Return to the Introduction to the trial (part 1)
Part 2: The Trial
The script of Perdition had been with the Royal Court Theatre for 18 months before the play was banned. During that time, to borrow a phrase from Jim Allen, 'it passed under more Zionist microscopes than pasteurized milk'. Yet, not once was any reference made to the letter Rabbi Weismandl received from Schwalb. It was not until June 1987, two weeks before the Ithaca Press publication that Schwalb surfaced with a writ claiming that he did not write the letter.
On 18 of June A Kramer & Co of 40 Portland Place, London W1 acting for Mr Nathan Schwalb (now known by his Hebrew surname Dror) served on David Wolton a letter by hand enclosing an Affidavit:
Abe Kramer was a former Chairman of the Zionist Federation in Britain and we were later told that he had been to Israel himself to see Schwalb. Our researcher in Israel Yeshaayahu Toma Sik also learned from the orthodox Jewish researcher and journalist, Shemuel Kaufmann, that in conversation, Schwalb had told him that he had been pressured into mounting the case against Perdition by Yitzhaq Shamir and others. It was never clear who paid for the action, although the reluctance of Schwalb as Plaintiff became clear with the long delays in the pre-trial process which was to go on for four years.
We were, however, in trouble, as it was known that the original letter in Bratislava did not survive the war and Schwalb's own archives have always been closed to researchers, except, perhaps, when they were opened in part to Livia Rothkirchen for her book, The Destruction of Slovakian Jewry: A Documentary History (Yad Vashem, Jerusalem, 1961) footnote 14.
Based on Weissmandl as a source, the letter had been published before Perdition both in Israel and elsewhere without legal challenge. The writ against Perdition was served on 24 June 1987 by Schwalb's solicitors claiming damages for an alleged libel with an application for an immediate injunction to restrain the publication of the play. The application for an interlocutory injunction came before the Court (Sir Neil Lawson) on 30 June. After consultation with Akiva Orr and others we decided to opt for the defence of Justification. The defence of Justification in a libel action is available to a defendant who says that the words complained about are true in substance and in fact. Despite the denial of Schwalb that he wrote the letter in question or that he expressed the views which he attributes to the letter. We were confident that we could obtain sufficient evidence to support our case.
In the meantime, however, we were faced with the option of either excising the references to the said letter throughout the volume, or withdrawing the book. We chose not to withdraw the book. The truth of Perdition did not critically depend on any specific 50 cm of text. Pages 62, 63, 77, 119 and 152 of each volume were cut out (by hand) and replaced with pages with the disputed passages deleted. The book was published as scheduled, and we were confident that the published text could not be further challenged in court if the play were staged.
Stuart Wood in the Guardian gave Perdition one of its most perceptive reviews:
With publication of the text the hysteria died down and the first recognition came that the attack on Perdition as an alleged anti-Semitic tract was not justified. For me the victory was represented in the concluding comments of the major review of the book written by David Cesarani for the Jewish Chronicle:
The basic financial equation was simple. The adversaries of Perdition appeared to be backed by a powerful political organization, the World Zionist Federation, or even perhaps the Government of the State of Israel. Neither David Wolton nor myself, nor Ithaca Press as a small specialist publisher of books on the Middle East, could hope to match that on our own. But I had promised to find the money to cover the legal costs of defending Perdition in court, so it was necessary to match the finances I judged to be available to our adversaries. It would have to be the PLO versus the World Zionist Organization and the League of Arab States versus the Government of the State of Israel.
With Abu Jihad's approval, I approached Abu Mazin, Director of the Department for International and Arab Relations of the PLO for a commitment to cover the legal costs of defending Perdition in the courts. Abu Mazin was delighted with the initiative. He immediately saw the critical significance of the case. After all, his own PhD at the University of Moscow subsequently published in Arabic was on the same subject footnote 15.
He gave his commitment, and indeed, the moneys to pay the initial legal costs of our lawyers Benedict Birnberg & Co and our barrister John Previte (who was later succeeded by Harry Boggis-Rolfe) were duly paid. At the same time Assaad Moukaddem, Director of the London office of the League of Arab States took my request for a commitment of up to £20,000 to cover the cost of putting on the stage a production of Perdition in the UK to his committees, and likewise came back to me with a positive answer.
