By Rabbi Yair Hoffman
The horror of the past three weeks has culminated in a tragedy in which all of Klal Yisrael is mourning. We must never forget the wonderful young men who were brutally murdered–Gilad Shaar, Naftali Frenkel, and Eyal Yifrach. The triple funeral was attended by the entire spectrum of Israel–chardal Jews, chareidi Jews, Zionists, chilonim. Kol Yisrael areivim zeh lazeh, all of Israel are responsible for one another.
The murderers and those involved in the planning and logistical support of this heinous deed must be found and brought to justice. It is an imperative that the entire nation is feeling right now. The Shin Bet has identified at least two of the kidnappers, Amer Abu-Eisha and his co-suspect, Marwan Kawasmeh. Both are on the run.
The Go’el HaDam
The Gemara in Sanhedrin (45b) discusses the mitzvah of go’el ha’dam, the blood avenger. The Gemara explains that when there is no go’el ha’dam, one is appointed by the beis din. The Rambam in Hilchos Rotzeach (1:2) explains that any person who can legally inherit the deceased is eligible to be a go’el ha’dam.
In 17th-century Poland, a Jew was brutally murdered outside of Cracow. The police refused to take the case and the question was whether there was an obligation to bribe the police to take the case. The older Tzemach Tzedek, Rav Menachem Mendel Krochmal, a student of the Bach who lived in Cracow (1600s), wrote in a responsum (#111) that the answer was yes. He further ruled that if the go’el ha’dam is not capable of killing the murderers, he is obligated to pay others to do so. He also understands the idea of finding and punishing the murderer, when its cost is significant, as a communal obligation and one where there is a tangible financial obligation incumbent upon us to ensure that police and judicial justice be applied.
It is clear from this Tzemach Tzedek that supporting the IDF and Shabak in this mission is a complete obligation incumbent upon the Jewish community so that matters like this will not happen again and so that Jewish blood will not be spilled cheaply.
Rav Yonasan Eibeschutz in his Urim V’Tumim (C.M. 2: Biurim 2) also rules that the general mitzvah of go’el ha’dam in these types of situations does apply nowadays. Since he lived in Europe in the mid-1700s, he was clearly referencing a modern nation-state. Which brings us to the question of how exactly this is done when there are other legal issues involved.
And A Pursuer
The Gemara in Gittin (10b) cites Shmuel, who says that the law of the land is the law. There is also a halachah that if a rodef, a pursuer, is chasing someone to kill him, one is permitted to kill him first, when there are no other options that would stop him. Years ago (1982), this author posed the question in writing to Rav Moshe Feinstein, zt’l, as to how the issues of dina d’malchusa dina interface with the laws of redifah. His written response was that although the halachos apply in contemporary times, the laws of dina d’malchusa must still be observed.
And International Law
Shockingly enough, it was only in November 2000 that a sovereign state acknowledged openly that it did have a policy of targeted killings. That nation was Israel.
Does current international law allow for the targeted killings of the two perpetrators of this horrific act of terror even if they are to be found in another country? Nils Melzer, an internationally recognized expert in the field, points to three possible areas of international law.
Law of Interstate Force. Article 2(4) of the UN Charter states that for a targeted killing to be justified, it must either be self-defense, or one needs permission from that state or from the UN Security Council. It could reasonably be argued that this law covers situations between sovereign nation-states and not between one nation and a group of terrorists, as many authors have pointed out. Thus, it seems reasonable that, in the case of the murderers of these boys, we are okay on this front.
Human-Rights Law. Generally speaking, international human-rights conventions, most notably the Human Rights Council of the United Nations, refer to parameters of the idea of absolute necessity to save other human life when discussing targeted killings. It may not be punitive, but only preventative.
Humanitarian Law. The Geneva Convention laws deal with the idea of protecting some of the people some of the time (during war) as opposed to human-rights law, which deals with protecting all people at all times. The latter two areas, according to a number of authors, are a bit murky.
Has the United States engaged in such activities notwithstanding the murkiness? The answer is that it certainly has, although at times without acknowledging it. In retaliation for the attack on the USS Cole in October 2000, the United States fired a missile from an unmanned aerial vehicle, killing Ali Qaed Senyan al-Harithi on November 3, 2002. Al-Harithi was the alleged mastermind of the attack on the Cole. The United States never publicly acknowledged responsibility for the attack, which also killed five other suspected members of al-Qaeda. Let’s also not forget that the United States tried killing Saddam Hussein throughout March 2003 by bombing his hiding places.
On February 13, 2004, Russia placed a car bomb killing Chechen rebel leader Zelimkhan Yanderbiyev.
The U.S. killed Haitham al-Yemini in May 2005 with a missile from an unmanned aerial vehicle in Pakistan. The U.S. took out Osama bin Laden on May 2, 2011, and even American citizen Anwar al-Aulaqi on September 30, 2011. Indeed, the Obama administration expanded the use of targeted killings through using combat drones in Afghanistan, Pakistan, and Yemen.
Although, technically, the parameters of international law seem only to allow for targeted killings as a preventative measure and not as a punitive measure, the United States, Russia, and others seem to be interpreting it a bit more loosely.
Does current international law fall within the rubric of dinei d’malchusa dina? The Rashba (Nedarim 28a; see also responsum Vol. I #637) indicates that it would not apply to international law. How so? The underlying mechanism of how dina d’malchusa works is through the notion that the king or government can say to its citizenry, “If you do not comply with our laws, then get out of our country.” This mechanism of dina d’malchusa would not be operative when dealing with international law. Other Rishonim provide different rationales for how dina d’malchusa works, but it seems that the Rashba’s view is the authoritative one that most poskim follow.
Although it would seem that going after the two kidnappers/murderers would not be a violation of international law, it may be prudent, in normal circumstances, to respect international protocols. However, in light of the aforementioned responsum of the Tzemach Tzedek–the imperative to ensure that the blood of Israel’s citizens not be viewed as cheap–Israel should proceed full speed ahead in a targeted strike against them. v
The author can be reached at Yairhoffman2@gmail.com.