A few years ago, Rivka Brot was waiting for a bus in Tel Aviv when her attention was drawn to the words “Maccabi Judenrat” scrawled in large letters on a fence nearby. Later someone explained to Brot, a lecturer at the law faculty of Tel Aviv University, that the graffiti was part of the arsenal of fans of Hapoel Tel Aviv, the archrivals of the Maccabi soccer team. “What’s the connection between soccer rivalries and the Jewish Councils of the Holocaust?” the legal historian wondered.
It turned out that there is no connection, of course, apart from the fact that, like “kapo” – a term used to refer to a concentration camp prisoner who was assigned by the SS to supervise forced labor and carry out other tasks – “Judenrat” is a pejorative that alludes to negative, faulty, immoral behavior. In Dr. Brot’s view, the graffiti vividly reflects public discourse in Israel concerning the complex phenomenon of Jewish collaboration with the Nazis.
“There is no doubt in my mind that if he were asked, the person who wrote the graffiti would not even be able to explain what a ‘Judenrat’ was, but he does know that it’s a derogatory word,” she says.
Examples are not lacking outside the realm of sports, too. Libel suits are still being filed in Israeli courts over the use of terms such as “Judenrat” or “kapo” as insults. Often, in confrontations between civilians and police or soldiers, these and similar epithets are hurled at the agents of law enforcement. Politicians and public figures are also sometimes the targets of taunts drawing on that lexicon.
Brot, who has studied the highly charged, delicate and fraught encounter between the Holocaust and the law, has devoted the past several years to a pioneering study of the way the Jewish judicial system in DP camps in Germany and later in Israel (after it was established) has addressed the issue of Jewish cooperation/collaboration with the Germans in World War II.
“Despite the passage of time, these terms continue to be used as derogatory terms, especially by people who don’t know the slightest thing about their origin,” notes Brot, who herself is the daughter of a mother who was the sole survivor in her Dutch-Jewish family following the Holocaust. (“The subject has always been with me,” she says, “even if its presence was generally silent, as my mother was one of those who didn’t talk about it.”) “Some people make dangerous use of simplistic analogies, based on historical ignorance, for political reasons. What remains of this sensitive, conflicted and complex issue is superficial images and stereotypes.”
In the preface to her new book, “In the Gray Zone: The Jewish Kapo on Trial” (Hebrew, published by the Open University), Brot writes how, “I was aware that I was dealing with an unprecedented Jewish phenomenon, which not only has not been resolved to this day, but which became a special type of taboo over the years: Everyone knows about it but no one wants to go near it,” she writes. She describes the phenomenon as “the world of shadows of the Holocaust period.” It’s an “almost completely closed world,” she adds, “which belongs to the cognoscenti, and which scholarly research hardly deals with, certainly from a legal perspective.”
“In the Gray Zone” opens with an account of a lynching perpetrated by Jews against other Jews immediately after the war, continues with a survey of the trials conducted by Jews against Jews in the displaced persons camps of occupied Germany, and concludes with the “kapo trials” held in Israel from the 1950s through the 1970s.
This chapter in the history of the Jewish people – both the collaboration with the Nazis and the trials that followed – has been almost completely forgotten. And not by chance, you argue.
Brot: “The collective memory and its expression in the public dialogue are wrought by people. Israeli society, which emerged from a difficult struggle that claimed many lives – the War of Independence – strengthened itself with the aid of heroic tales of wars of the few against the many. Accordingly, one can understand the choice at that time either to castigate or ignore the Jewish kapos, who represented a moral breakdown, a loss of values, physical assaults on other Jews, betrayal or informing on others. They were perceived by the public – survivors and sabras alike – as representing the destructive and immoral aspect of the German occupation. These were not the materials from which stories of nation-building could be forged. But what was the case back then, is no longer the case today. The problem is that it’s very difficult to alter such images and representations; an ongoing effort is required, especially in education.”
Brot spent six years researching her subject in archives in Israel and abroad, discovering previously unknown documentation in the process. “Many people asked me how I could cope over time with these accounts of atrocities,” she says. “It was a difficult experience, but I admit that I never grew inured to the horrific testimonies. I try to read them through the eyes of a researcher who wishes to understand a human-Jewish phenomenon.”
