany at various times between 1939 an ...

, or territory under the control of another

Axis power The Axis powers, ; it, Potenze dell'Asse ; ja, 枢軸国 ''Sūjikukoku'', group=nb originally called the Rome–Berlin Axis, was a military coalition that initiated World War II and fought against the Allies. Its principal members were Na ...

between 1933 and 1945. The law's primary target was Jewish

Holocaust survivors Holocaust survivors are people who survived the Holocaust, defined as the persecution and attempted annihilation of the Jews by Nazi Germany and Axis powers, its allies before and during World War II in Europe and North Africa. There is no unive ...

alleged to have collaborated with the Nazis, in particular prisoner functionaries ("kapos") and the Jewish Ghetto Police. It was motivated by the anger of survivors against perceived collaborators and a desire to "purify" the community. The law criminalizes

crimes against humanity Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...

, war crimes, and "crimes against the Jewish people", as well as a variety of lesser offenses. It has a number of unusual provisions, including '' ex post facto'' application,

extraterritoriality In international law, extraterritoriality is the state of being exempted from the jurisdiction of local law, usually as the result of diplomatic negotiations. Historically, this primarily applied to individuals, as jurisdiction was usually cla ...

, a relaxation in the usual

rules of evidence The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fa ...

, and

mandatory death sentence Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...

for the most serious crimes laid out in the law. Under the law, around forty alleged Jewish collaborators were put on trial between 1951 and 1972, of whom two-thirds were convicted. Such trials were highly controversial and have been criticized by judges and legal scholars due to the

moral dilemma In philosophy, ethical dilemmas, also called ethical paradoxes or moral dilemmas, are situations in which an agent stands under two (or more) ''conflicting moral requirements'', none of which ''overrides'' the other. A closely related definition c ...

of judging someone who was also persecuted and under threat of death at the time the offense was committed. Three non-Jews were prosecuted under the law, including the high-profile cases of

Adolf Eichmann Otto Adolf Eichmann ( ,"Eichmann"
''

John Demjanjuk John Demjanjuk (born Ivan Mykolaiovych Demjanjuk; uk, Іван Миколайович Дем'янюк; 3 April 1920 – 17 March 2012) was a Ukrainian-American who served as a Trawniki man and Nazi camp guard at Sobibor extermination camp, M ...

(1987). Although both Eichmann's and Demjanjuk's lawyers challenged the validity of the law, it was upheld by both Israeli and United States courts.

Background

Bundesarchiv Bild 101III-Wisniewski-025-08, Polen, Ghetto Litzmannstadt, Bewohner

The Holocaust The Holocaust, also known as the Shoah, was the genocide of European Jews during World War II. Between 1941 and 1945, Nazi Germany and its collaborators systematically murdered some six million Jews across German-occupied Europe; a ...

was a

genocide Genocide is the intentional destruction of a people—usually defined as an ethnic, national, racial, or religious group—in whole or in part. Raphael Lemkin coined the term in 1944, combining the Greek word (, "race, people") with the Latin ...

committed primarily by

that claimed the lives of six million Jews living in Germany and

. Many Jews were forced into Nazi ghettos where a Jewish leadership (known as '' Judenrat'') and Jewish Ghetto Police were appointed to execute Nazi orders. Refusal to hand over other Jews to the Nazis to be killed could result in execution. The Jewish Ghetto Police was perceived as "the most hated Jewish organ during the Holocaust", according to Rivka Brot. In

Nazi concentration camps From 1933 to 1945, Nazi Germany operated more than a thousand concentration camps, (officially) or (more commonly). The Nazi concentration camps are distinguished from other types of Nazi camps such as forced-labor camps, as well as concen ...

, a small number of Jews were recruited to become prisoner functionaries known as "kapos", which had the responsibility of supervising other prisoners and executing the orders of concentration camp guards. Not all prisoner functionaries were collaborators; some were considered to have "behaved honorably". Becoming a kapo could mean the difference between a chance to survive and near-certain death. However, among other survivors functionaries are remembered for their brutality; survivors often charged that Jewish kapos were "worse than the Germans". Following World War II, some alleged collaborators were subject to extrajudicial violence and even murder from other Holocaust survivors. In order to maintain order, postwar Jewish communities in displaced-persons camps set up "honor courts" that would judge alleged collaborators, handing down sentences of public condemnation and

social ostracism Social organisms, including human(s), live collectively in interacting populations. This interaction is considered social whether they are aware of it or not, and whether the exchange is voluntary or not. Etymology The word "social" derives from ...

