Dvar Torah - Bo 5784
The following excerpt from Ronen Bergman’s history of Israeli special and covert ops describes the capture of five terrorists; three from the Popular Front for the Liberation of Palestine, and two from the Bader-Meinhof group, in 1975. The five were caught by Mossad at the Nairobi Airport, where they were planning to fire a Soviet-supplied surface-to-air missile at an EL Al passenger jet with 150 people onboard. Bergman explains the dilemma of what to do with them thusly:
This example from Ronen Bergman’s “Rise and Kill First” is a historical encapsulation, in one story, of the perils of running a democracy founded on the moral principles of the Torah which must also constantly defend itself against hostile groups. To kill terrorists, Israel must risk the lives of its soldiers and covert operatives, and must also make judgment calls in which sometimes mistakes are made, and innocent civilians die. To not kill terrorists, and instead, to wait and play defense, places the lives of innocent Israelis in danger. We find that, in Bergman’s book, as well as in Israel’s current war against Hamas, there are no good answers to the problems faced - only bad answers, and less bad answers.
There are many, many terrible and heartbreaking aspects to the war that Israel has waged for the past 105 days, including, but not limited to; the deaths of more than 1200 Israelis; the deaths of a reported 23,000 Palestinians, many of whom are certainly non-combatants; the ongoing hostage crisis; the humanitarian suffering inside Gaza; the anti-semitic and anti-Arab sentiments that have once again reared their ugly heads across the globe; the very question by some hateful extremists of whether Israel, 75 years into her history, even has a right to exist; and more.
Aside from all of that, there is one very simple and very difficult aspect of this war for me as a Jew and a Zionist. As a Jew, I believe that the Torah is the moral code by which we should turn to for clarity regarding what we are supposed to do, especially in regards to difficult decisions that might even include life or death matters. And as a Zionist, I believe that Israel has a right to exist, and has a right to defend itself. The current war with Hamas is a high-stakes battle in which sometimes those two principles are in conflict with one another; or at least, there are choices that leaders must make between what is right and what is deemed to be necessary.
In the example from 1975, while it may be the best decision for the safety of Israel to take five terrorists and dump them out of a plane into the Red Sea, it is, as Israel’s most prominent jurist Aharon Barak notes, a completely illegal act for a democracy to abduct people and execute them without trial. Israel did not, in fact, dump them out of a plane, but instead arrested and imprisoned the five terrorists. As expected, Wadie Hadad, militant leader of the PFLP, did have his men hijack a plane in 1976, which was taken to Entebbe and then rescued by an Israeli commando mission. Israel chose to do the morally right thing, but of course, it had negative consequences.
The Jewish tradition has something to say about the morals of war. Some moral philosophers and religious traditions espouse a belief in pacifism, based on the entirely logical and reasoned supposition that all war is inherently immoral, and that there is essentially no difference between one individual killing another, and two rival armies taking part in killing each other. Judaism, however, is not pacifistic.
I will go through, somewhat briefly, the sources that have been provided to you. Certainly the sources you have are not everything in our tradition about war and morality. Additionally, I will commentary and guide us through those sources from how I see them from my perspective. I printed them out for you, though, so that you might read them and make up your own mind, regardless of my commentary.
I am now going to be as forthright as I can; or in the parlance of our time, I am going to say the quiet part of this sermon out loud – it is incredibly uncomfortable for me to see Israel at war, and for the citizens of the world to clamor to one side or another, and to put flags in their social media profiles and such, and to also be deeply concerned that Israel has had some instances of morally questionable decision-making regarding the war. There isn’t a flag that tells people - ‘I’m a Zionist but I have grave moral concerns about this war.’ It has also been very uncomfortable for me to be quiet about my concerns and doubts. While, as you will see from our texts, there can be no doubt that Israel has the absolute right to defend itself from attacks, it does not, as Aharon Barak noted, have the right to do whatever it wants as a justification. In war, there are, in fact, rules.
Nevertheless, expressing my doubts out loud about whether Israel is prosecuting the war justly is uncomfortable. Either from newsreels or from having been there in person, we recognize that protests against the war in Vietnam here in this country were often met by counter-protestors screaming ‘America, love it or leave it.’ When a country is at war, however, all people of conscience should feel uneasy, and should have questions, and doubts. I have questions, and doubts. I, and Judaism, give you permission to have questions and doubts.
