file Elor Azaria: Hero or Sinner? Pardon or Harsh Sentence?

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3 years 8 months ago #514 by Jonathan Muskat
All of us who hoped for almost a year that the court would find that Elor Azaria acted out of self-defense or out of sudden fear when he shot the terrorist in Hebron in March of last year were sorely disappointed and devastated. Last week, the court rejected his side of the story and concluded that his motivation to shoot the incapacitated terrorist was out of revenge or hate.

This case is so difficult for us because it touches on so many seemingly contradictory values that we all hold dear as Jews and as strong supporters of the State of Israel. He’s one of our boys! But he shot a terrorist who was incapacitated! But it was a terrorist who was shot! But soldiers need to follow the rules of the army! But the terrorist has no right to live! But it will cause a tremendous Chillul Hashem – desecration of God’s Name – if we kill an enemy who has been neutralized! But how can we fault a teenager who is placed in an impossible situation after having lived through the Intifada? So many difficult questions and no easy answers.

Assuming that the court’s conclusion was correct, that Elor Azaria did act out of revenge or hate, I would like propose a Halakhic framework through which we can analyze this excruciatingly difficult case. Specifically, I’d like to propose three questions: (1) May an Israeli soldier kill a neutralized terrorist in an effort to win the war against terrorism? (2) Does a terrorist in some sense forfeit his life when he decides to become a terrorist? (3) Should external factors, such as personal, political and societal considerations, impact the sentence of a soldier like Elor Azaria?

1. May an Israeli soldier kill a neutralized terrorist in an effort to win the war against terrorism?

My first question is whether an Israeli soldier may kill a neutralized terrorist in an effort to win the war against terrorism. At first glance, the answer would appear to be no. The law of “rodef,” defined as “the pursuer,” permits Person A to kill Person B, if he is doing so in order to stop Person B from killing someone else. This law seems designed to protect innocent life. As such, if it is certain that a terrorist has been neutralized and is no longer a “rodef” or a threat, I would argue that one may not kill him.

However, there are exceptions to this general understanding. One such exception, wherein it is allowable to kill another person, is in the case of a court order. After a trial has been completed and guilt has been assigned, it is Halakhically permissible to enforce the death penalty. Another context in which there are and must be different rules, is for war. Under normal Halakhic parameters, one would never be allowed to wage war lest he enter into a pikuach nefesh or life-threatening situation. However, there are different rules in wartime in order to allow for the protection and security of[ the nation.

Rav Hershel Schachter, among others, has argued that Israel has been in a state of war with its neighbors since its birth in 1948 and even sometime before that. Perhaps then we can argue that since the State of Israel is at war with the terrorists that seek her demise, the killing of neutralized terrorists may be permitted. If we view the threat of terrorism as constant and existential, may we view the killing of even a neutralized terrorist as advancing the war against terrorism? For those who do take this approach, there are three main ideas that support their thinking.

First, a neutralized terrorist is not really neutralized until he is dead. In fact, many terrorists who have been jailed have later been released and have resumed terroristic activity. We saw the proof of this sad phenomenon last summer, when the murder of the three boys, Naftali Frenkel, Gilad Shaar and Eyal Yifrah, was directed by a Gaza-based terrorist who had previously been released from prison.

Secondly and relatedly, we must consider the real and significant consequences of sending the message that terroristic activities against Israelis will not lead to death. It is reasonable to assume that there many are Jew-hating Palestinians who are deterred from committing such atrocities because they fear their own loss of life. If it becomes a known likelihood that terrorists will be sent to jail only to later be released in a prisoner swap, we lose this powerful deterrent. It is not hard to imagine how dire the consequences of this shift could be. Perhaps then, instead of holding soldiers immune from prosecution for killing terrorists during terrorist incidents, might it be preferable for Israeli policy to be crafted such that we simply punish terroristic activity with the death penalty? This suggestion carries with it significant practical problems. Keeping hundreds or maybe thousands of prisoners on death row would pose a great fiscal and administrative challenge to the democratic state of Israel. Additionally, the potential international outcry resulting from such a policy makes it an unattractive solution to this problem.

Third, we must ask ourselves if this verdict will make soldiers think twice before firing their weapon when necessary, thereby hampering the war effort. In fact, in the recent horrific terror attack this past Sunday in Jerusalem, some witnesses to the scene reported that soldiers hesitated to shoot the terrorist and asserted that the verdict was definitely a factor in their hesitation. While other accounts of Sunday’s attack do differ from this assessment, it does beg the question: Are we creating an unreasonable and dangerous atmosphere with a policy that makes our soldiers unduly fearful of prosecution?

