Tuesday, March 13, 2012

Are Extra-judicial Killings a Form of Tikkun Olam?

In an op-ed published today by Rabbi Donniel Hartman, we learn that killing “known terrorist leaders” who have “blood on their hands,” and who have expressed a desire to continue their killing, is not only permitted under Jewish law, is not only commanded as a form of self-defense, but should be  praised as an act of tikkun olam, of repairing the world.

Before I criticize this position, I would like to go on record that I know Rabbi Hartman, and I admire his leadership of the Hartman Institute in Jerusalem, where I have been invited annually to be part of  a “philosophers’ group.” So I am glad that his op-ed gives me the opportunity to commend his work, as well as to disagree vehemently with his position. Our dispute is “for the sake of heaven.” I also want to acknowledge that the point of the op-ed was actually to restrain the natural feelings of hatred and demonization for the other that people feel when under attack.

Let me start by saying that, contrary to what Rabbi Hartman writes,  the morality of extra-judicial killings is highly debated and not at all clear. On just war theory, as I wrote below, a pre-emptive strike against an enemy is permissible only when a) the enemy’s attack is imminent; b) the response is proportionate to the threat, and c) no other recourse is possible. I mention, as an aside, that it is possible to find parallels for these three conditions in the Jewish law of self-defense. In initially justifying Israel’s decision to assassinate Zuhir al-Qaisi, Rabbi Hartman assumes that all these conditions obtained. This in itself is a good sign. (Note that American’s assassination of Osama Bin Laden was not justified through an appeal to knowledge of an imminent attack he was planning. So if an attack wasn’t imminent, Rabbi Hartman could not consistently approve even Osama bin Laden’s assassination.) By declaring the necessity of the “imminence” requirement Rabbi Hartman distances himself from many of his fellow Israelis, to judge from the press reports.

But later on in the op-ed, Rabbi Hartman drops the “imminent attack” requirement

Targeted killings of known terrorist leaders, those with blood on their hands and the self-expressed desire and capacity to spill more blood, are not morally ambiguous

On the contrary, as is well known, there is a great deal of moral ambiguity here. Substitute, for example, “serial murderer” for “terrorist leaders”. Would Rabbi Hartman consider extra-judicial killings of such people “not morally ambiguous”? Remember, we are not talking about a ticking bomb, or somebody on the way to commit a heinous act, but rather somebody with the self-expressed desire and capacity to spill more blood. There are Israeli generals with blood on their hands who have the desire to bomb Gaza. Would Rabbi Hartman think it legitimate for Palestinian drones to take out those IDF generals?

Classical just war theory  may be wrong in assuming the equality of combatants. But it does. And if al-Qaisi is judged as a combatant, then he has the same rights, on just war theory, that an Israeli general has, with or without the uniform. There are many like Dick Cheney who claim that al-Qaisi doesn’t have the rights of a serial killer OR the rights of an SS army officer. But this claim is disputed, which makes his killing hardly “not morally ambiguous.”

But what is most disturbing to me – before I get to the ‘Jewish angle” – is the complete faith placed by Rabbi Hartman in the IDF army spokesman. After all, how does he know that al-Qaisi was preparing an imminent attack and that other recourses were not available? This is one of the problems of appealing to just war theory to provide you with moral cover. The slippery slope of moral righteousness is that it becomes self-righteousness:  each side accepts the version of events prepared by its side as Torah min ha-shamayim, the word of God. One side’s  legitimate army is another side’s terrorist gang, to paraphrase Michael Walzer. Where certain conventions have been observed by both sides – and in the case of Israel and Hamas, for example, cease-fires and conventions have held up over time, until one side (usually Israel) unilaterally breaks them – both sides assume the rights and responsibilities of legal combatants. Now it is true that al-Qaisi is not a member of Hamas, and so may not benefit from that consideration. But Rabbi Hartman seems to make his principle a universal one that would justify taking out all  legal enemies of Israel, from Ismail Haniyeh, to Nasrallah, to Ahmadinejad,

In short, Rabbi Hartman slides pretty quickly down the slippery slope that he himself cautions against – contra the dictates of international convention and just war morality.

So far I have been assuming a philosophy-class scenario in which killing a ticking-bomb ends the story. But it never ends the story. Is the assassination of al-Qaisi justified if it leads, inevitably, to the cycle of violence that we have seen? For consequentialists, at least, that is relevant to the morality of the issue. But if not to its morality, then at least to its prudentiality, and to its supposed lack of moral ambiguity. When I read

I hate to see 20% of Israel living under the threat of missiles. I am pained by the fact that they must bear the brunt of our actions. I am thankful that the Iron Dome missile defense system is able to mitigate somewhat the price that is demanded of them.

I ask myself, “What of the 25 Palestinians who lost their lives because of the cycle of violence?” What of the humiliating nature of all targeted killings of a people held under the control of the occupier for over forty years? After all, only one side, the occupier, has the power and control over the other side. I know this matters to Rabbi Hartman, since I know the man. My fear is that he doesn’t mention in his op-ed the Palestinians killed because he knows that most of his audience don’t really care about them, and that his “moderate” message will be rejected as too “bleeding-heart liberal” if he mentions them.

As for the “Jewish angle” of tikkun olam and extrajudicial killings. Even had I agreed with his analysis, which I do not, I would have preferred that Rabbi Hartman appeal to the principle of wiping out the seed of Amalek, which Maimonides sees as wiping out evil. Seeing extrajudicial killings within the framework of tikkun olam is wrong for two reasons. First, the phrase nowadays is used by many liberal Jews to denote social action in the service of liberal causes, often outside the Jewish community. So these Jews cannot but be offended by extending it to morally controversial issues such as extra judicial killing.  Second, in its original intent in the Jewish code of law, the Mishnah, the phrase tikkun olam was used to justify new edicts that provide for harmonious social relations where existing rabbinic law failed to do so. States that engage in practices that violate conventions and norms such as the law of war do not repair society but rip it apart. They provide justification for other states, and non-state actors, to do the same. Such practices place a state outside of the olam, the “world” it is purporting to repair – and, lowers it to the status of an outlaw state, a rogue state, a terrorist-state.

Finally, I appreciate Rabbi Hartman’s desire to restrain the all-too-human impulse for revenge and destruction and demonization of the enemy that Israelis – like all peoples –feel when they are threatened. Rabbi Hartman is following in the footsteps of Aaron, “who loved peace and pursued peace” among Jews. But we should also remember that Aaron desired Jewish peace so much that he was willing to help the Jews forge the Golden Calf. In doing so, he channeled their destructive impulses into something less destructive and bought time until Moses could return.  But that well-intentioned move also led to their rejection of God’s messenger for the sake of an idol. 

1 comment:

Unknown said...

All killings are homicides. Not all homicides are murder. Murder is determined by the laws of the countries in which they occur. Therefore all extra-judicial killings are murders.

It's not rocket surgery.