Both the PLO and the League of Arab States are, as they should be, bureaucracies. Transfer of moneys is always delayed. But the personal generosity of Syed S in London, who approached Ken Loach and Jim Allen with offers of support immediately as Perdition hit the headlines, saved the day. It enabled us to act promptly on both fronts: legal defence and production. Cash was immediate available to begin, and there were firm commitments to cover costs along the way. Without the philanthropy of Syed S we could not have begun.
The Royal Court Theatre cancelled Perdition in January 1987. On 27 February 1987 Judy Daish Associates on behalf of Jim Allen agreed to licence Jerusalem & Peace Service to stage Perdition in professional theatres within the territory of the United Kingdom. By April Ron Rose of the DAC Theatre Company was engaged to coordinate and administer production, preferably in London.
The first public performance of Perdition took place at the 1987 Edinburgh Festival in August 1987 footnote 16.
The Edinburgh Festival was just a few months away, but we could not make preparation, look for facilities or engage actors because the text had not been cleared by the court. But once the (excised) book Perdition was available on the bookshelves, our producer, Ron Rose, and DAC Theatre Company could begin to work. To reach full stage production four weeks, six at most (between the first week of July and mid-August) was not enough. It was to be a single one-off reading with most of the original Royal Court cast footnote 17. Syed S provided the cash to cover immediate expenses. The London office of the League of Arab States was committed to pay for the total cost of production upon presentation of the invoice.
We appointed Kaitie Lorimer to coordinate the Edinburgh operation. The reading was booked at the Assembly Rooms. But as before, the Artistic Director of the Assembly Rooms, William Burdett-Coutts, reversed the commitment 10 days before the scheduled production. The skill of Kaitie and the excellent network of support for Jim Allen and Ken Loach in the arts world enabled us to find an alternative venue at the Royal Lyceum Studio Theatre. But above all it was the admirable tenacity and principled courage of the Words Beyond Words Festival Programme Director at the Lyceum, playwright Tom McGrath, which made it possible to stage Perdition. After the scandalous reversal by the Assembly Rooms, Tom McGrath offered a one-and-a-half hour slot at the Lyceum for Perdition on Monday 17 August. The pressures on him to reverse his commitment became so intense at one point that he refused to take calls:
The Jewish Board of Deputies gave its support to a national protest picket and some 150 protesters were mobilized by the Union of Jewish Students. The hall was packed and the reading, to borrow the term from Christopher Small's review in the Independent was 'absolutely gripping' (18 August 1987). Gully (Uri Davis elder son Y.F.) agreed. Still anorexic and suicidal, he was now resident at St Luke's Woodside Hospital, Simmons House adolescent unit. Nira and I made the necessary arrangements for him to fly with us to Edinburgh to hear the reading.
After many months of false accusations that Perdition was anti-Semitic, the public reading made possible the first critical reviews of the play as a piece of theatre. In his review of the reading Michael Billington commented:
But unlike Christopher Small of the Independent, Michael Billington found the play to have 'failed as a drama'.
It was time to stage Perdition in London.
Ron Rose believed that the best chances would be with experimental theatres such as the Young Vic, Donmar Warehouse, Interchange, Riverside or Drill Hall, all of which also had suitable facilities. Negotiations began immediately after the Edinburgh Festival in August. Weeks passed, and predictably, the DAC Theatre Company could not get a commitment in writing from any of these theatres. Prospects looked bleak. I even began toying with the idea of purchasing a suitable venue for the staging with the help of a bank loan and selling it immediately afterwards. I was determined to win the battle for the production of Perdition in central London at almost any cost.
By the time of the Edinburgh Festival my association with Perdition was well known in Palestine solidarity and peace movement circles. Sometime in December I happened to be at Conway Hall on other business, chatting with Geoffrey Austin, the Hall Manager. He wondered aloud why Conway Hall had not been approached by the Company immediately after the Royal Court cancellation. The Hall would, he said, of course be available for Perdition. In fact, he said, when they saw the reports on the cancellation by the Royal Court Theatre Upstairs 36 hours before the play was due to go on stage, the Management of Conway Hall had approached the Company and offered their stage. But the offer did not register, possibly because Conway Hall was not a professional theatre venue. I brought Ron Rose to have a look. He thought it would be possible to create an appropriate performance space in the large hall. Raked seating could be brought in and the play would be performed in a close and intimate environment with everyone as near to the action as possible.