In the course of her comprehensive study, she acquainted herself with the singular approach to the issue taken by Jewish tribunals in both the DP camps and later in Israel, and which employed extraordinary terminology such as “complex victims” and “gray zone.” The latter was coined by Primo Levi, the Italian writer and Holocaust survivor.
Brot: “He was characterizing the space between the victims and the criminals, a space in which the boundaries between good and evil and the distinctions between victim and victimizer are blurred, a space fraught with moral dilemmas that do not admit of absolute answers – as the ‘gray zone.’”
It’s in this “gray zone” that the “complex victims” live and act: individuals who are at one and the same time victims and victimizers. “The reality of the mass atrocities and the prolonged rule of terror blurred the boundary between victim and perpetrator,” she observes, “and thereby created a distinctive type of victim. These were ‘complex victims,’ which means individuals who were victims of a system of oppression and violence but at the same time harmed other victims.”
Criminal law has trouble dealing with people like this, because they don’t fit the guilty/innocent dichotomy.
“From the legal perspective, the difficulty involved is dramatic. The law is hard put to cope with the intricacy of a situation in which victim faces victim, and which departs from the simple binary structure of innocent victims and criminal perpetrators. It is difficult for the judicial system to address the figure of the complex victim, who is not absolute evil but also not absolute good. In other words, these are imperfect victims: It is no easy task to exercise regular judgment in regard to such an irregular situation. The law, with its binary thrust – either guilty or innocent – must reach a decision, but is hard-pressed to pass judgment in cases that are not amenable to an unequivocal decision. And that is precisely the character of the collaboration phenomenon: It arouses moral dilemmas that are far from being resolved.”
When considering Jewish collaborators with the Germans, it’s necessary to draw a distinction between different echelons, institutions, periods and places. The Judenrat – aka Jewish Council/Council of Elders – was the institution that managed and was responsible for life in the ghetto and for executing the Germans’ orders. In most of the ghettos there was also a “Jewish Order Service” (usually referred to as the “Jewish Police”), which was the council’s executive arm. This body was authorized to use force to carry out the directives of the Judenrat, which were in effect the orders of the Nazis. Lowest in the collaboration pecking order were the functionaries in the camps, among them “camp elder,” “kapo” and “barracks elder.”
A shift in approach
Although the writer of the anti-Maccabi Tel Aviv graffiti used the term “Judenrat” in a negative sense, as an insult, research on this subject has actually undergone a substantive shift of approach in recent decades. Such leading Israeli historians as Yechiam Weitz, Hanna Yablonka, Gideon Greif and Tom Segev, have dealt with this subject from various platforms. In 2015, journalist Itamar Levin put the issue back on the agenda by publishing a remarkable book, “Kapo on Allenby,” about Jews who were tried in Israel for abetting the Nazis.
The current approach is not to generalize about “Judenrats” but to focus on the Judenrat in a specific ghetto. As Brot describes, “There are as many different Judenrats as there are forms of human behavior in times of occupation, terror and annihilation. The vast majority of the actors in this story were people like you and me. They were not ministering angels but neither were they the devil incarnate. They were ordinary people who were caught up in extraordinary circumstances and in the most inhuman conditions one can imagine.”
Under such conditions, she adds, “a person wants to survive, a person wants to live, and the question is how a society that is trying to cope with its past – in this case, Israeli society with the Holocaust – apprehends and perceives collaboration in extreme conditions. Is that society capable of grasping collaboration as a means of survival? In the first decades of Israel’s existence, that was incomprehensible. Survival without any signs of taking up arms or physical rebellion was not considered worthy survival. I’m not certain this approach has changed – maybe it has been modified.”
Still, some of these Jews were tried and convicted of sadistic behavior and of meting out abuse for its own sake.
“A minority of them – and I emphasize, a minority of them – were cruel. They were the exceptions. The people who were inordinately cruel were a minority of a minority.”
Is it possible to estimate the extent of the collaboration?
“The phenomenon existed in every ghetto and in every camp in different periods and on different scales. Neither the occupier nor the occupied can exist without a connecting element between them, and those are the collaborators. Collaborators operate in the space between the occupier and the occupied, and constitute the link between the two sides.”
