Questions to ponder:
I. Is there a Jewish
concept of self-defense?
II. How might classic Jewish principles apply to the behavior of modern nations?
III. Are the State of Israel's actions consistent with Jewish tradition?
Several days before the horror of September
11, 2001, Israel's Foreign Minister
S Pers spoke to Conservative rabbis in an international conference call.
Responding to a concern expressed about Israel's policy of preemptive targeted
killings of suspected terrorist leaders and the inevitable collateral damage,
Mr. Pers defended the practice, citing an oft-quoted rabbinic legal dictum,
"Im ba l'hargekha, hashkem l'hargo," "If
someone comes to kill you, rise up and kill him (first)."
The uproar last July by Israel-bashers
and, more credibly, by the Israeli Jewish public after the Israeli army bombed
a Gaza apartment building, inadvertently killing
fourteen civilians, including nine children, along with arch-terrorist Salah
Shehada, again focused attention on the issue of collateral damage in the
implementation of "Im ba l'hargekha."
It is important to understand the text
and context of the Jewish "im ba l'hargekha" directive cited
by Mr. Peres and to ask (more than answer) what the parameters of its
implementation should be today. The principle originates in the Talmudic
discussion of a profoundly realistic and relevant passage, Exodus 22, which
refers to a case of self-defense by a homeowner against an intruding burglar.
The Torah makes a clear distinction between a nighttime and daytime robbery. As
the text states,
[If] the thief is
seized while tunneling, and he is beaten to death, there is no bloodguilt [for
the homeowner]. If the sun has risen on him [and he is beaten to death], there
is bloodguilt [for the homeowner].
"Tunneling" is understood by
most scholars to imply an event that occurred at night, under the cover of
darkness, in contrast to one that occurred during daylight hours, described by
the phrase, "If the sun has risen on him." If one defends oneself
against a nighttime intruder by killing him, no guilt is incurred by the person
who committed the killing. The reasoning behind this determination is based on
the rabbinic interpretation of the intruder's presumed intent. By entering a
home at night, when he is likely to encounter the home's occupants, the burglar
indicates a willingness to use force against them, and is, therefore, presumed
to have homicidal intent. Since he has, moreover, created an imminent threat to
the residents, the burglar exposes himself to the risk of being killed by a
member of the household, who is acting in legally sanctioned self-defense. The
household member, therefore, will not be held liable and subject to punishment
for killing the intruder.
In contradistinction, a would-be thief
who enters during the day signals his reluctance to use force against a home's
occupants. A homeowner in this case is held accountable if he kills the intruder.
The Talmudic discussion of this Exodus
passage introduces the classic Jewish principle of self-defense, "Im ba l'hargekha, hashkem l'hargo," "If
someone comes to kill you, rise up and kill him (first)." If there is
homicidal intent, self-defense is more than permitted; it is required. This is
a common principle of all legal systems, America's included.
The implementation of this principle in
a modern context, in the geopolitical reality of nation-states, creates a
challenge for contemporary leaders. Is it reasonable to base a country's
foreign or defense policy on an ancient legal code designed to apply to
criminal acts committed by individuals against other individuals? In reality,
there are no specific Jewish laws governing the response of states to acts of
terrorism by individuals. There are biblical guidelines for wars conducted by
Jews which distinguish between battles to defend the Land of Israel and other
"voluntary" battles, but these laws challenge modern sensibilities
because they include specific commands to eradicate the non-Israelite
inhabitants of the Land of Israel. Fundamentalists have
misused these isolated biblical texts for their malevolent agendas.
Nonetheless, it is appropriate to apply
the foundational ethics of the Bible and Talmud regarding the sanctity of human
life to the actions of modern nations. Among those ethics is preservation of
one's own life, and self-defense is a necessary corollary of that, making it an
essential component of any policy for a nation dedicated to the protection of
the lives of its citizenry. The state can be said to assume the role of
"homeowner" writ large.
That said, how imminent does a threat
have to be to justify lethal force in preemptive self-defense? From the
perspective of a modern state, if one waits until the terrorists
"tunnel" into our homes in the middle of the night - that is, invade
territory through stealth means, as they have - it is obviously too late to
conduct effective measures of self-defense. In fact, citizens justifiably hold
their governments accountable if everything within their power isn't done
(including invoking the use of lethal force) to prevent terrorist attacks from
occurring. This concept was dramatically articulated at a recent meeting of the
American Jewish Committee's Board of Governors. In a debate over the
appropriate balance between civil liberties and national security, a
participant forcefully advocated prioritizing national security over civil
liberties, declaring, "The first civil liberty is the right to live."
The most sacred task of any government is to protect its citizens from physical
harm.
But that is the relatively easy
question. Nearly all embrace the concept of self-defense. Today's unsettling
dilemma is the issue of unintended innocent victims and collateral damage in
the implementation of preemptive self-defense. What if anything is an
acceptable level of collateral damage in the pursuit of self-defense? Can one
justify the deaths of innocent bystanders in an action designed to prevent
terrorist attacks? This is a values conflict without a simple answer, but the
criteria of intent, as framed by the Talmudic argument, offers a cogent
guidepost for understanding and reflection.
With regard to intent, there is a moral
chasm that exists between the targeting of civilians by suicide bombers and the
inevitable accidental deaths of civilians during preemptive strikes against
proven terrorists. This distinction has been casually and conveniently
overlooked by many pundits, including Caleb Carr, a military historian and
author of an op-ed piece that appeared in the New York Times. In his polemic, Carr unfairly equated the Gaza bombing in which
Shehada was killed with the World War II German bombardment of British civilian
areas, the Allied bombing campaign of German cities, the use of atomic bombs
against the cities of Hiroshima and Nagasaki and the Palestinian
suicide bombings. As one letter to the editor correctly pointed out,
There is a world of
difference between the civilian deaths that occurred during the Israeli assassination
of the Hamas military leader and the civilian deaths that occur when buses or
pizza parlors or discos or restaurants are blown up.
Ultimately, the acceptability of
unintended innocent victims' deaths in the pursuit of a state's legitimate goal
- defense of its citizenry against homicidal insurgents - remains a difficult
judgment. The Jewish and democratic values inherent in Israeli society have
succeeded in forcing public debate on this defining topic, even as the horrific
pressure of casualties resulting from the suicide bombing attacks mounts. To
their eternal credit, Israelis understand that the way a country balances
legitimate defense needs against concern for the lives of its enemy's civilian
population can characterize the soul of a nation. Notwithstanding the
hypocritical criticism of many, Israel's soul is indeed
reflected in its sincere efforts to adhere to a Jewish and democratic ethical
code that values human life and to retain its national integrity in
unprecedentedly challenging circumstances.
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