Thou shalt not kill?

The right to self-defense against illegal attack is by no means an unconditional license to kill.

By MORDECHAI KREMNITZER
Updated: NOVEMBER 29, 2015 14:54
A Palestinian woman paints on a wall (photo credit: REUTERS)
A Palestinian woman paints on a wall
(photo credit: REUTERS)
ACCORDING TO longstanding rabbinical tradition, “if someone comes to kill you, you should act to kill him first.”
The right – which is often a duty – to defend life and limb of persons under attack is a basic tenet of natural law. It is intended to protect not only the intended victims, but the legal order as a whole.
Therefore, persons defending themselves against attacks on their sexual freedom or their physical integrity are permitted to kill the assailants if they cannot fend off the threats in a less lethal manner.
Nevertheless, the right to self-defense against illegal attack – from which the law enforcement authorities derive their right to intervene – is by no means an unconditional license to kill.
Whenever the danger can be neutralized in a non-lethal manner, it should be.
When assailants no longer pose a threat, they should not be harmed. They should be treated the same way as felons who have committed a crime. In a society intent on preserving its humanistic identity, neutralized terrorists cannot simply be executed vigilante style, and anyone who harms them must be made to face the consequences.
It seems, however, that in today’s Israel this self-evident proposition is not evident at all and the general public does not feel bound by it.
How did this happen? In this latest wave of terror, ever since Palestinians started using knives to kill Jews, a wide range of Israeli politicians and security personnel have been repeating the same message: that any knife-wielding incident must end in the death of the knife-wielder.
This injunction didn’t come only from the right, but also from the political center and from people not generally considered extremists. And for quite some time, the attorney general, who should have raised his voice against those inciting to kill, remained silent.
Against this background, and bearing in mind that the gut reaction to stabbings in the streets is fear and anger, it is not surprising that a large number of the knife attacks culminated in the death of the assailant. But precisely because of this gut reaction, the “license to kill” falls on fertile ground and the danger to the country’s overarching moral code is therefore especially great.
It seems that in today’s Israel – 20 years after the assassination of Yitzhak Rabin, given the incitement leading up to the murder and the incitement to kill on the Palestinian side – it is easy to see how a public climate in which killing is permissible leads to disproportionate responses to terrorist stabbings and to fingers quick on the trigger, as a result of which innocent bystanders are hurt. Worse, it can lead even to acts of lynching like the one at the central bus station in Beersheba in mid-October. Those inciting to kill cannot wash their hands of complicity and guilt.
The more interesting question, however, is what explains the incitement and its “success?” There are three deep underlying causes: The first is the framing of the phenomenon we are dealing with in terms of war and the use of military means to deal with it. Part of the psychology of terror is to elicit disproportionate responses. It often succeeds in doing so. The use of a war narrative in response to stone-throwing and knifings by individuals acting alone is a case in point. It is also a manipulation by the authorities intended to unify the nation behind the government and give it a free hand in choosing the means to win “the war.”
THE TRANSITION from a regime based on law enforcement to one on a war footing has far-reaching consequences. In war, anyone marked as “the enemy” can legitimately be killed, even if he does not pose an immediate threat. The war paradigm incorporates the notion that the secret of success lies in the use of excessive force. This is meant to deter the enemy, alter his consciousness and bring him to recognize that the use of force on his part does not pay. In our case, on the operational level, employing soldiers to deal with lawbreakers leads almost inevitably to the use of exaggerated force, as soldiers are trained to confront enemies not lawbreakers. The second underlying cause is the widespread dehumanization and demonization of the other side. There is no better way of taking the idea of an Israeli-Palestinian accommodation off the political agenda than to discount the occupation as a reason for Palestinian terror and, instead, to ascribe to all Palestinians a desire to annihilate Israel.
If we proceed in this way, denying any Israeli responsibility for the current outbreak, (for example, ignoring systematic attempts by powerful political forces in the country to change the status quo on Temple Mount), it follows that Palestinians who resort to force are not only terrorists, but inhuman beasts, new Nazis, who deserve death or expulsion. Israel argues, correctly, that the Palestinians dehumanize Israelis. Regrettably, Israel does the same to them.
The incitement also stems from the government’s will to satisfy the public. Acts of terror spawn understandable reactions of fear, anger and hatred. These can be amplified by leadership responses that magnify the threat. This state of affairs creates competition between political leaders vying over who will be perceived as more committed to the security and defense of the nation – in other words, who will propose the toughest and most extreme security measures.
The problem with this is that over-reaction is a sure-fire recipe for failure. The more massive the deployment of forces, the more the achievement of the attackers is magnified, the more terror is proven to be a useful tool and the higher the motivation to carry out more acts of terror.
Indeed, dehumanization of the other side and disproportionate responses by the state are precisely what the terrorists seek to provoke. When it acts unjustly or disproportionately, the state loses the moral high ground. Then, following the erosion in its international standing, it finds itself forced to make concessions.
This is exactly what happened in the case of the Temple Mount. In this way the terrorists succeed in achieving their highest goal – imposing their will on the state.
And, on a more general level, proving that terror pays, and that, in the current frosty diplomatic climate, it is the only path that pays.
WHEN THE defensive measures adopted by the state harm non-combatants – like the demolition of homes or not allowing terrorist burials, coupled with unreasonable proposals to retract residency rights from entire East Jerusalem neighborhoods and to expel terrorist relatives – the state is simply pouring more oil on the flames. When it acts in this way, it actually becomes the long arm of the terrorist side.
Moreover, not everything touted as a deterrent really deters. Those bent on murdering with knives are well aware of the serious risk they are taking and many of them actually want to become martyrs. The equation “lifting a knife equals death of the would-be attacker” plays into their hands. Instead of deterring, it creates new martyrs, heightens identification with them, exacerbates yearnings for revenge and whets the appetite for further martyrdom.
Ignoring the fundamental situation of occupation and settlement as a cause of the terrorist wave may help Israel hold onto the territories. But it is in itself a decisive factor in spawning Palestinian terror. Without a horizon of hope for basic change in their situation, despair rules the Palestinian experience.
And there is nothing like despair to drive a violent struggle against the occupation.
Trying to put the blame for the terror entirely on incitement on the Palestinian side, as Prime Minister Benjamin Netanyahu does, distorts reality and helps perpetuate the terror.
Ignoring reality and the politicians’ responsibility for a situation that breeds terror, leads to systematic placing of the blame on others – Palestinian Authority President Mahmoud Abbas, the Israeli left, the hostile international community, the IDF failing to “deliver the goods” and the judicial system preventing the “vanquishing” of the terror.
The long-term costs of this policy are very high. The increase in the number of weapons in private hands and the fact that people are carrying them around with them in public will lead to more murders and fatal accidents; the damage to the status of the professional armed forces and the judiciary will not evaporate overnight.
And, most importantly, Israeli society will become less humane, less committed to the values of human life and the equality of all human beings. A society that is doomed to live forever by the sword, as Netanyahu says it will, cannot hope to be truly humanist and democratic.
Law professor Mordechai Kremnitzer is vice president for research at the Jerusalem- based Israel Democracy Institute