. Similar clashes also erupted in

Mandatory Palestine Mandatory Palestine ( ar, فلسطين الانتدابية '; he, פָּלֶשְׂתִּינָה (א״י) ', where "E.Y." indicates ''’Eretz Yiśrā’ēl'', the Land of Israel) was a geopolitical entity established between 1920 and 1948 ...

and informal honor courts were operated by '' landsmanshaften'' (organizations for immigrants from a certain country) and the World Zionist Congress. After World War II, many Holocaust survivors immigrated to Israel; by the late 1950s, they consisted one-quarter of the population. While some Holocaust survivors preferred to leave the past behind them, others thought that the new state should be pure of collaborators with the Nazis. Beginning in 1948, some Holocaust survivors brought petitions to the Israel Police alleging that other Holocaust survivors were Nazi collaborators, but there was no legal basis for prosecution in these cases. According to legal scholars Orna Ben-Naftali and Yogev Tuval, the drafters of the Nazis and Nazi Collaborators (Punishment) Law saw its purpose in pragmatic terms as assuaging the anger among Holocaust survivors in Israel. This is disputed by other writers who argue that there were only a few dozen complaints among a large number of survivors, which could not be considered popular demand. Understanding of how the Nazi genocide was carried out was limited in Israeli society at the time the law was passed.

Legislative history

Bundesarchiv Bild 101III-Duerr-054-17, Lettland, KZ Salaspils, jüdischer Lagerpolizist

An "Act against Jewish War Criminals" was drafted in August 1949 by Deputy Attorney General Haim Wilkenfeld. On 26 December 1949, the Crime of Genocide (Prevention and Punishment) Law was introduced to the first plenary session of the First Knesset. A law without retrospective application that would codify the 1948

Genocide Convention The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was ...

into Israeli law, it was eventually passed on 29 March 1950. On 27 March 1950, Minister of Justice Pinkhas Rosen introduced the bill to prosecute Nazi collaborators, now renamed "Nazis and Nazi Collaborators (Punishment) Law", to the Knesset with an expanded scope that, in theory, would enable the prosecution of Holocaust perpetrators as well as collaborators. Rosen said, "It is assumed that Nazi criminals, who could be charged on the basis of the crimes included in the law, would not dare come to Israel." Instead, "the law will apply less to Nazis than to their Jewish collaborators who are here in the State of Israel", Rosen said, invoking the Hebrew phrase "let our camp be pure", derived from Deuteronomy 23:14. Some Knesset members, including

Hanan Rubin Dr Hanan Rubin ( he, חנן רובין, 10 August 1908 – 24 October 1962) was a German-born Israeli politician who served as a member of the Knesset between 1949 and 1962. Biography Born Hans Rubin in Berlin, Rubin was a member of the Blue-Whi ...

and

Eri Jabotinsky Eri Jabotinsky (, also transliterated ''Ari'', 26 December 1910 – 6 June 1969) was a Revisionist Zionist activist, Israeli politician and academic mathematician. He was the son of Ze'ev Jabotinsky, the founder of the opposition movement within ...

, believed that Nazis might eventually be tried under the law either via extradition or other means. However, the majority saw the provision for the prosecution of Nazis as symbolic rather than a genuine possibility. Knesset members debated exactly what form the punishment of Nazi collaborators would take.

Nahum Nir Nahum Nir-Rafalkes ( he, נחום ניר, 17 March 1884 – 10 July 1968) was a Zionist activist, Israeli politician and one of the signatories of the Israeli declaration of independence. He was the only Speaker of the Knesset not to have been ...

and Yona Kesse argued for an institutionalized version of the honor courts that would be heard by a

jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...

