By Rabbi Yair Hoffman
The horror of the past three weeks culminated in a tragedy in which all of Klal Yisroel 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, Chiloni. Kol Yisroel 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, Israel’s equivalent to the FBI has identified at least two of the kidnappers, Amer Abu-Eisha and his co-suspect Marwan Kawasmeh. Both are on the run.
THE NOTION OF GOEL HADAM
The Gemorah in Sanhedrin (45b) discusses the Mitzvah of Goel HaDam, the Blood Avenger. The Gemorah explains that when there is no Goel HaDam, 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 Goel HaDam.
In seventeenth 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 Menahem Mendel Krochmal, a student of the Bach who lived in Cracow (1600’s) wrote in a responsa (#111) that the answer was, “yes.” He further ruled that if the Goel HaDam 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 (CM 2: Biurim 2) also rules that the Mitzvah of Goel HaDam for purposeful murders in these type of situations does, in fact, apply nowadays. Since he lived in Europe in the mid 1700’s, 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.
DINA D’MALCHUSA & A PURSUER
The Gemorah in Gittin (10b) cites Shmuel who says that the law of the land is the law. There is also a halacha 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 prevent 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 redifa. His written response was that although the halachos apply in contemporary times, the laws of Dina d’Malchusa must still be observed.
GOING AFTER THE TWO
Which brings us to two additional questions: The first question is 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? The second question is does current international law fall within the rubric of Dinei D’Malchusa Dina?
Shockingly enough, it was only in November of 2000 that a sovereign state acknowledged openly that it did have a policy of targeted killings. That nation, of course, was Israel.
To answer the first question of what current international law allows, we must first determine which laws we are talking about. Nils Melzer, an internationally recognized expert in the field, points to three possible areas of international law.
The first is the Law of Interstate Force as expressed, in a modern context, in Article 2(4) of the UN Charter. It states that for a targeted killing to be justified it must either be self-defense, or you need permission from that state, or from the UN Security Council. It could very 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.
The second area involves Human Rights Law, based upon international human rights conventions, most notably the Human Rights Council of the United Nations. Generally speaking, these conventions 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. The third area is known as humanitarian law, or the Geneva Convention laws which deals 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 they certainly have, although at times they have not acknowledged it. In retaliation for the attack on the USS Cole in October of 2000, the United States fired a missile from an unmanned aerial vehicle killing Ali Qaed Senyan al-Harithi on November 3rd. 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-Qaida. Let’s also not forget that the United States also tried killing Saddam Hussein throughout March of 2003 by bombing his hiding places.
On February 13, 2004, Russia placed a car bomb killing Chechen rebel leader Zelimkhan Yanderbiyev.
The US also killed Haitham al-Yemini in May of 2005 with a missile from from an unmanned aerial vehicle in Pakistan. The US also took out Osama bin Laden on May the 2nd, 2011 and even American citizen Anwar al-Aulaqi on September 30th, 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 a targeted killings as a preventative measure and not as a punitive measure, it seems that the way the United States, Russia and others seem to be interpreting it is a bit more loosely.
So what about the second question – Dina D’Malchusa? Does it apply to international law? The Rashba (Nedarim 28a see also responsa 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 kidnapper/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 responsa 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.