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[Editor's note: Jerusalem Jurist Daphne Netanyahu is married to Benjamin Netanyahu's brother Ido Netanyahu. Thanks to David Bedein, for offering this piece to the Wininpeg Jewish Review for publication. Bedein is the Director of the Israel Resource New Agency, Centre for  Near Eastern Policy Research, Beit Agron,37 Hillel Street, Suite 105-106, Jerusalem 94581 Israel, +972 547 222 661,www.israelbehindthenews.com  

IMMORAL EQUIVALENCY

By Daphne Netanyahu posted here Sept 21, 2014

Judging the morality or immorality of war according to the number of people killed is not just another passing leftist cliché meant for public consumption, but has become the ultimate litmus test for determining the morality of political and military events and actions.

The larger the number of casualties on one side, the greater that party’s morality. This is true no matter what the intention of each side was. All that matters, it seems, is the result.

This simplistic test, adopted all over the world but especially in the case of Israel, is very convenient for putting Israel in the dock. Thus, the UN Human Rights Council and “disturbed” White House officials have determined that the degree of morality of Operation Protective Edge is dependent in large measure on the relative number of deaths each side suffered, with Israel obviously on the losing end of this numbers game. What a lovely way to blame Israel for having the gall to protect its own citizens, and how easily it allows everyone to disregard the fact that nearly each time Hamas fired a rocket or missile into Israel, it was aiming at civilian targets with the deliberate intent to kill innocent people – something which by definition constitutes a crime against humanity.

With the stroke of a failed moralist’s pen, these people are nullifying humanity’s longstanding tenets of morality, of good versus bad and of what is permitted and forbidden. In its place, they use a twisted litmus test of simple numbers in order to chart the morality of an act of war, citing the number of casualties and lamenting the extent of damage, while throwing in the number of times Israel has been condemned world-wide into the bargain.

There is a reason that criminal law – not just in Israel but the world over – does not define a criminal offense solely by the damage it caused.

Rather, the emphasis is placed on the behavior which brought about the result and the state of mind and intention of the perpetrator.

There is a clear distinction between someone who caused unintended death and someone who caused that same death on purpose. The main component of criminality is the mens rea (Latin for “guilty mind”) of the person committing the act.

So an act of killing is not considered criminal when the offender is an eight-year-old child or an insane adult or for that matter anyone who could not have possibly foreseen the result. Acts causing the exact same results can be found on the scale of “criminality” anywhere between a non-criminal event, through causing death by negligence (a three-year prison sentence ), manslaughter and murder in the first degree (a life sentence or even death).

This emphasis on the mental state and intent which accompany a person’s harmful act is a reflection of a moral stand which has withstood the test of time for hundreds of years and which is reflected and defined in our criminal code. This code negates the end result alone as the basis for judging an act as being immoral or criminal, and certainly not as a test that stands on its own. While not everything that is immoral is criminal, the demand that an outcome be assessed according to the ability of the person to foresee the result of his actions and the degree of his desire to achieve it is a fundamental requisite for determining its morality.

The importance which the legal system places on the state of mind of the person who performed a harmful act, and not necessarily on the result of the act, is demonstrated by the fact that even an attempt to commit a crime – where someone begins to act out his intent to cause harm but does not achieve his purpose – is punishable.

So not only do our actual laws refute this newfound and distorted law of consequences, they do not even need an actual result to consider behavior as being criminal. Moreover, the punishment for an attempted crime is very often the exact same as that for an actual crime. This reflects the idea that society views the presence or absence of an accomplished result, as far as the criminal is concerned, as being almost coincidental.

Our moral stand, as reflected in modern criminal law, stands in juxtaposition to the “numbers” game which is being foisted upon us as the ultimate mode of judging the degree of an action’s morality. But both legally and according to any normal code of morality, the fact that only a few citizens on our side were killed by the mortars, rockets and missiles which Hamas and its allied Islamist organizations launched at us does not lessen the criminality of their actions by one iota. Such fire constituted a part of its plan for eliminating the State of Israel and destroying its Jewish and non-Muslim population. Its lack of success wasn’t and isn’t due to any lack of will on Hamas’ part.

The efficacy of the Iron Dome missile defense system might have been an undesirable development from its point of view, but has no bearing on the severity of its crime of attempted genocide.

This test of results causes us (nay, is intended to cause us) to ignore the element of malicious intent.

Thus, it allows one to place an entity whose goal is to destroy the Jewish people and another entity which seeks to save its people from such annihilation on (at best) the same moral level and then call them both terrorists. How is this possible? Well it is, if you play the numbers game.

And you can do many other things with the numbers game, as well. You can, for instance, deem boycotts a consequence which stands on its own, and thus place the boycotting of Iran, which is trying to annihilate the Jewish people by building a nuclear bomb, and the boycotting of Israel, which is trying to protect its people from such annihilation, on the same level of morality (or immorality, depending on your choice). The same test causes its adherents to see Hamas murderers, who were stopped from coming into Israel through their tunnels of death to commit wholesale slaughter of civilians, on the same moral level as the soldiers of the IDF who prevented this from happening.

Even better, it allows the practitioners of the rule to see themselves as brave protectors of human rights – so long as that human is not an Israeli, of course.