SHARON’S DILEMMA
The past few years have seen much killing and bloodshed in the area of
the world known as the Middle East. On both sides of the conflict there
have been attacks and casualties. The numbers are painful to read and
hear. The Israeli government, under the leadership of Prime Minister
Ariel Sharon, has adopted a different tactic in fighting terrorism. In
response to Palestinian terrorist activity and under the threat of future
terrorism, the government has been seeking out wanted Palestinian
militants and killing them.
What do you think?
What would you do?
Is Sharon doing what is right? Should world opinion play a role in this situation?
Do we have any obligation to help the victims or protect the would-be
murderers? What are the moral and ethical implications of this policy?
What do the Jewish texts teach us? What can we glean from the Sages of days past? Is there religious justification
for the promotion and fulfillment of this type of action?
The Talmud, based on verses from the Bible, learns a very interesting category that may relate to our issue. It is
called the Law of the Makhteret, or Burrower. What do we learn about this person, thief? What are our duties toward
him or his intended victims?
Babylonian Talmud; Sanhedrin 72a: The Case of the Makhteret
MISHNA. The thief who burrows his way in is judged on
account of its probable outcome. If he broke through and broke a
jug, should there be ‘blood-guiltiness for him’ he must pay, but
if there is no ‘blood-guiltiness for him’ his is not liable.
GEMARA. Raba said: What is the reason for the law of
breaking in? Because it is certain that no man is inactive where
his property is concerned; therefore this one (the thief) must have
reasoned, ‘If I go there, he (the owner) will oppose me and
prevent me; but if he does, I will kill him.’ Hence the Torah
decreed, ‘ If he come to slay thee, forestall by slaying him.’
Maimonides relates the explicit law in his magnum opus, Mishneh Torah:
Maimonides; Book of Damages; Laws of Theft; chapter 9;7
7. One who burrows, whether by day or by night, there is ‘no
blood-guiltiness for him,’ therefore if the owner or any other
person killed him there is no liability. And permission is given to
kill him whether on a weekday or on the Sabbath in any manner
that is necessary as there is ‘no blood-guiltiness for him.’
The Talmud, on the next page, discusses another very interesting law that has tremendous practical implications. It
is called the Law of the Rodeif, or Pursuer. Who is considered a pursuer? What are our legal rights and obligations
towards this individual and his intended victim(s)?
Babylonian Talmud; Sanhedrin 73a: The Case of the Rodeif
MISHNA. The following must be saved [from sinning] even at
the cost of their lives: He who pursues after his neighbor to slay
him, or after a male, or after a betrothed maiden [to dishonor
her]. But he who pursues after an animal [to abuse it], or would
desecrate the Sabbath, or commit idolatry, must not be saved
[from sinning] at the cost of his life.
GEMARA. Our Rabbis taught: Whence do we know that he
who pursues after his neighbor to slay him must be saved [from
sin] at the cost of his own life? From the verse ‘Thou shalt not
stand by the blood of thy neighbor.’(Leviticus 19;16). But does it
come to teach this? Is it not employed for the following
[Baraitha] that has been taught: Whence do we know that if a
man sees his fellow drowning, mauled by beasts, or attacked by
robbers, he is bound to save him? From the verse Thou shalt not
stand by the blood of thy neighbor! -That in truth is so. Then
whence do we know that [the pursuer] must be saved at the cost
of his life?…The School of Rabbi taught: It is derived by
analogy (hekkesh): ‘[But to the girl thou shalt do nothing; there
is in the girl no sin worthy of death] For as when a man riseth
against his neighbor, and slay him, even so in this matter.’
(Deuteronomy 22;26) But what do we learn from this analogy of
a murderer? Thus, this comes to throw light, and is itself
illumined. The murderer is compared to a betrothed maiden; just
as a betrothed maiden must be saved [from dishonor] at the cost
of his [her violator’s] life, so in the case of a murderer, he [the
victim] must be saved at the cost of his [the attacker’s] life. And
whence do we know this of a betrothed maiden? As was taught
by the school of Rabbi Ishmael. For the School of Rabbi Ishmael
taught: [The betrothed damsel cried]; and there was none to
save her; (Deuteronomy 22;27) but, if there was a rescuer, he
must save her by all possible means [including the death of her
ravisher].
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Exodus Chapter 20
1. And God spoke all these words, saying,
2. I am the Lord your God, who have brought you out of the land of Egypt, out of the house of slavery.
3. You shall have no other gods before me.
4. You shall not make for you any engraved image, or any likeness of any thing that is in heaven above, or that is in
the earth beneath, or that is in the water under the earth;
5. You shall not bow down yourself to them, nor serve them; for I the Lord your God am a jealous God, visiting the
iniquity of the fathers upon the children to the third and fourth generation of them that hate me;
6. And showing mercy to thousands of those who love me, and keep my commandments.
7. You shall not take the name of the Lord your God in vain; for the Lord will not hold him guiltless who takes his
name in vain.
8. Remember the sabbath day, to keep it holy.
9. Six days shall you labor, and do all your work;
10. But the seventh day is the sabbath of the Lord your God; in it you shall not do any work, you, nor your son, nor
your daughter, your manservant, nor your maidservant, nor your cattle, nor your stranger that is within your gates;
11. For in six days the Lord made heaven and earth, the sea, and all that is in them, and rested the seventh day;
therefore the Lord blessed the sabbath day, and made it holy.
12. Honor your father and your mother; that your days may be long upon the land which the Lord your God gives
you.
13. You shall not kill. You shall not commit adultery. You shall not steal. You shall not bear false witness against
your neighbor.
14. You shall not covet your neighbor’s house, you shall not covet your neighbor’s wife, nor his manservant, nor his
maidservant, nor his ox, nor his ass, nor any thing that is your neighbor’s.
15. And all the people saw the thunderings, and the lightnings, and the sound of the shofar, and the mountain
smoking; and when the people saw it, they were shaken, and stood far away.
16. And they said to Moses, Speak with us, and we will hear; but let not God speak with us, lest we die.
Numbers Chapter 15
32. And while the people of Israel were in the wilderness, they found a man who gathered sticks upon the sabbath
day.