From a Halakhic perspective, there is a difference of opinion regarding killing neutralized terrorists in an effort to win the war. On the one hand, Rav David Stav has written that killing a neutralized terrorist is a moral breakdown in society, arguing that “these days… it’s important to maintain our moral superiority: To avoid harming a person who is uninvolved in murderous activity, and to avoid harming those who have already been neutralized and no longer pose a danger…They deserve to die, but that is not our way. Harming a terrorist who has been neutralized causes double damage: The collateral damage is when these images are distributed, and the main damage is harming our moral norms. We will not stoop down to our enemies’ despicableness, and we will not contaminate ourselves with a moral breakdown.” On the other hand, Rav Shlomo Aviner believes that for purpose of deterrence and the fact that neutralized terrorists are never really neutralized until they are dead, you may kill them even after they are neutralized.

However, even Rav Aviner notably agrees that if the law of the land is that one may not kill a neutralized terrorist then one is forbidden to kill that terrorist. The debate over the best policy for winning the war against terrorism while at the same time preserving our national soul is one that must not be left to individuals. A policy that carries such a tremendous impact on both our politics and our national security must be decided by our government after consultation with our military leaders. In fact, Deputy Defense Minister Eli Ben-Dahan plans to promote a bill that would grant IDF soldiers and members of the other security forces immunity for their actions during operational events. While I believe that this bill, if passed, is not necessarily inconsistent with Halakhic values, at the present time no such law exists. As such, we cannot presently justify the killing of a terrorist based on the argument that it will help us win the larger existential war against terrorism.

2. Does a terrorist forfeit his life when he decides to become a terrorist?

Some would argue that a terrorist forfeits his life when he decides to become a terrorist, and that Israeli policy should be loyal to the soldier defending us rather than the terrorist who is trying to kill us. My initial reaction to this proposition is that loyalty does not trump justice. The question for us must simply be whether it is just to kill this person. As difficult as it may be, and it certainly is, as a democratic and moral nation we must not make decisions of life and death based on our identification with either the perpetrator or the victim.

However, I recognize that Halakhically, the answer is not so simple. There are a number of Halakhot cited in the Gemara that seem to unfairly discriminate between Jew and non-Jew. For example, there are Halakhot that dictate that a Jew shouldn’t medically treat an idolater or try to save the life of an idolater, a Jew is exempt from payment if his ox gores an ox of an idolater, and a Jew shouldn’t return the lost object of an idolater. While these laws certainly violate our contemporary egalitarian ethic - why, for example, are we forbidden to save the life of a decent Gentile living in decent society - they remain on the books.

In the 13th century, the Meiri explained that the discriminatory provisions of the Gemara only applied to pagans who behaved in an uncivilized fashion. However, contemporary Muslims and Christians (in the 13th century) believe in one cosmic deity and therefore are impelled by their faith to establish moral societies; therefore, they enjoy all protections that are extended to Jews. Dr. David Berger wrote an article on this topic, entitled, “Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts.” In this article, he expanded the Meiri’s view to essentially state that the discriminatory laws of the Gemara do not apply to decent societies. In Meiri’s time, he referred to religious societies, but in our time, the Meiri’s words can extend to decent secular societies as well. As such, we are permitted, and I would argue even encouraged, to save the life of a non-Jewish neighbor in 2017, and not simply because of the technical reason of “eivah,” or fear that if we didn’t do that then they would hate us.

How, then, are we to apply Dr. Berger’s analysis to the present day terrorists who try to kill us? I would argue that they should be treated like pagans from Talmudic times, since they behave in a fashion that is uncivilized. Rav Stav argued that it is a Chillul Hashem, a desecration of God’s Name, not to have a high moral standard with respect to terrorists. However, I would argue that Kiddush Hashem is accomplished when we spread Godly values. Sometimes Godly values are helping others who may not deserve our help. Other times, Godly values are self-respect and teaching the world that there are consequences for one’s uncivilized behavior. In fact, it might be a Kiddush Hashem to highlight the distinction to a world that at times seems frustratingly confused; we are intentionally not saving the life of a terrorist, because he doesn’t deserve it. He is not simply a soldier or a resistance fighter, but he is someone whose sole purpose is to inflict as many innocent casualties as possible, to make his enemy suffer. By being overly kind to him, we may be engaging in a Chillul Hashem by underplaying the destructive nature of this type of individual to society at large.

