An Eye for an Eye?

But if there is serious injury, you are to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise. Exodus 21:23-25

The lex talionis, the law of retribution, is elaborated three times in the Hebrew bible , each a slightly different variant of “an eye for an eye, a tooth for a tooth, an arm for an arm, a life for a life.”  This notion has often been denigrated as the law of revenge or retaliation, but within all legal systems it recognizes the psychological, social and material need of retribution for injury sustained, while insisting that such retribution must reflect the principle of equality and hence proportionality.  By so doing, a limit is placed on both the amount of force used to inflict injury where death is involved, and the material burden to be sustained by the person who inflicted the injury.  It is therefore, one of the most important and crucial ethical values of all legal systems. 

Over against this has been brought the guidance purportedly given by Jesus in the Gospel of St. Matthew  “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also”.  I would argue that this reflects a spiritual understanding of suffering such as that to be found in the great Asian religions of Hinduism and Buddhism, but that it only speaks to the individual injured, and does not address the social or community aspect of harm and injury, and therefore does not, and cannot, apply as a general legal maxim. 

 The principle limiting force and violence lies at the heart of law, one of the basic purposes of which is to protect the weak in society, because obviously the strong do not need protection from the weak. . This is the heart of a civilized social ethic, and is found as early as the 18th century BCE in the Code of Hammurabi, a document which states explicitly that the ruler, Hammurabi, is to bring about the rule of righteousness so that the strong should not harm the weak, for the well-being of mankind.
Furthermore, such a principle is a social principle to be exercised by and within society, by whomever society recognizes as having the legitimate right to exercise such power in its service. In other words, the principle of equality and proportionality is central not only for the overall well-being of a human community, but for its actual continued existence per se.  In the absence of such a restraining law, antagonists would fight to the death, in a never-ending spiral of killing and destruction, as we still see in the vendetta.

This principle has not been limited only to specific societies reflecting a circumscribed internal matter, but has also been introduced into relationships between political bodies in the international sphere.  Here, the necessity for such a principle, which is considered to be part of customary law in Europe, is more acute, because of the destructive capacities of national armies compared to the destructive capacity of persons working singly or in small groups. Proportionality of force must be adhered to in order for war not to become absolutely and mercilessly criminal.  While it might seem to be an oxymoron, a legitimate war essentially limits the amount of force that any side may use against the other.  In addition, and in particular, it is also meant to protect those who are hors de combat, which means civilians, as well as army medical centers. This principle was enshrined in the notion of chivalry and remains in the European laws of war, dating from Grotius in the first part of the 17th century. That such a principle is vital, can be seen from the rampant and unlimited destruction left in the wake of the Mongol invaders under Genghis Khan, the ruins of which stand as silent testimony to the use of unlimited force.  

While only the naïve or the ignorant would still hold that the Western world is on a trajectory of progress and hence enjoys a level of civilization far exceeding that of other cultures, including Arab culture, it is becoming clear that as far as the waging of wars is concerned, the West is reaching peaks of performance that completely undermine their own traditions of the laws of war with the ordinary person becoming witness, if only vicariously through television, to a barbarity, the ultimate damage of which may lie in what has traditionally been called “hardening of the heart” such that people simply do not care, nor do they empathize with those whose lives are subject to these barbarities of war. This profound insensitivity was exhibited by a former Secretary of State, Madeleine Albright who stated that the sanctions against Iraq depriving it of necessary civilian medical and nutritional sources, which were directly responsible for the death of about half a million Iraqi children, who are by definition hors de combat civilians, during the decade of the nineties, were an appropriate and legitimate means of continuing warfare.  

The latest war begun by Israel in the Middle East, with the support of the United States of America, seems to be aimed at the reduction to rubble and chaos of the Arab countries and territories surrounding Israel, if not even further, i.e. to encompass Iran as well.  If the destruction of Iraq by the US Army is any indication of what the new standards of warfare are today, then we can expect Israel to attempt to smash completely the human, economic, and political infrastructure of Palestine, where they seem to have accomplished much in this direction, particularly in Gaza, as well as in Lebanon and Syria.

