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July 8, 2014

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Israel must apply rule of law to Jewish revenge vigilantes

There is no moral equivalent between Israel’s rule of law and Hamas’ rule of terror: Every country has its vigilantes, but where Israel pursues them, Hamas celebrates the killers.

By Alan M. Dershowitz Jul. 8, 2014 | 2:06 PM |  1
Mohammed Abu Khdeir

An undated family handout picture of Mohammed Abu Khdeir. Photo by AFP

Vigilante revenge murders, of the kind apparently carried out against 16 year old Mohammed Abu Khdeir, are the antithesis of the rule of law. No just society can tolerate such lawlessness. The Israeli government hasacted appropriately in response to this killing, by conducting a vigorous investigation, arresting several suspects, and condemning the murder from the highest levels in the strongest terms. 

Contrast that with the actions and statements of Hamas. The headline in the New York Times of July 7, 2014 reads as follows: “Hamas Vows to Avenge Militants’ Deaths in Israeli Strikes.” The story goes on to suggest that Hamas plans to take revenge against Israel’s alleged killing of seven Hamas combatants (who were completely lawful military targets) by aiming rockets at Israeli non-combatants in the city of Beersheba (who are completely unlawful civilian targets). One rocket in fact reached an open area near Be’er Sheva. 

Israel denies killing the seven Hamas fighters, claiming they died in a tunnel explosion, but Israel would have had every legal and moral right to use lethal force against Hamas militants involved in the construction of terrorist kidnap tunnels between Gaza and Israel. Hamas has acknowledged that these are not “smuggling” tunnels. Their only purpose is to kidnap and kill Israelis.

Yet The New York Times and other international media insist on describing recent events as “the cycle of violence”, thus suggesting a moral equivalent between Israeli military attacks on legitimate military targets and Hamas rocket attacks on Israeli civilian targets.

Nor is there any moral equivalent between the Hamas-inspired and possibly implemented kidnapping and killing of three Israeli teenagers and the vigilante killing of an Arab teenager by Israeli individuals. Every country has its vigilantes, but countries committed to the rule of law condemn, capture, try and imprison their vigilantes. Countries and groups committed to the rule of terror congratulate, celebrate and name public squares after their vigilante killers—treating them not as vigilantes but as heroic implementers of their terroristic policies.

The Israeli government’s reaction to the terrorist murder of Khdeir has been commendable, but its earlier reaction to the less serious acts of “price tag” vigilantes, left something to be desired, and may have encouraged the vigilante murderers who took immoral revenge against an innocent 16 year old. Although Israeli authorities investigated past price tag crimes, they appear to have done it with less enthusiasm, energy and professionalism than they have employed against Arab vigilantes and terrorists. Jewish vigilantes tended to receive lower sentences and better prison treatment than Arab vigilantes. Tragically, it seems to have taken the murder of Khdeir to force Israelis to face up to their responsibility in controlling Jewish vigilantism.

Prime Minister Netanyahu has condemned in the strongest terms the vigilante murder of Khdeir. So too has Mohammad Abbas condemned the terrorist kidnapping and murder of the three Israeli teenagers. Now the time has come for both leaders to take action against their own citizens who try to take the law into their own bloody hands.

Tragically, revenge is a powerful human impulse that must be strictly controlled by governments. Though some Israelis called for acts of revenge following the murders of the three Israeli teens, the vast majority of Israelis and all of its leaders, reject individual acts of revenge. The same cannot be said of Palestinian leaders, many of who justify acts of terrorism against innocent Jews as appropriate revenge against Israeli military actions, just as Hamas has now done.

Israelis—Jews, Muslims and Christians alike—have the right to be outraged at the revenge murder of Khdeir, as they were at the murders of the three Israelis. But those who call for the murder of innocent Israelis in revenge for legitimate Israeli military actions have no moral standing to express outrage at revenge taken by lawless Israelis.

They may feel selective outrage when one of their own is murdered in revenge for one of their own having murdered innocent others. But that is tribalism, not morality.

Both morality and the rule of law demand equal treatment of all murders. They also demand an acknowledgment of the difference between the deliberate murder of innocent civilians and the legitimate military actions of a government seeking to protect its citizens, even when those military actions cause unavoidable civilian casualties among the human shields widely employed by Israel’s enemies.

Israel’s commitment to the rule of law is being tested by Jewish vigilantes. It is essential that justice be done and also seen by the world, and by Israelis, to be done. There cannot be one rule of law for those who kill because they hate all Jews and one for those who kill because they hate all Arabs. The nation-state of the Jewish people must accord equal justice to Jews and Arabs alike. And equal justice requires equal investigation, prosecution and punishment, without regard to the ethnicity of perpetrators and victims. Few nations pass this test. Israel must.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard, a practicing criminal and constitutional lawyer and the author, most recently, of “Taking the Stand: My Life in the Law.”