Can we (those of us who feel support for it) feel justified with our sense that Netanyahu was correct in his decision to finally cut privileges of jailed Hamas militants in response to the Palestinian Islamist movement's refusal to allow Red Cross visits to Gilad Shalit for over 5 years? What does Judaism say about this?
It is understandable that one might somehow feel justified in such thinking. It may seem to some that there is no other way to compel Hamas to comply with international standards. In all actions one must weigh the commission of an act against the repercussions that are possible. One must, of course, also consider the application of appropriate Jewish teachings. There are, naturally, a few relevant texts that could guide us. There is also the Geneva Convention’s dictates regarding prisoners of war, which if Israel is a signatory of that document, then we must also abide by these rulings.
At first blush, some may recoil from even the consideration of such reciprocal thinking. After all, we carelessly teach our children that “two wrongs never make a right.” But know that as seemingly colloquial as this saying is, this principle stands out clearly in Jewish teachings. We learn this general rule from Mishnah Shekalim 3:2, which states that “One must behave before all creatures as one must before God, as it is written in Torah (Numbers 32:22) ‘You shall be clean (guiltless) before the Eternal and Israel,’ as it says (Proverbs 3:4) ‘So will you find grace and right thinking in the sight of God and humanity.’” Or to use a dictum from our sage Hillel, “That which is hateful to you do not do to your neighbor” (Shabbat 31a).
On the other hand, some could argue that jailed Hamas militants fall into the category of “rodef,” that is, one who pursues another with intent to murder; the Talmud states in Berakhot 62b that “If someone is coming to kill you, rise up first and kill this person.” Similar to all many laws, however, this teaching comes with restrictions. The one most pertinent to your question may be that one must do the least harm necessary to stop the rodef from murdering: In Sanhedrin 57a, we learn that one who kills (my emphasis) a rodef when breaking a limb would have sufficed is liable for capital punishment.
According to Rabbi Jill Jacobs, “Some halakhic authorities have argued that a POW or suspected terrorist may be considered a rodef, and may therefore be harmed as a means of extracting information that has the potential to save lives.”
But it is also important to cite the decision of Israel’s Supreme Court regarding the application of this guideline while weighing it against other democratic principles. In 1999, the Court stated: “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.”
The Geneva Convention relating to prisoners of war takes great pains to define “prisoners of war,” and to mandate certain behavior toward them. Article 13 states this: “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach…prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited.”
Article 14 may also contain important guidelines for us to consider: “Prisoners of war are entitled in all circumstances to respect for their persons and their honour…Prisoners of war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within or without its own territory, of the rights such capacity confers except in so far as the captivity requires."
In the final analysis, one must consider the specific privileges that were removed by virtue of the Prime Minister’s act, and evaluate whether having eliminated them results in a violation of the Geneva Convention, relevant Jewish teachings, or a ruling of the Israeli Supreme Court. I do not know specifically which privileges you speak about, so I cannot make that determination. However, one must use Jewish principles and the guidance of our tradition – and the good sense that God gave us – to determine any particular course of action. Whether you feel “justified” by the Prime Minister’s actions is up to you.
The 1949 Third Geneva Convention defines humanitarian protections for prisoners of war. The essence of the Convention's requirements mandate that in all circumstances prisoners be treated humanely, including prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment. The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Even granting the argument that jailed Hamas terrorists should have previously been entitled to Geneva Convention humanitarian protections, Israel's treatment of those terrorists far exceeded minimal Convention standards. Prior to P.M. Netanyahu's recent decision, examples of some terrorist privileges have been: Free higher education, excellent quality meals, and liberal access to telephones and the Internet. The experience of Israeli-incarcerated Hamas terrorists has been compared to being imprisoned in a two star hotel.
P.M. Netanyahu's recent decision to cut the Hamas terrorist privileges is long overdue.
A battle-tested Israeli soldier with experience arresting wanted terrorists told me that terrorists he dealt with often were happy to be sent to Israeli prisons. Terrorists said that Israeli prisons were like vacations; nobody was threatening them and they weren't subject to being suddenly blown up. The terrorists enjoyed the good food, free health care, and living conditions that far exceeded what they experienced on 'the outside.' With such conditions and additional privileges, what incentive -- if any -- did Hamas terrorists have to cease committing murder and mayhem against Israeli citizens? The previous level of terrorist privileges indirectly, or in some cases directly, encouraged and enabled acts of violence against the Israeli populace. And as our rabbis teach, "Those who are kind to the cruel, are ultimately cruel to the kind." (Kohelet Rabba 7:16, Meiri on Yoma 22b)
Additionally, the privileges previously extended to Hamas terrorists have undoubtedly brought about anguish and suffering to the family of Gilad Shalit and other families and living victims of Arab terrorism. It's painful to begin to imagine how Israeli soldiers and citizens have been treated when captured by Hamas, Hezbollah and other terrorist factions. The contrast between the inhumane treatment of Israelis, and the Israeli privileges previously extended to Islamic terrorists, was an unintended form of mental cruelty to Israeli victims of terrorism.
Prime Minister Netanyahu decided that incarcerated terrorists should be treated humanely -- but not above basic humane standards. The revocation of terrorist privileges was not only justified, but necessary and long overdue.
Judaism teaches that we are all made in the image of God (Genesis 1:27-28). Judaism also accepts that human beings make mistakes. And as human beings we have the opportunity to make right that which we have done wrong. That’s the idea behind teshuvah (repentance) and the High Holidays. We all have an opportunity to make up for the mistakes we have made in the past.
All that being said, I cannot suggest that Judaism encourages that we should cut privileges to prisoners (militant or not) simply as retaliation for the treatment Gilad Shalit suffered while he was imprisoned. Certainly the way he was treated was wrong by all accounts. There is no justifying that. However Judaism posses and idea stated as: midah k’neged midah, or “measure for measure.” We understand this to mean that God punishes or rewards people based on their behavior. We could understand this to mean that it is justifiable to treat Hamas militants the way Gilad Shalit was treated. However we also believe this only for God to do. We might also consider that our actions have repercussions. Simply put, two wrongs don’t make a write. In fact it would be possible to say that our treatment of prisoners would set in motion a never ending cycle of “measure for measure” further justifying the harsh treatment of all prisoners.
If we are to believe that peace is possible and that we can repair this fractured world, then it is necessary for us to see that all human beings- even the ones who make poor choices- are made in the image of God. We must also understand that those imperfect human beings have the opportunity to make right that which they have done wrong. If anything, if we don’t learn from their mistakes we will then be responsible for own teshuvah in the matter. Lastly, the Mishnah teaches that “in a place where there are no men, strive to be a man.” In other words, following the suit towards Hamas prisoners is no way to act as a Jewish person. It is beneath us. In the prison world, which is often chaotic and lacking in the types of rules that keep free society in check, we should work to raise the standard of behavior and treat others as human beings rather than lowering them.
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