That being said, I think we can distinguish between killing a neutralized terrorist and not saving a terrorist who has been injured, an act of commission versus an act of omission. Even in the days of the Gemara when there were Halakhic provisions that discriminated between Jew and non-Jew, we were simply forbidden or exempt from acting to help the pagan – we don’t save them or we don’t return their lost object - but nowhere did the Rabbis ever say that we could actively kill them.

Therefore, I could certainly argue that it might be a Kiddush Hashem not to medically treat a terrorist, as a way of conveying to the world that we do not grant them the status of “resistance fighters.” Granting them this underserved status detracts from the vicious nature of their actual intent, and even maligns the character of true resistance fighters whose objective is legitimate resistance. To the extent that hospitals in Israel decide whom to medically treat first based on which injury is most severe, it may mean that a wounded terrorist might be saved at the expense of a less wounded victim of his attack. In such a case, I believe that a Kiddush Hashem might be served by treating the victim before the terrorist.

In sum, a strong case can be made that a terrorist forfeits his life when he decides to become a terrorist insofar as there might not be an affirmative obligation to save him. However, nowhere is there a Halakhic precedent for the active killing of another person simply because he is a terrorist per se.

3. Should external factors, such as personal, political and societal considerations, impact the sentence of a soldier like Elor Azaria?

In addition to the aforementioned, and other Halakhic concerns, there are serious personal, political and societal considerations that could be considered in deciding Elor Azaria’s sentence. While some have called for the immediate pardon of Elor Azaria by the Prime Minister, my inclination is that pardoning him immediately would weaken the power of Israel’s judiciary and the rule of law, to the detriment of the country. However, there are many factors that should be considered in the length of his prison sentence. Was he adequately trained and psychologically prepared for the events that led to the shooting of the terrorist? What will the sentence do in terms of deterring soldiers from engaging such behavior in the future? What will the sentence do to the morale of the soldiers and to the morale of society, that a young boy who was conscripted into the army and placed in a horrible situation snaps and kills an individual whose entire existence is about killing Jews?

What makes this question even more complicated is that the more reasons we cite pointing to a lighter sentence might actually, in the aggregate, point to a stricter sentence. Let me explain with the following example. There are a few instances in the Gemara where we apply the principle of asu chachamim chizuk l’divreihem k’shel Torah – that sometimes the Sages strengthened the severity of Rabbinic laws to be equivalent to Torah laws and sometimes they even strengthened the severity of Rabbinic laws to be even more severe than Torah laws. The Meiri explains that the Sages only did that in situations where society didn’t observe a particular Rabbinic law seriously and flagrant violations of this law were rampant.

The fact that the defendant was a young boy, defending the state of Israel, who killed a terrorist who wanted to kill Jews, has created a general feeling that we should be lenient. Perhaps then one could argue that specifically because of our tendency to be lenient, if we do not engage in asu chizuk l’divreihem k’shel Torah, if we don’t make an example out of him and impose a severe punishment, then soldiers will be lax in this area and we may see more of these types of shootings in the future. According to this approach, specifically because of the outpouring of support for Elor Azaria, we need to impose a harsh sentence so that soldiers understand very clearly that he committed a crime and there is no justification for what he did.

I disagree with this approach. While I do believe that sometimes we need to make an example of someone to stop criminal behavior from spreading, in this case I have seen no evidence that lenient treatment of Elor Azaria would lead to rampant violation of our legal and moral principles or that more Israeli soldiers will be encouraged to do what Elor Azaria did. For that reason, I am unconcerned about the ramifications of reducing his prison sentence due to mitigating circumstances for him personally, and the effect that his conviction and sentencing may have on the Israeli army and Israeli society as a whole. However, if the facts change and if they aren’t as I see them, then I would support a more severe prison sentence. It has been suggested to me that what is often done in situations such as these is to impose a harsher sentence initially to convey the severity of the crime, but at some point after the worldwide attention on the case dies down, to quietly pardon him or grant him clemency. That seems to me to be a reasonable approach.

I am fully aware of my limitations in analyzing this case from afar. While my heart is in Israel, I do live in America. I am not experiencing first-hand what Israeli soldiers in the field undergo, and I know that the real impact of any decision in this case will fall on those who live and serve in Israel. It is my hope and prayer that each of these complicated issues will be explored meaningfully and with the providence they deserve, so that process of sentencing and perhaps clemency that unfolds is a process of which the State of Israel is proud. May God give our leaders the insight and wisdom they need to uphold our pristine values in the dangerous jungle that is the Middle East.

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