by Michael Puah in INN, translated by Hillel Fendel.
This past Thursday, Yuval Kestelman shot and killed a terrorist who had just murdered three Jews, then raised his hands and showed that he had no bomb on him – and was shot and killed by a reserves soldier who thought he was a terrorist. Was the soldier wrong?
The death of the hero Yuval Kestelman was very shocking and tragic – but it must not confuse us: Terrorists who commit, or try to commit, murderous attacks must be killed.
Yuval was a true hero. This past Thursday morning, he ran towards two Hamas terrorists who were in the midst of gunning down Jews at the entrance to Jerusalem. He was practically on top of one of them when he, together with two IDF reserves soldiers, shot and killed him and the other terrorist. He thus saved many people. However, in the midst of the raging battle, and specifically because he was so close to the terrorists, the soldiers thought he was one of the attackers. Yuval raised his hands, and even his shirt, but it didn't help him: The soldiers figured that terrorists can also raise their hands and shirt. At least one of them fired, and Yuval was taken to the hospital with wounds from which he would not recover.
This terrible incident is hard to swallow and raises strong emotions from all angles. The heart of the question is: Should terrorists engaged in an attack, but who appear to present no threat at the moment, be shot?
The raising of hands during warfare is a universally agreed-upon signal by which to signal surrender. According to Article 3 of the Third Geneva Convention, armed forces that lay down their arms must be treated humanely. The idea is that when armies battle against each other, a soldier who lays down his arms and raises his hands thus leaves the circle of combat and becomes a prisoner of war, whose rights are clear and defined by the Convention.
However, Article 4 of the same Convention states that these principles apply only to parties that are bound to the Convention and who bear an identifying mark that can be identified from afar. Clearly, terrorists who murder civilians do not operate according to the laws of war and do not identify themselves in advance. Their claim to protection by virtue of their raising hands and laying down weapons does therefore not apply to them.
For years, the judicial establishment and the Israeli left operated in opposition to this principle and sought to imbue us with the deception that it is forbidden to kill a terrorist after he raises his hands or is wounded. [Translator's note: This phenomenon continues even as this is being translated: IDF Chief of Staff Lt.-Gen. Hertzi HaLevy said this afternoon that terrorists with their hands up should not be shot…] This undermines our ability to protect ourselves. It has led terrorists to take advantage and continue to shoot even after they had "given up."
Even worse, citizens and soldiers who endangered their lives to liquidate terrorists have found themselves under interrogation, even being punished, for their courageous actions. We all remember the trial and imprisonment of El'or Azariah, whose case brought the issue to the heart of the headlines.
Of late, the understanding was beginning to take root that a terrorist who even merely attempted murder, and all the more so if he succeeded, must not come out of the attack alive. This, even though the Shabak would then be unable to interrogate him and obtain important information. On the other hand, the deterrence factor is invaluable, and in addition, we will also be saved from having to hold him in luxurious prison conditions throughout his life – or at least until the next prisoner exchange…
A dead terrorist will not be able to serve as a bargaining chip for the release of Israeli hostages, will never be released in any deal, and will certainly not return to terrorist activity, as many prisoners who were freed did – including Hamas chieftain Yichye Sinwar. In short, a dead terrorist will never kill again. Killing terrorists under these conditions is the appropriate way to act, morally and justly – even though it can also be painfully dangerous, as unfortunately happened in the death of Yuval Kestelman.
We can sum up and say that whoever shoots, even when seemingly justifiably, must be very cautious and focused. But as a society that desires to exist, we must support and back even soldiers who make a mistake.
The IDF announcement that no one whose hands are raised may be shot, and the interrogation "under caution" and the arrest of the soldier in the Kestelman shooting, endanger all of us. It returns the State of Israel to the old and dangerous conceptions that brought us to the horrific events of this past Simchat Torah. To liken the terrorists of Hamas in any way to soldiers protected by the Geneva Convention is simply an unethical comparison. It grants preference to the cruel perpetrators of atrocities over Israeli citizens and soldiers who endanger their lives in battle with them. This mistaken "morality" sometimes even enables the terrorists to continue their cruel attacks – whether immediately in the same attack, or later after they are released.
The killing of the courageous Yuval Kestelman is truly heart-rending – but we must not allow harm to befall soldiers who made a mistake, no matter how grave the results. The soldiers involved must be questioned at length, so that we can learn from their mistakes. But they must not be questioned under caution, i.e., with the express suspicion that they have committed a crime. Nor must they be taken to task for the way they acted under the pressure of a hopefully life-saving mission that lasted for mere seconds. Similarly, confiscating their weapons and imposing other disciplinary measures against these heroic soldiers is liable to cost us immediate responses in future attacks.
We don't want to castrate ourselves as a society that desires life, and we don't want further murders.