33. And those who found him gathering sticks brought him to Moses and Aaron, and to all the congregation.
34. And they put him in custody, because it was not told what should be done to him.
35. And the Lord said to Moses, The man shall be surely put to death; all the congregation shall stone him with
stones outside the camp.
36. And all the congregation brought him outside the camp, and stoned him with stones, and he died; as the Lord
commanded Moses.
Leviticus Chapter 24
10. And the son of an Israelite woman, whose father was an Egyptian, went out among the people of Israel; and this
son of the Israelite woman and a man of Israel strove together in the camp;
11. And the Israelite woman’s son blasphemed the name of the Lord, and cursed. And they brought him to Moses;
and his mother’s name was Shelomith, the daughter of Dibri, of the tribe of Dan;
12. And they put him in custody, that the mind of the Lord might be shown to them.
13. And the Lord spoke to Moses, saying,
14. Bring forth him who has cursed outside the camp; and let all who heard him lay their hands upon his head, and
let all the congregation stone him.
15. And you shall speak to the people of Israel, saying, Whoever curses his God shall bear his sin.
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16. And he who blasphemes the name of the Lord, he shall surely be put to death, and all the congregation shall
certainly stone him; as well the stranger, as he who is born in the land, when he blasphemes the name of the Lord,
shall be put to death.
17. And he who kills any man shall surely be put to death.
18. And he who kills a beast shall make it good; beast for beast.
19. And if a man causes a blemish in his neighbor; as he has done, so shall it be done to him;
20. Breach for breach, eye for eye, tooth for tooth; as he has caused a blemish in a man, so shall it be done back to
him.
21. And he who kills a beast, he shall restore it; and he who kills a man, he shall be put to death.
22. You shall have one kind of law, as well for the stranger, as for one of your own country; for I am the Lord your
God.
23. And Moses spoke to the people of Israel, that they should bring forth him who had cursed out of the camp, and
stone him with stones. And the people of Israel did as the Lord commanded Moses.
Maimonides, in Mishneh Torah, cogently summarizes the law
Maimonides, Book of Damages; Laws of Homicide and Life Preservation; chapter 1; 6-8
6. …But the pursuer after his fellow man to kill him, even if
the pursuer is child, every member of Israel is commanded to
save the pursued from the pursuer even with the life of the
pursuer.
7. How is this? If the pursuer is warned as to his intended
actions and yet he continues to pursue, even though he has not
accepted the warning since he is still pursuing he can be killed.
And if you can save the pursued with wounding one of the limbs
of the pursuer, for example hitting him with an arrow, or rock, or
sword and you cut off his hand or break his leg or blind his eye,
you do so. And if you cannot save the pursued accept in the
manner of killing the rodeif then kill him, even though he has not
yet killed as it says ‘
8. … The idea of that which is written is that anyone who has a
thought to kill his fellow man we save the victim by way of the
hand of the murderer. But if he cannot be saved in such a manner
then one can do so even with the life of the pursuer as it says ‘
The Talmud proceeds to provide a crucial connection between our two texts:
Babylonian Talmud; Sanhedrin 72b:
…Our Rabbis taught: “[If a thief be found breaking up], and be
smitten, - by any man; that he die, -by any death wherewith you
can slay him. Now, ‘and he be smitten - by any man’ is rightly
necessary: for I might think that only the owner may be assumed
not to remain passive, whilst his money is being stolen, but not a
stranger, it is therefore taught that he (the thief) is regarded as
a potential murderer (‘rodeif’), whom even a stranger may kill
[in defense of the owner].
Maimonides, again, succinctly summarizes the appropriate law:
Maimonides; Book of Damages; Laws of Theft; chapter 9;9
9. And for what reason did the Torah allow the blood of the
thief even though he comes for the purpose of money? Because
it is established that if the owner stood against him to stop the
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theft he (the thief) would kill him, and this finds the thief as a
rodeif (pursuer) after his fellow man to kill him, therefore kill
him whether adult or child whether male or female.
We have seen the possibilities, but where does our obligation to save others stem from? What if there is potential
danger for myself in this act? What if my action increases the harm done?
Babylonian Talmud; Sanhedrin 73a: Lo Ta’amod ‘al Dam Re’ekha
GEMARA. Our Rabbis taught: Whence do we know that he
who pursues after his neighbor to slay him must be saved [from
sin] at the cost of his own life? From the verse ‘Thou shalt not
stand by the blood of thy neighbor.’(Leviticus 19;16). But does it
come to teach this? Is it not employed for the following
[Baraitha] that has been taught: Whence do we know that if a
man sees his fellow drowning, mauled by beasts, or attacked by
robbers, he is bound to save him? From the verse Thou shalt not
stand by the blood of thy neighbor! -That in truth is so.
Maimonides, based on the above cited text and others throughout the Talmud, expounds as to the biblical
transgressions of one who does not fulfill his/her duty in this difficult situation, and as to one who fails to discharge
his/her obligation in the appropriate manner:
Maimonides; Book of Damages;Laws of Homicide & Life Preservation; chapter 1;13-14, 16
13. Anyone who can save the pursued by way of a limb of the
pursuer and did not attempt to do so and instead kills him this is
considered murder and the murderer is punishable by death, but
the Court does not kill him.
14. Anyone who has the opportunity to save and does not do so
has transgressed the verse ‘Thou shalt not stand by the blood of
thy neighbor.’ And the same for one who saw his friend
drowning in the sea, or robbers coming upon him or any other
evil that may come to him and can save him or hire others who
can save him and does not. Or heard idolaters… conspiring evil
against his fellow man…and does not inform his fellow
man…the doer of these transgresses the verse ‘Thou shalt not
stand by the blood of thy neighbor.’
16. Even though one is not lashed for these transgressions, as
there is no action, they are still very grave for it says that anyone
who causes the loss of one life in Israel it is considered as if they
lost the entire world, and one who preserves one life in Israel it is
as if they upheld the entire world.
To cite further textual analysis, the following famous Talmudic passage and Rabbi Akiva’s
response. What are the practical implications of Rabbi Akiva’s position?