I asked if the hall would be available for May 1988. There could be no more appropriate date for the staging of Perdition than the 40th anniversary of the establishment of the State of Israel. There were slots available. On 17 December I signed the contract, booking the large hall for 4, 5, 6, 12 and 13 May. Subsequently 14 May became available through a cancellation.
Conway Hall is a unique institution, owned and administered by the atheist South Place Ethical Society. There had been months of press reports fanning the Zionist obfuscation between Zionism and Judaism in an attempt to obliterate the clear distinction between rejection of the racist political colonial programme of Zionism (anti-Zionism) and anti-Jewish racism (anti-Semitism). After this it was just wonderful to read Barbara Smoker, Honorary Representative for the South Place Ethical Society, stating that
It was for me a breath of fresh air. Having read it, I knew that Perdition was safe with Conway Hall. For Smoker, presumably, as a committed atheist, criticism of religion is an essential intellectual commitment for rational deliberations. Atheism per se is anti-religious - not racist. I read her reported statement to mean that atheists ought to be as critical of Christianity as of Islam and as of Judaism.
It would be wrong to regard atheism as diabolic for criticising certain aspects of Christian religion or as anti-Semitic for criticizing certain aspects of Jewish religion. Atheism as a critical intellectual statement does not entail racism, anti-Semitism (racism against Jewish people) or any other form of racism. Therefore, 'people should not be scared of being branded as anti-Semitic just because they criticise certain aspects of Judaism'.
Sadly Ken Loach had become irrevocably committed to other work and theatre director Para Brighton, who was also a barrister, agreed to direct the play. The performance was advertised as 'The Play You Could Not See at the Royal Court'. We had four months to prepare. Our camp was electrified. It was great to win.
But on the opening night I had a double rebellion on my hands. First, the original programme prepared by me for the play was a folded A3 sheet with the cover artwork of the book Perdition printed on the outside. The listing of the Company footnote 18 was on the left inside and relevant political statements were printed on the right. The Company objected to the politicization of the programme and issued an ultimatum that it must be withdrawn. Needless to say it was, although not without resistance on my part. The programme was reprinted and the political quotes were replaced with the text of the blurb on the back of the book.
Second, I had arranged with Julian Aston and Partners to have the performance videotaped. I was assured by Ron Rose that we had the agreement of the actors for this. But the video recording was aborted because of an unforeseeable last minute objection by one of them. I regarded the objection as evidence of mounting hysterical pressures affecting some of the actors. It was a serious oversight not to have secured the written agreement of the actors in advance. The performance could not under the circumstances be videotaped, and the actor concerned threatened to walk out of the show unless an undertaking were given that the performance not be video recorded. The legal technicalities were on the side of the actor, so I gave the undertaking and the performance went ahead. This was a serious blow. I had hoped to crown our victory with a film of the performance. This was not to be.
Perdition in its complete performance was as gripping as the reading in Edinburgh. The hall was full. The Union of Jewish Students mounted a small picket (some dozen people) at the gates of Conway Hall in protest. We booked a restaurant across the road for celebration.
But the story of Perdition did not end there. Schwalb denied that he wrote the letter in question or that he expressed the views which he attributes to the letter. We intended to plead Justification and present the evidence to show that he did. But it required a year of work collecting evidence and several expensive meetings with the lawyers. One piece of evidence we could not produce, namely, Schwalb's letter. It was lost in the war. Weissmandl quoted the letter in his Min ha-Meitzar from memory. He was renowned for his phenomenal memory. And Schwalb was notorious among Holocaust researchers for his refusal to allow access to his archives. Still, we were confident that we could successfully defend our case in court. We had located the original proofs of Min ha-Meitzar with Neturei Karta in London with Weissmandl's hand written corrections. David Wolton found Andre Steiner, a member of the Bratislava Working Group, who testified in a sworn Affidavit that
It was well known that Schwalb had refused historians access to his files (e.g. Walter Laqueur, The Terrible Secret, Penguin Books, 1980, p 144) and that in 1987 he removed his archives from the Israelitische Cultursgemeinde Zurich (ICZ) and the Schweizerische Israelitische Gemeindebund (SIG) in Zurich (Sheraga Elam, private correspondence to David Wolton, 23 December 1987).