(in Israel, all trials are heard by a judge) and perhaps dispense moral rather than legal punishments. This proposal was rejected both out of a desire for harsh punishments and to avoid fragmenting the legal system. Ya'akov Gil, the former chief rabbi of the Jewish Brigade, sponsored a successful proposal to add the offense "crimes against the Jewish people" to the law, in addition to war crimes and

. Lawmakers explicitly rejected a proposal by

Zerach Warhaftig Zerach Warhaftig (, yi, , also Zorah Wahrhaftig; 2 February 1906 - 26 September 2002) was an Israeli rabbi, lawyer, and politician. He was a signatory of Israel's Declaration of Independence. Biography Zerach Warhaftig was born in Volkovysk, i ...

(

United Religious Front The United Religious Front (, ''Hazit Datit Meuhedet'') was a political alliance of the four major religious parties in Israel, as well as the Union of Religious Independents, formed to fight in the 1949 elections. History The idea of a united re ...

) that would have distinguished offenses by Nazis and collaborators. Wilkenfeld explained, "If a Nazi in a concentration camp beat inmates, and a Jewish kapo in the same camp did the same – how can we create a provision for each of them?" Warhaftig rejected this, saying "The Nazi was a murderer and the Jew was forced to act as he did". He was in the minority; the final version of the law made no distinction between acts committed by an SS guard and a Jewish prisoner.

Mapam Mapam ( he, מַפָּ״ם, an acronym for , ) was a left-wing political party in Israel. The party is one of the ancestors of the modern-day Meretz party. History Mapam was formed by a January 1948 merger of the kibbutz-based Hashomer Hatz ...

politician

Yisrael Bar-Yehuda Yisrael Bar-Yehuda ( he, ישראל בר-יהודה, 15 November 1895 – 15 May 1965) was a Zionist activist and Israeli politician. Biography Born Yisrael Idelson in Konotop, in the Chernigov Governorate of the Russian Empire (present-day Sum ...

strongly rejected a suggestion to permit excusing conduct under duress or in self-defense: This attitude was based ideologically on his party's close association with the Zionist youth movements that led

ghetto uprisings The ghetto uprisings during World War II were a series of armed revolts against the regime of Nazi Germany between 1941 and 1943 in the newly established Jewish ghettos across Nazi-occupied Europe. Following the German and Soviet invasion of Po ...

, often in opposition to the Jewish leadership. From this point of view, anyone who joined the Judenrat or the Jewish police, or became a kapo, was automatically considered a traitor. This strict view was opposed by members of other parties, including Warhaftig, who did not see joining such institutions as a criminal act in of itself. In the end, the Knesset adopted a strict and limited form of

exculpation In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, 7th ed. 20 ...

, also rejecting Bar-Yehuda's suggestion that anyone who served in the underground should be granted immunity. The law originally carried a 20-year statute of limitations from the time the offense was committed for offenses less serious than murder, which was retroactively repealed in 1963.

Provisions

Article 1 covers

, war crimes, and "crimes against the Jewish people", all of which carry a

unless an extenuating circumstance under Section 11(b) can be proven, in which case the minimum sentence is 10 years in prison. The definitions for crimes against humanity and war crimes are very similar to the definitions in the Nuremberg Charter, except that the time period covered is extended to the beginning of the Nazi regime rather than the outbreak of

World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...

. "Crimes against the Jewish people" is based on the wording of the 1948 Genocide Convention. Unlike the Genocide Convention, "destroying or desecrating Jewish religious or cultural assets and values" ( cultural genocide) and " inciting to hatred of Jews" (as opposed to

incitement to genocide Incitement to genocide is a crime under international law which prohibits inciting (encouraging) the commission of genocide. An extreme form of hate speech, incitement to genocide is considered an inchoate offense and is theoretically subject ...

) are included in "crimes against the Jewish people". To be prosecutable under the law, the crimes must have been committed in an "enemy country" (Nazi Germany, German-occupied Europe, or territory controlled by another

). The law is limited to one victim group (Jews), one time period (1933–1945), and one location (Europe), whereas the Genocide Convention is of universal applicability. Articles 2 to 6 define offenses that do not carry a mandatory death penalty. Article 2 covers various "crimes against persecuted persons" which are derived from the standard criminal code and applied as if they had been committed in Israel. Article 3 outlaws "membership in enemy organization"; its language parallels the Nuremberg Charter's language against

criminal organization Organized crime (or organised crime) is a category of transnational, national, or local groupings of highly centralized enterprises run by criminals to engage in illegal activity, most commonly for profit. While organized crime is generally th ...

