Historical Adjudication: Courts of Law, Commissions of Inquiry, and "Historical Truth"

ASHER MAOZ

This is a story about a trial, possibly the greatest trial since the Nuremberg Trials, a trial that may dictate anew the history books, wipe off old legends, smash to smithereens adorable idols, when on top of the ruins the cruel truth will stand alone.
Perhaps even more than that: while at the Nuremberg Trial every effort was made to evade the atrocities of the extermination of the Jewish People in Europe and circumvent it, in this trial the aim to explore the whole truth took over.
Here the traditional privilege of the historians to adjudicate history was denied. In their place this time the writing of history was done through the judicial system of Israel.
—Emanuel Pratt
I. History and Law
When the State of Israel was established and the Supreme Court inaugurated in Jerusalem, dozens of Christian clerics implored President Smoira to allow the Supreme Court, as the successor of the Great Sanhedrin, the supreme Jewish court during the time of Roman rule, to retry Jesus Christ and thereby rectify the injustice caused to him. 1 It is interesting that after two millennia of flourishing Christianity, in the course of which thousands upon thousands of books have been written about Jesus—and more than sixty thousand of which have been written since the beginning of the nineteenth century 2 —his followers still feel the need to achieve his judicial rehabilitation, 3 if only because a court's determination of a man's guilt or innocence has a mystical significance, the impact of which retains its force even after the passage of many years.	1
The attempt to bring about a retrial of Jesus brings to the fore two controversial issues: the ability of courts of law to ascertain the truth and the role of judicial and quasi-judicial institutions in establishing historical facts. I examine these questions against the background of two painful episodes in the short legal history of Israel—the investigation into the murder of Haim Arlosoroff and the trial of Israel Kastner.	2
The Commission of Inquiry into the Murder of Arlosoroff
In 1933, Dr. Haim Arlosoroff, head of the political department of the Jewish Agency and one of the prominent leaders of the Zionist Socialist Party, Mapai, was murdered on a Tel Aviv beach. The murder breached the dams of hatred between Mapai and the Revisionists, the right-wing Zionist movement, founded in the mid-twenties, that called for a reversal of the conciliatory policy of the World Zionist Organization toward Britain. The Revisionist Movement opposed the Zionist leadership whom it accused of putting up with British regression from the Balfour Declaration and the League of Nations Mandate over Palestine supporting the establishment of a Jewish National Home in Palestine. It also accused them of not engaging in international struggle against the British policy of imposing limitations on Jewish immigration to Palestine. The Revisionists fostered a political offensive to induce Britain to adapt its policy in Palestine to the Balfour Declaration. It advocated the adoption of a settlement regime designed to encourage Jewish mass immigration and settlement that would lead to a Jewish majority in the Jewish state to be established on both banks of the Jordan river. Moreover, the Revisionist Movement opposed the policy of compromise with the Arab population, especially following the Arab riots against Jews in 1929. The Revisionists favored private economy, supported the outlawing of strikes and lockouts, and advocated compulsory arbitration of labor disputes, thus clashing with the workers union, the Histadrut, ruled by Mapai and under the leadership of David Ben-Gurion. 4 Upon Hitler's accession to power in Germany, a bitter controversy arose between the two camps as to the relations with Germany. Ze'ev Jabotinsky, founder of the Union of Zionist-Revisionists, declared a moral and economic boycott of Germany. Arlosoroff, on the other hand, being aware of the catastrophe awaiting the Jews in Germany, initiated negotiations with the German government to enable the immigration of the Jews to Palestine with their property. In order to reach this goal Arlosoroff suggested increasing the import of German goods to Palestine in order to transfer in this way Jewish wealth. 5 Indeed, two days before his murder Arlosoroff returned from a two-month trip to Europe, having spent most of the time in Germany trying to further his plan. Arlosoroff's initiative aroused vigorous criticism from within the Revisionists. The extreme faction of this movement accused Arlosoroff of betrayal and one of its leaders called upon him to step down from the Jewish stage. On June 15, Arlosoroff reported on his trip at a session of the Mapai. A few hours later he was assassinated. Mapai leaders blamed the Revisionists for the murder, whereas the Revisionists charged Mapai with disseminating a blood libel against them. It was even alleged that the leaders of the underground force of the organized Jewish community in Palestine, the Hagana, had played a part in the murder and that the murder was the result of a collaborative effort at provocation by the British Secret Police and the heads of Mapai, designed to vilify the Revisionist movement. 6	3
Two members of the Revisionist camp, Abraham Stavsky and Zvi Rosenblatt, were tried for the murder in the Serious Crimes Court in Jerusalem. Abba Achimeir was charged with advising and inciting the commission of the murder. (Achimeir was founder of Berit ha'Biryonim, an underground group formed to fight British policy in Palestine and bearing the name of a group that fought the Romans and their Jewish collaborators.) All three were acquitted; however, only the acquittal of Abba Achimeir was unequivocal, to the extent that it was held that he could enjoy the defense of "no case to answer," after the court found that insufficient incriminatory evidence had been presented against him. 7 Rosenblatt and Stavsky were also acquitted, the former at first instance and the latter by the Supreme Court sitting as a Court of Criminal Appeal. Their acquittal was primarily technical, as the lower court had fully accepted the testimony of Mrs. Arlosoroff, who identified the accused as those who had committed the murder, 8 and the Appeal Court saw no reason to interfere in this finding. The accused were acquitted because Mrs. Arlosoroff's testimony was not corroborated, as required by the prevailing Palestinian law. Nonetheless, the Appeal Court left no doubt as to the events of the murder. In regard to Stavsky's acquittal, the Appeal Court even went so far as to state that had the case been heard in England itself, or in most of the territories of the British Empire, the conviction would rightly have been upheld, as under those legal systems there was no requirement of corroboration of an individual's testimony. 9	4
The findings of the court did not put an end to the dispute concerning the guilt of the two accused and of the political party to which they belonged. As the chairperson of the commission of inquiry into the murder of Arlosoroff, Judge Bechor, put it, "It is clear that the acquittal of Stavsky and Rosenblatt in these circumstances did not exonerate them from a public and moral point of view, even if from a legal point of view they were acquitted." 10 Stavsky was killed on the deck of the Altalena, an ammunition ship brought to the shores of Tel Aviv by the Revisionist military force Etzel, known also as the Irgun, during the War of Independence and bombed by order of the Israeli government. Rosenblatt, too, was not cleared of the stigma placed on him. Twice the matter was even raised in defamation suits brought by Rosenblatt against Shaul Avigor and Edwin Samuel, respectively. 11 In the first case judgement was rendered against the defendant who failed to bring evidence in support of his claim that Stavsky and Rosenblatt did commit the murder. In the second case the defendants issued an apology and declared there was no ground to accuse them of the murder.	5
