The Israeli Military and the Jewish Law of Self Defense
by Jeremy Rosen
The case of an Israeli soldier shooting an injured, disarmed terrorist has divided Israel along the usual and predictable lines.
Those who are sensitive to ethical considerations regret and deplore the act. They are impressed that the armed forces, as well as the civilian leadership, has reacted swiftly to condemn it and charge the soldier. If the enquiries reveal that the terrorist was indeed no longer a threat, then they will find the assailant guilty and hopefully take strong measures against him, because such action goes against the standing orders of the Israeli armed forces as well as Jewish religious law and Israeli civil law.
Those who care will be gratified that Israel once again proves itself morally superior to the countries and cultures that hate and threaten it, by having such standards and being willing to enforce them. This will be true even if the soldier receives a punishment that some consider too light.
The soldier remains in detention. Until the evidence is in and has been tested, I am also prepared to accept that Israeli soldiers and civilians are in constant danger of being assaulted by terrorists with murderous intent, and have every right to defend themselves. We have seen videos of wounded terrorists getting up and then stabbing to death an elderly scholar. So when in doubt, I am in favor of playing it safe.
I also recognize that in circumstances of attacks and heightened fear, even neurosis, people may act out of irrational and zealous passions, and that this needs to be taken into consideration — again, depending on the circumstances. I am glad and proud that senior politicians and the head of the armed forces take the views I have outlined above.
Unfortunately, there are other voices I find offensive. Let me start with the ones that offend me less, only because I have no moral expectations of crude, insensitive yahoos of limited intellectual discernment. There have been protests and demonstrations in support of the soldier. That is as much a right in a democratic society as are demonstrations against taking a human life unnecessarily. But the arguments presented are fatuous. Some have tweeted and posted comments claiming that they will now refuse to serve in the armed forces, because by prosecuting the soldier, the army is showing it cares more for terrorists than it does for soldiers doing their duty. Some have said that any terrorist initiating an attack deserves to be killed, regardless.
Another argument is that even when a terrorist is disabled, he may well remain a threat and possibly become a hero and encourage others to violence. There needs to be as much deterrence as possible and summary execution is one, and it ought to be carried out in all cases. And finally, the only response to violence that a violent person recognizes is violence. Due to the rise of Arab nationalism and the constant use of violence against Jews, we must use similar violence back…and so on, ad nauseam.
In any society there are rotten apples, different views, as well as an unthinking mass that fails to consider what it is saying and thrives on simplistic slogans. And there are always those in any society who just love the visceral thrill of aggressive language and brute mentality.
But I am much more disturbed by the expressed opinions of several significant rabbis (though in this context, I do not know what “significant” means) that this act of execution was permitted by the Halachic principle of self-defense. Or, to quote the Talmudic source, “If someone rises to kill you, you must kill him or her first.”
I will not attack the claimed sources of these views by name, because I have not heard them first hand. I know full well how often the press, such as the New York Times, distorts, twists, and takes out of context. So I don’t believe everything I read, and I reserve my position. But if they did say this, the fact is that they are simply wrong. Jewish law is quite clear.
The law of self-defense allowing you to kill someone attacking you with clear intent to kill (or rape or do grievous harm) only applies if you are the intended victim. Otherwise, if it is to protect someone else, your obligation is to stop, to disable, not to necessarily take a life. Here the soldier was no longer in danger of being attacked. The review will reveal if he feared the possibility of an injured person moving to detonate a hidden bomb. Even if someone else yelled at him to shoot. Even so if he thought he heard someone tell him to fire on a disabled man, he cannot claim to be following orders.
The other argument is that the terrorist has forfeited his legal rights simply by being a terrorist, but there is no such halachic principle. Under the Talmudic principle of a Ben Noach, any human being who adheres to the Seven Basic Noachide commands as enumerated in the Talmud in Sanhedrin has certain rights to be treated according to basic Jewish law. Perhaps naively, I expect rabbis to provide a moral halachic lead. Sadly, too many of them have been so morally crippled or traumatized by the horrific experiences they have undergone or witnessed that their judgment has been compromised.
The rise of Arab nationalism brought violence against Jewish nationalism, and now we are locked in a deadly game of tit for tat, rival claims. Two people claiming the same home. Obviously I am biased in my side’s favor, just as I expect a Palestinian to be biased in favor of his. But that does not mean we shouldn’t strive for a solution. Unfortunately, when both sides have those who preach hate and approve of killing gratuitously, a solution seems as far off as ever. Regardless, we must preserve our humanity. I do not want to see my people dragged down to the lowest and most brutal level of some of its enemies.