JRJ, Spring 1986, 59-61

Demolishing Homes in the West Bank and the Halacha

Moshe Zemer

During the period of one year from 1984 to 1985, the Israeli military authorities stopped blowing up Arab homes in Judea, Samaria, and the Gaza Strip. Members of the Keneset, as well as settlers on the West Bank, called for renewal of this form of punishment for terrorists and stone throwers, and in mid-1985, demolishing homes of suspected Arab terrorists was reinstituted. Therefore, it seems fitting to re-examine this punitive policy (borrowed from the British Mandate), not from a political, military, or legal point of view, but rather in its halachic and moral dimensions.

In 1984, the home of the father of suspected terrorists in Abu Tor, Jerusalem, was sealed off by the authoritites. Follow- ing this action, a member of a Progressive congregation sent the Israel Council of Progressive Rabbis the following query: “Does this practice of the military authorities conform to Hala- cha in punishing the innocent with the guilty … and in applying a different law to Arabs than to Jews suspected or accused of similar crimes?”

I relayed her question to Rabbi Solomon B. Freehof, who sent us the following response:

Actually, as far as I know, there is no legal decision in the Posekim on this theoretical question. But there is, indeed, an interesting dis- cussion of it in the Talmud. It is found in Avoda Zara 4a, at the bottom of the page. There the Talmud takes up Abraham’s argu- ment with God about destroying the city of Sodom, an act which might very well destroy the righteous inhabitants together with the evil ones. The Talmud bases its discussion on the verse in Ezekiel 9:6, where God’s agent is told to put a sign of punishment on vari- ous people. The text in Ezekiel actually says: “Begin [the mark of guilt] at the sanctuary.” But the Talmud modifies the word sane- tuary to mean “the holy ones.” And then, of course, it deals with the question: Why should the righteous people be marked for pun- ishment? It then gives the following rather remarkable answer: “If a man is wholly righteous (the Talmud uses the unusual expression,

“if he has obeyed the commandments from to 7av”), even so he will deserve punishment if he has failed to use his influence to dissuade or restrain the wicked people.

We may, therefore, well say that this is a talmudic justification for the action of the Israeli authorities. If these other Arabs, them- selves innocent of this particular crime, could have made an effort to dissuade or restrain the criminals, but actually made no such ef- fort, then, according to the Talmud, they share the guilt even if otherwise they are innocent.

This creative responsum by one of the world’s renowned halachic respondents uncovers a relevant principle in the Gemara where no definitive decision exists.

Liberal Judaism has emphasized the pluralistic character of the Halacha throughout the ages. In this pluralistic tradition, yet with yir-at kavod for our movement’s foremost posek, I have taken a different approach to the problem, which may reflect a different ideological stance. My research in the rabbinic sources has revealed the following:

1. Individual responsibility precludes collective punish- ment. The Talmud comments on the contradiction be- tween Exodus 34:7, “Visiting the iniquity of the fathers upon the children,” and Deuteronomy 24:16, “Neither shall the children be put to death for the fathers.” In the Tractate Berachot 7a, we find a resolution of the contra- diction explaining that the first verse refers to descen- dants who follow in their fathers’ evil ways and are, therefore, punished; whereas the second refers to chil- dren who are not sinful. Rabbi Jose ben Hanina stated that Moses’ decree in Exodus 34:7 was revoked by the prophet Ezekiel who declared, “the person that sins shall die” (Ezek. 18:14, in Makkot 24a). The thrust of these talmudic passages leads to the conclusion that we must determine the complicity of the relatives of the suspected criminal before punishing them.

2. The Arab is a ger toshav (resident gentile). The Arabs living in the territories have a status similar to that of the ger toshav who has the right to live in the land of Israel. This ger toshav is a gentile who observes the seven laws of Noah, which include abstaining from idolatry (Avoda Zara 64b; Maimonides, Laws of Forbidden Intercourse 14:7-8). These Arabs can, indeed, be considered to be “Sons of Noah,” since Rabbenu Tam (grandson of Rashi) and others have determined that the Christians among them are not idolators (Tos. Sanhedrin 2b),whereas Maimonides established that Moslems are monotheists ( RambamResponsa, no. 448). There are other halachic problems. Nevertheless, Rabbi Avraham Kook determined that when an entire people has aban- doned idolatry and has taken upon itself to keep the seven moral laws assigned to non-Jews, then, even in our day, they should be considered to be resident gen- tiles (.ResponsaMishpat Cohen, no. 58).

3. Ager toshav must receive fair judicial treatment. Once

we accept the Arab as a ger toshav, then we are duty bound to avoid judicial discriminations against him (Maimonides, Laws of Kings 10:12). This means that the homes of Arabs should not be destroyed as long as Israeli authorities do not blow up the homes of Jews ac- cused of murder and terrorist activities. Is it possible that for a full year the military authorities accepted the prohibition of the Halacha against this discrimination? As much as we might want to believe this, a more rea- sonable explanation was revealed by sources within the Defense Ministry, who stated that the government was willing to blow up the dwellings of members of the Jewish terrorist organization who live in the occupied territories ( Ha-Aretzmilitary correspondent, May 16, 1984). Since the military authorities were not allowed to blow up the homes of Jews accused of murdering an Arab girl or planning terror or murder, they apparently felt compelled to discontinue this form of reprisal against suspected Arab terrorists. Thus, indirectly, and most likely unknowingly, our authorities came to fulfill this moral requirement of the Halacha.

Perhaps we could take a first step toward rapprochement, if we were to heed the prophetic declaration of HaRav Kook about the Arabs who are destined to live with us: “There is ab- solutely no justification for any people to limit the rights of an- other without a general higher purpose. Therefore, the advo- cates of Israel were right in stating their demand, ‘Have we not all one Father?’ ” {Letters of HaRav Kook, vol. 1, no. 89).