Let me start by admitting my bias:
I don’t often feel Jewish.
My father escaped from Vienna at age 15, about six months after the Anschluss. His sister, parents, and one aunt escaped with him. Everyone else on that side of the family was exterminated; I have only my mother’s side of the family.
Some people in my father’s situation became more religious; some became less religious. My father fell into the latter category: He had seen what religion could do, and he had no use for it. So, although I was technically Jewish, I was raised without any religious upbringing.
I thus rarely feel Jewish. I feel Jewish only on the days when I’m seeing that people who slaughter Jews would like to slaughter me, too. I’m predisposed to dislike people who want to kill me.
I felt Jewish on the day I visited Auschwitz.
Our guide said that we were standing in the world’s largest cemetery. The ashes of a million Jews burned in the crematoria had settled onto the ground on which we were walking.
I also felt Jewish last Saturday, October 7, 2023, a day that will live in infamy.
That’s my bias.
But I’m also a lawyer. So the question naturally is this: What hypothetical question will permit me to think clearly about the events of last Saturday?
When I started thinking about this, I thought about other surprising events that killed many people: How did the United States react after Pearl Harbor? (If you missed this spoof at the Babylon Bee, look now.) How did the United States react after 9/11? Did anyone call for restraint after those mass murders? Or did an overwhelming majority of Americans think that declaring war on Japan and invading Afghanistan were appropriate reactions?
But those questions might not properly frame the issue.
Many people say that the Palestinians have been brutalized for decades and that the pent-up rage caused by the mistreatment must be taken into account. Let’s assume this is true.
This forces me to change my hypothetical question. I have to think about someone who has been treated terribly unfairly for many years and then committed an atrocity in response to that brutality.
How about this one?
A witness lies on the witness stand, causing a person to be wrongfully imprisoned for 20 years. (Is that a fair analogy to the Gaza Strip? Folks call Gaza an “open-air prison.”) The wrongful imprisonment is finally corrected, and the prisoner is released. A month later, he murders the accuser who had lied on the witness stand two decades earlier.
I bet a prosecutor still brings charges, and a jury convicts, on those facts, although perhaps the judge shows a little bit of leniency in sentencing. No?
This hypothetical, however, doesn’t fairly capture the events of October 7.
Suppose instead that my wrongfully imprisoned guy is released and then looks up where the daughter and grandchild of his false accuser live. My hypothetical prisoner goes to that house, rapes and murders the daughter, beheads the grandchild, and then finds the accuser and shoots him dead.
Is there any doubt about how the criminal justice system would treat that person?
If anyone thinks my hypothetical question is wrong, I’m all ears.
And I certainly don’t think Israel should now engage in war crimes in retaliation for Hamas’ war crimes.
Whether or not Israel’s response is appropriate, however, can anyone really suggest in good faith that Hamas’ conduct on October 7 was permissible?
Or am I thinking too much like a Jew, or too much like a lawyer?
(People who simply want to kill me need not respond.)
Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
