CIE-INDEX

Murder and Genocide in Jewish Religious Law

by Israel SHAHAK

From: "Jewish History, Jewish Religion: The Weight of Three Thousand Years",
by Professor Israel Shahak, London, 1994, by Pluto Press.

Extract from CHAPTER 5: The Laws Against Non-Jews*

 

AS EXPLAINED in Chapter 3, the Halakhah, that is the legal system of classical Judaism - as practiced by virtually all Jews from the 9th century to the end of the 18th and as maintained to this very day in the form of Orthodox Judaism - is based primarily on the Babylonian Talmud. However, because of the unwieldy complexity of the legal disputations recorded in the Talmud, more manageable codifications of talmudic laws became necessary and were indeed compiled by successive generations of rabbinical scholars. Some of these have acquired great authority and are in general use. For this reasons we shall refer for the most part to such compilations (and their most reputable commentaries) rather than directly to the Talmud. It is however correct to assume that the compilation referred to reproduces faithfully the meaning of the talmudic text and the additions made by later scholars on the basis of that meaning.

The earliest code of talmudic law which is still of major importance is the Misbneh Tarab written by Moses Maimonides in the late 12th century. The most authoritative code, widely used to date as a handbook, is the Shulhan 'Arukh composed by R. Yosef Karo in the late 16th century as a popular condensation of his own much more voluminous Beys Yosef which was intended for the advanced scholar. The Shulhan 'Arukh is much commented upon; in addition to classical commentaries dating from the 17th century, there is an important 20th century one, Mishnab Berurab. Finally, the Talmudic Encyclopedia - a modern compilation published in Israel from the 1950s and edited by the country's greatest Orthodox rabbinical scholars - is a good compendium of the whole talmudic literature.

 

'Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.' (Samuel, 15:3)


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. 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 Shim'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 all together, received extremely light sentences or won far-reaching remissions, reducing their punishment to next to nothing.[13]

 

Saving of Life  

THIS SUBJECT - the supreme value of human life and the obligation of every human being to do the outmost to save the life of a fellow human - is of obvious importance in itself. It is also of particular interest in a Jewish context, in view of the fact that since the Second World War Jewish opinion has - in some cases justly, in others unjustly - condemned 'the whole world' or at least all Europe for standing by when Jews were being massacred. Let us therefore examine what the Halakhah has to say on this subject.

According to the Halakhah, the duty to save the life of a fellow Jew is paramount.[14] It supersedes all other religious obligations and interdictions, excepting only the prohibitions against the three most heinous sins of adultery (including incest), murder and idolatry.

As for Gentiles, the basic talmudic principle is that their lives must not be saved, although it is also forbidden to murder them outright.[15] The Talmud itself expresses this in the maxim 'Gentiles are neither to be lifted [out of a well] nor hauled down [into it]'. Maimonides[16] explains:

"As for Gentiles with whom we are not at war ... their death must not be caused, but it is forbidden to save them if they are at the point of death; if, for example, one of them is seen falling into the sea, he should not be rescued, for it is written: 'neither shalt thou stand against the blood of thy fellow'[17] - but [a Gentile] is not thy fellow."

In particular, a Jewish doctor must not treat a Gentile patient. Maimonides - himself an illustrious physician - is quite explicit on this; in another passage[18] he repeats the distinction between 'thy fellow' and a Gentile, and concludes: 'and from this learn ye, that it is forbidden to heal a Gentile even for payment...'

However, the refusal of a Jew - particularly a Jewish doctor - to save the life of a Gentile may, if it becomes known, antagonize powerful Gentiles and so put Jews in danger. Where such danger exists, the obligation to avert it supersedes the ban on helping the Gentile. Thus Maimonides continues: ' ... but if you fear him or his hostility, cure him for payment, though you are forbidden to do so without payment.' In fact, Maimonides himself was Saladin's personal physician. His insistence on demanding payment - presumably in order to make sure that the act is not one of human charity but an unavoidable duty - is however not absolute. For in another passage he allows Gentile whose hostility is feared to be treated 'even gratis, if it is unavoidable'.

