This op-ed originally appeared on Rabbi Ascherman’s Times of Israel blog.
IDF soldiers search for terror tunnels. PHOTO: IDF Spokesperson unit CC-Wikipedia
By: Rabbi Arik Ascherman
I believe that we Israelis are justified in defending ourselves against Hamas rockets and tunnels, and I strongly suspect that in the process of doing so we have unnecessarily committed grave breaches of international law and my understanding of Jewish morality. I don’t see any contradiction between these two beliefs. I fervently hope I am wrong about the latter, but find that increasingly unlikely.
That is why, based on mounting credible evidence that is simply impossible for any person of conscience to ignore, ten Israeli human rights organizations wrote to the Israeli Attorney General and Military Advocate General acknowledging that although we do not have all of the facts, we demand that they conduct an urgent real-time review of military strategy and rules of engagement. In a separate letter, twelve Israeli human rights organizations expressed our concerns about the humanitarian crisis occurring as a result of the collapse of Gaza’s water, electricity and sewage infrastructures. An additional joint letter demanded that previous agreements regarding the evacuation of the wounded be honored. With mounting evidence that even those who agree to flee their homes have no safe place to go to, we demanded safe corridors of passage. (The Rambam also stipulates that when a city is under siege, there must be an escape route – Mishna Torah Melakhim 6:7.)
Our moral foundation must be an even-handed concern for all human beings. We must cease to be “lawyers” for “our side,” selectively organizing the facts to our own advantage. If we work hard enough, we can find a way to cast doubt on or write off almost any fact, figure or story. At some point, we must become lawyers for humanity. In fact, our Jewish responsibility demands that we first and foremost hold ourselves to our own values. We must not content ourselves with non-specific condemnations of violence on both sides. We must be concrete.
Needless to say, Rabbis For Human Rights has frequently and consistently condemned Hamas terror, and expressed our empathy with Israeli citizens under fire, including RHR rabbis and their families. We have prayed for the moral and spiritual well being of our soldiers, including some RHR rabbis, and their children and grandchildren currently serving in Gaza. We grieve with the families of fallen soldiers.
We also grieve with the Abu-Jame family of Gaza. Last night I heard Dr. Yasser Abu-Jame of the Gaza Community Mental Health Programme clearly state that Hamas has committed immoral acts of violence, and describe the bombing of the home of part of his extended family, killing 25 family members and a guest. Some nineteen of the dead were children, and another five were their mothers and grandmother. I won’t repeat the descriptions of what the bodies looked like. As best as we can deduce, the house was bombed because the guest was Ahmad Suliman Sahmoud, a member of Hamas’ military wing. Perhaps there is an additional explanation. Perhaps this was a stray bomb. Perhaps there was an arms cache in the building. Perhaps the guest was a ticking bomb, and not killing him would lead to the imminent death of other innocents. Perhaps the Israeli army didn’t know there were non-combatants in the building…..
Our Jewish tradition teaches us that we have the absolute right to kill somebody coming to kill us (Sanhedrin 72a), and the obligation to kill a person about to commit murder. However, we ourselves have committed murder if we could have stopped the potential murder in any other way, and we cannot intentionally kill an innocent third person, even to save our own lives (Sanhedrin 74a). Not everything is permissible, even in a war of self defense.
International law addresses an additional complication that is not directly addressed in the Talmud. When non-combatants are harmed while striking at a legitimate military target, there is no exact formula for determining whether the strike violated international law’s stipulation of “proportionality.” Nevertheless, IF this was the intentional bombing of a populated family home because the guest was a wanted person, and even if there was an arms cache underneath, the all too murky stipulations of international law become much clearer.
IF the facts are as they appear to be, I state clearly as a rabbi, the president of a human rights organization and as a human being, “This act was morally wrong. We are better than that.”
That is what we are asking the army to investigate immediately what we cannot. It could be the difference between life and death tomorrow. The Abu-Jame bombing may be one of the most publicized cases, but it is far from an isolated example. We know that the Israeli army is accompanied by lawyers almost every step of the way. However, as one former member of the international legal division explained to me at the time of the first Gaza war, the lawyers of the division point out clearly to the army when something is patently illegal, but increasingly see that their job is to find a way of permitting anything the army wants to do if it can be considered a “grey area.” I don’t find that acceptable.
In my previous blog post, I wrote of spiritual myopia. Ironically, one of the greatest sources of spiritual myopia is justice. As I said at the outset, Israel is absolutely justified in defending herself against rockets and tunnels, even though Pirke Avot 5:11 teaches that, “The sword comes into the world because of justice delayed and justice denied,” and even though a just solution to the Israeli-Palestinian conflict is essential to protecting ourselves in the long run. Israel warned Hamas countless times of what would happen if the rockets did not stop. Israel immediately accepted the Egyptian cease fire plan. Even if Hamas has legitimate demands such as lifting the blockade, they could have agreed to a temporary cease fire in order to work out an agreement. We feel justified in employing batteries of lawyers to exploit loopholes and vagaries in international law because we are blinded by our deep conviction that justice is on our side, and we are the victims.
We are not alone in this. If one speaks to most Israelis or Palestinians and dare to suggest that they are victimizers, they will be outraged. “How dare you say I am a victimizer? I am the victim!” We fail to realize that we can be a victim and a victimizer at the same time. Our victimhood and the fact that justice is on our side do not give us permission to ignore moral red lines. In fact, the fact that our cause is just means that we must be all the more vigilant regarding our own actions. Those of you who are familiar with the Hartman Hagaddah may have seen the comment by the late 19th/early 20th century Rabbi Shmuel Tamerat. He says that the reason why the children of Israel are ordered to stay in their homes when the angel of death passes over Egypt is because, even when one’s cause is just, contact with violence corrupts.