Perhaps, there are various viewpoints which one may take on the latest Israeli actions, but it would seem that the disproportion of the Israeli actions far exceeds any that might fall into the category of proportionality.  I find it rather surprising that no one has mentioned Lidice of World War Two and Guernica of the Spanish Civil War, both of which have come to symbolize barbaric, indiscriminate and unlimited revenge in times of war totally out of proportion to what was perceived as the initial act triggering the retaliation.

Anyone who kidnaps another and either sells him or still has him when he is caught must be put to death. Exodus 21:16

Ironically, Jewish interpretation of Halacha, i.e. Jewish law composed of both the Written law – Torah, and the Oral law which includes the Talmud and later Responsa literature, has stressed that the lex talionis is a law which came about to improve an earlier situation in which retribution was not limited.  It is thus cited as a humane law, limiting the amount of force or claim in kind or money that may be levied in a particular situation. Where it is written “life for a life,” Jewish law would insist on numerical parity at most, because if one person murdered three people, it would not recommend the arbitrary killing of two other persons in order to maintain numerical parity! Furthermore, it would understand that the guilty person alone must pay the price, and not the wider community, such as the tribe.  In international law, this is known as collective punishment and is strictly and unconditionally prohibited.

Yet what do we find now happening in the Middle East? These latest military attacks by Israel against Gaza and Lebanon both followed the killing and kidnapping of Israeli soldiers and not civilians.  Israel had been conducting murderous attacks against Gaza before the latest kidnapping, and still holds thousands of Palestinians in its own detention centers, most, if not all of whom, were kidnapped from Palestine, and it also holds hundreds of kidnapped people from Lebanon, as well as holding on to a piece of disputed territory on the northern Israeli/Lebanese border.  The Israeli High Court of Justice has supported the Israeli government claim that it was legitimate for Israel to kidnap an enemy national and hold him hostage against an enemy government.

For argument’s sake, let us presume that these latest actions of the killing and kidnapping of Israeli soldiers by Hamas and Hizbollah are unprovoked aggressive acts of war on their parts against Israel.  Surely it would be both fair and appropriate to judge that the amount of force that Israel has used against both Gaza and Lebanon violates indisputably the biblical lex talionis.

 If, on the other hand, we choose to distinguish between the acts of Hamas and Hizbollah, and see the Hamas action as retaliation to the acts of war of Israel against the Palestinians in Gaza, then how do we interpret the massive Israeli bombings, killings, and destruction of that area?  Is it a proportionate retaliation against a prior retaliation? Who, without prejudice, could hold such a viewpoint?

On the other hand, if Hizbollah committed an aggressive act of war against Israel, how  then should the lex talionis have been expressed by Israel? Remember, seven soldiers were killed and two were taken captive.  By destroying the Beirut airport? By bombing South Beirut, a civilian area? By bombing Southern Lebanon in an unlimited fashion and killing tens of civilians as well as soldiers?  By bombing and destroying roads and bridges?  By forcing the closure of universities and the evacuation of foreigners in fear of the bombings?  Can one, or does one, detect the principle of equality and of proportionality of the lex talionis in these actions?

One of the stark realities of the present conflagration is that there seems to be no difference at all in the massive amount of force that Israel has used in the Lebanon and Gaza, thus sweeping aside any argument for definitional differences of these two acts.

Thus, it does not seem out of place to conclude that any act against Israel by Arabs, under any and all circumstances, is ipso facto an unprovoked aggressive act of war, to which Israel considers itself free to retaliate in any manner it so chooses, without holding itself bound to those treaties and conventions to which it is a signatory, nor to its own Jewish heritage, an irony that should not be lost on Jewish savants.

And while we are evaluating Israeli action, it behooves us to remember who her supporters are and where they have positioned themselves!  They share in the responsibility for the unbridled actions of the Israeli army and the destruction it has wrought and continues to inflict.  And it is in this collusion that the tragedy of the weak should be understood in today’s world.  The Emperors are not naked.  They are armed to the teeth and they arm their surrogates, and there is no one to protect the lives, homes, and lands of those whom they target! If this is the great democratic model of behavior which the West is visiting upon the Orient, heaven is the only help upon which we may call!  

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