s. Article 4 covers offenses committed "in a place of confinement... against a persecuted person", which are also derived from the Israeli criminal code. This article was intended to cover crimes by functionaries in concentration camps and ghettos which were not severe enough to fall under Article 1. Article 6 criminalizes "delivering up persecuted person to enemy administration", which according to Ben-Naftali and Tuval was primarily aimed at the actions of Jewish councils. Article 7 criminalizes the

blackmail Blackmail is an act of coercion using the threat of revealing or publicizing either substantially true or false information about a person or people unless certain demands are met. It is often damaging information, and it may be revealed to fa ...

of persecuted persons, with an up to seven year sentence if the accused "received or demanded a benefit (a) from a persecuted person under threat of delivering up him or another persecuted person to an enemy administration; or (b) from a person who had given shelter to a persecuted person, under threats of delivering up him or the persecuted person sheltered by him to an enemy administration". According to Ben-Naftali and Tuval, these last two articles are the only ones that make an (implicit) distinction between perpetrators and collaborators. Article 10 enumerates the circumstances that would lead to the acquittal of the defendant: if he acted to save himself from the danger of immediate death, or if his actions were intended to avoid worse consequences. Such circumstances did not excuse any of Article 1 crimes or murder. Article 11 lays out the only two circumstances that can be taken into account for the mitigation of sentencing: "that the person committed the offence under conditions which... would have exempted him from criminal responsibility or constituted a reason for pardoning the offence", assuming that the accused tried to mitigate the consequence of the offence, or that it was committed with the intent to avoid a more serious outcome. Several provisions in the law are considered "exceptional": *It applies to past events ('' ex post facto'' law) that occurred before the creation of Israel; *The law applies extraterritorially to crimes committed exclusively outside of Israel; *A mandatory death sentence is instituted for crimes under Article 1; * Trying a defendant twice for the same offense is allowed; *Many usual defenses are banned, including the

necessity defense In the criminal law of many nations, necessity may be either a possible justification or an exculpation for breaking the law. Defendants seeking to rely on this defense argue that they should not be held liable for their actions as a crime ...

; *The court may deviate from the usual

"if it is satisfied that this will promote the ascertainment of the truth and the just handling of the case".

Trials

Kapo trials

Within fifteen months of the law being passed, the Israel Police received at least 350 complaints from Holocaust survivors. Some individuals fled the country, fearing prosecution. In the first six months, the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

indicted at least fifteen people under the law, charging them all with at least four counts of crimes including crimes against humanity. Prosecutors initially considered anyone who served as a functionary as

guilty until proven innocent "Guilty Until Proven Innocent" is the third and final single from rapper Jay-Z's 2000 album '' The Dynasty: Roc La Familia''. It features production by Rockwilder and a chorus sung by R. Kelly. The song's title flips the legal declaration "inn ...

and in league with the Nazis. Through 1952, verdicts were harsh with judges handing down an average five years' imprisonment. In 1952, / Jungster was convicted of crimes against humanity and sentenced to death, but this verdict was overturned on appeal by the Israeli Supreme Court and his sentence reduced to two years' imprisonment. After the Enigster case, prosecutors mostly avoided charging Jewish defendants with Article 1 crimes and distinguished them from Holocaust perpetrators. According to

Dan Porat Dan Porat is an Israeli historian and author who works for the Hebrew University of Jerusalem The Hebrew University of Jerusalem (HUJI; he, הַאוּנִיבֶרְסִיטָה הַעִבְרִית בִּירוּשָׁלַיִם) is a public re ...