Babylonian Talmud; Baba Metzia 62a: The Case of Pikuakh Nefesh
“…and R’ Yochanan, what does he learn from the verse ‘your
brother shall live with you?’ He needs it for as it says in the
Braitha: two that were walking on the road and in the hand of
one is a bottle of water, if both drink both die, if one drinks he
will reach the settlement. The Son of Peturah explained: better
that both drink and die than have one see the death of his friend.
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Until along came Rabbi Akiva and explained: your brother shall
live with you- your life takes precedence over your friend’s
life.
Continuing in the same vein, another Talmudic text states:
Babylonian Talmud; Sanhedrin; 73a
“[Incest and murder may not be practiced to save one’s
life]…And how do we know this of murder itself?- It is common
sense. Even as one who came before Raba and said to him, ‘The
governor of my town has ordered me, “Go and kill so and so; if
not I will slay you”’. He answered him, ‘Let him rather slay you
than that you should commit murder; who knows that your
blood is redder? Perhaps his blood is redder!’
If that is true, what about the reverse implication, with respect to saving that other person’s life? What about your
blood as it relates to his/hers?
The State of Israel has recently enacted the Lo Ta’amod ‘al Dam Re’ekha law, or the Good Samaritan Law. What
does it assert about the government’s view on the issue of responsibility?
Lo Ta'amod 'al Dam Re'ekha Law, 5758 -19981
Enacted by the Israeli Knesset on 28 Sivan 5758 (June 22, 1998)
Translated by David Schonberg, Advocate
1. A person is obliged to proffer assistance, when able to do so without endangering himself or The Duty of
(a) his fellow, to a person who, in close proximity, and following a sudden event, is subject to a Rescue and to
serious and immediate danger to his life, his person, or his health.
Proffer
Assistance
(b) If that person notifies the authorities or calls upon another person who can proffer the
required assistance, then he shall be deemed as though he proffered assistance for the
purposes of this Law: in this Section, "authorities" - the police, the ambulance services
[Magen David Adom], and the fire-fighting services.
2. The provisions of Section 5 of the Unjust Enrichment Law, 5739-1979,1 shall apply,
Refund of
(a) notwithstanding that the person providing the benefit acted in accordance with his obligation Expenses and
under Section 1.
Damages
(b) The Court may order the party responsible for causing the danger that the rescued person was
subject to, including the rescued person himself if he caused the danger, to indemnify the
person who proffered assistance according to his obligation under Section 1, for reasonable
costs and expenses that he incurred.
3. Save as otherwise provided by Section 2 (a) of this Law the provisions of this Law shall not Saving of
derogate from the provisions of any other enactment.
Powers
4. A person in breach of the provisions of Section 1 of this Law shall be subject to a fine.
Penalties
5. The Minister of Justice is charged with the implementation of this Law.
Implementation
6. This Law shall come into force upon the expiration of 90 days from the date of its
Commencement
publication [in Reshumot].
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Let us cite a case scenario for the sake of grasping the issue of responsibility. When are we responsible for others
and when are we exempted? How do we know whether we have any relationship to a current or imminent situation?
What follows is a selection from the report of the Kahan Commission, which was an investigation performed by the
Israeli Supreme Court into the massacres at the Sabra and Shatila refugee camps in Lebanon during the 1982
Lebanon War. Within the report the commission discusses its views on responsibility and then relates it to the
particular players involved in the incident.
Report of the Commission of Inquiry into
the Events at the Refugee Camps in Beirut
(The Kahan Commission)
(February 8, 1983)
The Indirect Responsibility
“…If it indeed becomes clear that those who decided on the entry of the Phalangists into the
camps should have foreseen - from the information at their disposal and from things which were
common knowledge - that there was danger of a massacre, and no steps were taken which might
have prevented this danger or at least greatly reduced the possibility that deeds of this type might
be done, then those who made the decisions and those who implemented them are indirectly
responsible for what ultimately occurred, even if they did not intend this to happen and merely
disregarded the anticipated danger. A similar indirect responsibility also falls on those who knew
of the decision; it was their duty, by virtue of their position and their office, to warn of the danger,
and they did not fulfill this duty. It is also not possible to absolve of such indirect responsibility
those persons who, when they received the first reports of what was happening in the camps, did
not rush to prevent the continuation of the Phalangists' actions and did not do everything within
their power to stop them. It is not our function as a commission of inquiry to lay a precise legal
foundation for such indirect responsibility. It may be that from a legal perspective, the issue of
responsibility is not unequivocal, in view of the lack of clarity regarding the status of the State of
Israel and its forces in Lebanese territory. If the territory of West Beirut may be viewed at the time
of the events as occupied territory - and we do not determine that such indeed is the case from a
legal perspective - then it is the duty of the occupier, according to the rules of usual and customary
international law, to do all it can to ensure the public's well-being and security. Even if these legal
norms are invalid regarding the situation in which the Israeli government and the forces operating
at its instructions found themselves at the time of the events, still, as far as the obligations
applying to every civilized nation and the ethical rules accepted by civilized peoples go, the
problem of indirect responsibility cannot be disregarded. A basis for such responsibility may be
found in the outlook of our ancestors, which was expressed in things that were said about the
moral significance of the biblical portion concerning the "beheaded heifer" (in the Book of
Deuteronomy, chapter 21). It is said in Deuteronomy (21:6-7) that the elders of the city who
were near the slain victim who has been found (and it is not known who struck him down) "will
wash their hands over the beheaded heifer in the valley and reply: our hands did not shed this
blood and our eyes did not see." Rabbi Yehoshua ben Levi says of this verse (Talmud, Tractate
Sota 38b):
"The necessity for the heifer whose neck is to be broken only arises on account of the
niggardliness of spirit, as it is said, 'Our hands have not shed this blood.' But can it enter our
minds that the elders of a Court of Justice are shedders of blood! The meaning is, [the man
found dead] did not come to us for help and we dismissed him, we did not see him and let him
go - i.e., he did not come to us for help and we dismissed him without supplying him with food,
we did not see him and let him go without escort." (Rashi explains that escort means a group
that would accompany them; Sforno, a commentator from a later period, says in his
commentary on Deuteronomy, "that there should not be spectators at the place, for if there were
spectators there, they would protest and speak out.')