“At that moment they might merely have defended themselves against evil-doers, but in the end defenders become aggressors” (Commentary to Exodus 12:12) …”Your abstention from any participation in the vengeance upon Egypt will prevent the plague of vengeance from stirring the power of the destroyer which is in you yourselves” (Commentary of Exodus 12:20-21).
Too often, our deep sense that our cause is just leads to responses to concerns about the rising number of Palestinian children we have killed such as, “I feel badly, but it is Hamas’ fault. They brought this upon themselves and they use their citizens as human shields. What about the Israelis under fire? We accidentally and regrettably kill non-combatants, while they try to. We even try to warn them to leave their homes in time.” This is mostly true, but we are still obligated to honor our own moral red lines.
Regarding intentionality, there is no direct evidence that the bomb that killed 25 members of the Abu-Jame family was part of a policy to kill civilians, although it seems that those who authorized the attack must have known that non-combatants would be killed. However, as much as we can hope that there is no such policy, we can’t say even that with certainty.
There are too many statements by senior military officials and politicians about the “Dehiya Doctrine,” stipulating that only disproportional violence serves as a deterrent. There are too many soldiers’ testimonies about what they did or were ordered to do in previous Gaza wars. In recent days, there have been halakhic rulings issued permitting the unrestrained harming of non-combatants. Rabbi Dov Lior has even said that it is permissible to destroy Gaza entirely. This is simply “Khilul haShem,” the desecration of God’s Name. As part of the “Tag Meir” coalition, we are asking people to call upon Israel’s chief rabbis to clearly condemn these rulings. We know that many soldiers feel more obligated to obey their rabbis than their commanders.
I have already indicated that things get more murky, also in international law, when non-combatants were not the target, but “were in the way.” Here, international law speaks of “proportionality.” What is the importance of the intended military target vs. the harm to non-combatants? How certain is it that there really is a weapons pile under a particular residential home, and how certain is it that non-combatants will be harmed? How many non-combatants are we talking about? Are there alternative ways of dealing with the military target? Does the fact that we are thankfully protected by the Iron Dome diminish the importance of taking out rocket launchers and stockpiles? What about the evidence from some military experts indicating that, even if we wipe out 100% of Hamas’ rocket capability, they will be able to restore it in a very short amount of time? Can we fire at a hospital when somebody is firing at us from within?
These questions are military and legal, but also spiritual and moral. Not everything that is legal is just. We must listen to the lawyers and the generals, and respect that some information must be kept secret, even if that can serve as an excuse also to withhold “inconvenient” information. However, the debate must be taken out of the military command bunkers and closed cabinet meetings and brought to the public. As Rabbi Heschel taught, “In a democratic society, some are guilty, but all are responsible.”
Pictured: Palestinians find refuge inside central Gaza City’s Church of St. Porphyrius, July 22, 2014. Photo: Anne Paq/Activestills.org
After the war, there must be an independent and transparent Israeli investigation. No army can be expected to objectively investigate itself. The code between “brothers in arms” is simply too strong. As we brace for another U.N. Human Rights Commission investigation we should remember that the Goldstone Commission might never have happened if Israel had heeded the request of Israeli human rights organizations for an independent and transparent Israeli investigation. Then attorney general Manny Mazuz rejected our request, but then called for one on the day he was leaving his position, and therefore lacked the authority to carry it out. Again, I will thankfully recite Hallel if all of our suspicions prove to be unfounded.
The goal is not to weaken or delegitimize our own country, but to strengthen her by helping ourselves to live by our own values. I know that Israel is far from the worst human rights violator in the world, even if there are plenty of people and organizations out there who would make it seem that way. I know that in many parts of the world doing what I do freely in Israel would be a death sentence, yet it seems that the U.N. Human Rights Council spends more time criticizing Israel than the rest of the world combined. None of that justifies deflecting questions about our human rights record with, “Go live in Gaza!” or “Go live in Syria!” or “Look what the U.S. has done in Afghanistan.” Police states like Syria are certainly not what I compare us to. Neither is the U.S.
As an Israeli rabbi, I hold my people and my country to our own Jewish values, as I understand them. As a human rights activist, my responsibility is to demand that Israel uphold international law, even if those around us do not. Like the former president of our High Court, Aharon Barak, I acknowledge that holding ourselves to our own principles is often like fighting with one hand tied behind our back. I reject the idea that this is somehow suicidal. I know that many Israeli soldiers have paid the ultimate price for upholding the value of “purity of arms,” now much maligned and termed by some as “not Jewish.” Yet, like Barak, I believe that our values make us stronger in the long run.
What are those values? Almost two thousand years ago our sages paid attention in the midrash to the Torah’s seeming repetitiveness in recounting that on the eve of his reunion with Esau, “Jacob was greatly afraid and distressed.” (Genesis 32:8) Believing that there are no superfluous words in the Torah, they taught, “Jacob was greatly afraid that he might be killed. He was distressed that he might kill others.” The vast majority of Israelis and Jews the world over firstly want to avoid being killed, but also want to avoid killing. The rubber hits the road when we live in the Middle East, are in real danger, have more power than all of our adversaries combined, and there are all too many ways of saying, “Yes, but…” or, “We are sure that our leaders are doing the right thing.” Even as the canons roar and the missiles fly, we pray for God’s help to put our own values into practice.
This post originally appeared in Rabbi Ascherman’s blog on the Times of Israel.