, the 1958 verdict of the

Kastner trial ''The Attorney-General of the Government of Israel v. Malchiel Gruenwald'', commonly known as the Kastner trial, was a libel case in Jerusalem, Israel. Hearings were held from 1 January to October 1954 in the District Court of Jerusalem before Judg ...

libel Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...

trial in which Rudolf Kastner was eventually cleared of collaborationism) led to another shift: defendants were now viewed as people who had good intentions but committed bad deeds. Following the 1961 trial of Adolf Eichmann, in which prosecutor

Gideon Hausner Gideon Hausner ( he, גדעון האוזנר, 26 September 1915 – 15 November 1990) was an Israeli jurist and politician. Between 1960 and 1963, he served as Attorney General and was later elected to the Knesset and served in the cabinet. Ha ...

set out to remove the guilt of collaboration from Jewish functionaries, defendants were more often viewed primarily as victims of the Nazis. This paradigm was challenged by the prosecutor

David Libai David Libai ( he, דוד ליבאי, born 22 October 1934) is an Israeli jurist and former politician. He was a member of the Knesset for Israeli Labor Party, Labour from 1984 to 1996, and served as Justice Minister of Israel, Minister of Justice ...

who charged former Jewish policeman

Hirsch Barenblat Henryk Hirsz Hanoch Barenblat (born 1914, Będzin, date of death unknown) was a Polish-born Israeli musician and conductor, known for his role as head of the Jewish Ghetto Police in the Będzin Ghetto and subsequent legal cases in Poland and Isra ...

with membership in an enemy organization. If Barenblat had been convicted, it could have led to tens of thousands of other Israeli citizens also being considered guilty; Libai's superiors ordered him to drop the charge in order to avoid this outcome. Although Barenblat was convicted on other charges, his conviction was overturned by the Supreme Court in 1964 as the judges considered it inappropriate to punish those who took up positions as functionaries to save their own lives. Additional trials were held for especially egregious behavior which continued until 1972. Between 1951 and 1972, around 40 trials were held against Jews accused of collaborating with the Nazis. The exact number is not known because many of the records are sealed by a 1995 court order. In the known cases, two-thirds of defendants were convicted and all but one sentenced to prison, with an average sentence of 28 months. No Jewish defendant was charged with "crimes against the Jewish people". The trials relied almost entirely on witness testimony as most of the alleged crimes left no documentation. Israeli judges and prosecutors, however, realized that not all the witness testimony was reliable as some witnesses' memories were distorted by trauma and others added unverified information to their testimony, for reasons such as desire for retribution. None of those questioned or tried admitted responsibility for wrongdoing. Israeli historian

Idith Zertal Idith Zertal (born 1945) is an Israeli historian, considered one of the "New Historians". Career After a career in journalism, Zertal began a career as a professor of history and cultural anthropology at the Hebrew University of Jerusalem. She has ...

writes that the trials In 2014 journalist Itamar Levin sought access to the files but was refused on privacy grounds. Levin took it to court, but a police officer assigned to examine the files had not reported as of early 2021.

Yaacov Lozowick Yaacov Lozowick ( he, יעקב לזוביק) (b. 1957), is a German-born Israeli historian and writer. He was the director of the archives at Yad Vashem. From 2011 to 2018 he was Israel's Chief Archivist at the Israel State Archives. Biography Yaa ...

, the state archivist at the time, read 120 of the files himself and believes that public release of the files would for the most part exonerate the people who had been suspects.

Trials of non-Jews

Only three non-Jews were tried under the law. The very first trial under the law involved Andrej Banik, accused of responsibility for the

deportation of Jews from Slovakia During the Holocaust, most of Slovakia's Jewish population was deported in two waves—in 1942 and in 1944–1945. In 1942, there were two destinations: 18,746 Jews were deported in eighteen transports to Auschwitz concentration camp and anoth ...

; according to Porat, the timing was "clearly chosen for the symbolic value" of trying a non-Jew first. Banik came to Israel with his wife, a Jewish convert to Christianity, but was soon identified as a member of the Hlinka Guard by survivors and first questioned by police before the passage of the law. He was ultimately acquitted because the testimony against him was unreliable; the judges ruled that one witness in particular "either lied intentionally or is suffering from hallucinations and imagines things that he may have experienced which he attributes to the defendant with no basis whatsoever". Other non-Jewish residents of Israel were arrested and charged with being Nazi collaborators, including Alfred Miller, a Hungarian waiter who was accused by a survivor of having handed him over to the Nazis and later cleared without trial. According to Porat, some Jews suspected that all non-Jews were Nazi collaborators due to suffering the experience of betrayal.