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When we are dealing with the issue of indirect responsibility, it should also not be forgotten that
the Jews in various lands of exile, and also in the Land of Israel when it was under foreign rule,
suffered greatly from pogroms perpetrated by various hooligans; and the danger of
disturbances against Jews in various lands, it seems evident, has not yet passed. The Jewish
public's stand has always been that the responsibility for such deeds falls not only on those who
rioted and committed the atrocities, but also on those who were responsible for safety and public
order, who could have prevented the disturbances and did not fulfill their obligations in this
respect. It is true that the regimes of various countries, among them even enlightened countries,
have side-stepped such responsibility on more than one occasion and have not established
inquiry commissions to investigate the issue of indirect responsibility, such as that about which
we are speaking; but the development of ethical norms in the world public requires that the
approach to this issue be universally shared, and that the responsibility be placed not just on the
perpetrators, but also on those who could and should have prevented the commission of those
deeds which must be condemned.
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Personal Responsibility
…
The Minister of Defense, Mr. Ariel Sharon
The notice sent to the Minister of Defense under Section 15(A) stated that the Minister of Defense
might be harmed if the commission determined that he ignored or disregarded the danger of acts
of revenge or bloodshed perpetrated by Lebanese forces against the population of the refugee
camps in Beirut and did not order the adoption of the withdrawal of the Lebanese forces from the
refugee camps as quickly as possible and the adoption of measures to protect the population in the
camps when information reached him about the acts of killing or excesses that were perpetrated by
the Lebanese forces.
In his testimony before us, and in statements he issued beforehand, the Minister of Defense also
adopted the position that no one had imagined the Phalangists would carry out a massacre in the
camps and that it was a tragedy that could not be foreseen. It was stressed by the Minister of
Defense in his testimony, and argued in his behalf, that the director of Military Intelligence, who
spent time with him and maintained contact with him on the days prior to the Phalangists' entry
into the camps and at the time of their entry into the camps, did not indicate the danger of a
massacre, and that no warning was received from the Mossad, which was responsible for the
liaison with the Phalangists and also had special knowledge of the character of this force.
It is true that no clear warning Was provided by military intelligence or the Mossad about what
might happen if the Phalangist forces entered the camps, and we will relate to this matter when we
discuss the responsibility of the director of Military Intelligence and the head of the Mossad. But
in our view, even without such warning, it is impossible to justify the Minister of Defense's
disregard of the danger of a massacre. We will not repeat here what we have already said above
about the widespread knowledge regarding the Phalangists' combat ethics, their feelings of hatred
toward the Palestinians, and their leaders' plans for the future of the Palestinians when said leaders
would assume power. Besides this general knowledge, the Defense Minister also had special
reports from his not inconsiderable [number of] meetings with the Phalangist heads before Bashir's
assassination.
Giving the Phalangists the possibility of entering the refugee camps without taking measures for
continuous and concrete supervision of their actions there could have created a grave danger for
the civilian population in the camps even if they had been given such a possibility before Bashir's
assassination; thus this danger was certainly to have been anticipated - and it was imperative to
have foreseen it - after Bashir's assassination. The fact that it was not clear which organization had
caused Bashir's death was of no importance at all, given the known frame of mind among the
combatant camps in Lebanon. In the circumstances that prevailed after Bashir's assassination, no
prophetic powers were required to know that concrete danger of acts of slaughter existed when the
Phalangists were moved into the camps without the I.D.F.'s being with them in that operation and
without the I.D.F. being able to maintain effective and ongoing supervision of their actions there.
The sense of such a danger should have been in the consciousness of every knowledgeable person
who was close to this subject, and certainly in the consciousness of the Defense Minister, who
took an active part in everything relating to the war. His involvement in the war was deep, and the
connection with the Phalangists was under his constant care. If in fact the Defense Minister, when
he decided that the Phalangists would enter the camps without the I.D.F. taking part in the
operation, did not think that that decision could bring about the very disaster that in fact occurred,
the only possible explanation for this is that he disregarded any apprehensions about what was to
be expected because the advantages - which we have already noted - to be gained from the
Phalangists' entry into the camps distracted him from the proper consideration in this instance.
As a politician responsible for Israel's security affairs, and as a Minister who took an active part in
directing the political and military moves in the war in Lebanon, it was the duty of the Defense
Minister to take into account all the reasonable considerations for and against having the
Phalangists enter the camps, and not to disregard entirely the serious consideration mitigating
against such an action, namely that the Phalangists were liable to commit atrocities and that it was
necessary to forestall this possibility as a humanitarian obligation and also to prevent the political
damage it would entail. From the Defense Minister himself we know that this consideration did
not concern him in the least, and that this matter, with all its ramifications, was neither discussed
nor examined in the meetings and discussion held by the Defense Minister. In our view, the
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Minister of Defense made a grave mistake when he ignored the danger of acts of revenge and
bloodshed by the Phalangists against the population in the refugee camps.
We have already said above that we do not assert that the decision to have the Phalangists enter
the camps should under no circumstances ever have been made. It appears to us that no complaints
could be addressed to the Defense Minister in this matter if such a decision had been taken after all
the relevant considerations had been examined; however, if the decision were taken with the
awareness that the risk of harm to the inhabitants existed, the obligation existed to adopt measures
which would ensure effective and ongoing supervision by the I.D.F. over the actions of the
Phalangists at the site, in such a manner as to prevent the danger or at least reduce it considerably.
The Defense Minister issued no order regarding the adoption of such measures. We shall not dwell
here on what steps might have been taken; this we shall consider below. Regarding the
responsibility of the Minister of Defense, it is sufficient to assert that he issued no order to the
I.D.F. to adopt suitable measures. Similarly, in his meetings with the Phalangist commanders, the
Defense Minister made no attempt to point out to them the gravity of the danger that their men
would commit acts of slaughter. Although it is not certain that remarks to this effect by the
Defense Minister would have prevented the acts of massacre, they might have had an effect on the
Phalangist commanders who, out of concern for their political interests, would have imposed
appropriate supervision over their people and seen to it that they did not exceed regular combat
operations. It was related above that a few hours after the Phalangists entered the camps, soldiers
at the site asked what to do with the people who had fallen into their hands, and the replies they
were given not only did not bar them from harming those people, but even urged them to do so. It
is a highly reasonable assumption that had the commanders who gave that reply heard from the
Defense Minister or from higher Phalangist commanders a clear and explicit order barring harm to
civilians and spelling out the damage this was liable to cause the Phalangists, their reply to these
questions would have been different.