You write that Jewish collaboration with the Germans was an “unprecedented phenomenon” and that no other issue stirred such emotional turmoil among Jews during – and following – the Holocaust. Why is this – after all, every human society displays a broad range of individual behavior?
“Over the centuries, cooperation between Jews and those who ruled them, or the countries they lived in, was one of the foundations of the community’s existence, enabling them to maintain an autonomous way of life. But collaboration during the Holocaust is a completely different story, because it occurred in the context of a murderous regime whose goal was to eradicate the Jews.”
Legal proceedings conducted by Jews against Jewish collaborators were instituted immediately after the war’s conclusion. They were held in DP camps in the American zone of occupied Germany. While researching them, Brot also found a family connection. In the summer of 1945, before Zerach Warthaftig – who would later become a lawyer, a member of Knesset and minister in several Israeli governments – set out as an emissary for world Jewry to the DP camps, he sought the blessing of her grandfather, Rabbi Shmuel Halevi Brot, a Torah authority and moral beacon for the young generation in the Mizrachi (national-religious) movement. “Our first duty and action, now that the war is over, must be the seizure of the 200 Jewish collaborators with the Nazis or their henchmen in the forced-labor camps, and to try them with the full rigor of the law,” Rabbi Brot told Warhaftig.
In the absence of a state or of criminal-justice institutions, Jews in some DP camps established special “rehabilitation commissions,” courts of a sort, to deal with the collaborators among them. These courts tried defendants on just one charge: having perpetrated “harmful actions against the Jewish people.”
Says Brot, “The collaborators’ behavior was viewed as an offense against the Jewish people, not against any individual person. These were trials of social-national purification, intended to demarcate anew the social and moral boundaries of the Jewish nation.”
On the basis of the testimonies they heard, the judges tried to formulate a kind of scale of behavior, to distinguish between actions by a ghetto policeman, block leader in a concentration camp or a kapo that constituted “harmful action against the Jewish people” – and behavior constituting an action that was not unacceptable. Among other cases, they dealt with the behavior of senior figures in the Jewish police who took part in rounding up the Jews in ghettos, so the Germans could carry out their “selections”; with the behavior of a block leader in a camp while waking up prisoners or during food distribution; and with the way a kapo treated the Jewish prisoners who worked in his group.
Brot: “The testimonies raised troubling questions about the behavior of Jews toward other Jews – all of them victims.”
One of the accused who faced trial by such a commission, Brot learned during her research, was Dawid Najman, from the Polish town of Ostrowiec, who was a member of the Jewish police in the local ghetto. The proceedings involving him revolved around a German Aktion in January 1943. The charge against Najman was that his actions enabled the Germans to discover the hiding place of a group of Jews, as a result of which 20 of them were shot by the S.S. The punishment: Najman was banned from taking part in local Jewish community life and from holding office in any Jewish institution.
Chaim Aleksandrowicz, a policeman in the Kovno (today Kaunas) ghetto, was convicted of beating Jews and forcing the sick to work. As punishment, he was prohibited from taking part in public activity. Yaakov Lieberman, also from Lithuania, was accused of having reduced the bread ration allotted to prisoners when he was in charge of the kitchen at the Kaufering concentration camp in Germany. He too was banned from participating in public activity. “The surviving remnant and the Jewish people must spared the pleasure of being led by ‘Fuehrers’ of this sort,” the judges wrote.
Dawid Honigman, a Jewish policeman in a labor camp near Dachau, was tried for beating prisoners who asked for soup, and convicted of committing “harmful actions to the Jewish people.” The judgment stated, in part, “The Rehabilitation Commission took into account the fact that the accused was an average sort of policeman and not a clear killer, and meted out a moderate punishment, in order to give him an opportunity to reintegrate himself in a better way into the Jewish society.”
Brot says that such rulings are to the credit of this unusual judicial system: The Jews who served in it were, in some cases, survivors of ghettos and camps themselves. They were well acquainted, sometimes personally, with the issue on which they were passing judgment. As such, they were able to differentiate, distinguish and classify types of behavior in the war. In a “regular” legal system, this could well have disqualified them from serving, but like the Holocaust itself, adjudication in such cases was also not regular in any sense.
