The new Israeli government under Bibi Netanyahu has, so far, done very little to promote the peace process in the Middle East. Meeting with the Palestinian president Yasser Arafat could is of course important, but as long as the declared policy of the new government in several respects - such as the new settlements - runs counter to the spirit of the Oslo and Cairo accords, there is little hope for progress.
"Peace and security" was the slogan of the winning Likud-coalition in the election-campaign. Five months may seem a short period, but in the political development of the Middle East it is sometimes quite a long time. So it may not be totally unfair to ask: if the new government did not, as yet, bring peace to Israel, did it at least bring security?
On the face of it, there appeared until recently to be some evidence supporting an affirmative answer to this question. There had so far, been no major terrorist attacks with the new government in office. The restrictions preventing thousands of Palestinians from entering Israel to go to work were temporarily eased, and new permits were to be issued. But, things happen very fast in the Middle East. This makes it all the more important for the decision makers of the region to see clearly and act swiftly, but wisely. Bibi Netananyahu has already showed that he does not live up to these demands. At best, he has no understanding, neither intellectually nor emotionally, for the sentiments that prevail on the "other side", among the Palestinians. At worst, and unfortunately this seems to be the more likely alternative, the decision to open the tunnel under the Temple Mount, was a deliberate provocation, aimed at halting the peace-process and casting the blame at the Palestinians:
"Look they are shooting at us now! That only goes to show that it was a mistake to give them weapons and have them rule their own territories. Let's take them back again!"
Now that the path of political negotiations seems to be blocked, rather than resorting to desperate violence - a struggle that the Palestinians are bound to loose. (- don't get me wrong, the Intifada was just and it was also successful to a certain extent; without it there would never have been any Oslo agreement, whatever Israeli politicians might say), I would like to suggest to our Palestinian brothers and sisters another option: the judicial. As I see it, the Palestinians chance of winning in court, by using our own Jewish weapons against us, is far greater than it is on the military battleground. What am I talking about?
First, let us make clear, that when we speak about the Palestinians, we must include also all the Palestinians in the refugeecamps in Lebanon, Syria and other countries of their diaspora. They must, at last, be encompassed by a permanent peace settlement. This, in fact, is also in the interest of Israel. Any "peace" treaty in the Middle East that fails to take account of these Palestinians can only be regarded as temporary, leaving for example the problem of securing Israel's northern border unresolved. However, it stands to reason that the Palestinian refugees cannot all return to the villages from whence they once fled; many of those villages simply no longer exist. But this does not mean that they should not be offered a fair treatment. They have waited long enough for justice.
Human justice, however, is never perfect. It is always based on some kind of compromise. It has to be, since what is done is done, and often cannot be undone. But human society, with the help of G-ds inspiration, has found ways to administer justice also in cases were what has been taken from someone cannot be restored, but only replaced or repaid in some other currency.
In the Torah, and further developed in the Talmud, there is a principle which says midah k'neged midah - "measure for measure". This principle, which has often been misunderstood and misused - unwittingly or deliberately, is also known as "an eye for an eye". In their treatment of this principle in the Talmud the rabbis in fact laid an early foundation to a modern jurisdiction for the assessment of damages in cases of liability in tort.
The "trick" may seem simple today, but at that time it probably meant a revolution in the thinking on how to exact justice and how to deal with offenders. It consisted of interpreting the eye, or whatever it was that was to be restored, as being replaceable by the value of an eye. Now, how much is an eye worth? That seems to be no easy question to answer. But the rabbis found a way.
First, they estimated the value as the difference in price between a person sold on the slave market with both eyes intact and the same person sold without the injured eye. This is the compensation to be paid for the "loss" or "damage" inflicted. As is often the case in the Talmud, there were divergent opinions between the rabbis, in this case as to the question of which person should serve as the unit of measure, the victim or the offender. According to the latter opinion, the value should be computed as equal to the price the offender would demand for having someone inflicting the same injury on himself.
Apart from the "loss" or "damage" (nezek in Hebrew) the injured party is entitled to compensation also for "pain and suffering" (tza'ar), "medical expenses" (rippui), "loss of earnings" (shevet) and "humiliation" (boshet), on the condition that the bodily harm was inflicted willfully or by gross negligence. In other case, where the bodily harm is the result of negligence only, there is liability for nezek alone, the first of the five headings under which compensation is paid.
The above said concerns only bodily injuries. However, the principle of midah k'neged midah applies also in cases of damaged property. In such cases, the measure of damages to be paid is assessed simply as the difference in market price of the damaged object before and after the damage occured. As is understood from this already the rabbis were careful to take heed of the context, whether of person or object for which damages were to be paid. Thus, if the value of the damaged object could not be assessed separately, since it had no market value on its own, the measure of compensation was computed as the difference between the price of the whole unit of which the object was a part, undamaged and with the damaged part. For example, if an animal has eaten a row of unripe fruit in another's field, since the unripe fruit all by itself has no market value, the owner of the animal should pay, according to one opinion, the difference between the respective market values of the field when sold with and without the row of fruit.
True, the principles here described were not always strictly adhered to throughout Jewish history. The Shulchan Aruch, the Jewish law as codified by Joseph Karo in the 16th century, permits that damages are not awarded under one or more of the above headings, preferring instead that the tortfeasor be placed under a ban or punished in some other manner until he submits to a reconciliation with the injured party and agrees with him on an equitable compensation.