Had it become clear to the Defense Minister that no real supervision could be exercised over the
Phalangist force that entered the camps with the I.D.F.'s assent, his duty would have been to
prevent their entry. The usefulness of the Phalangists' entry into the camps was wholly
disproportionate to the damage their entry could cause if it were uncontrolled. A good many
people who heard about the Phalangists' entry into the camps were aware of this even before the
first reports arrived about the massacre. The Chief of Staff in effect also held the same opinion, as
emerges from his reply to a question whether he would have issued orders for additional measures
to be taken or would have sufficed with the steps that were in fact taken, had it been expected that
the Phalangists would commit excesses. He replied as follows (p. 1677):
"No, if I had expected that this was liable to happen, or if someone had warned me that this was
liable to happen, they would not have entered the camps."
In reply to another question, whether he would have taken additional measures, the Chief of Staff
said:
"They would not have entered the camps; I would not have allowed them to enter the camps."
Asked if he would not have allowed the Phalangists to enter the camps despite the aim of having
them operate together with the I.D.F. and spare the I.D.F. losses, the Chief of Staff replied:
"Then maybe we should have acted differently, by closing the camps, by surrounding them, or
bringing them to surrender in another week or in another few days, or shelling them with all our
might from the air and with artillery. As for me, if I had anticipated that this is what would
happen, or if such a warning had been given, they would not have entered the camps."
And the Chief of Staff added that if he had suspected or feared that what happened would happen,
"they would not have entered the camps at all, they would not have come anywhere near the
camps." We quote these remarks here in order to show that despite the usefulness of having the
Phalangists enter the camps, that step should have been abandoned if a massacre could not have
been prevented using the means in the I.D.F.'s hands.
We do not accept the contention that the Defense Minister did not need to fear that the Phalangists
would commit acts of killing because in all outward aspects they looked like a disciplined and
organized army. It could not be inferred from the Phalangists' orderly military organization that
their attitude toward human life and to the non-combatant population had basically changed. It
might perhaps be inferred from their military organization that the soldiers would heed the orders
of their commanders and not break discipline; but at the very least, care should have been taken
10
that the commanders were imbued with the awareness that no excesses were to be committed and
that they give their men unequivocal orders to this effect. The routine warnings that I.D.F.
commanders issued to the Phalangists, which were of the same kind as were routinely issued to
I.D.F. troops, could not have had any concrete effect.
We shall remark here that it is ostensibly puzzling that the Defense Minister did not in any way
make the Prime Minister privy to the decision on having the Phalangists enter the camps.
It is our view that responsibility is to be imputed to the Minister of Defense for having disregarded
the danger of acts of vengeance and bloodshed by the Phalangists against the population of the
refugee camps, and having failed to take this danger into account when he decided to have the
Phalangists enter the camps. In addition, responsibility is to be imputed to the Minister of Defense
for not ordering appropriate measures for preventing or reducing the danger of massacre as a
condition for the Phalangists' entry into the camps. These blunders constitute the non-fulfillment
of a duty with which the Defense Minister was charged.
We do not believe that responsibility is to be imputed to the Defense Minister for not ordering the
removal of the Phalangists from the camps when the first reports reached him about the acts of
killing being committed there. As was detailed above, such reports initially reached the Defense
Minister on Friday evening; but at the same time, he had heard from the Chief of Staff that the
Phalangists' operation had been halted, that they had been ordered to leave the camps and that their
departure would be effected by 5:00 a.m. Saturday. These preventive steps might well have
seemed sufficient to the Defense Minister at that time, and it was not his duty to order additional
steps to be taken, or to have the departure time moved up, a step which was of doubtful feasibility.
While we are not here to defend or indict PM Sharon in the case of Sabra and Shatila, what have we gained with
respect to the Commission’s view as to what are direct or indirect responsibilty?
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Source Booklet
Sir Francis Bacon, the famed 16th century philosopher, in one of his writings, “Essays,” has a piece entitled “Of
Empire,” in which he writes the following, with respect to this issue:
“…First for their neighbors; there can no general rule be given (for
occasions are so variable), save one, which ever holdeth, which is, that
princes do keep due sentinel, that none of their neighbors do ever grow
so (by increase of territory, by embracing of trade, by approaches, or
the like), as they become more able to annoy them, than they were. And
this is generally the work of standing counsels, to foresee and to hinder
it. During that triumvirate of kings, King Henry the Eighth of England,
Francis the First King of France, and Charles the Fifth Emperor, there
was such a watch kept, that none of the three could win a palm of
ground, but the other two would straightways balance it, either by
confederation, or, if need were, by a war; and would not in any wise
take up peace at interest. And the like was done by that league (which
Guicciardini saith was the security of Italy) made between Ferdinando
King of Naples, Lorenzius Medici, and Ludovicus Sforza, potentates,
the one of Florence, the other of Milan. Neither is the opinion of some
of the Schoolmen, to be received, that a war cannot justly be made, but
upon a precedent injury, or provocation. For there is no question, but
a just fear of an imminent danger, though there be no blow given, is a
lawful cause of a war.”
--Sir Francis Bacon (1561-1626), Essays; “Of Empire”
The members of the government of the United States have been embroiled in this discussion, as well. What did we
say then?
“Under these circumstances, and under those immediately connected
with the transaction itself, it will be for Her Majesty's Government to
show, upon what state of facts, and what rules of national law, the
destruction of the "Caroline" is to be defended. It will be for that
Government to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for
deliberation. It will be for it to show, also, that the local authorities of
Canada,- even supposing the necessity of the moment authorized them
to enter the territories of the United States at all,-did nothing
unreasonable or excessive; since the act justified by the necessity of
self-defence, must be limited by that necessity, and kept clearly within
it…”
--Secratary of State Daniel Webster (December 7,1841)
Webster-Ashburton Treaty - The Caroline Case
Throughout military history this path of action as governmental policy has been debated. One area of interest have
been the rules of such a ‘game.’
“…The general formula must go something like this: states may use
military force in the face of threats of war, whenever the failure to do
so would seriously risk their territorial integrity and political
independence. Under such circumstances it can fairly be said that they
have been forced to fight and that they are the victims of aggression.
