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War Crimes

By TorahLab

The Binyanei Haumah in Jerusalem was jam-packed. Wall to wall, people had come to hear the judge announce the verdict for John Demjanjuk.
He was a man the world already called Ivan the Terrible. After a lengthy discourse the judge announced, “John Demjanjuk will be sentenced to death.” The filled room broke out in spontaneous applause and one man in the center of it began singing Am Yisroel Chai. Hundreds of people formed a circle and danced to the tune. Demjanjuk watched the happenings from his glass box and started to cry. This case was appealed and eventually reversed.
Personally, I have no mercy for a man who was thought to have butchered thousands of Jews. Yet, somehow the happenings in the courtroom that day embarrassed me as a Jew. If we would watch the same happenings take place in Teheran or Baghdad, we would become nauseated with feelings of barbarianism. We would feel that the dark ages are still with us. Yet here we were watching our own brothers and sisters rejoice over the downfall of one who is truly an enemy of Israel, an din our hearts perhaps we wished we were there to join in the simcha.
Don’t we spill ten drops of wine at our seder every year? The Torah tells us that when the Egyptians were drowning in the Red Sea, which had previously split for the Jews, the angels on high wanted to sing “The oppressors are downing, halelu” God scolded the, “My creations are drowning in the sea and you want to sing!”
We learn that the Sanhedrin, High Court, would carry out capital punishment once in a century. One had to be guilty beyond a shadow of a doubt to be deserving of the death punishment. Yet, the executioner had a tear on his cheek as he carried out God’s will.
I stress this, not to determine right from wrong, but to establish what I consider to be a Jewish attitude and perspective on this matter.
The motivation for war crimes trials is to set the record of history straight. Nothing is more insulting to the Holocaust survivors, their children and all of Israel than to hear the revisionists of Auschwitz audacious comments that the chimneys and bars of soap of flesh were all fabricated by the Jewish mind. Time Magazine in 1988 titled an article on Nazi war crimes “History on Trial”. We feel an obligation to make it clear that the detestable sadistic crimes of the Germans did happen. There is no better way to assure the correct writing of history then to hunt an actual murderer and bring testimony from dozens of witnesses before a judge, as a multimedia event, demonstrating that the crimes actually took place. As one commentator put it, “It is not even important whether Demjanjuk is Ivan the Terrible or not. What is important is that Ivan the Terrible clearly existed.”
I do not believe this to be a Jewish viewpoint. It is not the mandate of the court system to straighten out history. One cannot use an electric chair to erase the errors of historians or a noose to round up the revisionists. This task is important, but I do not believe this is the way. The correct writing of history should better be left for the historians and university professors. History can be made in a courtroom but should not be written there.

Can We Kill

We should examine this from a halachic point of view. Generally speaking, the Jewish people do not practice the laws of capital punishment. The Rambam teaches, “Capital law is not practiced unless the temple in Jerusalem is in full use and the Sanhedrin is in session next to the temple.” As far as doing justice with our oppressors, it seems that we do not have this right; as long as we do not have a Sanhedrin we must leave this to God. This, of course, does not imply the defendants innocence, it simply indicates a capital offense for which we do not have a mechanism to prosecute.
On the other hand, Rambam states, “There is no crime as despicable as murder. Although there are crimes that are worse, there is nothing which destroys civilization as the killing of innocent people.” Later the Rambam writes that a country has an obligation to bring its murderers to justice.
Jews today are living on one of the most relaxed spots in history. How could it be that in this day and age such major atrocities can take place and we must sit on our hands and remain defenseless?
The answer lies in what I consider the realms of extra halachic decision making. I’m not referring to vigilantism, but rather to an approach for when the existing system can’t be used. As stated, capital punishment is the function of an operating Sanhedrin. There are, however, three cases where an execution can take place outside the system, when there is no Sanhedrin.

