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Bismillah
Murder and Genocide

ACCORDING TO THE JEWISH religion, the murder of a Jew is a capital offense and one of the three most heinous sins (the other two being idolatry and adultery). Jewish religious courts and secular authorities are commanded to punish, even beyond the limits of the ordinary administration of justice, anyone guilty of murdering a Jew. A Jew who indirectly causes the death of another Jew is, however, only guilty of what talmudic law calls a sin against the 'laws of Heaven', to be punished by God rather than by man.

When the victim is a Gentile, the position is quite different. A Jew who murders a Gentile is guilty only of a sin against the laws of Heaven, not punishable by a court.1 To cause indirectly the death of a Gentile is no sin at all.2

Thus, one of the two most important commentators on the Shulhan Arukh explains that when it comes to a Gentile, 'one must not lift one's hand to harm him, but one may harm him indirectly, for instance by removing a ladder after he had fallen into a crevice .., there is no prohibition here, because it was not done directly:3 He points out, however, that an act leading indirectly to a Gentile's death is forbidden if it may cause the spread of hostility towards Jews.4

A Gentile murderer who happens to be under Jewish jurisdiction must be executed whether the victim was Jewish or not. However, if the victim was Gentile and the murderer converts to Judaism, he is not punished.5

All this has a direct and practical relevance to the realities of the State of Israel. Although the state's criminal laws make no distinction between Jew and Gentile, such distinction is certainly made by Orthodox rabbis, who in guiding their flock follow the Halakhah. Of special importance is the advice they give to religious soldiers.

Since even the minimal interdiction against murdering a Gentile outright applies only to 'Gentiles with whom we [the Jews] are not at war', various rabbinical commentators in the past drew the logical conclusion that in wartime all Gentiles belonging to a hostile population may, or even should be killed.6 Since 1973 this doctrine is being publicly propagated for the guidance of religious Israeli soldiers. The first such official exhortation was included in a booklet published by the Central Region Command of the Israeli Army, whose area includes the West Bank. In this booklet the Command's Chief Chaplain writes:

When our forces come across civilians during a war or in hot pursuit or in a raid, so long as there is no certainty that those civilians are incapable of harming our forces, then according to the Halakhah they may and even should be killed ... Under no circumstances should an Arab be trusted, even if he makes an impression of being civilized ... In war, when our forces storm the enemy, they are allowed and even enjoined by the Halakhah to kill even good civilians, that is, civilians who are ostensibly good.7

The same doctrine is expounded in the following exchange of letters between a young Israeli soldier and his rabbi, published in the yearbook of one of the country's most prestigious religious colleges, Midrashiyyat No'am, where many leaders and activists of the National Religious Party and Gush Emunim have been educated.8

Letter from the soldier Moshe to Rabbi Sbipn 'on Weiser '

With God's help, to His Honor, my dear Rabbi,

'First I would like to ask how you and your family are. I hope all is well. I am, thank God, feeling well. A long time I have not written. Please forgive me. Sometimes I recall the verse "when shall I come and appear before God?'9 I hope, without being certain, that I shall come during one of the leaves. I must do so.

'In one of the discussions in our group, there was a debate about the "purity of weapons" and we discussed whether it is permitted to kill unarmed men - or women and children? Or perhaps we should take revenge on the Arabs? And then everyone answered according to his own understanding. I could not arrive at a clear decision, whether Arabs should be treated like the Amalekites, meaning that one is permitted to murder [sic ] them until their remembrance is blotted out from under heaven,10 or perhaps one should do as in a just war, in which one kills only the soldiers?

'A second problem I have is whether I am permitted to put myself in danger by allowing a woman to stay alive? For there have been cases when women threw hand grenades. Or am I permitted to give water to an Arab who put his hand up? For there may be reason to fear that he only means to deceive me and will kill me, and such things have happened.

'I conclude with a warm greeting to the rabbi and all his family. - Moshe.'

Reply of Shim'on Weiser' to Moshe

'With the help of Heaven. Dear Moshe, Greetings.