Since there are no police upon whom they can call, the moment at
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which the states are forced comes sooner than it would for individuals
in a settled domestic society. But if we imagine an unstable society,
like the ‘wild west’ of American fiction, the analogy can be restated: a
state under threat is like an individual hunted by an enemy who has
announced his intention of killing or injuring him. Surely such a person
may surprise his hunter, if he is able to do so.”
--Michael Walzer, Just and Unjust Wars (pp. 74-85)
As we speak the press has been hotly debating all of the possible angles and perspectives relating to this issue:
Israel's policy of assassinating Palestinian militants is a bad way to achieve security. It is
unjustified on moral, political and pragmatic grounds. The killings are a sign that the
government of Ariel Sharon lacks an effective strategy for containing the violence in which more
than 500 Palestinians and 130 Israelis have died in the 10 months since the start of the latest
uprising.
The Israeli government justifies its actions, which it euphemistically describes as upholding the
basic right to self-defence, on the grounds that it is the first duty of the state to protect its civilians.
The stated objective of killing militants is to pre-empt attack, although the latest assassinations,
such as the Hamas activists killed in Nablus this week, are also in retribution for attacks on Israel.
If the Palestinian Authority cannot curb the militants, argue Mr. Sharon's supporters, then the army
has a duty to take them out.
The moral case against what has been happening needs no explanation. Politically,
assassination harms Israel's claim to be the only democracy in the Middle East and alienates
western opinion. And in cold practical terms, it is counter-productive.
Assassination's ineffectiveness as a security policy is known by several former western colonial
powers and well tested in history. Killing an opponent's top people only multiplies your enemies, a
problem incidentally recognized by that expert in pragmatism, Niccolo Machiavelli.
In Israel and the occupied territories, the spiral of violence is nightmarish. There is the tragedy of
innocents caught in the crossfire. According to B'tselem, the Israeli association that monitors
human rights violations in the occupied territories, 12 bystanders have died alongside the 29
militants killed by the Israeli military in overt assassinations since last September. Then there is
the dreadful pattern of retribution.
The weakness of Mr. Sharon's leadership led him to follow such a bad strategy. He is dithering
between Likud, which believes he is too restrained and urges an invasion of Palestinian controlled
areas; and Shimon Peres, his Labour foreign minister, who urges negotiation. Mr. Sharon should
have the courage to heed the moderates in his coalition.
It is in the interests of Israel and the region to halt the escalation of violence. Peace talks, or
even a return to the proposals of the Mitchell commission, are clearly hard for the moment.
So Mr. Sharon must find a long-term strategy to contain violence and pave the way for
negotiations. That needs stronger leadership and a clearer vision than he has shown so far.
--Editorial comment, The Financial Times, Friday 8/3/01; “False security”
The Israeli Government has stepped up the policy of counter-terrorist assassinations; Colin
Powell, the Secretary of State, has condemned the policy but the Vice-President, Richard Cheney,
has virtually come out in support. The gap in the policy of the Administration has become a
chasm.
The State Department strongly deplored the previous week’s helicopter attack by Israel as “highly
provocative” and a “dangerous escalation”. Richard Cheney, who supports the hawkish position of
Donald Rumsfeld, the Secretary of Defense, has said, in an interview with Fox News on Thursday
night: “I think there’s some justification in their trying to protect themselves by pre-empting.”
…The policy of preemption seems to be popular in Israel. On Saturday there was indeed a peace
march of about 2,000 Israelis on the Ministry of Defense, and it was supported by many young
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people, but a recent opinion poll showed a large majority of the general population in favour of
striking first. The public attitude can be summarized in the statement of a senior Israeli
officer: “If a man comes to kill you, you rise early and kill him first.”…
…Public support for this policy reflects the profound anxiety in Israel that the intifada will
continue to be intensified, that Yassir Arafat cannot be trusted to make peace, and that even the
more moderate Palestinians have the ultimate intention of destroying the state of Israel. There are
also differences in analysis. The Rumsfeld-Cheney view is that Israel needs to keep up the
pressure on Arafat, that the Palestinians have to be forced back to the conference table and that the
targeted killings may be both a legitimate response and an effective form of pressure. The Israeli
Defense Forces are waging psychological as well as physical warfare against the Palestinian
leaders...
…Equally, the Arabs do not trust Ariel Sharon. They regard him as responsible for the massacres
in Lebanon; they detest him as a war criminal, with whom it is impossible to make peace. His
policy of targeted killing makes Arabs see him as, quite simply, a murderer…
…It seems most unlikely that Arafat either has the will or the power to do that. In the meantime,
the intifada and the suicide bombers on the one hand, and targeted killing on the other, are
breaking down what little residue of trust remains on either side… Israeli public opinion is now
much more aggressive, but only because it is deeply fearful…
The Sharon policy of targeting the Palestinian leaders will not lead to peace Targeted killing is a
policy for which Israel is already paying too high a price. It is worse than a crime, it is a
blunder.”
--William Rees-Mogg, London Times, Monday 8/6/01; “Sharon is Striking Down Israel's Future”
The Israeli army, determined to offer a tough response to Palestinian attacks, has given soldiers
the green light to open fire without the somewhat restrictive guidelines it announced this spring,
military officials said today.
Palestinian officials said the army's more permissive rules of engagement signaled a fresh
escalation in the bitter 10-month conflict between Israel and the Palestinians, which has left 650
people dead, three-quarters of them Arabs.
The army's new policy permits Israeli troops to shoot at Palestinians who appear to be
preparing an attack even if they have not opened fire. The policy replaces one announced in
May, under which soldiers were supposed to hold their fire unless their lives were threatened
by Palestinian rioters or gunmen whom they could identify.
Describing the shift in policy, an army official said: "Before, we said you had to identify very
clearly the danger and the target if somebody's shooting at you in order to fire back. Now, if
you see three men with guns trying to prepare an ambush, you have the right to engage them
before they open fire at you."
Army spokesmen stressed that the new regulations, reported today in the Israeli newspaper
Haaretz, do not constitute a fresh offensive against the Palestinians, and were set with self-defense
in mind. They said the new rules were needed because of a doubling of Palestinian attacks, to 40
or so incidents a day from about 20 last spring, according to the army's tally.