In 1982, Shabtai Teveth, the biographer of David Ben-Gurion, the leader of Mapai, published a book entitled The Arlosoroff Murder, in which he tried to throw new light on the crime. 12 In response, the government decided, in accordance with the proposal of Prime Minister Menachem Begin, leader of the Likud, the heir to the Revisionist Movement, to establish a State Commission of Inquiry "to investigate claims and allegations ... some of which have now been published for the first time, to the effect that Abraham Stavsky and Zvi Rosenblatt, or one of them, participated in the murder of Dr. Haim Arlosoroff ... and to submit a report of the findings of its investigation to the Government." 13	6
A commission of inquiry—known also as a "state commission of inquiry," as opposed to a parliamentary commission of inquiry—is established "when it appears to the Government that a matter exists which is at the time of vital public importance and requires clarification." 14 The composition of the commission is determined by the president of the Supreme Court, and it is chaired by a judge or former judge of the Supreme Court or the District Court. The power of the commission to summon witnesses is that of a court. However, it is not subject to the rules of procedure and laws of evidence applied by the courts. At the conclusion of its proceedings, the commission submits a report to the government "of the results of its inquiry and, if it sees fit to add recommendations, of such recommendations." These recommendations are not binding. Nevertheless, the government must consider them seriously. 15	7
A petition was submitted to the Supreme Court sitting as the High Court of Justice against the decision to establish a commission of inquiry. 16 The petitioner contended that the establishment of the commission was in the nature of "an improper intervention in a final act of the judicial branch." The petition gave rise to a stormy debate among the panel trying the petition and within the legal community of Israel as to whether the judicial proceedings were capable of unearthing the truth. Expressions such as "legal truth," "historical truth," "scientific truth," and "factual truth"—and the dispute as to which "truth" was more genuine—were at the core of the debate.	8
It is not my intention to delve into these questions and discuss which of these "truths" is more reliable, not because the questions are uninteresting, but because vast quantities of ink have already been devoted to these issues and it is clearly impossible to encompass all their aspects within the scope of a short article. However, I do wish to refer to the view, which underlines some of the statements, that inherent to the legal discipline are measures, the entire purpose of which is to reach findings that contradict reality. It is true that on occasion the law aspires, for reasons of public policy, to attain certain results, even if these results do not accord with reality. This is so, for example, of the aspiration of the Halacha (Jewish religious law) to prevent the finding of a child being born to a married woman out of wedlock. In order to reach this result, the law makes assumptions that do not always conform to reality, a type of "legal fiction," 17 or it may place obstacles in the path of proving the truth or even preclude it. 18 This is done to prevent the severe outcome to such a child, who is termed a mamzer (inaccurately translated "a bastard") under the provisions of Halacha and is prevented from marrying a "kosher" spouse. Likewise, the law may prefer to restrict the extent of the evidence brought before the judge in order to preserve the confidentiality of the evidence. 19 The same applies to the prohibition on exercising pressure and physical violence on a suspect in order to force him to furnish an incriminatory admission, 20 or the prohibition on violating a person's physical integrity in order to cause him to emit incriminatory evidence, 21 so as to protect his dignity and physical integrity. Nevertheless, as a rule, the law of evidence is intended to assist in the investigation of the truth and not to undermine it: 22 "The law stands on the truth. The judicial procedure is based on finding the truth." 23 The purpose of the proceeding is "to let justice be seen." 24 The evidentiary exclusionary rules—such as hearsay evidence, opinion testimony, and evidence of similar prior acts—were created because of the slight weight of this type of evidence and because of the fact that in our legal system we do not rely on evidence that is not open to cross-examination. 25 The exclusionary rules are likely to remove essential evidence from the court's purview. However, experience has shown that, as a rule, this evidence is of only dubious value. 26 Likewise, the requirement of corroboration, in certain cases, springs from doubts as to the incriminatory material, doubts that have their origin in human experience. 27	9
The judgment of the Mandatory Supreme Court in the case of the Arlosoroff murder itself proves the truth of this argument. As noted, the court was convinced of the guilt of Stavsky. However, the rules of evidence that required corroboration of Mrs. Arlosoroff's testimony prevented him from being convicted. Prima facie, this caused a miscarriage of justice, and the court was forced to arrive at a finding that was contrary to reality only because of an arbitrary, formal, evidentiary rule. Nonetheless, after more than fifty years, the commission of inquiry into the murder of Arlosoroff—the Bechor Commission—reached the categorical conclusion that "Abraham Stavsky and Zvi Rosenblatt were not the murderers of Haim Arlosoroff and did not have part in the murder." 28 Indeed, the commission of inquiry was not bound by the rules of evidence and to that extent, prima facie, had an advantage over the court. Accordingly, if the factual finding of the commission is correct, not only did the formal rules of evidence not prevent the court from acting justly but actually ensured that it did not arrive at conclusions that were not accurate.	10
It is true that the legal discipline is divided on the question of which is the most efficient way to reach the truth. 29 In particular, there is a division between the inquisitorial method, applied in continental countries, and the adversarial system applied under the common law. These systems are divided with regard to the functions allocated to the judge in conducting the trial and in investigating the facts, and with regard to the admissibility of evidence in court. In addition, they differ as to what extent one may place confidence in testimony as opposed to physical evidence. Nevertheless, these disputes do not revolve around the question: should the court seek the truth?, but are the result of the difficulty in doing so. If there is a basic distinction between the two approaches, it is found in the extent to which it is asserted that the court is capable of achieving this goal. The inquisitorial system relies more on the discretion of the judge and on his ability to establish the truth, whereas the adversarial system admits a priori its limitations and circumscribes its function to a determination of whether the party before it has succeeded in proving his contentions. 30	11
