Holocaust and Law

Holocaust and Law


One of the most interesting courses offered at the Faculty of Law is entitled Holocaust and Law, taught by Attorney Aryeh Barnea. We met the lecturer to discuss the fascinating connection between the Holocaust, the law, morality, and the role of the legal expert.

-Yuval Simhi-

“I’m the son of Holocaust survivors,” Attorney Barnea begins. “Of all the subjects I have been involved with over the course of my life, this is the only one that I can’t drop. I work in education out of a sense of mission. I work in law out of a profound interest. But the subject of the Holocaust is always with me and never leaves me. I have written two books and many articles on the subject. As well as teaching the course at the Faculty, I also lecture on the subject in various civilian and military forums. For eight years or so, I served as chairperson of Lapid, a movement that aimed to inculcate the lessons of the Holocaust. For the past eight years, I have served as chairperson of Amcha, which provides psychological and social support for Holocaust survivors.” In addition to teaching the weekly class at the Faculty (in the second semester), Barnea is also a school principal, a lecturer, and an attorney. 

“Even before I began to work as an attorney, it was clear to me that this wouldn’t be the main focus of my life. I only devote a small part of my time to law. For me, law is always a tool – not a goal or a value. I see it as a means for serving human and civil rights, and these rights serve humanistic values, a category that stands above law. Another area of interest for me has always been education. One fine morning I got a telephone call from the Municipality of Jerusalem. They offered me a chance to work as a high school principal, even though I didn’t have a teaching license, let alone any experience running schools. But despite that I decided to take on the challenge. For six years, I was the principle of Denmark School in the Katamonim neighborhood, which was slated for closure at the time. The school not only survived, but we won municipal and national education prizes. 

 Over the previous decade, Barnea was principal of the Herzliya Gymnasium in Tel Aviv. He now works as principle of the regional high school in Be’er Tuvia. “I’m very glad to say that I have a chance to put my beliefs into practice there. This is a school that accepts every student and provides scholarships for all those in need. No student is left outside the academic framework for financial reasons. We have over 20 different academic and vocational tracks.” From time to time, Attorney Barnea also engages in legal practice. “Every few months someone thinks of me and asks me to write a contract or serve as an arbitrator. Apart from that, I draw on my legal education in my work as a school principal when I deal with the school constitution, contracts with suppliers, and so forth.” 


  Attorney Aryeh Barnea

 Attorney Barnea explains how the idea of the course was born: “I met with Professor Alex Stein, who was the deputy dean at the time and was a classmate of mine from the Faculty of Law. I mentioned that it seemed to me that the Faculty didn’t have a clear policy regarding the connection between law and history, and I illustrated the point by referring to the most important subject for me. Alex suggested that I teach a course on the connection between Holocaust and law. Professor Mordechai Kremnitzer, who was a teaching assistance in our penal law class years before, came to listen to a lecture. I chose a subject from the field of criminal law that would interest him and since then – 15 years ago – I have been teaching the course.” 

Attorney Barnea explains that his main goal as the lecturer in the course is to influence the students’ worldview. “Apart from my personal satisfaction, the main point of the course is the connection between historical, legal, and value-based issues. I also enjoy maintaining a connection to the Faculty, both for nostalgic reasons and because many of the lecturers taught me or studied together with me. I think our Faculty is an excellent institution.” 

When asked about the interface between Holocaust and law, Attorney Barnea discusses the case of the trial of Israel Kasztner: a criminal libel case that was heard in accordance with the decision of the attorney general after Kasztner was accused of aiding the Nazis. “Today MK Merav Michaeli, who is Kasztner's granddaughter, called me and we discussed libel law as she is due to give a lecture on the subject. Libel law in Israel changed dramatically following the Kasztner trial. This is an example of a case in which a legal ruling reflected a new value-based approach. After the trial, for example, Attorney General Chaim Cohen ordered that no more indictments should be served against Jews whose names had been mentioned as ostensible collaborators with the Nazis. Kasztner had not actually been indicted, but in the wake of the affair Chaim Cohen (who was also the prosecutor in part of the trial) reached the conclusion that Israel’s Nazi and Nazi Collaborators Punishment Law was not intended to apply to Jewish collaborators but to those from other nations. The Jews were the victims, and you can’t judge them.” 

Another story that illustrated the moral questions that law raises in the context of the Holocaust concerns German legal experts. “In 1942, German legal experts serving in the Ministry of Justice in Germany complained that the murder of Jews was not formally defined in legislation. They weren’t bothered by the murder itself, but they wanted things to be properly organized… They went to see their minister, and the minister met with Heinrich Himmler, head of the SS, who received jurisdictional authority over all the Jews under German rule and influence. The slaughter continued under the new legal arrangement. This is a thought-provoking story. Must a decision be moral before it can be professional? Must the law itself be moral? These are the issues we discuss in the course. The hero of the film Mephisto is an actor who is often invited by the Nazis to perform for them. The actor had been opposed to the Nazis, but he enjoys the honor the regime grants him. His friends are appalled by his behavior, but he claims that he is “just an actor” with no connection to morality. A lawyer cannot seriously make the same argument: you are never just a lawyer. By virtue of being a lawyer, you serve certain values, and if you do not do so, you will bear the consequences. The shock we experience as the result of our exposure to the Nazi period should influence our lives.” 

