An obligatory response

An obligatory response

By now, Israel has launched – and perhaps even completed – an action to revenge the killings of three Israeli teenagers, whose bodies were found on Monday.

While Israel is not subject to halachah – it is a secular democratic state – halachah offers some perspective on the nature of a response to such horrific acts.

There is no question about what the terrorists behind the deaths of these three young men want. They want what all terrorists targeting Israel want: an end to the Jewish state and death to its Jews. In other words, the terrorists see themselves at war with Israel, which means that Israel is at war with them.

Is it a legal war, however, from the standpoint of halachah? The answer is yes.

Halachah recognizes two kinds of legal war: obligatory, and discretionary yet divinely sanctioned.

“The wars waged by Joshua to conquer [Canaan] were obligatory…,” the Talmud explains, while “the wars waged [with divine sanction] by the House of David for territorial expansion were discretionary….” (See the Babylonian Talmud tractate Sotah 44b.)

The war against Amalek also is obligatory, because it is mandated by the Torah. (See Exodus 17:14-16 and Deuteronomy 25:17-19.)

That would seem to shut down the possibility of obligatory wars in our day, because neither the seven nations of Canaan nor Amalek exist any longer. Maimonides, however, adds another war to the obligatory category: one that is “fought to assist Israel from an enemy that attacks it.” (See his Mishneh Torah, The Laws of Kings and Their Wars, 5:1.) This would make an obligatory war even against modern-day enemies possible.

Maimonides – Rambam – does not explain how he came to add something not found in either the Torah or the Talmud. The best guess (but not the only one) is that he based his ruling on two Torah verses. The first, Numbers 10:9, recognizes the need to “go to war in your land against an enemy who oppresses you.” The second is not “to stand idly by the blood of your fellow” (Leviticus 19:16).

The latter is seen as a commandment to take direct action in order to protect another person from physical harm, especially if it could lead to the person’s death. Since “an enemy who oppresses you [in your land]” is threatening deadly physical harm to the citizens of that land, Rambam apparently sees defending against that enemy as an obligatory war.

From the point of view of halachah, then, Israel is required to fight a defensive war against both the terrorists and the Palestinian Authority, their tacit state sponsor. That is because Hamas reportedly was behind this latest outrage, and Hamas now is a partner in the PA’s governance. Also, the PA encourages terrorism by rewarding the families of suicide bombers financially, and by naming streets after terrorists.

The only real question is how such a war may be conducted, according to halachah.

According to Rambam, the first rule is that the enemy must be offered a chance to make peace (see MT, Kings, 6:1). Rambam claims that this applies to both obligatory and discretionary wars, while others say it applies only to obligatory wars. As noted, though, Israel’s war against terror is an obligatory one.

In any case, over the last 15 years of on-and-off peace talks, Israel has offered peace time and again, less seriously at some times and more seriously at others. Under Prime Minister Ehud Barak, in fact, the late Yassir Arafat was offered almost everything he asked for, including a large chunk of east Jerusalem, but he rejected it.

The second rule, as Maimonides sees it, is that once an enemy is surrounded, there must be a way left open for innocent civilians and even faint-hearted combatants to escape. (See MT, Kings, 6:7.) Some authorities insist that Rambam meant this to apply to discretionary wars (Nachmanides, the Ramban, is one such authority), but there is no such limitation evident in the Mishneh Torah. Sadly, there also is no suggestion on how such a rule can be made practical.

The third rule is to leave standing the fruit-bearing trees of the enemy, as demanded by Deuteronomy 20:19. The Torah law applies to everything that is beneficial to people, not just fruit trees. It is not an absolute law, however, as Rambam sees it. He says it applies only if there is destructive intent (derech hashchatah). Thus, “anyone who breaks utensils, tears garments, destroys buildings, stops up a stream, or ruins food with destructive intent transgresses the command….” (See MT Kings 8 and 10.)

The key, of course, is the phrase “destructive intent.” The destruction has to be wanton, not purposeful. Blowing up a building used as a headquarters for terrorists (say a Palestinian police station) would not violate this rule. Destroying the homes of noncombatants may violate it.

As events demonstrate, Israel often honors this law only in the breach. Then again, it sometimes is hard to distinguish between an “innocent” home and a terrorist’s lair because Hamas and its ilk hide behind innocent civilians, and other such facades (such as using Palestinian Red Crescent ambulances to transport men and arms).

There is no question that any Israeli response to acts of Palestinian terror will be met with disapproval around the world. One criticism should never be heard: “Violence is not the Jewish way.” A defensive war is obligatory, not discretionary. It is very much the Jewish way.