Let us now consider "legal truth" versus "historical truth" or any other truth. It is submitted that the division of truth into a large number of "truths" to some extent leads to its distortion. There is only one truth, although it is concealed from us, and our limitations as human beings prevent us from determining it with certainty. Were we to possess the "breastplate of judgment" [Urim ve' tummim] of the high priest of the Temple in Jerusalem or even the Oracle of Delphi, there would no longer be doubt as to the definitive truth. However, as we do not have such preternatural means available to us and since we must seek the truth using only our fragile powers, many "truths," or more precisely, many versions of the truth, are possible. The dispute among the various disciplines, in so far as it relates to the determination of the truth, refers, prima facie, to the question of which method will more safely attain that goal. In practice, because of the inherent assumption that there is no guarantee in any of the systems that this goal will be achieved, the investigative techniques are a product of the purpose of the determination. An important component in this determination is the security margin, which we wish to apply in determining the truth. The military commander in the field is not analogous to the historian immersed in the tomes of academe, and neither of them is analogous to the judge sitting on the seat of judgment. The military commander is required to make swift factual findings and draw immediate conclusions from those findings. His fate and the fate of his comrades, as well as the success of essential objectives, are in his own hands. Naturally, he will tend not to take exorbitant risks, in case the factual situation is other than what he thinks and does not require the precautionary measures that he selected. In contrast, the historian controls his own time. Generally, he is not required to make decisions within a defined period of time and he is able to wait for the disclosure of additional relevant information and thereafter reexamine his findings. Additionally, he has no responsibility in terms of his findings except to his own conscience and to his readers. By their nature, his findings will not be fateful, and accordingly he will not see himself as forced to take into account a safety margin beyond being persuaded that the probability of his version being correct is greater than the probability that it is mistaken.	12
The judge is positioned between these two. Unlike the military commander, he is not required to make decisions in situ. Unlike the historian, he does not have unlimited time on his hands. Nevertheless, the characteristic that distinguishes the judicial decision from that of the historian's consists primarily of the official nature of his judgment and its normative ramifications, whether in the civil or in the criminal sphere. It is within the power of a judgment to transfer economic wealth from one person to another, to determine the fate of a family that is in turmoil and impose sanctions, some of which may be harsh and painful, on a person convicted of a crime. Beyond this, the judicial determination per se has far-reaching consequences because of the great public confidence in its validity and the public's identification of that determination with the "real" truth. In the natural course, the judge will subordinate himself to a high safety margin, particularly with regard to determinations in criminal matters and decisions that tend to affect the fate of a person or tarnish his or her character. To a certain extent the judicial system evades the censuring of a person's character, particularly in the adversarial system, where the judge will generally not be required to determine what is the truth, but only whether the party on whom the burden of proving a certain fact has indeed met that burden. Thus, with regard to suits for defamation, wherein the defendant raises the defense of the truth of his statement, the judge is not bound to decide that the version of the defendant is fraudulent. In order to hold in favor of the plaintiff, it is sufficient that he is persuaded that the defendant has not succeeded in proving the truth of his statement.	13
The judicial system escapes from the harsh penal consequences, which may perhaps be imposed on an innocent man—in addition to the aspersions cast on his character—by requiring a high level of proof "beyond a reasonable doubt." The determination, that a person should not be convicted of a crime unless his guilt has been proved to such a high degree of certainty, does not originate from the assumption that only in this way may one arrive at the truth. It is a value decision to the effect that it is right to acquit the accused not because he is innocent but because there is not sufficient confidence in his guilt. The assumption that underlines this determination is that it is preferable to have a system that results in the acquittal of the guilty than a system that tends to convict the innocent, to the extent that the court is unable to conclude with the necessary certainty that the guilt of the accused has indeed been proved. 31 The distinction between the high level of proof needed in a criminal trial and the lower level needed in a civil trial is connected with the interests being protected, as "when the protected interest is 'the sanctity of human life,' broader safety margins should be created than when the interest being protected is 'the sanctity of contracts.'" 32 Accordingly, where a party to civil litigation accuses another of having committed criminal offenses— or acts "which impugn his character and contain an element of disgrace"—he must prove his allegation at a level of proof that exceeds that which is customary in civil cases, or, at least, he must bring a greater quantity of evidence. 33 Thus, in view of the high value society places on a person's reputation, many legal systems impose on one who publishes defamatory statements to prove the truth of his statements, rather than on the plaintiff to prove their fallacy as is the rule in civil suits. Moreover, the defendant will usually be required to offer a higher degree of proof than is common in civil cases.	14
Our system of law assumes, necessarily, that the findings of the court do not always reflect objective reality. This possibility is inherent to the principle of acquittal by virtue of doubt. 34 Nevertheless, because of the logic that underlies the conviction and the possibility that not all the factual matrix was available to the judge, the possibility of a wrong factual determination is also compatible with a positive conviction. The institution of a retrial has been created for just such an event, enabling a retrial of the guilt of a person who has been convicted—upon the discovery of new evidence that may prove exculpatory. 35 In any event, a judicial finding does not shut the door before the casting of doubt as to its accuracy.	15
The question that emerged in the Alon case was whether it is possible to allow this doubt to be resolved by a commission of inquiry. In my opinion, this question should be answered in the negative.	16
There are a number of reasons for this conclusion. First, under the Israeli system, the institution of the commission of inquiry is not designed by its nature to provide answers to questions relating to the criminal responsibility of a person for acts that he is alleged to have committed. 36 A commission of inquiry may indeed reach findings of a personal nature during the course of its investigation and it is even competent to make recommendations concerning individuals. However, these are by-products of its examination of the issue that is subjected to its inquiry. The issue that may be competently examined by the commission of inquiry is, in the words of the Law, "a matter" and not the question of the guilt of a person. In such a question, at least in so far as it relates to the criminal liability for an act, exclusive jurisdiction is given to the courts.	17
Moreover, because of the policy of liberalism that the commission of inquiry follows when adducing evidence and making findings, the commission is actually not suited to determining the guilt or innocence of a person. It is for this that the judicial process is designed. 37 This is evidenced by the fact that once the Commission of Inquiry into the Bank Share Regulation Affair (the "Bej'ski Commission") 38 held that, prima facie, the bankers had committed criminal offenses, the findings of the commission were submitted to the attorney-general for his review, in order that he could weigh whether legal steps should be taken to allow the courts to decide the matter. 39	18
