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Judgment in Jerusalem: Chief Justice Simon Agranat.

Judgment in Jerusalem: Chief Justice Simon Agranat by Pnina Lahav

Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century is a biography that offers the reader the valuable opportunity to learn about one of Israel's most important jurists as well as about the history of Israel and the development of its judicial system, since Simon Agranat began his career in Palestine, and retired as chief justice of the Supreme Court of Israel 35 years later.

Agranat was born in Louisville, Kentucky, in 1906 to ardently Zionist Russian immigrants who were determined to emigrate to Palestine. He graduated from the University of Chicago Law School in 1929 and followed his family to Haifa the following year. Being a child of American Progressivism, Agranat looked to Zionism to create a humane and enlightened society that would be a model for the world. At the same time, the growth of fascism and anti-Semitism in Europe and the increasing hostility of Arabs toward Jews in Palestine tempered his utopian aspirations by casting Palestine in the more pragmatic role of providing a refuge for Jews fleeing persecution.

When Agranat started his law practice, he was required to decipher a legal system that consisted of both Ottoman and British colonial law and was rife with corruption. The central issues he faced were British restrictions on Jewish immigration and restrictions against Jewish purchase of Arab land. As soon as he was able, however, Agranat became a justice of the peace, the second Jewish magistrate in Haifa. In 1948, Agranat was elevated to president of the district court, and the following year to the Supreme Court, where he intended to help Israel become "the model state he had always dreamed it would become."

Lahav, a Boston University law professor raised in Israel, is at her best in describing the important opinions Agranat wrote during his judicial career. Israel had no constitution for many years and no bill of rights, and the fragility of the new state permitted the existence of an executive branch with enlarged powers. Accordingly, Agranat was breaking new ground in writing opinions that asserted the rights and liberties of the individual and which characterized the state as serving its citizens rather than the other way around.

Two of Agranat's most interesting opinions demonstrate Israel's efforts to confront the Holocaust. In the first, a right-wing pamphleteer, Gruenvald, accused Rudolf Kasztner of being a Nazi collaborator. Kastzner was chief negotiator on behalf of Hungary's Jews when the Nazis were planning their deportation and extermination. Adolph Eichmann accepted two million dollars Kastzner paid him for their safety, and then agreed only to spare 100,000. When Kasztner saw signs of impending mass deportation, he continued negotiating. Eventually, Eichmann permitted only 1,685 Jews to leave, and a disproportionate number of them were Kastzner's relatives.

On appeal, Agranat realized that he was dealing with "the poisoned heart of the Jewish people," who wanted to punish anyone who had participated in the profound betrayal of the victims of the Holocaust. In Agranat's opinion in Kastzner, the court reversed, rejecting the lower court's assumption that Kastzner and Eichmann were "equal parties" to the negotiations, and recognizing instead that Kastzner was attempting to bargain while standing "at the gates of hell," hoping at least to buy time until the Allies won. Kastzner's vain attempts to work out a deal were not collaboration, because he was always powerless and possessed no evil intent or illegitimate motive. By placing the blame for the catastrophic loss of life on the Nazis rather than the Jewish leadership, this opinion helped "the chapter of Jewish self-blame for the Holocaust come to an end."

The second opinion concerning the Holocaust followed the trial of Eichmann, who was captured in Argentina and tried and convicted in Israel. On appeal, Eichmann raised chiefly jurisdictional arguments, claiming that he was a foreign national when he committed his crimes, and that the law vesting jurisdiction in Israeli courts to try Nazis and collaborators was ex post facto. In that portion of the opinion written by Agranat, the court concluded that any nation could prosecute crimes against humanity, regardless of where or by whom they were committed. Moreover, because prosecution of crimes against humanity was consistent with international law, the laws that Israel enacted to deal with perpetrators could not be considered ex post facto. Eichmann also contended that he, who had been but a small cog, was being charged individually with acts committed by the state, and that Israel could not interfere with the internal affairs of Germany. Agranat asserted that systematic extermination could not be considered an act of state, because the concept of sovereignty presumes the prohibition of crimes against humanity. Neither could Eichmann sustain his "small cog" defense, because that presupposes an officer's fear of the consequences of disobedience, whereas Eichmann was shown to have performed his duties "with genuine zeal and devotion."

Because Lahav interviewed Agranat extensively before his death in 1992, Lahav is able to incorporate many of his personal reminiscences into the text. My only criticism is that a glossary of Hebrew and Yiddish terms used in the text would have been helpful.

The final portion of the book deals with the Agranat Commission, which was established to address the disaster of the 1973 Yom Kippur War, when Israel was surprised by the joint attack of Egypt and Syria and nearly lost the war. When the commission laid the blame wholly on the military command and left Prime Minister Golda Meir and Minister of Defense Moshe Dayan relatively unscathed, Agranat and his commission were the targets of "one of the most acrimonious and caustic torrents of criticism the country has ever known." The public outcry deeply wounded Agranat and unfortunately occurred shortly before his retirement in 1976. In later years, however, he was gratified when the next generation of Israeli justices came to appreciate his significant contribution to Israeli jurisprudence.

Judgment in Jerusalem (311 pages) is published by the University of California Press and sells for $29.95.

Ellen B. Gwynn is a career attorney with the First District Court of Appeal.
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Title Annotation:Review
Author:Gwynn, Ellen B.
Publication:Florida Bar Journal
Article Type:Book Review
Geographic Code:7ISRA
Date:Feb 1, 1999
Previous Article:Florida Civil Procedure.
Next Article:Business and Commercial Litigation In Federal Courts.

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