Adolf Eichmann

In 1960, the major Holocaust perpetrator

Adolf Eichmann Otto Adolf Eichmann ( ,"Eichmann"
''

Nuremberg trials The Nuremberg trials were held by the Allies of World War II, Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II. Between 1939 and 1945 ...

. Prosecutor Hausner also tried to challenge the portrayal of Jewish functionaries that had emerged in the earlier trials, showing them at worst as victims forced to carry out Nazi decrees while minimizing the "gray zone" of morally questionable behavior. Hausner later wrote that available archival documents "would have sufficed to get Eichmann sentenced ten times over"; nevertheless, he summoned more than 100 witnesses, most of them who had never met the defendant, for didactic purposes. Eichmann was charged with fifteen counts of violating the law, including multiple counts of crimes against the Jewish people, crimes against humanity against both Jews and non-Jews, and war crimes. Convicted on all counts, Eichmann was sentenced to death. He appealed to the Supreme Court, which confirmed the convictions and the sentence. President

Yitzhak Ben-Zvi Yitzhak Ben-Zvi ( he, יִצְחָק בֶּן־צְבִי‎ ''Yitshak Ben-Tsvi''; 24 November 188423 April 1963) was a historian, Labor Zionism, Labor Zionist leader and the longest-serving President of Israel. Biography Born in Poltava in the ...

rejected Eichmann's request to commute the sentence. In Israel's only judicial execution to date, Eichmann was hanged on 31 May 1962 at Ramla Prison.

Ivan Demjanjuk

The last trial under the law was that of

Ivan Demjanjuk John Demjanjuk (born Ivan Mykolaiovych Demjanjuk; uk, Іван Миколайович Дем'янюк; 3 April 1920 – 17 March 2012) was a Ukrainian-American who served as a Trawniki man and Nazi camp guard at Sobibor extermination camp, M ...

, who was convicted in 1987 of "crimes against the Jewish people", "crimes against humanity", "war crimes", and "crimes against persecuted people". The conviction was based on the testimony of six eyewitnesses who identified him as the notorious guard known as "

Ivan the Terrible Ivan IV Vasilyevich (russian: Ива́н Васи́льевич; 25 August 1530 – ), commonly known in English as Ivan the Terrible, was the grand prince of Moscow from 1533 to 1547 and the first Tsar of all Russia from 1547 to 1584. Ivan ...

" at Treblinka extermination camp. Evidence not available to the court at the time cast doubt on this identification, and Demjanjuk's conviction was overturned on appeal by the Supreme Court on the basis of reasonable doubt. In 2011, he was convicted in Germany of assisting in the murder of 28,000 people as a guard at

Sobibor extermination camp Sobibor (, Polish: ) was an extermination camp built and operated by Nazi Germany as part of Operation Reinhard. It was located in the forest near the village of Żłobek Duży in the General Government region of German-occupied Poland. As ...

Reception

Validity of the law

Eichmann's defense lawyer,

Robert Servatius Robert Servatius (31 October 1894 – 7 August 1983) was a German lawyer, prominent in his profession in Cologne, and especially known for his defense of Nazi war criminals, including Adolf Eichmann. Life Servatius was born in Cologne on 31 ...

, challenged the jurisdiction of Israeli courts over Eichmann's crimes and the validity of the law because it was ''ex post facto'' and extraterritorial. Judge

Moshe Landau Moshe Landau ( he, משה לנדוי) (29 April 1912 – 1 May 2011) was an Israeli judge. He was the fifth President of the Supreme Court of Israel. Biography Landau was born in Danzig, Germany (modern Gdańsk, Poland) to Dr. Isaac Landau and ...

responded that it was a valid Israeli law. In its judgement the district court extensively justified the law based on precedents in

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

. The verdict also stated that "The jurisdiction to try crimes under international law is universal." Servatius also argued that law was invalid because the victims of the crimes punishable by the law were not Israeli citizens at the time. In response, the court stated that it was "the moral duty of every sovereign State... to enforce the natural right to punish, possessed by the victims of the crime whoever they may be, against criminals" who had violated international law. Servatius again challenged the law during Eichmann's appeal to the Supreme Court, arguing that the law was inconsistent with international law because it tried foreign citizens for actions committed on foreign soil before the creation of Israel. The Supreme Court dismissed the appeal, stating that "The District Court has in its judgment dealt with hesecontentions in an exhaustive, profound and most convincing manner." Nevertheless, the court proceeded to give a full justification for the law according to the international and English law that Israeli law is based on. The court ruled that there was no international principle prohibiting retroactive laws or those which applied to foreign nationals on foreign territory. Furthermore, the law was consistent with international law because it sought to establish international principles in Israeli law. Demjanjuk's lawyers also challenged the validity of the Israeli law during his extradition proceedings in

United States federal court The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primaril ...