In particular, it is inconceivable that criminal liability, which has been determined in judicial proceedings, should be subject to reexamination by a commission of inquiry. It is indeed true that the findings of a commission of inquiry cannot derogate from the finality of a judgment. 40 However, the issue of the correctness of a judgment should not be referred for examination by a state body, which is not part of the judicial branch at all. 41 If there is a possibility of mistakes within the judicial system that the latter cannot rectify under present legal conditions, such as findings against the accused, even if subsequently acquitted, 42 there is perhaps room to consider the grant of such competence to the judicial system itself. The idea of achieving this result indirectly, by means of another state institution, is clearly flawed on its face. 43	19
The primary reason that united all the judges in dismissing the petition against the establishment of a commission of inquiry was the recognition that the commission would not be established only to decide the guilt of Rosenblatt and Stavsky, but also to consider the allegations that the Revisionist movement stood behind the two and was connected, in one way or another, with the murder. 44 Arguably such an issue is suitable for examination by a commission of inquiry. In fact, it is the court that would not be the appropriate arena for conducting such an examination. Yet, the matter of the establishment of a commission of inquiry must be one "which is at the time of vital public importance and requires clarification"; not necessarily, one that occurred at "that time," but rather one that is of public importance "at the time." Such public importance occurs when there is "wide public disquiet, at the root of which is a crisis of confidence in the system of government by reason of an act or omission on its part ... to the extent that there is a vigorous public demand for the establishment of a commission of inquiry." 45 It is difficult to see what public importance—and a fortiori vital importance—existed in the year 1982 in respect of the array of allegations against the Revisionist movement, which were made five decades earlier. In a display of frankness, one of the members of the Bechor Commission admitted: "Fifty years have elapsed since the incident. There was no public criticism or grievances in recent years before the appointment of our Commission and the matter attracted interest after Mr. Shabtai Teveth wrote his book." 46 Can a book written by an author or historian give rise to "a matter" that justifies the establishment of a commission of inquiry, even if such a book contains, in the wordings of the writ of appointment of the Arlosoroff Commission, novel "claims and findings"? More properly, one historian's researches should be criticized by another historian, and not be made the subject of an examination by a state institution possessing an official status. 47 It would appear that Prime Minister Menachem Begin relied on Teveth's new book to cause the establishment of a state body that would rehabilitate the camp with which he was affiliated, a step he had wished to take long before. 48	20
This issue also troubled the chairperson of the commission, Justice Bechor:	21
The appointment of this Commission is the subject of a sharp difference of opinion among the public, on the question whether there is actually an issue which should properly be considered by a State commission.... it is not our function to consider these claims.... nevertheless, we think it is right to say this: It is argued, inter alia, that this issue should be the subject of an examination by historians and not investigation by a State commission.... when historians come to consider questions of this sort, they examine all the evidentiary material which was before the Court and the legal proceedings, and also the evidentiary material ... which was not produced in the Court by reason of it being legally inadmissible, as well as additional material which has since been discovered. The historians will also examine, in so far as necessary, the entirety of the subject-matter in the light of data and perceptions which prevailed at the time of the trial, in contrast to those prevailing at the time of the examination. In practice, that is what has happened ... in the various books and articles which were published over the years on the Arlosoroff affair.... There is a great similarity between the above approach and the function of the current Commission, which has to attempt to arrive at the factual truth, without being fettered by the laws of evidence and other limitations which bind the Court. The books and articles which were published profess or lean in part towards one version and in part towards another version, and each party, which represents each of the camps, professes its own version.... it is our function to examine all the existing evidence and material, and to assess all the data with the greatest degree of accuracy and objectivity and to draw the necessary conclusions. 49
These comments are somewhat strange. Is it indeed the function of a state commission of inquiry to arbitrate between disputing historians and determine the history of the state "with the greatest degree of accuracy and objectivity"? Obviously, a regime that establishes a commission of inquiry to determine the accuracy of the contentions of a researcher or author places a question mark on the freedom of research and creativity. 50 Furthermore, in the Israeli system the state commission of inquiry is part of the executive branch. As such, its scope must be limited to the sphere of executive functions. It has, moreover, been suggested that the legitimacy of the appointment of a commission of inquiry depends on the government's intention to take action on the basis of its findings and not "merely to satisfy an idle curiosity." 51 It is hard to conceive any connection between the investigation of a controversial affair from pre-statehood and the sphere of executive function in Israel. It is certainly hard to foresee any executive action that might have taken place following such investigation. However, even if the members of the commission sat in the capacity of quasi "official historians," they failed in their task. The commission members were unsuitable, in terms of their qualifications, for the task that was imposed on them. This was so particularly following the resignation of Dr. Yoav Gelber, the only historian among the panel, as an act of protest against the refusal of the government to establish a commission of inquiry into the events of the massacre of refugees by Christian militia, which took place in the camps Sabra and Shatilla, during the Lebanon War. 52
The findings of the commission were few. In its conclusions, it stated as follows:	22
We unanimously hold that Abraham Stavsky and Zvi Rosenblatt were not the murderers of Haim Arlosoroff and they did not abet the murder. The evidence and the material placed before us do not allow a decision as to:
1) who were the murderers;
2) whether this was a political murder on behalf of any party whatsoever or not. 53
Yet, the assumption that the commission was intended to examine the allegations made against the Revisionist Movement was the court's reason for rejecting the petition against its establishment. 54 Moreover, it is doubtful whether even the determination of the commission in relation to the innocence of Rozenblatt and Stavsky possessed practical effect. Could it really change the opinions of those who were convinced of the guilt of the two? Would any researcher change the conclusions of his research merely because they were disproved by a commission of inquiry? 55
One of the commission members, Judge Kennet, wrote about the difficulties of the commission:	23
In an enlightening lecture given by Sir Cyril Salmon ... the lecturer indicated the attributes characterizing the findings of commissions of inquiry.... the method is inquisitorial.... generally there is no prior evidence.... Our situation is different.... fifty years have elapsed since the incident.... of the witnesses one may say that almost all were older people who possibly remembered the events or thought they remembered them.... if we had not had all the aforesaid material, 56 we would have been faced with a hopeless situation. No inquisitorial system would have been capable of deciphering the mysteries of fifty years ago, like the material which was before us. 57
If this was the case, in what way was the commission superior to the professional historian?
