Dear Ms. McLellan:

My understanding is that the international press has accused Canada of lagging behind other countries in its prosecution of Nazi war criminals, and that the current increase in visible activity of your war crimes unit is your response to this accusation.

In an effort to assist you in estimating what the international norms are in the prosecution of Nazi war criminals, I bring to your attention the case of Dr. Israel Kastner accused in Israel of collaborating with the Nazis in Hungary during 1944-1945.  As Israel is one of the leading repositories of victims of the Nazis, and as it more than any other country takes a vocal stand in opposition to Nazism, we may expect that its treatment of Nazi war criminals will be exemplary, and that it will offer a model for Canada to emulate.

The Kastner Trial

My information concerning the Kastner trial is taken from Akiva Orr, Israel: Politics, Myths and Identity Crises, Pluto Press, London and Boulder Colorado, 1994, ISBN 0-7453-0766-3, Chapter 9, "The Kastner Case, Jerusalem 1955," pp. 81-116.  I present Akiva Orr's account from his own point of view, without digressing to speculate about its accuracy.

The Kastner case is as follows.  In 1954, a 71-year-old Hungarian Jew, Malkiel Greenwald accused another Hungarian Jew, 48-year-old Dr. Israel Kastner � both living in Israel � of collaborating with the Nazis in Hungary in 1944-1945.  The Israeli government's response was instructive, and contrasts starkly with the response of the Canadian government in similar situations.  The Israeli government initiated a libel action against the accuser, Greenwald!

Author Akiva Orr relates the thoughts that arose in the minds of Israelis at the time of these events:

Who is this Greenwald, and who is this Kastner?  What exactly did Greenwald say about Kastner?  Where did he say it?  Why didn't Kastner himself sue for libel?  Why did the government find it necessary to sue an individual for libelling another individual?  How was it possible for a Jewish collaborator with the Nazis to live in Israel for nine years without being publicly denounced?  (p. 81)

The answers to these questions, much abbreviated, are what I will discuss below.

I begin with the leading figures in the case: the accuser Greenwald had arrived in Palestine in 1938, and in the course of mailing pamphlets to members of the political party Mizrahi, accused Kastner of assisting the Nazis in their extermination of some 500,000 Hungarian Jews, and called for a public enquiry.  The accused Kastner, in turn, had assumed various leadership roles within the Jewish community in Hungary during the war.  He arrived in Palestine in 1946, joined Ben-Gurion's MAPAI party, occupied several prominent positions, among them Spokesman of the Trade and Industry Ministry, Director of Broadcasts in Hungarian and Rumanian, Chief Editor of Uj Kelet, and Chairman of the Organization of Hungarian Jewry.

Although accuser Greenwald � being sued by the Israeli government for libel � was the defendant in the trial and Nazi collaborator Kastner merely a witness for the prosecution, Orr points out that "it was the pressure of the questions of the defence, and his [Kastner's] own evasions, contradictions and lies that transformed Kastner from a witness into a defendant" (p. 82), and thus transformed the trial into the "Kastner trial."

What was Kastner's crime?

Adolph Eichmann, arriving in Budapest on 19 March 1944, concentrated first on shipping the 500,000 of Hungary's Jews living outside Budapest to Auschwitz for extermination.  To accomplish this task, Eichmann was under-staffed, having only his own SS team of 150 men, and with only a few thousand Hungarian soldiers available for assistance.  Given the shortage of manpower to administer the mass deportation, Eichmann's plan could have been resisted and perhaps even largely defeated � many of the Jews were young, had had military training in the Hungarian army, and so were capable of resistance, or at least of hiding or flight.  And yet the Jews did none of these things, but instead showed up dutifully at the trains.  Why this cooperation?  Because the Jews believed that they were merely being resettled.  Some even made efforts to get on the earlier trains in order to have a better choice of housing in the new settlements:

Given the acute shortage of Nazi manpower and the general retreat of the German Army, Eichmann knew that it was absolutely essential that the destination of the trains be kept secret from the Jews.  Had they known their destination they would have made every effort to avoid deportation, and many could have escaped.  Eichmann knew that the Jews would not trust the Nazis or the Hungarian authorities.  The only people they would trust were their own leaders.  He and his staff had to make sure that the Jewish leaders would not inform the rest of the Jews about the destination of the trains.  (p. 85)

Thus, the key to the successful extermination of these 500,000 Jews was the subterfuge practiced on them by their own leaders.  Specifically, it was charged that even though Kastner was aware of the death that awaited these 500,000 Hungarian Jews, he participated in the subterfuge.  Testimony was presented at the trial, and Akiva Orr presents further evidence, that Kastner was fully informed of the dire fate that awaited the Jews at Auschwitz.  And evidence was also presented of the active measures that he took, or that were taken under his direction, to deceive the Hungarian Jews � for example, Jews arriving at Auschwitz were forced to write postcards saying "I have arrived.  I am well," which Kastner distributed to those still awaiting deportation.  The specific benefit for which Kastner sent 500,000 Jews to their death was that he and some 600 Jews to be selected by himself would ultimately be allowed to travel to a neutral country.  Secrecy and deceit were vital to the success of Eichmann's operation, and Kastner played a leading role in the maintaining of that secrecy and the providing of that deceit:

Instead of information, the Jewish leaders provided the adults with sandwiches and the children with milk for the journey.  Had these had knowledge of hot ovens instead of parcels of cold food, they would have been less ready to board the trains and the whole action of deportation would have been slowed down.  (Rudolph Vrba, in Orr, p. 88)

The plan to sacrifice 500,000 so that 600 could be saved, obviously, had to be withheld from the 500,000.  At the same time, however, it had to be withheld from the 600 as well � for if they were to be informed that they alone were to be saved, this would ultimately have led to the 500,000 learning that they had been condemned.

The Three Paratroopers

As a demonstration of the concreteness and detail of the charges against Kastner, we may note the case of the three paratroopers.  That is, three young Hungarian Jews who had joined the Haganah in Palestine parachuted into Yugoslavia and clandestinely made their way back into Hungary in April 1944 with the mission of, among other things, warning Hungarian Jews of their impending extermination, and of organizing resistance and escape.  One of these, Bela Senesh, was captured crossing the border into Hungary, was tortured, and shot in October.  Concerning Bela Senesh, Judge Ha'elvi writes:

Kastner did nothing for Hannah Senesh.  ...  Kastner didn't visit Hannah in prison, didn't appoint a lawyer, didn't approach the department for POWs at the Swiss Embassy, and prevented Kraus from approaching it, didn't reply to Hannah's appeals to him, didn't send her any parcel, didn't receive her mother who tried, unsuccessfully, to see him, didn't inform the head of the committee, the late Dr. Komoly who was a family friend of the Seneshes and knew Hannah personally, about her being in prison in Budapest.  (p. 100)

Given that even Kastner's best efforts might have been unable to prevent Hannah's torture and execution, his neglect of her is possibly less blameworthy than his treatment of the other two paratroopers.  These two succeeded in reaching him.  Kastner was dismayed at their arrival, informed on them to the Gestapo, and applied the strongest pressure on them to surrender to Nazi authorities.  Judge Ha'levi summarizes the events thusly:

It has been proved that Kastner forced the two paratroopers, with extremely heavy moral pressure exercised secretly and on the basis of false explanations, to give up their duty.  That Kastner informed the head of the Gestapo about the two paratroopers.  That Kastner tried, by his pressure and tricks already mentioned to make the paratroopers hand themselves over to the Gestapo and succeeded at that stage with Palgi.  It had also been proved that these acts were not done on behalf of the paratroopers, but, on the contrary, endangered their lives.

In the end, both paratroopers were sent to Auschwitz.  One, Goldstein, perished there.  The other, Nusbacher, escaped, returned to Palestine, and became head of El-Al, the Israeli national airline.

The Court's Decision

In the end, Orr describes President of the Court, Dr. Benjamin Ha'levi's decision as follows:

He grouped Greenwald's accusations against Kastner into four headings: 1. collaboration with the Nazis 2. "indirect murder" or "preparing the ground for murder" of Hungary's Jews 3. sharing plunder with a Nazi war criminal 4. saving that war criminal from punishment after the war. After an exhaustively reasoned judgment of 200 pages, he ruled that apart from the third charge all charges were true and therefore not libellous.  Charge 3 he found not fully proven, and he fined Greenwald a symbolic single Israeli pound.  He ordered the government to pay the costs of the trial.  (p. 83)

The newspaper headlines next morning were "Kastner has sold his soul to the devil."

The government immediately appealed to the Supreme Court.  It took another three years before the five members of the Supreme Court gave judgment.  Before that, on 3 March 1957, Kastner was shot by an Israeli and died two weeks later.  (p. 84)

The Assassination of Kastner

It is plausible that Kastner's assassination was carried out by the Israeli government to remove an embarrassment who threatened to become a perpetual liability:

Even before the Supreme Court heard the appeal, Kastner was assassinated.  On the evening of 4 March 1957 he was shot outside his house by Ze'Ev Ekstein, who was then driven away by Dan Shemer in a stolen jeep.  The police arrested them in their homes that same night.  Next morning the police had their confessions.  A third man, Joseph Menkes, was arrested a little later.  Shemer and Ekstein were former employees of the Israel Secret Service.  On the day of the assassination an agent of the Secret Service warned his superiors that the assassination would take place that night.  No precautions were taken.  (p. 112)

The Supreme Court Appeal

The Supreme Court overturned Greenwald's acquittal � that is, it decided that the accuser, Greenwald, was indeed guilty of libel.  I would summarize the reasons as being founded on the conclusion that Kastner had not been motivated to kill Jews, but rather had made the best of a bad situation, and chose a path which he felt (rightly or wrongly) saved the greatest number of lives.  So non-punitive was the Israeli leadership toward Kastner that:

In the 1980s a campaign to rehabilitate Kastner started in Israel.  It culminated, on 26 July 1993, in a decision proposed by Mayor Shlomo Lahat to the Tel Aviv city council, to name a street after Kastner.  The resolution was passed by a considerable majority.