Our first three sources on page 1, from the Torah and Talmud, state unequivocally that Judaism believes in the right for individuals to defend themselves from mortal danger. This principle becomes the basis for why it is morally permitted in Judaism for a state to defend itself in wartime. Suffice it to say that there is no question as to whether Judaism believes in a right to a defensive war. It does. Israel has a right and an obligation to defend its citizens from attack. Full stop.
But the question becomes a bit more complex when one asks what constitutes the boundaries of a defensive war. Sources 3, 4 and 5, from Sanhedrin 72a, Yoma 82a and an 18th C halachic commentary by the Noda BeYehuda, tells us that one may kill someone that is pursuing another, or ourselves, to do harm, and that saving a life - pikuach nefesh - is the most important mitzvah there is. The term in Hebrew for someone who is pursuing another to cause harm is a rodef. However, on a national or international scale, the right to attack a rodef is not unrestricted. If a terrorist group attacks or is en route to do harm, one may certainly kill the terrorists in order to protect the innocent. However, the terrorists that one intends to kill must be, in the legal language of the Noda BeYehuda, lifaneinu - before us.
This idea of fighting terrorists who present an active threat raises broad concerns that have been raised over and over again over the past 30 years both in America and in Israel. If one decides that a terrorist group - Hamas, Hezbollah, ISIS, Fatah, Al Quaida - is a mortal threat to state security, then it logically follows that they are a rodef and can be attacked whenever and wherever they are. Jewish law does not necessarily allow us to simply declare an open ended war on terror - there must be a clear and imminent threat. In the current Gaza war, that has occurred - Hamas committed unspeakable acts, and were they not confronted, more Israelis would have been harmed. This clear and imminent threat, however, is always before us, and the lack of clarity on when the threat ends creates the conditions for Israel to engage in a perpetual war in Gaza, in the kind of quagmire conflict that has been disastrous for other countries throughout history.
Our next three sources, from Maimonides, present the most authoritative and comprehensive rules of war in Jewish law.
The first source deals with the obligation to issue terms of surrender and supplication to Israelite rule before war is waged - which Maimonides presents in a straightforward, uncomplicated, matter of fact way. Of course, the exercise of Jewish power has never been so easy. Considering he lived in 13th century Spain and North Africa at a time when Jews had been a stateless and wandering people for over a thousand years, Maimonides must have found writing about Jews at war in conquest a strange and theoretical act of fantasy. Beginning in 1948, his hard to imagine laws about Jewish power and rule become a reality.
It was this week’s parsha that, in an abstract way, reminded me that being in power and having to make difficult moral decisions is extremely challenging. Parshat bo deals with the final four plagues against the Egyptians - hail, locusts, darkness, and death of the firstborn. For human beings to exert power over others, or to unleash willful suffering on other human beings, is morally fraught - particularly if those that suffer are innocent and non-combatant. When Pharaoh orders that all Israelite babies be killed, it is genocide. When God orders all the Egyptian firstborns to die, it is a Divine act, and therefore the usual moral handwringing is reserved, or at least lessened, since God is the objective source of our morality. We may not understand why God does something, but we lack the ability to say with certainty that God did something morally evil. The plagues, then, are a convenient way to create punishment without moral evil - the Jews didn’t do it; God did. Israel as a nation, however, must exert power in moral way. God will not make war in Gaza, so humans must, and their decisionmaking around the war and all matters of rule and governance are subject to a moral yardstick.
Maimonides next two relevant laws, 6:4 and 6:7, are in regards to the laws of morality within war in regards to non-combatants. This is the hardest part to read and consider as a person who believes in a Divine moral code as well as a state of Israel with a right to self-defense. Maimonides tells us that in war, one may kill all the men, but not the women and children. I must first state the obvious - that Maimonides is writing in the 13th century, and probably did not anticipate weapons with the scale and capacity for destruction that we have now. Maimonides is also speaking in terms of a medieval morality - in which killing all males regardless of combatant status would have been acceptable. Today, if you were to espouse this as the objectively moral position, you would rightly be accused of supporting genocide. However, the amazing thing about Maimonides’ statement here is that while it is untenable with regard to how violent it would be towards the men, it is also devastatingly and gut-wrenchingly condemnatory regarding the impermissibility of the deaths of women and children.
