by Rabbi Aryeh Klapper
Emperor Achashverosh signed a decree authorizing the killing and despoiling of all Jews in the Persian Empire. After Esther exposes Haman, author of the decree, as an egomaniac who aspired to the throne, Achashverosh issues a new decree authorizing Jewish self-defense. He promises that imperial forces will not interfere on either side, and even imposes a no-fly zone over Shushan to prevent local militia from using their helicopters against the Jews. However, he does not open the borders to mass Jewish emigration.
Unfortunately, the Jews are still badly outnumbered and poorly armed in comparison to the anti-Semites. The small Jewish community in the Medean Republic engages in mass public fasting and other desperate measures to build support for armed intervention in Persia, at least via the creation of a “safe-zone” to which Jews can flee. Opponents suggest that such intervention will fail to save the Jews, that intervention will cause tens of millions of casualties in the chaos and anarchy that will inevitably follow the Persian Empire’s collapse into civil war, that Medean forces will suffer significant casualties, and that Medea’s overall geopolitical position will be damaged by its identification with the generally unpopular Jews. Finally, they suggest that even a perfectly successful intervention will simply lead to a mirror-image massacre of anti-Semites by Jews.
Does the Medean empire have an obligation to intervene?
In her powerful and troubling A Problem from Hell: America and the Age of Genocide, published in 2003, current Ambassador to the UN Samantha Power laid out the post-Holocaust effort to mandate international intervention to prevent genocide, and the ways and reasons those efforts have generally failed.
The Anti-Genocide treaty was opposed in the United States. for fear that it would be used against our soldiers, or embroil us in endless and hopeless foreign wars. Once the treaty was ratified, US governments went to extraordinary lengths to avoid categorizing mass homicides as genocide, lest they trigger an obligation to intervene. More recently, the US has adopted an interpretation of the treaty that imposes no such obligation. We are therefore willing to use the term regarding ISIS, for example, although Ambassador Power has ironically been sent out to explain why we will not intervene in Syria.
In 2007 I began giving a shiur with the title “Is There a Mitzvah to Prevent Genocide?” (A version was published by Hamevaser in 2008.) That shiur made the following argument:
- The United States had an obligation to intervene militarily to stop the Final Solution even before Pearl Harbor, even if stopping the Holocaust served no direct national interest
- That obligation, even if framed in terms of the Seven Noachide commandments, cannot be asymmetrical among Jews and non-Jews. In other words, Jews must have the obligation to stop genocides directed against non-Jews, and it seems reasonable to conclude that non-Jews have such an obligation toward each other.
- For a variety of reasons, it would be best to frame that obligation, and its limits, in formal halakhic terms rather than leaving it as a vague and subjective ethical obligation.
- The most plausible halakhic framework is that of “rodef,” or “pursuit.” Halakhah imposes an obligation on third-party individuals to intervene to stop a homicide, if necessary by killing the person intending to kill. However, the third-party is not obligated to risk his or her own life.
- My suggestion was that halakhah also imposes an obligation on third-party groups to intervene to stop a genocide. Such groups would not be required to risk their own existence, but they would be required to risk the lives of individual soldiers.
Reading Ambassador Powers’ book last week, I was embarrassed by my failure to have done so earlier. Her work began before mine did, and ended well after, and the history she covers provides an extraordinarily valuable perspective on the uses and limits of law. Everyone should read it.
Ambassador Powers documents the tireless efforts of Holocaust survivor Rafael Lemkin to gain acceptance for the word genocide, and then to enshrine it into law. One fundamental challenge Lemkin faced was the tradition that sovereign nations have no right to interfere in each other’s internal affairs. Lemkin believed that genocide should be an exception to this principle, and very likely the only exception. He fought the prior adoption of a broader treaty regarding human rights on the grounds that no government would be willing to intervene on their behalf, and thus genocide would become just one of a variety of tools of diplomatic harassment.
Lemkin and his supporters also had difficulty defining the genus that had to be killed for the term genocide to be invoked. Must it have a unique culture, or biology? What if a significant percentage of the same group already lives beyond the reach of the killers, e.g. American Jews in WWII?
It was also not clear whether genocide should be defined by action, by intent, or by consequences. Is it genocide to sterilize all the women in a community? To ban a language and literature? Should the obligation to intervene be triggered by a situation which seems likely to slide toward genocide, even if the killing has not yet begun?
The Genocide Convention that emerged says the following:
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
The following acts shall be punishable:
(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
In practice, these definitions have run into all the problems opponents predicted. Accusations of genocide are used as weapons against Israel, the United States, and other open societies, while oppressive closed societies simply prevent investigations. It’s not clear that Pol Pot’s killing of millions in Cambodia fell under the Convention’s terms, since those killed had nothing in common but an education beyond seventh grade. Rwanda was engaged in an ethnic civil war at the same time as the butchery there. The Serbian attempt to exterminate Bosnian Muslims affected a very, very small portion of global Islam.
Finally, intervention in genocidal situations, however motivated, has a very poor record. The removal of Saddam Hussein, who destroyed several ethnic groups in Iraq, led to all-out sectarian warfare; Libya and Syria are in total collapse, and the jury is still out in Darfur/Sudan.
All this history needs to be taken into account by halakhists, and we need to benefit from the experience and expertise of those in other legal systems who have trodden these paths before us.
But, I still think that the Medes had an obligation to intervene, and that the neutrality of everyone else in Persia while the Jews fought for their collective existence was a moral failure. Your comments, pro and con, are more than welcome.