"It's something which has been forced on us by the situation, and not something that we wanted to
do," said Lt. Col. Olivier Rafowicz, an army spokesman. "It's not a change of overall policy."
But Palestinians said the army's rules of engagement have never changed, and that Israel's
announcement of a policy of restraint this spring was just a public relations move.
"We don't regard these so-called new regulations as new because as far as we're concerned there
was never any change in the army's acts or measures," Ahmed Qureia, speaker of the Palestinian
parliament, told the Reuters news agency. "The Israeli soldiers never stopped killing Palestinians
or assassinating them. This new announcement comes as part of the Israeli government's efforts to
escalate its violence."
“The army's new policy permits Israeli troops to shoot at Palestinians who appear to be preparing
an attack even if they have not opened fire. The policy replaces one announced in May, under
which soldiers were supposed to hold their fire unless their lives were threatened by Palestinian
rioters or gunmen whom they could identify...
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--Lee Hockstader, Washington Post, Tuesday, 8/7/01; “Israel Revokes Policy of Restraint”
HEBRON, West Bank (Reuters) - Undercover Israeli soldiers shot dead a member of Yasser
Arafat's Fatah faction on Wednesday in what Palestinians called an assassination, fueling
tension already stoked by Israeli troop movements.
Imad Abu Sneineh was shot in the head, chest, stomach and legs by 10 bullets fired from a truck
with Palestinian number plates outside his home in the divided West Bank city of Hebron,
Palestinian officials said.
Israeli security sources said the killing was carried out by undercover soldiers and described Abu
Sneineh as a prominent gunman who had been behind attacks on Jewish settlers.
Palestinians accuse Israel of assassinating about 60 people since they began an uprising against
Israeli occupation last September. Israel says it kills only Palestinians believed to be carrying out
or plotting attacks, and calls it self-defense.
--By Wafa Amr, Wednesday 8/15/01, Dailynews.yahoo.com, “Israel Kills Palestinian Activist in
Hebron”
"Israel says the targeted killings of Palestinian leaders are necessary as part of its effort to prevail
in 'an armed conflict short of war.' Palestinians denounce the killings as 'extra-judicial executions.'
Military experts tend to disagree with the Palestinians, even while conceding that such attacks fall
into a gray area. Some think attacks by the Israelis on specific Palestinian targets are legal and
justified because the [Palestinian] leaders are engaged in aggressive warfare..." Are [Israel's]
military moves 'assassinations?' Despite some loose legal ends, the consensus seems to be 'No.'
…A similar view came from U.S. Air Force Col. Charles J. Duncan Jr., a military lawyer who
writes widely on such subjects. After cautioning that he was speaking for himself and not for the
Air Force, Duncan said: "Contrary to popular belief, neither international law nor U.S. domestic
law prohibits the killing of those directing armed forces in war.' And he said, 'Nations have the
right under international law to use force against terrorists.'"
…But not to Caspar Weinberger, the former U.S. Secretary of Defense and the holder of a law
degree from Harvard. In the spring issue of Strategic Review, he writes, "If the targeting and
killing of the leader or leaders [of aggressive warfare] can help to end a war quickly, and thus
spare the lives of hundreds of thousands of combatants, it is hard to find any moral argument
for not attempting to kill the leaders... What has been forbidden in most statements of the law of
armed conflict is assassination, usually defined as a murder by treacherous means. Thus it is
considered lawful in warfare for a skilled and daring soldier to steal into the enemy's camp and
enter the general's tent and kill him.'"…The Palestinians complained bitterly to the Mitchell
Commission this spring that Israel’s practice- the Israelis call it “the targeting of individual enemy
combatants” - was, in fact, a policy of assassination, of “extra-judicial executions.”…When the
commission issued its report in May, it took note of the Palestinians’ complaint that the killing of
individuals violated the Geneva Convention. The commission also noted the Israeli reply:
“Whatever action Israel has taken has been firmly within the bounds of the relevant and accepted
principles relating to the conduct of hostilities.”…The commission called the Israeli description
“overly broad” and suggested that Israel “abandon the blanket ‘armed conflict short of war’
characterization.” Even so, the commission took into account the Israeli complaint that Israel was
being held to a higher ethical standard than the Palestinians. The report says, “More than once we
were asked: ‘What about Palestinian rules of engagement? What about a Palestinian code of ethics
for their military personnel?’ These are valid questions.”
…Weinberger argues much the same point in his article. He brushes aside the notion that an
enemy chief of state or commander should be exempt from the crosshairs… “The idea of
‘protecting princes’ has never been enacted or enshrined in the Geneva or Hague conventions, or
anywhere else,” he writes. And with good reason, Weinberger says. “In wartime,” he writes, “ the
higher the target, the more effective it is- especially if the leadership of the enemy’s military can
be severed from the military it commands.”
15
…Weinberger writes… “If a country behaves in such a way that causes us to go to war with it,
the head of that state or its army appears to be a legitimate target… The case is even clearer
when the head of state or government is the commander of the armed forces.”
--Harry Levins, St. Louis Post-Dispatch, Friday 8/3/01; “Military Experts
Debate Moral Ramifications of Killing Leaders”
WARS may be fought with guns, mortars, bombs and the rest of the standard arsenal, but nearwars are more subtle. Besides all the usual tools of battle, they have one more: language. And in
the near-war that has enmeshed Israelis and Palestinians, this is the weapon that may help decide
who wins.
The importance of words was amply evident last week after the Israeli Army fired missiles at
Hamas offices in the West Bank, killing eight Palestinians, among them two small boys who
happened to be at the scene. It was regrettable about the boys, Israeli officials said, but the target
was a leader of the militant Islamic group, who they say was the brains behind terrorist operations.
While the United States and other countries condemned this calculated killing, the latest in a
series of such attacks, Israel insisted on its right and obligation to protect its own people, by
disposing of suspected terror masterminds before it's too late.
The merits of that argument aside, how might one describe that anti-Hamas
strike in Nablus?
Easy, Palestinian officials said. It was a cold-blooded assassination. But just as one person's
terrorist has long been another's freedom fighter, one side's ''assassination'' is the other's ''active
self-defense,'' a term favored by some Israeli officials.