The whole doctrine - the ban on saving a Gentile's life or healing him, and the suspension of this ban in cases where there is fear of hostility - is repeated (virtually verbatim) by other major authorities, including the 14th century Arba'ah Turirn and Karo's Beyt Yosef and Shulhan 'Arukh.[19] Beyt Yosef adds, quoting Maimonides: 'And it is permissible to try out a drug on a heathen, if this serves a purpose'; and this is repeated also by the famous R. Moses Isserles.

The consensus of halakhic authorities is that the term 'Gentiles' in the above doctrine refers to all non-Jews. A lone voice of dissent is that of R. Moses Rivkes, author of a minor commentary on the Shulhan Arukh, who writes:[20]

"Our sages only said this about heathens, who in their day worshipped idols and did not believe in the Jewish Exodus from Egypt or in the creation of the world ex nihilo. But the Gentiles in whose [protective] shade we, the people of Israel, are exiled and among whom we are scattered do believe in the creation of the world ex nihilo and in the Exodus and in several principles of our own religion and they pray to the Creator of heaven and earth ... Not only is there no interdiction against helping them, but we are even obliged to pray for their safety".

This passage, dating from the second half of the 17th century, is a favorite quote of apologetic scholars.[21] Actually, it does not go nearly as far as the apologetics pretend, for it advocates removing the ban on saving a Gentile's life, rather than making it mandatory as in the case of a Jew; and even this liberality extends only to Christians and Muslims but not the majority of human beings. Rather, what it does show is that there was a way in which the harsh doctrine of the Halakhah could have been progressively liberalized. But as a matter of fact the majority of later halakhic authorities, far from extending Rivkes' leniency to other human groups, have rejected it altogether.

(....)

Notes

[1] Maimonides, Mishneh Torah, 'Laws on Murderers' 2, 11; Talmudic Encyclopedia, 'Goy'.

[2] R. Yo'el Sirkis, Bayit Hadash, commentary on Beyt Josef, 'Yoreh De'ah' 158. The two rules just mentioned apply even if the Gentile victim is ger toshav, that is a 'resident alien' who has undertaken in front of three Jewish witnesses to keep the 'seven Noahide precepts' (seven biblical laws considered by the Talmud to be addressed to Gentiles).

[3] R. David Halevi (Poland, 17th century), Turey Zahav" on Shulhan 'Arukh, 'Yoreh De'ah' 158.

[5] Talmudic Encyclopedia, 'Ger' (= convert to Judaism).

[6] For example, R. Shabbtay Kohen (mid 17th century), Siftey Kohen on Shulhan 'Arukh, 'Yoreh De'ah, 158: 'But in times of war it was the custom to kill them with one's own hands, for it is said, "The best of Gentiles -- kill him!"' Siftey Kohen and Turey Zahay (see note 3) are the two major classical commentaries on the Shulhan 'Arukh.

[7] Colonel Rabbi A. Avidan (Zemel), 'Tohar hannesheq le'or hahalakhah' (= 'Purity of weapons in the light of the Halakhah') in Be'iqvot milhemet yom hakkippurim -- pirqey hagut, halakhah umehqar (In the Wake of the Yom Kippur War - Chapters of Meditation, Halakhah and Research), Central Region Command, 1973: quoted in Ha'olam Hazzeh, 5 January 1974; also quoted by David Shaham, 'A chapter of meditation', Hotam, 28 March 1974; and by Amnon Rubinstein, 'Who falsifies the Halakhah?' Ma'ariv", 13 October 1975. Rubinstein reports that the booklet was subsequently withdrawn from circulation by order of the Chief of General Staff, presumably because it encouraged soldiers to disobey his own orders; but he complains that Rabbi Avidan has not been court-martialed, nor has any rabbi -- military or civil -- taken exception to what he had written.

