The open attempt at genocide changes the way that Israel can and must handle this war

WE

live in unprecedented times, and anyone who speaks with any certainty about why something did or didn’t happen or pretends to know what will happen next is only fooling themselves because only G-d Himself knows.

Nevertheless, as Rav Soloveitchik once explained, when tragedy strikes, the job of the Jew is not to ask lamah (why) but rather to ask l’mah (for what), as in, “What am I supposed to do with what I know right now?” In that spirit, the only way to begin to move forward through the fog and chaos of war is to impose a framework on whatever small part of the equation we can, and build from there.

In some distinct and circumspect areas, the law can provide such a stabilizing force, a starting point for how to respond to things we still cannot fully comprehend. An important legal development over the last week has led to a number of paradigmatic changes that both Israeli and American Jewry have a collective obligation to act on.

What Was Different about This Attack

Hamas told the world who they are on day one of their existence: an anti-Semitic, genocidal terrorist organization. But after witnessing the scale and brutality of last week’s massacres, more world leaders are finally taking Hamas at their own word, and are therefore more willing to let Israel act accordingly.

The Convention on the Prevention and Punishment of the Crime of Genocide says that genocidal acts are “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” Hamas’s founding charter literally calls for the extermination of the Jewish People — separate and apart from the clauses calling for the destruction of the Jewish state.

Throughout our long history, the Jewish People have learned many things; we have learned, for instance, that in every generation, there will be those who rise up to destroy us, and we have learned that when someone says they want to kill you, you believe them.

Influential pseudo-intellectuals in their ivory towers, however, alongside apologists (and sometimes anti-Semites) in the international law community, were all too willing for far too long to dismiss Hamas’s maniacally murderous credo as mere political posturing.

The Simchas Torah attack is the first time that the world has had no choice but to take Hamas’s claim at face value — even among their most virulent supporters, the language has changed from “they don’t really mean it” to “the victims had it coming.”

What Does That Difference Mean Practically in Terms of How Israel Responds?

The open attempt at genocide changes the way that Israel can and must handle this war, and that change could even be detected in the messaging coming from the White House. As President Biden said on October 10, “Israel has the right to respond — indeed has a duty to respond — to these vicious attacks.” In international law there is a right to self-defense, but there is a duty to prevent and punish genocide. That duty matters as the drama of Israel’s response plays out against the landscape of the Law of Armed Conflict (LOAC).

There are three central principles in the LOAC, and all of them are words that you’ve already heard (or are likely to hear) thrown about imprecisely: the principles of distinction, military necessity, and proportionality. All three work together to prevent unnecessary casualties while recognizing that some risk of collateral damage is ultimately acceptable in meeting a justified objective, because the best way to save the most lives is to take out the bad guys as efficiently as possible.

The principle of distinction requires that attacks are only directed at combatants. That does not mean, however, that all civilian deaths are unlawful; the principle of military necessity permits measures that are actually necessary to accomplish a legitimate military purpose even at the risk of endangering the innocent. The balance between those two lodestars is struck by the principle of proportionality, which forbids attacks in which the expected incidental loss of civilian life would be excessive in relation to the anticipated military advantage to be gained. The greater the objective, the greater the extent of permitted risk of incidental damage.

Israel’s current overwhelmingly necessary military purpose is to destroy an openly genocidal terrorist organization, and they have an affirmative obligation on behalf of the international community to do so. Because the calculus is so clear in this instance, even secondary complaints, like the contentions that Israel is engaging in collective punishment or forced transfer, etc., are gaining less traction than they usually do. For reference, a proportional response is by definition not collective punishment, and there is a massive difference between warning citizens to temporarily evacuate a danger zone for their own safety (a requirement under the Geneva Conventions) and illegally driving them out as part of an attack against a civilian population.

How Has This Change Affected the Diaspora?

For many years, a certain segment of society was willing to let the world’s oldest hatred hide behind the veil of anti-Zionism. Hamas, however, is not representative of the “general” Israeli-Palestinian conflict; it is possible to be pro-Palestinian without supporting anti-Semitic genocide, but it is impossible to be pro-Hamas without it. Hamas is openly genocidal against Jews everywhere, and there is no longer room to pretend otherwise. They don’t just call for the death of Zionists, or of the conservative right; they did not ask the peaceniks their political or even religious values before they cut their throats. And they would not ask the same of anyone on this side of the Atlantic either.

Anyone who stood in support of Hamas, or defended their actions, or tried to provide context to the butchering of babies, all while the bodies were still warm and the hostages still missing, has taken their anti-Zionist mask off once and for all. Even if we were to forgive all past transgressions and willful blindness, any politician, group, media outlet, or individual that continues to support Hamas now, including by downplaying their atrocities in any way, is officially supportive of the genocide of Jewish people everywhere. There is no more room to equivocate or hide from that very ugly truth.

In some instances, this notable crossing of the line could have serious and substantial legal impact. For example, under 18 U.S.C. §2339, it is a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” Last week, as numerous student groups held PR training sessions, information rallies, and even fundraising campaigns to support “the resistance” — i.e., Hamas, they very likely violated the material support statutes, exposing themselves to associated civil liability as well.

How Should We React?

As American Jewry reels from the catastrophe abroad and the character revelations at home, it is important that just as Israel draws a line in the sand and says “ad kan,” so too we here cannot let the open support of anti-Semitic murderers become the new normal. The time has come to take a stand, and that means holding people responsible for what they say and do.

Some, like hedge-fund billionaire Bill Ackman, have pledged to never hire anyone who does not have the moral clarity to stand against those who mutilate infants and the elderly. Others, like Marc Rowan (until last week chair of the board of advisors at UPenn’s Wharton School) and Idan Ofer (who resigned his trusteeship at Harvard) have called on university presidents to step down after they could not muster the courage to unequivocally condemn Hamas or those who stand with them. More have threatened to withhold any donations until their demands are met and the rot that’s been allowed to fester exhumed.

Many Jews are afraid to rock the boat here, trusting that they have “good relationships” with politicians that they don’t want to push too hard. Well, this week was a litmus test and wake-up call: Any relationship in which a politician sends a Rosh Hashanah greeting but can’t condemn Hamas is not a good relationship, it’s an abusive one. None of those politicians should ever get a single Jewish vote again. All of these approaches are correct and heroic, and are the very least we can do as the blood of our brothers calls out to us from the ground.

We are not a large people, and there are very few things that the entire Jewish community agrees on, but preventing the crime of anti-Semitic genocide should be one of them. If we manage to hold firm and act together, there are enough of us to make our voices heard and our presence felt.

May Hashem avenge the spilled blood of His servants.

(Originally featured in Mishpacha, Issue 982)