Another issue the course discusses is that of the prosecution of Nazis. For example, how should we respond to the claims raised by Eichmann’s attorney that his client had been apprehended contrary to the laws of the country in which he was resident, so that the subsequent legal proceeding was improper? Eichmann’s attorney also claimed that the legality of the trial was marred by double retroactivity: Not only was the law on account of which Eichmann was tried enacted after the actions attributed to him were committed, but it was passed by a state that was not even in existence at the time the acts were committed. “The court rejected both arguments. On the former aspect, it determined – on the basis of extensive international case law – that the question of the violation of the laws of the third country in which the defendant was captured does not affect the authority of the Israeli court. The relevant question is whether, once he reached Israel’s jurisdiction, he was treated properly, as was indeed the case. As for the second argument, the court established that the content of the Nazi and Nazi Collaborators Punishment Law is declarative in nature. All the principles in the law, such as the prohibition against murder, are well known and well established. Eichmann was aware of these prohibitions and could reasonably have anticipated that if the regime changed in his country, the Nazi leaders would be prosecuted. In other words, it is reasonable to assume that he anticipated such a punishment. The fact that it was Israel that prosecuted him, rather than another country, makes no difference. Even if Israel had been established the day before, it was merely applying well-established principles in a declarative manner. In this context, Israel argued that in the wake of the Second World War, the balance between the principle of sovereignty and the principle of rights should be changed. In some instances, it is justified to intervene in the affairs of a state that is grossly violating human rights. The problem is that today this legal change is being used against us…” 

A further issue raised in the course that was also raised in the Eichmann trial concerns the limits of obedience. “Eichmann said that all people are supposed to obey the law, and even more so a soldier or policeman. In my opinion, the general obligation of obedience is the result of agreement with the values and regime of the state. A humanist and democrat should observe the laws of a democratic state even if he disagrees with them, because the norm of lawlessness is more dangerous to these values and this regime than an immoral law. Of course, it is right to act by legal means to change the bad law. In Israel, the Declaration of Independence defines our values, and our regime is democratic. If I were convinced beyond all reasonable doubt that Israel is no longer a Jewish state or a democratic state, I would consider revolting against it and against its laws. I prefer to grind my teeth and accept bad laws rather than encourage the collapse of the system and much greater damage to my values. Accordingly, I will obey any order that is not grossly unlawful. The situation is different in the case of an undemocratic regime, where the possibility that the regime might collapse is of no concern to me. To return to the German soldier: if he is a humanist, he cannot accept the values of the state as they are. Clearly he must not vote for Hitler or volunteer to take part in the crimes committed by the Nazi state. If he is brave enough, he should act to encourage the collapse of the Nazi regime.” 

What current-day legal issues are relevant to Holocaust survivors? 
“Firstly, the prosecution of Nazis. There are very few Nazi criminals left alive today, and they are dealt with, to a varying degree, by the authorities in the countries in which they live. For two generations, the State of Israel has concentrated instead on tracking anti-Israeli activity around the world – in some cases activity that is connected to modern-day anti-Semitism. 

“Secondly, the Israeli Ministry of Welfare states that some 180,000 Holocaust survivors are living in Israel. Every four minutes, one of them dies. My parents, for example, are no longer with us. Other criteria for defining survivors put the figure as high as 300,000. Many survivors died without being aware of their rights and without receiving care; the state’s excuse is that they did not contact the relevant bodies. In Amcha we help any Holocaust survivor and offer therapy, social and rehabilitation clubs, and home visits by volunteers. We help 18,000 survivors on a regular basis. Although the number of survivors in Israel is falling, the number of requests for our help is rising, because as the survivors get older, memories flood them and people are often left alone and in need of help. I think it’s a shame that we have only started to pay attention to the rights of various groups of Holocaust survivors since Olmert’s government. What worries me is this: if we can’t be fully empathetic toward people who have suffered more than anyone else, then who will we show compassion for? I’m worried about the attitude of the state and society toward other disadvantaged groups, because if we’ve failed the test when it comes to Holocaust survivors, maybe we are too hard-hearted. That’s one of the reasons why in Amcha we try to help any survivor who turns for us to help – as a broader message to society.” 

Lastly, what differences do you see between your work as a university lecturer and your role as a school principal? 
“There’s a very big difference. The age gap between school and university is very significant. University students are much more serious – you can’t expect that from 16-year-olds. Students join the course on a voluntary basis, and that influences their motivation and the quality of discussions. Apart from that, not everyone is accepted to study law at the Hebrew University. The standard of discussion can be very high, which is a real intellectual pleasure. The thing that makes me happiest is to hear feedback from students at the end of the course saying that it has influenced the way they see the world – even in the case of students in their forties. The personal stories that emerge during the discussions are often moving and make the course a meaningful experience for me, too.”