[8] R. Shim'on Weiser, 'Purity of weapons -- an exchange of letters', in Niv" Hammidrashiyyah Yearbook of Midrashiyyat No'am, 1974, pp.29-31. The yearbook is in Hebrew, English and French, but the material quoted here is printed in Hebrew only.

[9] Psalms, 42:2.

[10] 'Thou shalt blot out the remembrance of Amalek from under heaven', Deuteronomy, 25:19. Cf. also I Samuel, 15:3: 'Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.'

[11] We spare the reader most of these rather convoluted references and quotes from talmudic and rabbinical sources. Such omissions are marked [. . .]. The rabbi's own conclusions are reproduced in full.

[12] The Tosafot (literally, Addenda) are a body of scholia to the Talmud, dating from the 1 lth-13th centuries.

[13] Persons guilty of such crimes are even allowed to rise to high public positions. An illustration of this is the case of Shmu'el Lahis, who was responsible for the massacre of between 50 and 75 Arab peasants imprisoned in a mosque after their village had been conquered by the Israeli army during the 1948-9 war. Following a pro forma trial, he was granted complete amnesty, thanks to Ben-Gurion's intercession. The man went on to become a respected lawyer and in the late 1970s was appointed Director General of the Jewish Agency (which is, in effect, the executive of the Zionist movement). In early 1978 the facts concerning his past were widely discussed in the Israeli press, but no rabbi or rabbinical scholar questioned either the amnesty or his fitness for his new office. His appointment was not revoked.

[14] Shulhan 'Arukh, 'Hoshen Mishpat' 426.

[15] Tractate 'Avodah Zarah', p. 26b..

[16] Maimonides, op. cit., 'Murderer' 4, 11.

[17] Leviticus, 19:16. Concerning the rendering 'thy fellow', see note 14 to Chapter 3.

[18] Maimonides, op. cit., 'Idolatry' 10, 1-2.

[19] In both cases in section 'Yoreh De'ah' 158. The Shulhan 'Arukh repeats the same doctrine in 'Hoshen Mishpat' 425.

[20] Moses Rivkes, Be'er Haggolah on Shulhan 'Arukh, 'Hoshen Mishpat' 425.

[21] Thus Professor Jacob Katz, in his Hebrew book Between Jews and Gentiles as well as in its more apologetic English version Exclusiveness and Tolerance, quotes only this passage verbatim and draws the amazing conclusion that 'regarding the obligation to save life no discrimination should be made between Jew and Christian'. He does not quote any of the authoritative views I have cited above or in the next section.

Israel Shahak was born on April 28, 1933 in Warsaw, Poland. In 1943-5, the Nazis in the Poniatowo and Bergen–Belsen concentration camps imprisoned Shahak and his parents. The 12–year–old Shahak and his mother immigrated to Palestine after the liberation of the camps in 1945. In the 1960s, while working as Professor of Chemistry at Hebrew University, Shahak became one of Israel´s leading voices of dissent. In 1970 he was elected chairman of the Israeli Human and Civil Rights League, and spent the next three decades strongly advocating equality and civil rights. In the 1990s, Shahak emerged as one of the strongest critics of the Oslo ‘peace process’, which he denounced as a fraud and a vehicle for making the Israeli occupation more efficient. Israel Shahak died on July 2, 2001, aged 68, from complications caused by diabetes.

Uittreksel overgenomen uit: http://www.bintjbeil.com/E/occupation/shahak.html .

Voor het volledige boek online, zie URL: http://www.biblebelievers.org.au/jewhis1.htm (en volgende).

Het boek kan nog altijd gekocht worden, online: www.Amazon.com:

Jewish History, Jewish Religion - New Edition: The Weight of Three Thousand Years (Get Political) by Israel Shahak (Sep 20, 2008)  Price: $ 16.75.

CIE-INDEXWeb master: Herman De Ley Update: 6 juni 2011