It seems that the commission of inquiry into the murder of Arlosoroff proves that not only did its establishment to arbitrate between conflicting historical opinions lack legal foundation—it was actually destined to failure from the beginning.	24
The Kastner Trial
The question of responsibility for the murder of Arlosoroff was presented for determination by a state commission of inquiry. In contrast, the question of the responsibility of the Jewish leadership for the events of the Holocaust was presented to the court in the affair known as the "Kastner Trial." 58	25
The roots of this controversial affair lay in criminal charges brought against Malchiel Gruenwald for defamation of Dr. Israel Kastner. Gruenwald, an eccentric Jew born in Vienna, immigrated to Israel about two years before the outbreak of the Second World War, yet most of his family perished in the Holocaust. Gruenwald made his living from a small hotel in Jerusalem. He was accustomed to distributing newsletters under the heading Michtavim el haveray be'Mizrahi [Letters to my Friends in the Mizrahi (a political movement that later became part of the National Religious Party)]. These contained unrestrained attacks "on leaders who were corrupt, on religious officials who in his opinion were not worthy of their positions, on greedy public officials and on people in authority." 59 One of his newsletters was devoted to Dr. Kastner. In this newsletter he called for the elimination of Kastner 60 and accused him of collaboration with the Nazis; of the indirect murder of the Jews of Hungary and of laying the groundwork for their murder; of collaboration with Kurt Becher, a Nazi war criminal; of embezzling the assets of Hungarian Jews; and finally, after the war, of saving Becher from punishment in the Nuremberg Trials.	26
Dr. Israel Rudolph Kastner, a native of the town of Cluj in Transylvania, was a Zionist leader and journalist and a member of the World Union of Mapai. In 1941, he moved to the capital Budapest, following the annexation of Cluj to Hungary. Dr. Kastner was involved in Zionist activities in Budapest. He acted as deputy chairperson of the Hungarian Zionist Organization and was one of the founders of the Relief and Rescue Committee and served as its deputy chairperson. This committee was established in order to assist the masses of Jewish refugees who had escaped the horrors of the Nazi regime in neighboring countries. Following the German invasion, Kastner headed the negotiations with the Nazis for saving the lives of Hungarian Jewry. Within this context, he conducted negotiations with S.S. officers, including Adolf Eichmann. Of the plans for saving the Jews, two are particularly well known: one, which succeeded—was "the rescue train" or the "prominents' train," also known as the "Bergen-Belsen train"; and the other, which failed—was "blood for goods" [Blut für Ware]. The latter plan, which was proposed by Eichmann, was to save all Hungarian Jewry and possibly Jews from neighboring countries as well in return for ten thousand trucks loaded with goods. These trucks were to have been supplied by the Allies. In order to implement this plan, Joel Brand, a colleague of Kastner in the Relief and Rescue Committee, was sent to Constantinople to conduct negotiations with the leaders of world Jewry and representatives of the Allies. It seems that the Nazis used this offer to initiate separate peace talks with the Western Allies, thus "dividing H.M.G. and U.S. from the Soviet Government." 61 The proposal was rejected by the Allies and Brand himself was arrested by the British. In contrast to this grandiose scheme, the rescue train plan met with greater success. Eichmann allowed 1,684 Jews to leave for Switzerland, in return for ransom paid to the Nazis. 62 In his report to the Zionist Congress in 1946, 63 Kastner described the train as "Noah's ark" because it carried "a crosscut" of the community ["einen Miniatur-Querschnitt der damals in Ungarn lebenden Juden dar"], with an emphasis on those who dedicated their lives to public service. The train contained indeed Jews from various circles—from the extreme religious Orthodox to members of the Neologist [Reform] Community, from the Zionist youth to members of the Revisionist Movement—yet, among them was a large contingent—comprising about a quarter of the whole group—made up of inhabitants of Cluj, Kastner's city. Among the passengers there were leaders of the Jewish community with their families and a considerable representation of Kastner's own family, including his wife and her parents. A significant proportion of the contacts relating to the rescue were conducted between Kastner and the S.S. officer, Kurt Becher. After the war, Kastner submitted a written report to the Office of Strategic Services (OSS) about the Nazi destruction machinery. Later he made an affidavit before the office of the American prosecutor that was submitted to the International Tribunal at Nuremberg. In his evidence Kastner emphasized the role played by Becher and other aids of Eichmann in his own rescue operations in Hungary. 64 Later he assisted the prosecution at the trials before the American Military Courts at Nuremberg during which he interrogated Becher in person and took advantage of this opportunity to throw light on his own efforts to save Hungarian Jewry. 65 During his stay in Nuremberg Kastner made affidavits on behalf of senior S.S. officers, including Becher himself. In his affidavit on behalf of Becher, Kastner described Becher's efforts to save Jewish lives and recommended that he be accorded "full possible respect by the German and Allies' authorities." 66 In a letter to the treasurer of the Jewish Agency, Kastner credited himself for Becher's release by the occupying forces in Germany. 67 The reasons for Kastner giving evidence on behalf of S.S. officials remain unsolved. The explanations offered range from genuine gratitude to officers who assisted in saving Jewish lives, even if for egoistic motives in order to create an alibi for their participation in the Nazi machinery, to an effort to emphasize his own role in the rescue operation, to a means to buy Becher's silence. 68	27
At the end of 1947, the Kastner family emigrated to Israel. There, Kastner became involved in the political activities of Mapai and even joined that party's list of candidates for election to the National Assembly, Israel's first parliament, and thereafter to the second Knesset. To earn a living he became the assistant of Dov Yoseph in the ministries that he headed, and, in his last office, acted as spokesman for the Ministry of Supply and Allocations. Concurrently, he served as editor of the Hungarian weekly issued by Mapai and thereafter joined the Hungarian language newspaper Uj Kelet and was in charge of the Hungarian language broadcasts of Israel's state radio, Kol Yisrael [the voice of Israel].	28
As a result of Gruenwald's publications, the Attorney-General Haim Cohn, who at that time also occupied the position of minister of justice, decided to file criminal defamation charges against Gruenwald. This decision was made against the wishes of many public figures, including the person who later reoccupied the post of minister of justice, Pinhas Rosen, and the minister in charge of Kastner, Dov Yoseph. Cohn forced this decision on Kastner himself by giving him the alternative choice of resigning from his governmental position. Cohn rationalized his decision by stating that "in our new, pure, ideal State ... a man cannot officiate in a senior position ... when there is a stain on him, or even only a grave suspicion of collaboration with the Nazis." 69	29
This reasoning is not convincing. If indeed there were merits in Gruenwald's accusations, then the prosecuting authorities should have considered instituting criminal charges against Kastner under the Nazi and Nazi Collaborators (Punishment) Law (1950). 70 But this would not require the trial of the person engaging in the libelous publication. Indeed, in the decision on the appeal against the judgment given in the Gruenwald case, 71 Justice Cheshin stated that "it would have been more fitting had this trial not been brought than brought." The judge pointed out the anomaly that "at a time when the world nations are trying the murderers themselves ... we, the brethren of the victims, who are incapable of bringing the murderers to justice, pick upon tattlers and rumormongers for their tales." Altogether, the striving of the state to protect the dignity of an individual is strange, particularly when the individual is willing to endure the slight to his dignity. The matter of defamation should remain firmly within the scope of the relations between the person publishing the libel and his victim, a fortiori, where the defamation relates to public figures. It is particularly in the latter cases that utmost freedom must be given to critics. 72	30