The court reserved a separate charge for the cruelest of those on trial: They were declared “traitors to the Jewish people,” the gravest opprobrium for a Jew. One such accused, Ruchela Bursztajn, was a kapo in the Stutthof camp, near Danzig. According to Brot, She was accused of frequently beating female Jewish prisoners, handing them over to the German murderers for stealing potatoes and of turning a dog loose on female prisoners on the day the retreating Germans evacuated the camp, in order to spur the inmates to move faster. She was convicted in November 1948 by the Jewish court in a DP camp, and declared a “traitor to the Jewish people.” On appeal, her sentence was reduced and that mark of Cain was erased.
Norbert Yulis, who held a senior post in the Czestochowa concentration camp, was convicted of displaying cruel and extreme behavior toward the prisoners. In 1949, the judges declared him to be a traitor to the Jewish people and added, explicitly, that as such he was deemed no longer to belong to that people.
Legal proceedings against Jewish collaborators in the war resumed several years after Israel’s establishment, and were based on a specific statute: the Nazis and Nazi Collaborators (Punishment) Law, enacted by the Knesset in 1950. Despite its name, the law was actually worded for use in trials against Jews, not Nazi criminals. It constituted retroactive and extraterritorial legislation – assuming the authority to punish for deeds committed prior to its enactment and in foreign territory.
“It was a departure from the basic principles of criminal law of ‘no punishment without prior warning,’” Brot explains, “in cases when the law of a state is applied to the territory within its boundaries.”
Under the 1950 law, dozens of criminal trials were conducted against Israeli Jews over the course of the next 25 years, approximately. Some of the accused were sentenced to prison terms, one was condemned to death, though his punishment was later reduced. Interestingly, even though the purpose of this legislation was to pass judgment on “collaborators,” that word does not appear in the text of the law itself. The lawmakers were unable to reach a decision on this complex issue. The most important use made of the law was in the trial of Adolf Eichmann – the only person ever to be executed in Israel in the wake of a court ruling.
For her part, Brot is extremely critical of the law: “It was the result of a political and sentimental approach, which came in response to pressures from Holocaust survivors. It tried to resolve this issue perfunctorily, in one stroke: ‘guilty or not guilty.’ In that sense, the rulings do an injustice to complex historical issues and aim to compress fraught, social-moral questions into a Procrustean bed of rigid legal categories – like ‘injury,’ ‘aggravated injury’ or ‘assault,’ deriving from the criminal code of an orderly sovereign state.”
Elimelech Rosenwald, for example, was charged with assault and causing bodily injury during the period in which he served as a kapo in the Blizyn labor camp in Poland. He was convicted of one offense of “simple assault,” and sentenced to a suspended sentence of one month in prison. In light of this and other cases, Brot asks tough questions: How is it possible, for example, to use the formal legal term “assault” to describe whipping by a Jewish prisoner? How does one express disgust at the behavior of a policeman who reveals the hiding place of Jews in the ghetto during an Aktion? Is a clause in the criminal code capable of reflecting such a horrific situation? And what is theft, in this context? We’re used to thinking of it as the taking of an object from its owner illegally. But if we apply the familiar concept of theft to life in the ghetto, Brot points out, it takes on a completely different meaning. What attitude should we take toward bribery? In the normal world, bribery is a criminal offense, but in the camps and ghettos, it was a way of life.
“The distortion lies not in the fact that the trials involved people who lived and acted during a terrible time, but in the choice to apply regular criminal charges to them. These criminal clauses are taken from the reality of a modern sovereign state, clauses that reflect the state’s values, but which are applied to a reality that was the complete opposite,” she explains.
The ostensible adherence to the law sometimes went hand in hand with a court’s failure to understand the circumstances of the case.
“Perhaps the accused was two-faced and also saved other women and also endangered herself, but also beat and killed. But even though that is possible, in terms of purely logical thought, it is still difficult to understand why a person who risks himself for the benefit of another and endangers himself – not in a situation of some trivial danger but in peril of death – in circumstances of a detention camp, why this person would behave at one and the same time as a sadistic murderer.” The author of those words was Judge Zeev Tzeltner, in the verdict he delivered in the case of Reya Hanes, a senior kapo at Birkenau. According to Brot, Tzeltner did not understand the situation he was dealing with. “A prisoner assigned to a certain role was entitled or duty-bound to use force on other prisoners, but could also could offer them help. That was one of the aspects of life in the gray zone,” she explains.