Conclusions and Recommendations

(1) The collaboration of some Jews with the Nazis exceeds in magnitude and culpability the crimes of some, and perhaps all, of the non-Jewish East Europeans that Canada's Department of Justice under your direction has singled out for action.  If the Canadian Department of Justice included some of these Jewish collaborators among those singled out for prosecution, it would be seen to be acting even-handedly, and not serving as the instrument of one group in the achievement of its political goals at the expense of another group.  However, the absence of a substantial number of Jewish defendants in Canadian war crimes proceedings suggests the conclusion that these proceedings are politically motivated and discriminatory, and thus are in violation of the Canadian Charter of Rights and Freedoms, as I have argued in several of my earlier letters to you, and most explicitly in the letter of 25 February 1998.

(2) Akiva Orr gives the name of three Israeli assassins: Ze'Ev Ekstein, Dan Shemer, and Joseph Menkes.  I wonder if your Department of Justice has investigated whether any of these three is currently residing in Canada; and I wonder if any of them are resident in Canada, whether deportation proceedings against them should be considered.

(3) In Israel, whether or not to prosecute for Nazi war crimes is decided not on the basis of the magnitude of the crimes or of the weight of the evidence, but rather on the basis of political considerations.  In this regard, Canada does not need to wonder whether it should follow the Israeli example � under your direction, it has already begun to do so.  In Israel, a Jew who handed Jewish resistance fighters over to the Gestapo, who sent 500,000 Jews to their deaths, is not prosecuted; in Canada, a Ukrainian who wore the uniform of a group some of whose other members were involved in beatings is prosecuted.  Jews in Israel are not prosecuted for war crimes; Ukrainians in Canada are prosecuted for war misdemeanors.  What conclusion is one to draw from such international comparisons except that the punishment of war crimes is of secondary importance, and that the achievement of political goals is paramount?

Although Canada does follow the Israeli model in employing Nazi collaboration prosecutions as a political weapon, it deviates from the Israeli model in that Israel is particularly lenient in punishing Nazi war criminals (if we may generalize from the Kastner example) whereas Canada is particularly severe.  The single instance of Kastner, then, suggests that Canada need feel no concern that its Nazi collaboration prosecutions are insufficiently energetic.

(4) If Canada were to follow Israel's example, it would � in at least some cases � not prosecute the accused, but intervene on behalf of the accused to sue the accuser for libel.  If such a course is not legally feasible in Canada, then in attempting to follow the Israeli model, the Canadian government might at least place as much of its resources as was permissible by law at the service of the accused Nazi collaborator, and as little as possible at the service of his accuser.  Also, following any judgment against a Canadian based on the accusation of his having collaborated with the Nazis, the Israeli precedent suggests the legitimacy of the Canadian government appealing on his behalf, or if not feasible under Canadian law, at least doing everything within its power to support an appeal on his behalf.  Also, the Israeli model suggests that occasionally streets can be named after someone accused of war crimes but against whom legal proceedings have failed.  These suggestions seem preposterous, of course � and yet they follow from the precedent set by the state of Israel.

(5) If the precedent set by the Israeli supreme court decision were followed, then Nazi collaborators in Canada would be allowed the defense that no matter how horrific their crimes, the alternative of not committing them would have brought even more horrific consequences.  Thus, Kastner argued that sending 500,000 to their deaths was excusable because the alternative would have seen the sending of 500,600 to their deaths � and his argument was accepted by the Israeli supreme court.  And if such a defense can be allowed for egregious collaboration, it should all the more be extended to perfunctory collaboration as well.  Following this precedent, then, any former camp guard being prosecuted in Canada today should be able to successfully argue that his refusing service with the Nazis would have brought no better consequence than to add himself and his family to the lists of the murdered.

(6) The example of the assassination of Kastner should warn Canadian law enforcement agencies of the possibility that Jewish thinking may not be content to leave the outcome of war crimes proceedings in the hands of any particular justice system, but may prefer to improve the political satisfactoriness of any formal outcome by means of assassination.

(7) Because Jews were often present at the locus of Nazi crimes, they are often in the best position to provide inculpatory evidence against an accused; but for the same reason, they are also often in the best position to provide exculpatory evidence.  However, it appears that Jewish ideology justifies bringing pressure to bear against Jews offering exculpatory evidence.

For example, we see reference being made to such inhibitory pressure in the following questions put to Kastner by Attorney General Haim Cohaen:

Before appearing as a witness in a court did you consider the problem of whether it is a national crime or national sin to testify on behalf of [SS member] Becher? ... Did anyone tell you that you committed a national crime by testifying on behalf of Becher?  Did they tell you in the [Jewish] Agency that you committed a national crime? ... But do you know of a case apart from Becher's [where a Jew testified on behalf of a Nazi]?  (pp. 102-103)