. The United States District Court for the Northern District of Ohio ruled against him. Chief Judge

Frank J. Battisti Frank Joseph Battisti (October 4, 1922 – October 19, 1994) was a United States district judge of the United States District Court for the Northern District of Ohio. Battisti's career featured groundbreaking—and sometimes controversial—ruli ...

wrote that the law "conforms with the international law principles of '

universal jurisdiction Universal jurisdiction is a legal principle that allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, ...

and was not unconstitutionally retroactive because it merely provided a legal framework for punishing actions that were already illegal.

Application to Holocaust survivors

Judges and prosecutors

Attorney General Haim Cohn filed dozens of indictments under the law. Later, he stated: " cameto believe that those of us who did not experience the Holocaust ourselves, have no ability or the right to try a person for his actions, intentions and constraints when he as trapped inthat Hell". Although Israeli judges were not of one mind about applying the law to Holocaust survivors (those who were more lenient to the accused tended to be survivors themselves), "the verdicts squirm with disquiet about the delegated task at hand", according to law professor Mark A. Drumbl. Among the complaints was that judging the collaborators diminished the guilt of the Nazi perpetrators. Overturning the conviction of Barenblat, Supreme Court judge

Yitzhak Olshan Yitzhak Olshan ( he, יצחק אולשן, February 19, 1895 – February 5, 1983) was an Israeli jurist and the second President of the Supreme Court of Israel from 1954 to 1965. Biography Olshan was born in Kaunas in the Russian Empire (now ...

found that "this is a question for history and not for the courts". In his judgement of the same case, Landau wrote: Because the law applied exclusively to past events, it has been characterized as

retributive justice Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. As opposed to revenge, retribution—and thus retr ...

. According to Supreme Court justice , the law's purpose was "revenge on Israel's enemies".

Journalism

The kapo trials attracted relatively little press coverage, but many Holocaust survivors attended court to observe the proceedings. According to Israeli journalist Tom Segev, newspapers were reluctant to report on stories considered "filthy and embarrassing". Rivka Brot writes that the framing of the law turned the cases into disputes between survivors which did not interest wider Israeli society. Following the quashing of the death sentence of Enigster, the editor-in-chief of ''

Yediot Aharonot ''Yedioth Ahronoth'' ( he, יְדִיעוֹת אַחֲרוֹנוֹת, ; lit. ''Latest News'') is a national daily newspaper published in Tel Aviv, Israel. Founded in 1939 in British Mandatory Palestine, ''Yedioth Ahronoth'' is the largest paid n ...

'',

Herzl Rosenblum Herzl Rosenblum ( he, הרצל רוזנבלום, also known as Herzl Vardi, 14 August 1903 – 1 February 1991) was an Israeli journalist and politician. A signatory of the Israeli declaration of independence, he worked as editor of Yedioth Ahr ...

, published an op-ed in the 8 April 1952 edition of the paper praising the verdict. Arguing that no German Holocaust perpetrators were executed primarily for crimes against Jews, Rosenblum contended that it would be unjust "to hang the few Jewish helpers in these circumstances—who did what they did under the most unbearable pressure". He also argued that it was difficult, if not impossible, for someone who had not been in that position to judge, considering that "different moral laws reigned there". According to a 1962 article in ''

Davar ''Davar'' ( he, דבר, lit. ''Word'') was a Hebrew-language daily newspaper published in the British Mandate of Palestine and Israel between 1925 and May 1996. It was relaunched in 2016, under the name ''Davar Rishon'' as an online outlet by th ...

'', the Mapai party newspaper, many Israelis felt ambivalent about the trials. "After all, to some degree, they too

he defendants He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...

were, in carrying out their crimes victims of the Nazi beast—moral victims who in their weaknesses participated in an unprecedented crime, and a crime against their people."