1. A Goel HaDam, Redeemer of Blood. This refers to the next of kin of a murder victim who avenges the death of his brother. The avenger is no liable in this case.

2. A king in Israel. A king has the right to execute anyone whom he feels deserves such punishment.

3. A Rodef, a pursuer. If it is clear that someone is coming to kill you then in self-defense you may kill him first.

All three of these arguments were used in the Adolf Eichman case. Some people felt that every Jew becomes a Goel HaDam. If the next of kin is available, fine. If not, we are all next of kin.
Others feel that, although we don not have a king any longer in Israel, and there is no single person with the power of life and death, the government of the State of Israel with its judicial system nevertheless functions as a king. It would therefore follow that if the State of Israel decides that, for the sake of international and national law and order, the capital punishment must be employed, it’s entitled to do so.
Let’s focus on the third extra-halachic formula – Rodef or pursuer.
How do we define a pursuer? The simple case is when someone is running after you with a bayonet. It is quite clear that he or she wishes to kill you, so you may turn around and shoot. However, there are cases which are not so straight forward, such as the case of an unborn child who is endangering the life of its mother, or an informant who can endanger the lives of thousands. If at any time the person in question is a threat to my life or the life of others, he or she becomes a pursuer. An execution then becomes an act of self-defense.
Our case is that of an 80 year-old man who could certainly at his advanced age, be restrained from killing Jews. But there is another aspect to this.
Rav Yosef Engel teaches that when a Sanhedrin puts a murderer to death, the sentence really serves a double purpose. It gives the criminal what he or she deserves, and justice is served. But it also serves another important objective – it teaches others not to murder. The law regarding execution is accompanied in the Torah with the verse “and let everyone see and learn what happens to someone who kills another man.” It is a preventive cure for murderers. Says Rav Engel, “If we don’t put the man to death then we are causing other murderers to murder.” The defendant therefore becomes a Rodef, i.e. if we don’t kill him, others will kill us.
This I believe is very applicable to the case at hand. The world is waiting for an answer. Can one man kill 10,000 Jews and get away with it? If he can, then maybe yet more evil can be done. The defendant becomes a Rodef.
It seems that if halachic argument establishes that the alleged murderer is a Rodef, then that take precedence over all other concerns. Whether a death sentence will cause anti-Semitism, for instance, becomes less important, perhaps, in the face of a real and current death threat.
A final point should be considered regarding not only the prosecution of Nazis but the entire way that we cannot commemorate the Holocaust.
Since the early 1980’s in the United States, 36 Holocaust memorials and research centers or libraries were opened in the U.S. Over half a billion dollars in capital expenses were allocated for Holocaust memorials. This, at a time when schools are late in paying their poorly paid teachers and many are closing for lack of funds. This pattern is repeated on different scales all over the world.
What is their purpose? I presume that if we only wanted to remember the lives of those we lost, the traditional methods would suffice.
But a much greater point is at stake here. Proving that the Holocaust did happen has become the national obsession of the Jewish people. I don’t deny that this is important, but one wonders if the expenditure should be of such high priority. The real miracle that we must celebrate is that we have survived as a people. If we lose our vitality, then there will be memorials for the Jewish religion as a whole, if anyone left to build one.
In 1950 the sainted Ponevezher Rav of blessed memory traveled the United States with a message. He reported on his findings during a tour of the European continent after the war. He recited the geography of Eastern Europe to the tearful accompaniment of his listeners: Ponevezh…Bialystock…Vilna…Kamenitz…once Europe’s center of Jewish learning, now rubble…trash heaps…empty shells…ashes. “But we shall build on a hilltop in Bnei Brak, a new Kamenitz, a new Ponevezh, a new Vilna.” And he did.
The Jewish people must keep their dignity and at all costs we must survive as a people. History must be recorded and our loved ones must be remembered. The world must be taught that there is justice and that justice will be done. But most of all we must have an eye to the future to make sure that the ultimate revenge is taken – that we are here to tell the story.

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