There’s an additional problem here. Reading testimonies from trials of Jewish kapos, one might think that the suffering of Jews in the war was inflicted exclusively by other Jews, that the Germans had no role in this story.
“That is of course logical in terms of the essence of criminal law,” says Brot. “Witnesses for the prosecution had to focus on the accused’s behavior, which they related in court. The Germans were not part of the story that was being told there. The result was a distorted picture of the division of responsibility between Jews and Germans.”
In this connection, the historian cites the remarks of a defense lawyer who spotted the distortion: “Here we have Jews trying to present an account as though the Jews themselves were responsible for their woes in the camps… as though the Germans were complete saints… as though the kapo alone was guilty of starving the prisoners… a misguided approach that underlies all these trials.”
The phenomenon of complex victims is not confined solely to the Holocaust but is still in evidence in the present. Brot offers two examples. “Today’s reality has spawned the shocking phenomenon of child soldiers – in other words, the ‘mobilization’ of children into various military frameworks. Child soldiers are a classic example of complex victims. They are a victim in every sense of the word: In many cases they are kidnapped from their parents, undergo brainwashing and other terrible ways of ‘being tamed’ – but at the same time they do harm to others when they take part in belligerent events.”
Another example is a battered wife who lives in a violent reality and at one point kills her partner. “That woman is a complex victim,” Brot explains. “You have to read the judgments handed down by the judges who dealt with the case of Carmela Buchbut [who killed her abusive husband in 1994] to understand how difficult the representation of a complex victim makes the trial.”
Good vs. evil
Among the documents that Brot found, there is also evidence, however, that some Israeli judges showed understanding of the complex situation they were dealing with. For example, a 1960 verdict handed down in Tel Aviv District Court states, in part: “Once more, after many years, we encounter the tragic problematics of inflicting punishment on a Jewish defendant who underwent the hellish agonies of the Nazi concentration camps himself, and amid these conditions perpetrated offenses against his persecuted brethren under the Nazis and Nazi Collaborators (Punishment) Law. If the endeavor to determine the degree of punishment is difficult in general, it is immeasurably more so in these cases.”
In another case, Judge Benjamin Cohen, who would later become president of the Tel Aviv District Court, convicted a defendant of several offenses under the Nazis and Nazi Collaborators (Punishment) Law, and then wrote: “I deem it right to note for the record that I have no reason to doubt that the accused, prior to the Nazi Holocaust, was a decent person with an average temperament and was a good Jew all year long.” Cohen went on to say he was convinced that the accused acted no differently from the way any other ordinary person would have behaved having been given power in a society where the basic human norms had ceased to be observed.
Brot applauds this approach: “Those remarks reflect a humane and wise viewpoint, which seeks to judge a person based on the circumstances of his life as a policeman in the ghetto and the labor camp, and not from an arrogant, patronizing position of one who lives in an independent, sovereign state.” (There is no surviving record of the punishment meted out by Cohen to the defendant.)
Particularly relevant and resonant are the words of Supreme Court Justice Shimon Agranat in the Rudolf Kasztner trial in the 1950s, which became one of the great symbols of the complexity of Jewish cooperation with the Nazis in the Holocaust.
“Not every act of cooperation can be termed ‘collaboration,’ and not every person who had contact with the Nazis and lent them a modicum of assistance can be stigmatized as a ‘collaborator,’” Agranat wrote. “It all depends on the motives that induced him to behave as he did. If these motives do not appear, in the eyes of the many, to be unacceptable or morally invalid, it will not be justified to brand his behavior as collaboration. We must not cast aspersions on a person only because he knowingly committed an act that might advance the Nazis’ goals, when it turned out that he did so from motives that are valid and not morally flawed. We must not call such a person a collaborator.”
Brot rejects a common argument presented in historical research to the effect that the first time Israel confronted the atrocities of the Holocaust in a legal setting was in the Eichmann trial, which began in 1961. That view is undermined by archival documentation from a series of trials against Jews that took place before Eichmann was abducted to Israel, she asserts.
