Killing the Captured Terrorist & Ethics of War

When peace comes, we will perhaps in time be able to forgive the Arabs for killing our sons, but it will be harder for us to forgive them for having forced us to kill their sons. – Golda Meir

The questions of the ethics of war may seem oxymoronic. Isn’t the purpose of war to kill people and destroy things?

However, halachah is replete with guidelines for ethical conduct in war, to the point of warning us not to cut down fruit trees in the heat of battle. Indeed, after the Iraq invasion of 2003, the American administration was reproached for not defending landmarks and artifacts more carefully. It would seem that as Jews, we should relate to such a charge.

Recently The Jerusalem Post covered issues of halachah and war, in particular the treatment of captured killers and terrorists. While there are many issues that fall under this rubric, we will focus here on the issue of whether a subdued terrorist may be killed. What follows is a discussion of Talmudic law and not of practice.

From the article:

“Several senior rabbis have raised a heated debate in the last few days over the approach in Jewish law toward a terrorist who has committed a terror attack but is subsequently wounded and incapacitated. …

“Rabbi David Stav said that the nation was facing trying and difficult times but insisted that a terrorist who has committed an attack but has been wounded and therefore no longer represents a threat should not be further harmed.

“‘In these days in which the blood is boiling…it is important to preserve our moral superiority: [We must] not harm those who are not involved in murderous acts, and we must not harm those who have already been neutralized and do not represent a threat,’ the rabbi ruled.

“Rabbi Shmuel Eliyahu, municipal chief rabbi of Safed, reacted to Stav’s comments and said a terrorist who had committed murder should himself be killed.

“’It is forbidden to leave a murderer alive,’ Eliyahu told the Galei Yisrael radio station on Wednesday. He accused Tzohar rabbis of ‘forgetting Jewish law’ and said ‘they are only interested in looking good to non-Jews.’”

This is a most serious issue, one best left to our greatest poskim and those who live in Eretz Yisrael. Following is a review of some of the factors involved in making such a decision.

First, Rav Moshe Feinstein, zt”l, recognized that not all cases are equal when it comes to imposing the death penalty for a criminal act. In a famous teshuvah to the governor of New York,¹ he outlined how halachah views the death penalty. Rav Moshe sought to dissuade the governor from using the death penalty, explaining that one of the reasons the Torah prescribes it is to impress upon us the egregiousness of certain acts and that the halachic bar is set too high to allow regular use of such punishment.

Nevertheless, he ends with the following message: “The above is true regarding crimes of passion…but if people are killing because of cruelty and because the lives of others are meaningless to them…or if there appear to be many murderers,” a country must do what is in its best interest.

It would seem that a country that is under constant attack and is therefore in a perpetual state of war has every right at least to consider whether such terrorists deserve to be put to death by the state.

Noncombatants

It should not suprise the reader that such serious questions have been discussed throughout the generations, beginning with an event early in the Torah itself.

The Ramban and Rambam famously debate the general question of war as it pertains to ostensibly innocent civilians. The debate, which is based on Shimon and Levi’s battle over their sister Dina’s abduction, is germane to the question of captured terrorists.

The Ramban believed that Shimon and Levi’s decision to kill all the males of Shechem was an error, one for which Yaakov reprimanded them. After all, why should the city’s ordinary citizens have been held accountable for the action of their leaders? How could they have stopped it?

Rambam, however, believes that the citizens were not powerless; in fact, they had failed to fulfill the universal obligation to establish justice systems. Because setting up courts is one of the seven Noachide laws, those who fail to do so are equally liable to death.

In Gur Aryeh, the Maharal seeks to combine these two views. He suggests that although, on one hand, the civilians of Shechem cannot be held responsible, the rules in a time of war are different. A nation must respond to threat with force so as to end present and future danger, and this means that civilians may be affected. While this position is not an argument for the capricious killing of civilians, the Maharal does seem to support strategic strikes even if noncombatants will be harmed.

A quick look at modern warfare would support a silent secular agreement with the Maharal’s view. From the United States’ recent bombing of a hospital (purported to be an accident) to the more than 100,000 victims of the bombings of Hiroshima and Nagasaki, which brought World War II to an end, it seems that world powers are resigned to such carnage when it is absolutely necessary.

In the case of a captured terrorist, therefore, it seems there may be support for a country under attack to carry out unceremonious executions of captured killers, since this is a means of deterring the enemy.