The war in Gaza has resulted in many thousands of innocent casualties - men, women, and children. And one might say to themselves ‘well that’s war’ or ‘we have no choice’. But one might also say, as many did during the US war in Vietnam, or the War in Iraq, or in WWII regarding the bombing of Dresden or the atomic bombs dropped on Hiroshima and Nagasaki, that a moral army ought not to kill innocent civilians. It is hard to watch Israel wage war, and to know that it must fight back against Hamas, and also know that casualties incurred in fighting Hamas are incongruous with the moral expectations of our religious teachings.
The words of my colleague Jill Jacobs, Director of Truah, the Rabbinic Call for Human Rights, are more direct regarding both Israel’s continued pursuit of the war and the toll it is taking on civilians and soldiers alike. In an op-ed for JTA on December 21, Jill wrote:
Perhaps this war can be “won,” in the sense that Hamas’s top leaders may eventually be killed, but can the IDF really root out every last fighter and every last rifle and rocket in every last tunnel? And if so, at what cost?
Would it be a victory to bring about the deaths of tens of thousands more Palestinian civilians, whether from bombs, disease, starvation or exposure? To sacrifice even more Israeli soldiers on what Israeli poet Natan Alterman called “the silver platter” for a war that is increasingly unlikely to bring greater security to Israel?
Rabbi Jacobs’ penultimate point also raises the soul-wrenching issue of humanitarian suffering in Gaza. The Israel-Hamas war has created a humanitarian crisis, as over 2 million people sleep outside with limited access to food, water, shelter, and medical care. One might say that Israel didn’t ask for this war, and they didn’t start this war, and so they are not responsible for the result of the war. But if Israel has taken control of Gaza, then it has a moral obligation to provide for the citizens of Gaza. Maimonides law in 6:7 tells us that in a siege, non-combatants must be allowed to leave. In Gaza, civilians have nowhere to go, and the amount of aid that has come in has been insufficient, creating a serious humanitarian crisis. In 1973, the commander of Israel’s southern army radioed to the IDF chief of staff and the prime minister, telling Golda May-EEEr that they were 40 kilometers from Cairo He asked ‘should we proceed?’ May-EEEr said no. The chief of staff asked why Israel should not seize Cairo. May-EEEr replied ‘because we would need to feed Cairo.’
Israel has seized Gaza. Israel has, then, the obligation to feed Gaza.
The final source I have provided is in regards to one of the two stated goals of the war - to return the hostages to Israel; the other being to destroy the operational capabilities of Hamas. Maimonides, in a different section of his law code than his laws for war, notes that the mitzvah of pidyon shibuim - redeeming captives, is the highest mitzvah, preceding all others. This law was created in a time when the return of captives and hostages was achieved through ransom, not negotiation or prisoner transfer, but the sanctity and importance of this principle remains. Israel’s moral obligation according to Jewish law is to get back the hostages first, and at any cost. There are many considerations at play, I’m sure. But the protests we see in Israel and around the world regarding the hostages are morally centered on a fundamental ideal: hostages first, everything else second. Since the first hostage exchange which returned 50 Israelis and foreign captives from Hamas, we all wait breathlessly for more news or another deal to be arranged, and we wonder - what is taking so long? And so folks gather, week after week, to remind the world, and Israel, to bring them home. Jewish law seems to be on their side: return of the hostages should be Israel’s primary goal in this war.
This is the rare occasion where a sermon will end not with resounding clarity or uplift. Often a rabbis goal in a message on shabbat is to take a question and answer it. Today I have taken a concept and made it more complicated. Perhaps for some of you I have sown doubt, or at least prodded the part of our brain where we hid away our doubt while we supported Israel in her time of need. It is right and good to be a Zionist, and to believe that Jews have a right to live on this earth, alongside every other people, in our homeland. It is also right and good to have an unbreakable moral code that tells us how to treat others. It is a terrible thing when those two things are in conflict with one another. I pray that those two currently contradictory things come into alignment and harmony soon, that war end, that the hostages come home soon; but until that comes, I remind us all that the moral clarion call of Torah is not suspended, even at the most difficult hour. Shabbat Shalom.
Sources attached below as pdf file.