“It can be stated as a general rule that public law in Israel recognizes only the ‘big’ Holocaust trials: of Eichmann and of John Demjanjuk. Those trials, in which witnesses recounted their life of agony in the ghettos and the horrors of the camps, presented to the Israeli public the ‘big’ Holocaust – the annihilation in its full horror. In those trials, the Jews were presented as pure victims in the face of the criminal: the Nazi oppressor,” says Brot, explaining that in contrast, little documentation remains from the trials of Jews, which were held earlier and dealt with those same ghettos and camps.
Her explanation for this is simple: The general public, which by its nature lacks the ability, the time and the patience to delve deeply into issues, looks for a story in which the dichotomy between “good” and “evil” is clear and unequivocal. The public found what it was looking for in the Eichmann trial, in which a Nazi criminal was in the dock and Jewish survivors faced him as a monolithic group – “absolute good against absolute evil, against the ‘real’ criminal,” as Brot puts it. In contrast to the survivors who were defendants in the Jewish trials, the survivors who appeared at the Eichmann trial were unblemished. All were portrayed as “perfect.”
From the moment of “victory,” when Eichmann was executed, there was no longer a need for internal confrontation of Jews by other Jews – which entailed denunciation of Jewish behavior, self-cleansing and purification. “The good won decisively,” says Brot, “so it was no longer necessary to go on picking at the internal wound.”
Moreover, the historian detects in the Eichmann trial an educational, didactic dimension, served up in an unabashedly Zionist ideological wrapping, at the center of which the State of Israel is perceived as the focal point of the Jewish people’s redemption and the exclusive solution to all the ailments of the Diaspora. However, no values of any worth could be derived from trials of Jews.
In recent years, the subject of Jewish collaboration with the Germans has again surfaced in the context of the turbulent debate over the part played by the people of Poland in the persecution of Jews in the Holocaust. The Polish leadership claims that this was a marginal phenomenon, a matter of isolated individuals who did not represent the Polish people as a group, and that such a phenomenon exists in every society, including among Jewish people. The remarks of Polish Prime Minister Mateusz Morawiecki last year, according to which “there were Polish collaborators, just as there were Jewish collaborators,” sparked a furor because of the parallel he drew between the two peoples. Brot, in reply to my question of whether the Polish leadership’s approach is understandable in the light of her research, is careful to make a clear distinction between the two cases.
“The statements by the prime minister of Poland and my research study have two different, even conflicting, points of departure,” she says. “Poland is today trying to prettify, cover, shut away, diminish and generally assert absolute verities and create a national story that will make people forget the behavior of Poles during the Holocaust. This is consistent with the spread of nationalism in Poland and in the countries of Central Europe. My point of departure is the reverse: I want to discover, to uncover, to launch a public discussion free of moral judgment, prejudices and stereotypes. My point of departure is that Jews collaborated with the Germans. The phenomenon cannot be hidden or ignored. Collaboration between Jews and Germans took place throughout the Holocaust, in the ghettos and the camps, and it is part of the story of the Jews’ behavior, exactly like the stories of their heroism.”
Brot emphasizes that she does not see the Jews as a “chosen people” but as “a people like all peoples, which found itself in one of the most overwhelming human nightmares, a man-made nightmare.” At the same time, she refuses to accept any comparison between Jewish collaboration with the Nazis and the collaboration of other nations with them. “Jewish collaboration was a typical product of the German regime of murder, which, perhaps for the first time in human history, turned its victims into an instrument of their own annihilation, both by creating a mechanism of collaboration and by erasing human life and reducing it to the level of sheer survival. From this perspective, Jewish collaboration does not resemble Polish or other collaboration.”
Can we, who are living 80 years after the outbreak of World War II, comprehend a phenomenon like this and the attitude toward it?
“The more documents that piled up on my desk, and the more I read and reread them, the more I understood that I understand nothing. I understood that no one has the right to come today and judge people for their behavior in the lower depths of hell. Accordingly, the speed with which people arrive at their opinions, without understanding anything, or from the comfort zone of a padded chair, an air conditioner and an independent country – all of that says more about the judges than about those being judged.”