The accusations launched against Kastner were not detached from the wave of condemnation against the behavior of the Jewish leadership in Palestine during the period of the Holocaust. On a number of occasions, they were accused of keeping silent about the Holocaust and abstaining from rescue activities. 73 Even in the publication that led to the charges being laid, Gruenwald spoke of the fact that "Kastner continues to boast of himself as the Mapai genius" and noted that Mapai "received [him] with open arms and even placed him on the list of its candidates [to the Knesset]." However, it is because of this very fact that the court was not the appropriate forum to examine these charges.	31
A significant factor in broadening the reach of the trial was the participation of Shmuel Tamir, a member of the Revisionist movement and a former commander in Etzel. Tamir was one of the founders of the Revisionist party Herut. Twice he left the party after failing in his challenge to Begin's leadership. Later he was one of the founders of the Likud party, under the leadership of Begin. He then left to join the newly formed Democratic Movement for Change and represented this party in Begin's cabinet as minister of justice.	32
From the beginning, Tamir refused to undertake the defense of Gruenwald unless Gruenwald agreed that the trial would turn into "the trial of the Jewish leadership during the period of the Holocaust" and consented to grant him "not only a formal power of attorney, but an absolute power of attorney." 74 Rosenfeld describes it in his book 75 as follows:	33
As soon as he took upon himself the defence of the accused, Malchiel Gruenwald, Tamir's political intuition told him that here for the first time was an opportunity to raise before a Court in Israel—and through it, before the entire public—the whole web of political and ethical problems involved in the Holocaust and rescue ... problems, which for the last ten years had burdened the heart and mind of every Jewish person.
Among these were the following questions:
How did the Nazis succeed in implementing their satanic programs without meeting organized resistance on the part of the Jewish masses? What was the function of the Jewish bodies, and, first and foremost, of the "judenräte" [Jewish councils appointed by the German occupying authorities to administer the affairs of the Jewish communities and implement the Nazi orders affecting Jews] in the task of reassurance? To what extent, if at all, was contact permitted with the enemy in the desperate effort to save life and property? And what are the limits of such contacts? What was the passive contribution of the Allied powers in the destruction of European Jewry? What part did Britain, the Mandatory power over Palestine and author of the "White Book," play in the Holocaust? and in particular: what did the Jewish Community and the Yishuv—in Eretz Yisrael [Palestine] do or not do to save their brothers in Europe? What part did the Christians, Righteous Gentiles, have in the rescue measures? 76
Ironically, it was the prosecution that enabled Tamir to turn the focus of the trial away from the publication about Kastner to the responsibility of the Jewish leadership. This occurred when the prosecution chose to call Kastner himself as the first witness, to describe through him "the chronicle of the Holocaust of Hungarian Jewry and the chronicle of the rescue activities," 77 and, thereafter, to call witnesses to testify on these general matters. In doing so the prosecution must have been aiming at a parallel target to that of the defense—to shed light on the rescue activities of the Jewish leadership in Palestine with the hope of exonerating it from the accusations raised against it. It was probably for this reason that the prosecution chose to prove the fallacy of Gruenwald's accusations rather than to leave it for the defense to prove their truth.
A decisive contribution to this development in the trial was made by President Benjamin Halevy, who allowed the introduction of "irrelevant testimony ... matters which were raised in the trial by the party who presented them for all sorts of reasons, but in no case in order to prove the truth of the libel ... matters which were totally irrelevant to the defamation of Kastner." 78 Halevy, an able yet controversial judge, submitted a letter of resignation from the bench to the minister of justice a week prior to the opening of the Kastner trial. He did so in protest against the nomination of four new justices to the Supreme Court, two of them colleagues of his from the District Court with less seniority than Halevy's. Three weeks after the beginning of the trial, Halevy withdrew his resignation following a meeting with the minister. These events were accompanied by a most questionable act by Halevy, which was not made public at the time. A letter, found in the archives of The Ben-Gurion Research Center, was written by Halevy to Prime Minister Ben-Gurion urging him to intervene in order to ensure his nomination to the Supreme Court. 79 This was most unusual in itself as in Israel judges are selected by an independent committee of which the prime minister is not a member. Moreover, the grounds elaborated in the letter make Halevy's action even more problematic. He accused members of the judiciary of expressing "a non-patriotic approach to the problems of the State" and assured Ben-Gurion that his promotion to the Supreme Court would assist in Halevy's struggle to change this attitude. Halevy referred, moreover, to talks he had had with Ben-Gurion in the past on this matter. He expressly referred to such contacts following the "Sarafend Underground Trial," which took place in a military court in the army compound of Sarafend near Tel-Aviv, just a few months prior to the Kastner trial. In this case fifteen radical nationalists, supporters of the establishment of "The Kingdom of Israel" in its biblical promised boundaries, who engaged in violent attacks on embassies of the pro-Arab Eastern Block countries, were accused of membership in a terrorist organization. The court was presided over by Halevy. The trial ended with harsh sentences imposed on the accused, which aroused much criticism from the right wing, including Menachem Begin. Begin was especially annoyed by the fact that the judges regarded the terrorist acts of the accused a continuation of pre-statehood activities. He blamed Halevy for trying to please Ben-Gurion "who nominated the judges" to the trial. 80	34
The Sarafend Underground trial was the first encounter of the main figures in the Kastner trial: Haim Cohn was the prosecutor while Tamir represented the accused. Their paths were to cross again in the future. In 1963 Halevy was appointed to the Supreme Court where he joined Cohn who had been nominated to that court three years earlier. Halevy, who was dominant in the District Court, did not leave his imprint on the Supreme Court. After six years on the bench, Halevy, in an unprecedented move, resigned his position in the court to join the Herut-Liberal Block headed by Begin and was elected in its list to the Knesset. Later he was one of the founders of the Likud party, which was formed as an amalgamation of this block with several other political parties. Four years later he left the Likud and joined the Democratic Movement for Change and served as an MP on its list. In his new party Halevy found himself inferior to Tamir who was one of its leaders and served as minister of justice, much to the disappointment of Halevy who was hoping to be appointed himself to this post. In 1981 Halevy left the political life and retired to live quietly until his death.	35
Like many decisions to bring suit for defamation, this one, too, resulted in a greater loss than gain, despite the fact that, ultimately, the majority of Gruenwald's allegations were repudiated. The trial was one of the strangest in Israel's legal history. Shalom Rosenfeld, who followed the trial closely and chronicled it in his book, described it thus:	36
Criminal case 124/53 was the strangest trial in the country. A trial in which, in the words of the Attorney-General himself, "from day to day the accused therein multiplied"; a trial in which the prosecutor became the defender, the defender—the prosecutor, and the witnesses turned into the accused. 81
This trial--The Attorney-General of the Government of Israel v. Malchiel Gruenwald—became known as "the Kastner trial," 82 even though Kastner was not the accused. He was not even a party in the case. He was merely one of the fifty-nine witnesses who appeared therein. Notwithstanding this, it was clear from the beginning that Kastner's fate, not Gruenwald's, hung on the results of the trial. 83 After all, Haim Cohn filed the indictment against Gruenwald in order to clear Kastner of the accusations made against him.
