More than an eye for an eye: While Israel's Supreme Court has rejected the Palestinians' appeal, their deportation still does not square with Jewish law or morality, argues Rabbi David J Goldberg

Pictures of bedraggled refugees huddling on freezing hillsides are painful to Jewish conscience and Jewish memory. The latest batch, seen on television and printed in newspapers around the world, seems to bear out initial foreboding that Israel grossly over-reacted to the murder of a border policeman when it deported 418 Palestinians and left them in the no man's land of southern Lebanon, barring their return.

Israelis frequently respond to such critical observations from diaspora Jews with indignation, saying that we, who live in the relative security of London or New York, cannot imagine the nagging tension and fear of Arab attack that they endure daily. PLO guerrillas, Shia fanatics and Hamas fundamentalists, they say with justification, are a constant threat.

Distance, however, does lend a measure of objectivity. And while Israel's retaliation has probably not inflicted irreparable damage on the peace process, it has undoubtedly harmed Israel's international standing, and I regret that. More important, I find it difficult to square with any generally accepted canon of Jewish law or morality, the basis on which the Jewish state was established.

Jewish law makes clear that one is permitted to kill A in order to prevent him from murdering B. In other words, if the Israeli government had concrete information that specific groups of Hamas supporters were planning an attack on its population, it could justify a pre-emptive strike against the would-be perpetrators. It could argue in its defence, furthermore, that whereas Arab terrorists murder innocent people at random, it had deliberately targeted the ringleaders of the plan.

This was the line of argument used by Israel to justify the blowing up of the Iraqi nuclear reactor in 1982, and the assassination last February of Sheikh Abbas Moussawi, the Hizbollah leader. Distasteful though such pre-emptive actions may be, they are morally permissible if they fall within the bounds of the doctrine of proportionality. That is to say, the reprisal for a wrongdoing should equal, but not exceed, the original offence. This doctrine of proportionality, of 'measure for measure', has governed the code of military and civil conduct ever since it was taught by the ancient rabbis that the biblical 'eye for an eye, tooth for a tooth' should be interpreted as compensation to the value of the damaged eye or tooth.

Since 1948, Israel has been repeatedly attacked by guerrillas and terrorists operating out of neighbouring Arab states. In response to these attacks, the Israeli authorities have tried every conceivable form of deterrent, from pre-emptive strike to massive reprisal raids, testing out, it seemed, the diplomatic and ethical nuances of the dilemma. It has been a grim and unusual laboratory for the theologian, military analyst and moral philosopher, providing plenty of examples but few firm conclusions.

Some general principles can be deduced, however. The first is that even though a terrorist raid is usually aimed at civilians, the retaliation should not be so aimed. Indeed, every care should be taken to ensure that civilians do not become innocent victims of the response because the moral distinction between wrongdoing and reprisal would then be blurred. That is why the assassination of Sheikh Moussawi was morally dubious; his wife and young child were mortally wounded along with him.

Second, it may sometimes be more salutary to respond not in kind but in different degree. The Israelis provided a perfect example of this in 1968, after terrorists had attacked an El Al plane at Athens airport. Some 50 people were on board; fortunately only one was killed. The two terrorists were captured and it emerged that they were members of the Popular Front for the Liberation of Palestine, which is based in Beirut, and had travelled on Lebanese passports.

Israel had repeatedly warned the Lebanese government that it could not escape responsibility for abetting terrorist acts carried out under its sovereignty. Its response was dramatic and unconventional. Two days after the attack, Israeli commandos landed at Beirut airport and destroyed 13 planes belonging to civilian airlines licensed in Lebanon. Strictest precautions were taken to avoid civilian casualties. Despite the predictable condemnation at the UN, the raid was a spectacular military and moral success. It was clearly a response to the incident at Athens and it was parallel and proportionate in its means.

Another example of a proportionate response was related to me by a respected Israeli journalist. His son had died in a raid on a Beirut apartment block in 1974, when three top PLO officials were gunned down by an Israeli commando squad. The commandos were given explosives with which to blow their way into the apartment, but the dead son, leader of the team, refused to take the quantity given because he said it would endanger the lives of innocent civilians in the block. The Israeli chief of staff accepted his objections and they took with them only sufficient explosive for the task. The young man was shot as they were making their getaway, but his parents cite with pride his insistence on doing his duty within the limits of justified reprisal.

It is a sad comment on how the cycle of hostilities seems so to have blunted the sensibilities of those involved that a combination of anger, frustration and clamour for revenge at the murder of Nissim Toledano caused Israel's Prime Minister, Yitzhak Rabin, to subordinate moral scruples to the cynical principle formulated by a military historian of the American Civil War: 'For every offence, punish someone; the guilty if possible, but someone.'

Despite yesterday's Supreme Court ruling, there is still time for the Israeli government to rescind its random deportation order against the 418 Palestinians. All of them may well be Hamas sympathisers, but few have been specifically accused of past or potential acts of terrorism against the state. Israel depends for its survival on military strength. Even more, however, it depends on its democratic institutions and on retaining the moral principles that enabled the Jewish people to survive for 2,000 years, even without a homeland.

The author is Senior Rabbi, The Liberal Jewish Synagogue in London.

(Photograph omitted)