Akiva Orr, our researcher in Israel submitted a sworn Affidavit to the Court documenting his persistent efforts between November 1990 and June 1991 to gain access to the relevant Schwalb documents at the Central Zionist Archives (Jerusalem); the National Library (Hebrew University in Jerusalem); Yad Vashem (Jerusalem); Kibbutz Huldah; the Lavon Institute (Tel Aviv); and the State Archives (Jerusalem). He was unable to gain access. (In the High Court of Justice Queen's Bench Division, 1987 D No 1648, Affidavit of Akiva Orr, 27 June 1991).
The libel action which was brought by Schwalb through his London lawyers, A Kramer & Co, in the Queen's Bench Division of the High Court never got to a trial before a jury. On 27 November 1991, after four years of procedural wrangling at the High Court Mr Justice Otton ordered that the action be struck out for want of proper discovery and for want of prosecution. From then on Perdition could be sold unexcised foonote 19.
It took Schwalb well over a year after he had pleaded for an extension to belatedly provide a list of documents. We applied to the Court for an Order for Specific Discovery asking for disclosure of all relevant documents. On our appeal from Master Hodgson (who had refused discovery) in May 1990 Justice Davies ordered Specific Discovery and also ordered Schwalb to swear an Affidavit listing documents by June 1990. He did not do so but asked instead for an extension. This expired on 14 September 1990, the same day our solicitor, Benedict Bimberg, received a faxed copy of an Affidavit which Schwalb had sworn in Vienna listing a few documents. But this Affidavit did not comply with the Rules of the Court so we applied to the Court in September 1990 for Summons to strike out the claim and dismiss the action. This was heard by Justice Davies in October 1990. He decided to give Schwalb a last minute reprieve to remedy the defects of his submission within 14 days, namely 5 November 1990. The next year was spent in procedural wrangles. By August 1991 we had again issued a Summons to have the action struck out on the basis that Schwalb's claim disclosed no cause of action and that there had been an inordinate and inexcusable delay.
We won. The victory cost us more than £30,000 in legal and research fees, part of which will be recouped from Schwalb through the Court.
The victory for Perdition was made possible not only because of the tenacity, perseverance and determination of author Jim Allen, publisher David Wolton and myself as fund-raiser. It also depended on the admirable commitment of Akiva Orr and Yeshaayahu Toma Sik who helped with the required research in Israel.
Our confidence in our consistent distinction between Zionism and Judaism gave us the moral high ground. I welcomed the opportunity to bring the Zionist argument before a British court. I was certain that the truth was on our side, and I was positive that our research brought forward sufficient evidence to support our case. We won - but there was no trial. Nevertheless our victory made a significant contribution to free research into this particular aspect of the history of the Second World War without fear of intimidation. I regarded the fight for Perdition as an important front in the moral and political struggle against Zionist ideology and practice.
My working fund-raising assumption was that to defend Perdition we needed to secure the support of a sympathetic government, first of all the PLO, to counter the financial leverage of our adversaries. This proved to be completely accurate.
But our adversaries never knew how close they came to victory. I suffered a body blow with the assassination of Abu Jihad in 1988 which destroyed my financial leverage with the PLO and weakened my position in the Fateh. This resulted in the slashing of funding for my office and projects. Then, after the Palestinian declaration of independence in November 1988, Abu Mazin, who had promised to underwrite the costs of the legal defense of Perdition, became totally committed to strengthening the PLO dialogue with Zionist sections of the Israeli peace camp. He refused to continue to fund the legal costs of Perdition. Some financial relief came from one Arab government in July 1990. But I doubt whether, in the political climate that developed after the Gulf war, we would have found the financial backing to cover the costs of a full jury trial. This would have put Zionism on the defensive before international public opinion but would have cost at least further £30,000.
We won by the skin of our teeth.
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© by Uri Davis. Crossing the Border