Academic analysis

In a book that they coauthored, law professors Michael Bazyler and Frank Tuerkheimer were unable to agree on a conclusion to the chapter on the kapo trials. Bazyler condemned the "bad law that should never have been passed by the Knesset". He disagreed that any Jewish survivor should be tried under criminal law for such offenses, "because of the extreme, in fact, inconceivable circumstances of Jews in the concentration camps". In contrast, Tuerkheimer argued that "even in the horrid environment of the camp, kapos could make choices. Those who opted for the brutal should not escape punishment simply because they were Jews or concentration camp inmates." In a separate article, Bazyler and Julia Scheppach argue that the law's "intention most likely was to distance Israelis from what they regarded as the shameful response of Europe’s Jews to their destruction", and should be viewed in light of general hostility and contempt for Holocaust survivors in Israel, who were seen as having gone "

like sheep to the slaughter "Like sheep to the slaughter" ( he, כצאן לטבח) is a phrase which refers to the idea that Jews went passively to their deaths during the Holocaust. It derives from a similar phrase in the Hebrew Bible which positively depicts martyrdom in ...

". Zertal argues that trials "in every sense of the word, were purges" and that the law would have been more accurately titled "Law for Punishment of Minor Collaborators of the Nazis". She highlights the fact that for a decade after it was passed, "''not one'' of the defendants tried under the law was charged with or found guilty of directly or indirectly causing the death of a single person". Porat finds that some prosecutors who took part in the trials forgot them or misleadingly omitted them from discussion of the law. Furthermore, he charges that Israeli institutions such as

Yad Vashem Yad Vashem ( he, יָד וַשֵׁם; literally, "a memorial and a name") is Israel's official memorial to the victims of the Holocaust. It is dedicated to preserving the memory of the Jews who were murdered; honoring Jews who fought against th ...

omit the issue from their public presentations and in fact "have been suppressing the memory of the kapo trials for fear of tainting the image of the victims". Porat sees this omission as part of a broader trend in which Israelis identify with Holocaust victims, in his view excessively. Rivka Brot notes that "criminal law recognizes only two outcomes: innocence or guilt". In her view, this is an insufficient frame to deal with the phenomenon of the "gray zone" which existed between these two poles. According to Drumbl, " w lacked the vocabulary or finesse; the courtroom was a poor conduit" for reckoning with the behavior of kapos and the law's "quest for condemnation, finitude, and clarity effectively constructed the persecuted Jew as a Nazi". Ben-Naftali and Tuval conclude that the law was drafted without consideration for ordinary humans and set out to expel "collaborators" (who in historical terms were also victims) from the

imagined community An imagined community is a concept developed by Benedict Anderson in his 1983 book '' Imagined Communities'' to analyze nationalism. Anderson depicts a nation as a socially-constructed community, imagined by the people who perceive themselves as ...

of survivors and instead classify them "into the only other remaining category that the Law recognized: the Nazis". According to Israeli law professor , the blurring of lines between Holocaust perpetrators and Jewish collaborators in the law is reminiscent of the ideas proposed by Holocaust deniers that Jews were responsible for the crimes against them. Kremnitzer argues that " iminal law should not demand courageous resistance". Therefore, forced participation in collaboration should not be criminalized and the necessity defense should be allowed for any prosecutions of Nazi collaborators. Multiple authors have compared the case of judging kapos to 2010s trials of current or former

child soldiers Children (defined by the Convention on the Rights of the Child as people under the age of 18) have been recruited for participation in military operations and campaigns throughout history and in many cultures. Children in the military, includ ...

who committed war crimes, such as

Dominic Ongwen Dominic Ongwen (born 1975) is a Ugandan former child soldier and former commander of one of the brigades of the Ugandan guerrilla group Lord's Resistance Army (LRA). He was detained in 2014 and in 2021 the International Criminal Court convicted h ...

and Omar Khadr.

Explanatory notes

Citations

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External links

Legislative history

Full text in English translation
{{authority control Law of Israel 1950 in law 1950 in Israeli politics Ex post facto law Extraterritorial jurisdiction