Foreign Minister Shimon Peres became practically apoplectic when an Israeli television
interviewer used the A-word. Israel does not assassinate people, Mr. Peres said angrily. It goes
after leaders who dispatch young men to blow themselves up in the midst of Israelis. ''Suicide
bombers cannot be threatened by death,'' he said. ''The only way to stop them is to intercept those
who send them.''
''Interception'' is much preferred by some in the Israeli government, the implication being that
the army intervenes merely to stop a terrorist act already in progress. Another word of choice is
''liquidation.'' But this has an unpleasant ring for some, almost a Mafia taint. Indeed, a prominent
spokeswoman for the Palestinians, Hanan Ashrawi, said that ''they're behaving like mobsters,
turning their army into hit men.''
When Prime Minister Ariel Sharon's security cabinet met last week, time was given to coming up
with a better name for these targeted killings, which Mr. Sharon promised to continue if he
deemed them necessary. Among the candidates was ''actions to prevent the killing of Jews.''
Presumably, the hunt for an acceptable label is not over.
All this goes beyond mere political spin, though each side in this near-war is out to persuade the
world that it is the true victim. The use of language touches the psychology of the conflict, not
only how Palestinians and Israelis view each other but also how they judge themselves. No way,
for example, is Israel about to pronounce itself an assassin state, no matter how much the wisdom
and morality of its strategy is questioned abroad.
It takes but a single word to show how far Israelis and Palestinians have tumbled from more
hopeful -- some would say more naïve -- days. Think back to 1993, to the Oslo peace agreement
and the memorable White House handshake between Yitzhak Rabin and Yasir Arafat to seal the
deal. They were peace ''partners,'' they said, and they clung to that word almost as if it were a
talisman, through repeated suicide bombings by Palestinian terrorists and the massacre of
Palestinian worshipers by an Israeli settler. ''Partner'' now lies in the graveyard of ''peace process.''
Mr. Sharon is not about to use it, and his predecessor, Ehud Barak, wrote the other day that he
doubted Mr. Arafat would ever qualify again as a ''partner for peace.''
Nuanced phraseology is hardly unique to Israelis or Palestinians. Had the Nablus strike been the
work of American forces, one could easily imagine a Pentagon statement describing the
unintended deaths of the two boys as ''collateral damage.'' Still, the arsenal of words is an essential
element of this conflict.
16
The very land being fought over has long been up for linguistic grabs. Is it the West Bank, the
choice of Palestinians and a convention followed by most foreigners? Or is it Judea and Samaria,
ancient names preferred in Israel (except perhaps by those who refer to the area as ''the
territories'')?
WHATEVER the land is called, it has been essentially sealed off for months, along with the Gaza
Strip. Most days, Israeli roadblocks make it difficult, to the point of impossibility, for Palestinians
to move between towns. This, the Israelis call a ''closure.'' Or else they say that the Palestinians are
being ''shut in'' their villages. Palestinians are more graphic about their confinement. Plain and
simple, they say, they are ''under siege.''
The boundary between Israel and the West Bank has been called the ''green line'' since 1949, when
it was traced on a map in green ink as part of a cease-fire ending what Israel calls its War of
Independence. But in the peace talks of the 1990's, many Israelis -- not to mention Palestinians -saw the ''green line'' as a likely border of an emerging Palestinian state. Since actual borders
remain subject to negotiation, at least from Israel's perspective, Israeli officials have begun to shy
from ''green line.'' The term in vogue now is ''seam line.'' The boundary remains the same, but to
Israeli ears, ''seam line'' doesn't sound so much like a fixed border between two states.
When a suicide bombing occurs, Israelis fall victim to a ''terrorist.'' Palestinians have a new
''martyr.'' If a Palestinian dies in a mysterious explosion at his house or office, his neighbors are
often quick to attribute it to an ''Israeli attack'' by missiles or artillery shells. The Israeli version
just as often is that the man died in a ''work accident,'' meaning that he blew himself up
inadvertently while making a bomb.
Palestinians interrogated by Israeli security agents say they have been subjected to ''torture.'' Israel
says it applies ''moderate physical pressure,'' and only when it has to. After the Nablus raid,
Palestinian security courts sentenced several men to death for being ''collaborators'' with Israel. On
the Israeli side, such men tend to be described as ''cooperators'' or ''aiders.''
Israelis worry about Palestinian ''extremists.'' Palestinians talk about their ''activists.'' Palestinians
hold ''demonstrations.'' Israelis send the police to contain these ''disturbances.''
Palestinians want ''observers,'' the implication being an international force to watch over them. The
Israeli government will accept ''monitors,'' a word that suggests they will be Americans only, filing
reports from a distant office and not actually going to the scene to actually see what they are
supposed to be monitoring.
Then there is the difficulty that the Sharon government seems to have with what to call its
strategy. Hard-liners on the Israeli right are demanding an all-out assault on the Palestinian
Authority, but the prime minister refuses to go that far. His has come to be known as a policy of
''restraint.'' But ''restraint'' makes an old warrior like Mr. Sharon wince, and so he leans toward
other expressions, including ''active self-defense.''
'' 'Restraint' has bad connotations going back to the 1930's,'' explained Amiel Ungar, a political
science professor at Judea and Samaria College, in the West Bank settlement of Ariel. In those
pre-state days, Professor Ungar said, it referred to Jews' staying inside their communities, not
attacking Arabs and waiting instead to be hit first before responding.
CLEARLY, however, the more crucial fault lines are between Israelis and Palestinians. ''We see in
the language the huge discrepancy in psychology and emotions that each side brings to the
conflict,'' said Yaron Ezrahi, a political theorist with the Israel Democracy Institute in Jerusalem.
''Every act, gesture or word used by one side is destined to be mistranslated in the other system. So
we have endless systemic misunderstandings.''
There is one word at least that both sides share. In Hebrew, it is ''shalom,'' in Arabic ''salaam.''
Either way, it means peace. It is the most overused and under-achieved word in the region.
--By Clyde Haberman, Sunday 8/5/01, The New York Times;” The
World; In the Mideast This Year, Even Words Shoot to Kill”
17