The "trick" used by the rabbis of the Talmud when trying to administer justice in those days was in fact rather simple, and could be used today as well. It consists largely in not letting emotions, historical "truths" and myths rule, but rather, entrenching justice behind a protective wall of sometimes tedious computations, formal judicial procedures and economical assessments. It is often easier, this was the insight of the rabbis, to agree upon figures, than on sentiments.
In the Talmud, land is regarded as an economic security for the repayment of debts that arise from obligations. In accordance herewith, land is termed "assets bearing responsibility" (nekhasim she-yesh lahem aharayut), which means that it is seen as guaranteeing the obligation of the debtor. This powerful idea, of land as the bearer of responsibility, not only in an economic sense, is central in Judaism. At the very foundation lies the recognition that all land is the property of G-d alone. This is made explicit by the great medieval Jewish scholar and commentator of the Torah, Rashi: "All the earth belongs to the Holy One, blessed be He; He created it and gave it to whom he pleased." (Rashi to Genesis 1:1). This passage is often cited in defense of the Jewish claim to the land of Israel. The belief is, then, that G-d as the true proprietor took the land from the former "possessors", the seven ancient nations of Canaan, and gave it to the Jews as their rightful heritage. What is sometimes forgotten, however, is that the gift was not unconditional. Nachmanides, another of the great Jewish authorities on the interpretation of the Torah, in particular "states that the Book of Genesis in its entirety is intended to teach us the principle that our hold of the land is conditional on our obedience to the word of G-d" (Kaplan, L.: Education and Ideology in Religious Zionism Today // Forum 36 (1979)). A primary condition for the possession of the Land, the Torah spells it out clearly, is the pursuit of justice:
"Justice, only justice shall you pursue, in order that you may live, and retain possession of the land which the L-rd your G-d gives you" (Deuteronomy 16:20)
Or, as the profet has it:
"Through justice you will be established" (Isaiah 54:14)
Thus, it seems natural that land functions as a security for debts, since the possession of land already carries with it certain responsibilities and obligations. Obligations, according to Jewish law - as in other legal systems, may arise either from a liability in contract or from a liability in tort. An important distinction between these two in Jewish law is that "obligations arising from tort are recoverable from the best of the land (idit), whereas contractual obligations are recoverable only from land of average quality (beinonit)" (Encyclopaedia Judaica, 1971 - "obligations"). Now, the Jewish possession of the land of Israel according to Jewish tradition, as we have seen, is founded in a contractual relationship between G-d and the Jewish people. Several times during our Jewish history, the Torah makes it clear, the conditions stipulated in the contract have been violated - unilaterally - by us Jews. For this, we have had to pay the heavy price of dispersion and diaspora, galut. Nevertheless, it is our belief, that the contract is still in effect. But so is the admonition of the Torah, quoted above, which deserves being repeated:
"Justice, only justice shall you pursue, in order that you may live, and retain possession of the land which the L-rd your G-d gives you."
(Deuteronomy 16:20)
The suggestion is, then, that whereas we as Jews are liable both in contract and in tort towards G-d, we are most likely liable in tort, according to Jewish law, towards the Palestinians: "And a stranger you shall not offend, and shall not oppress him; for strangers you were in the land of Egypt" (Exodus 22:20 et passim). Thus, there is a possibility (or risk, if you will), that the Palestinians could justly sue us for damages. This is not say, however, that there may not be legal claims on our part, also, against the Palestinians; for the terrorist attacks comitted last spring, for example. Measure for measure.
The idea with this whole reasoning is not to suggest that a legal process of assessment of damages would necessarily be easier to handle and produce speedier and more substantial results than political negotiations. The idea is, rather, to point out a possible means of putting pressure on the politicians, and especially on the new government of Israel, to get on with the peace process and start implementing the accords already made. After all, it may prove to be the easier way out for Israel, and a cheaper price to pay, than having to concede "the best of the land". That is, the present government of Israel should know, that it is probably preferrable to have a good contractual relationship not only with G-d, but also with the closest neighbors - the Palestinians, rather than having to stand up in court as the tortfeasor in a process of appeal for damages.
My advice then, to my Palestinian friends, at this moment difficult for both of us, is to sit down quietly and start computing the value of their lost "eyes", the destroyed villages and houses that cannot be restored, but should, in a just, permanent peace- settlement be replaced and repaid for. If they do, their position in the negotiations, when finally Israel will understand that security cannot be won without a real peace, will be the more stronger. And only by taking the Palestinians claim to justice seriously will Israel truly adhere to its genuine Jewish values.
It says in the Pirqe Avot - the Jewish "Ethics of the Fathers", :
"The sword comes upon the world for the delay of justice, for the perversion of justice, and because of those that teach the Torah not in accordance with the Halakhah."
(Pirqe Avot 5:11)
Much later Hugo Grotius, the famous Dutch philosopher of right, in his De jure belli ac pacis (1625) made essentially the same observation:
where justice fails, war begins.
A real peace in the Middle East will come only when justice is done, finally, to both parties, Israelis and Palestinians alike.