Not only the fate of Kastner hung in the balance. In the same way as Tamir wished to use Kastner as a means of striking at the leadership of the Yishuv (the Jewish community in pre-statehood Palestine), the prosecution was also motivated otherwise than by the mere desire to convict Gruenwald. By absolving Kastner they would also be absolving the Yishuv leadership of the accusations raised against it.	37
Testifying to the marginal role played by Gruenwald—"the formal accused" 84 in the trial—is the fact that after numerous hearings conducted in his case, Judge Halevy found it difficult to even remember his name. 85 However, even Kastner played only a secondary role in the trial. On the firing line was the behavior of the Jewish leadership during the period of the Holocaust. As the leadership of the Yishuv at the time was now the leadership of the country, the banner headline chosen by Time to lead its report of the case was not surprising: "Israel—On Trial." 86	38
The best illustration of this is that while the accused and the witnesses appeared under their full names in the judgment at first instance, throughout his 235-page judgment Judge Halevy chose to refer to Kastner as "Dr. K," as if Kastner did not possess a personality of his own, but was merely a prototype of the Jewish leadership during the period of the Holocaust. 87	39
Through the personality of Kastner, not only were his activities and the activities of the Jewish leadership during the period of the Holocaust put on trial, but also Jewish history. Beyond the aspersions cast on the activities of Kastner and the leadership of the Yishuv, Tamir succeeded in drawing Halevy into deciding between two philosophies that have been in conflict throughout Jewish history and that may be defined as the philosophy of Ben-Zakkai in contrast to the approach of Ben-Yair. Rabbi Yohanan Ben-Zakkai earned his place in the annals of history by surrendering to the Roman ruler. At the height of the Great Revolt, he succeeded in preserving the future of Jewry in Eretz Yisrael. 88 Elazar Ben-Yair, the leader of the rebels in Masada, fought the Roman legion for over a year. Realizing that the Roman forces were about to break into their besieged fortress, Ben-Yair called upon his men to slay their wives and children and then kill themselves so as to die as free people rather than becoming slaves to the Romans. 89 Ben-Yair's act became a symbol of bravery and resistance to the foreign conqueror. 90 The philosophies of these two figures have accompanied the history of the Jews throughout the generations and have been reflected in stories passed down to us from different ages.	40
These two approaches were prominently expressed during the period of the Holocaust by the contrast between the uprising of the ghettos and the appeasement and intercessions with the Germans. 91 Kastner was perceived by the public as the quintessential representative of the approach of capitulation and appeasement, and this in a country that was founded and educated its people on the principle of uprising and courage, and that derived its inspiration from the acts of bravery of the besieged of Masada and the ghetto fighters. 92	41
Occupying the center of the Kastner trial were his contacts with the Germans who had conquered Hungary and, at their head—Adolf Eichmann. The main issues that arose in the hearings were the affairs known as "blood for goods," the "prominents' train," the affair of the parachutists from Eretz Yisrael who were sent to Hungary and were persuaded by Kastner to surrender to the Gestapo, the accusations relating to the abandonment of one of them, Hanah Senesh, 93 and finally, the affair of the relationship between Kastner and the S.S. officer Kurt Becher and the testimony given in the latter's favor during the Nuremberg trials.	42
After intensive hearings extending over a period of nine months, and after an additional nine months in which he secluded himself in his home in order to write his judgment, Judge Benjamin Halevy delivered one of the most provocative and controversial judgments in the history of the State. In his judgment, Halevy acquitted Gruenwald of three of the four charges of defamation on which he had been tried and held that he had succeeded in proving their truth. Halevy convicted Gruenwald on only one charge, which was marginal compared to the others, after holding that the accused had not succeeded in proving the truth of his claim that Kastner had connived with Becher to embezzle the assets of Hungarian Jewry. 94	43
In his judgment, Halevy held that Kastner knowingly collaborated with the Nazis and assisted them. This collaboration was expressed in the fact that he had concealed the truth from Hungarian Jewry, and in particular from the Jews of Cluj, regarding the destination of the deportation trains. In so doing, Kastner paralyzed the Jewish rescue operation in Hungary and thereby "oiled the destruction machine as a whole, prevented possible interference with its operation and made an important contribution to its overall efficiency." He also prevented Hungarian Jewry from escaping to neighboring Rumania, rising up against the Germans, and at least sabotaging the deportations. 95 Kastner acted thus in return for the opportunity to save but a few people—among them, members of his family, relatives, and friends as well as "public dignitaries." The rescue of the few "prominents" was "an inseparable part of the plan for the extermination of 800,000 Hungarian Jews." Thus "the rescue of the 'prominents' was an inseparable part of the genocide." 96 Kastner "knowingly collaborated with Eichmann and knowingly assisted him in carrying out the total deportation," while being aware that "Eichmann was using him as an instrument to destroy the Jews." 97 Whether Kastner should be regarded as someone who "actually surrendered in the full sense of the word ('gave' or 'delivered up') the Jews of Cluj and others into the hand of the murderer," or whether matters did not reach that conclusion, "the behaviour of K ... was no different from a moral, public, and even legal point of view to the yielding up of most of the Jews to the murderers, for the purpose of saving a few." 98 In a shocking sentence, which retains its stunning impact whenever the Kastner affair is mentioned, Halevy held that "Kastner had sold his soul to the devil." 99 It was probably this sentence, more than anything else, that led to the attack on Kastner and his fatal injuries two years after the delivery of the judgment. 100	44