'I am starting this letter this evening although I know I cannot finish it this evening, both because I am busy and because I would like to make it a long letter, to answer your questions in full, for which purpose I shall have to copy out some of the sayings of our sages, of blessed memory, and interpret them.11

'The non-Jewish nations have a custom according to which war has its own rules, like those of a game, like the rules of football or basketball. But according to the sayings of our sages, of blessed memory, [ ... ] war for us is not a game but a vital necessity, and only by this standard must we decide how to wage it. On the one hand .... ] we seem to learn that if a Jew murders a Gentile, he is regarded as a murderer and, except for the fact that no court has the right to punish him, the gravity of the deed is like that of any other murder. But we find in the very same authorities in another place [ ... that Rabbi Shim'on used to say: "The best of Gentiles - kill him; the best of snakes dash out its brains."

'It might perhaps be argued that the expression "kill" in the saying of R. Shim'on is only figurative and should not be taken literally but as meaning "oppress" or some similar attitude, and in this way we also avoid a contradiction with the authorities quoted earlier. Or one might argue that this saying, though meant literally, is [merely] his own personal opinion, disputed by other sages [quoted earlier]. But we find the true explanation in the Tosalot.12 There [ .... ] we learn the following comment on the talmudic pronouncement that Gentiles who fall into a well should not be helped out, but neither should they be pushed into the well to be killed, which means that they should neither be saved from death nor killed directly. And the Tosafot write as follows:

"And if it is queried [because] in another place it was said The best of Gentiles - kill him, then the answer is that this [saying] is meant for wartime." [ ... ]

'According to the commentators of the Tosafot, a distinction must be made between wartime and peace, so that although during peace time it is forbidden to kill Gentiles, in a case that occurs in wartime it is a mitzvah [imperative, religious duty] to kill them.[...]

'And this is the difference between a Jew and a Gentile: although the rule "Whoever comes to kill you, kill him first" applies to a Jew, as was said in Tractate Sanhedrin [of the Talmud], page 72a, still it only applies to him if there is [actual] ground to fear that he is coming to kill you. But a Gentile during wartime is usually to be presumed so, except when it is quite clear that he has no evil intent. This is the rule of "purity of weapons" according to the Halakhah - and not the alien conception which is now accepted in the Israeli army and which has been the cause of many [Jewish] casualties. I enclose a newspaper cutting with the speech made last week in the Knesset by Rabbi Kalman Kahana, which shows in a very lifelike - and also painful - way how this "purity of weapons" has caused deaths.

'I conclude here, hoping that you will not find the length of this letter irksome. This subject was being discussed even without your letter, but your letter caused me to write up the whole matter.

'Be in peace, you and all Jews, and [I hope to] see you soon, as you say. Yours - Shim'on.

Reply of Moshe to R. Shim'on Weiser

'To His Honor, my dear Rabbi,

'First I hope that you and your family are in health and are all right.

'I have received your long letter and am grateful for your personal watch over me, for I assume that you write to many, and most of your time is taken up with your studies in your own program.

'Therefore my thanks to you are doubly deep.

'As for the letter itself, I have understood it as follows:

'In wartime I am not merely permitted, but enjoined to kill every Arab man and woman whom I chance upon, if there is reason to fear that they help in the war against us, directly or indirectly. And as far as I am concerned I have to kill them even if that might result in an involvement with the military law. I think that this matter of the purity of weapons should be transmitted to educational institutions, at least the religious ones, so that they should have a position about this subject and so that they will not wander in the broad fields of "logic", especially on this subject; and the rule has to be explained as it should be followed in practice. For, I am sorry to say, I have seen different types of "logic" here even among the religious comrades. I do hope that you shall be active in this, so that our boys will know the line of their ancestors clearly and unambiguously.

'I conclude here, hoping that when the [training] course ends, in about a month, I shall be able to come to the yeshivah [talmudic college]. Greetings - Moshe.'

Of course, this doctrine of the Halakhah on murder clashes, in principle, not only with Israel's criminal law but also - as hinted in the letters just quoted - with official military standing regulations. However, there can be little doubt that in practice this doctrine does exert an influence on the administration of justice, especially by military authorities. The fact is that in all cases where Jews have, in a military or paramilitary context, murdered Arab non-combatants - including cases of mass murder such as that in Kafr Qasim in 1956 - the murderers, if not let off altogether, received extremely light sentences or won far-reaching remissions, reducing their punishment to next to nothing.13