About a month before the assault on Kastner, the arguments were concluded on the appeal brought by the attorney-general against the decision handed down by Halevy. 101 About a year later, the judgment on the appeal was delivered. All five justices upheld the appeal relating to the second charge of defamation, which referred to the accusation that Kastner had been guilty of indirect murder or laying the groundwork for the murder of Hungarian Jewry, and dismissed the appeal in respect of the fourth charge, relating to saving the war criminal Becher from punishment after the end of the war. Four of the justices—Shimon Agranat, Yitzhak Olshan, Shneur Zalman Cheshin, and David Goitein—also upheld the appeal on the first charge of defamation, in respect of which Halevy had held that Kastner had collaborated with the Nazis. Moshe Silberg disagreed with the opinion of his brethren and adopted the finding of Halevy, that "in order to implement the plan to rescue the small number of 'prominents'—[Kastner] knowingly and in bad faith, fulfilled the wishes ... of the Nazis, and thereby made it easier for them to perform the work of mass destruction." 102	45
It is instructive that the Supreme Court reached different conclusions than those reached by the District Court, in spite of the fact that, in general, it did not dispute the "factual findings" made by Halevy on the basis of the evidence presented to him. The difference lay in the inferences drawn from those facts and from conflicting basic assumptions made by the judges regarding the events that were the subject of the hearing. 103 Accordingly, Deputy President Cheshin wrote in his judgment: "On the basis of the extensive and diverse material which was compiled in the course of the hearing, it is easy to describe Kastner as blacker than black and place the mark of Cain on his forehead, but it is also possible to describe him as purer than the driven snow and regard him as 'the righteous of our generation.' A man who exposed himself to mortal danger in order to save others." 104	46
Following suit, Justice Goitein held: "The person who, in the eyes of Dr. Halevy in the lower Court, had sold his soul to the devil, appears to ... Justice Agranat ... as a man whose actions may also be excused on the assumption that he was a good Jew, and did the best he could to rescue what could be rescued." 105	47
The special difficulty facing the court in the Kastner affair was well expressed by Justice Goitein. Whereas in an ordinary defamation action, the question posed to the court is a factual question per se, which may usually be proved "easily," the situation was different in the case of Kastner: "One cannot find absolute truth or falsehood if the subject-matter of the investigation are the thoughts of a Jewish leader, in the year 1942, in Hungary occupied by the Nazis, and his intentions. The matter depends on the personal impressions of every investigator of the facts unrolled before him." 106	48
The judge even expressed the opinion that the plea of truth, which Gruenwald employed against the defamation charges, was not applicable at all "to the difficult and complex web of facts in the instant case," 107 and he added: "it is not for us as judges to judge the intentions of Dr. Kastner and his thoughts." 108 The judge noted that the questions that were made the subject of the hearing "are more of an evaluative nature than of a factual nature." 109 He added that whereas it would have been proper to exclude a large part of the evidence that was brought during the course of the trial, "the majority of the requisite testimony was actually never brought before the Court," and it would only come into the open in future years. In the opinion of the judge, "upon the indictment of the Respondent, the Court was placed under a duty to do today what only historians will be able to do in another 50, 100 or even more years," and he concluded, "the Court of today cannot fulfill the function of an historian far in the future." 110	49
Justice Silberg's opening statement is a poignant expression of the difficulty facing the court. The judge wrote: "A most difficult task has been imposed upon us in this appeal—to scrutinize deeds and occurrences which seem to have happened on a different planet, and to pronounce judgment on the behaviour of men, hovering in the claws of Satan himself.... Are we capable—as fallible human beings—of sitting in judgment on the moral or immoral actions done by Kastner?" 111	50
The judge brought the difficulty into focus: "Is a balanced view possible here—between blood and blood, between injury and injury—or can we look past the terrible vision of this valley of death at the moral or immoral nature of the acts committed by [Kastner] about 13 years ago?" 112	51
The central judgment in the appeal was written by Justice Agranat. At its beginning , Agranat already hinted at a basic flaw in Halevy's judgment. Agranat emphasized that the acts of Kastner should be judged "against the general background of those times ... within the context of the external circumstances then occurring in Hungary," as these "imparted to his public behaviour its character." 113 Agranat warned against allowing the subjective perceptions of the judge to influence the appraisal of the conduct that was the subject of the hearing. This danger was particularly grave in view of the nexus of the events. This gave rise to the fear that the adjudicator "would not always be capable of placing himself in the position of ... 'the parties'... ; to assess the problems which faced them as they themselves saw them; to take into account sufficiently the conditions of time and place in which they lived their lives; and to understand that life as they themselves understood it." 114 The difficulty of severing oneself from his preconceptions arose from the nature of the allegations made against Kastner, which had the effect of "inflaming the spirit and public opinion," particularly where one was considering a population, of which a large section had experienced the horrors of the Holocaust at first hand and lost close family members therein. 115	52
Agranat dismissed the conclusion reached by Halevy, to the effect that it had been proved that Kastner had collaborated with the Nazis to destroy Hungarian Jewry by withholding from them knowledge of the transports to Auschwitz. "It is clear," held Agranat, "that Kastner did not intend—i.e., wish—at any time to bring about the destruction of Hungarian Jewry." 116 Agranat found that Kastner had grounds for assuming that he would succeed in delaying the transports and acted for this purpose. 117 The collaboration of Kastner with the Nazis was intended to assist in the rescue of Hungarian Jewry, and the judge added: "not every act of cooperation may be called 'collaboration' and not every person who maintained contacts with the Nazis and gave them certain assistance will be tarnished with the name 'collaborator': everything depends on the motives which spurred him to behave in the way he behaved." 118	53
Agranat rejected Halevy's finding that Kastner's actions were motivated only by his desire to save the small group of "prominents" in the "Bergen-Belsen train." Agranat stated unequivocally that "at all times, Kastner's goal was to save the Jews of Hungary in general, and the implementation of the "Bergen-Belsen plan," which was intended for only a small group of Jews, always remained just a part of this goal and never became for him an exclusive objective." 119	54