Rodef

Even when in a situation involving two Jews, the Torah makes it very clear that one is allowed to kill a pursuer (rodef) in self-defense. We should also point out parenthetically that the Bach and the Shach discuss the issur of retzichah and whether it is suspended during a time of war for the zayin amim.²

Although a terrorist is clearly a rodef, a halachicpursuer whom we are permitted to kill, we can only do so if there is no other way of stopping him. As Chazal point out, if one can stop a pursuer by shooting him in a limb, for example, that is all that would be allowed. Someone in captivity is already immobilized, so what allowance would there be to kill him based on the principle of rodef?

One may argue that a subdued terrorist should be seen as a passive pursuer. This means there are times when the mere presence of an innocent person is dangerous³—for example, a case where a baby’s crying will alert the enemy to one’s presence, or when the enemy orders a community to hand over an innocent person on the threat that they will all be killed otherwise. In such a case, halachah will sometimes view the innocent person as a rodef.⁴

Based on this idea of a “passive rodef,”perhaps one can argue that the fact that we choose to keep enemy prisoners alive and in relatively good health during a time of war only emboldens the enemy to continue killing us. Astonishingly, the average weight gain among al-Qaeda detainees in American hands is about twenty pounds!⁵

However, all of this is academic as many poskim contend that the halachah of dina d’malchusa (adhering to modern secular law) outweighs the halachos of redifah. This means that even if a cogent halachic argument can be made for putting to death a captured killer, there would be little an IDF soldier could do about it legally.

Sofek Rodef: A Possible Future Rodef

The issue of prisoner exchanges is a related—and volatile—issue that we have discussed in the past (see issue 43, “Gilad Shalit: Sundry Matters”). According to those poskim who favor such exchanges, killing the terrorist may mean eliminating a real negotiating tool. This is not to support such an argument, of course, but simply to raise awareness of it.

Indeed, strong disapproval of such exchanges based on the argument that they may result in Jewish deaths may actually be an argument in favor of execution, because it prevents dangerous terrorists from being returned to the street. Yet at most, such an argument would only make the captured terrorist a safek rodef (possible rodef).

Aside from the fact that the principle of dina d’malchusa dina eclipses such arguments, Rav Chaim Ozer and many others⁶ argue that a possible rodef is not the same as a rodef.

Geneva Conventions

Even if we could resolve all of the dilemmas raised thus far, perhaps the most critical issue is how the state of Israel and halachah should view the rules of war established at the Geneva Convention, as well as various United Nations agreements.

Rav Chaim Jachter, after a lengthy treatment of the issue of killing innocents in wartime, cites the following passage from The Case for Israel by famed professor Allen Dershowitz, in support of the argument that not all international laws, or countries following them, are created equal:

“Although collective punishment is prohibited by international law, it is widely practiced throughout the world, including the most democratic and liberty-minded countries. Indeed, no system of international deterrence can be effective without some reliance on collective punishment. Every time one nation retaliates against another, it collectively punishes citizens of that country. The American and British bombings of German cities punished the residents of those cities. The atomic bombings of Hiroshima and Nagasaki killed thousands of innocent Japanese for the crimes of their leaders. The bombing of military targets inevitably kills civilians.”

In other words while there are certainly agreements like the Geneva Conventions, there seems to be surreptitiously accepted understandings, practices and immunities in a time of war. This is without even addressing the latest United States targeted drone killings, which some argue are questionable according to a strict reading of codified international law.

Chillul Hashem

Above all, we must be mindful of chillul Hashem.

Let us conclude with the words of Rav Yehudah Henkin, grandson of Rav Yosef Eliyahu Henkin, one of the great poskim of the last generation, and the father of Eitam Henkin, who was murdered along with his wife, Naama, during Sukkos in what is now viewed as the beginning of the current wave of attacks.

In his halachicwork Bnai Banim⁷ he focuses on questions similar to the ones we have raised here. He writes that even in war, regardless of what halachah permits, we also must be concerned about chillul Hashem.

He points to Sefer Yehoshua (ch. 9), in which the Givonim fool Bnei Yisrael into entering into an alliance with them and allowing them to remain alive. The Gemara⁸wonders why this treaty was not voided as soon as the ruse was discovered. The Gemaraanswers, “In order to sanctify Hashem’s Name”; Rashiexplains that Yehoshua was concerned about the Jewish army’s reputation among the nations if it did not honor its treaties.

It is of interest, I believe, that while the Gemara uses a positive expression (“due to a kiddush Hashem”), the Rambam, in codifying as law the story of the Givonim,⁹ uses the negative (“due to a chillul Hashem”). The indication is that even during a war, when defending ourselves is a top priority, we must find ways to prevent a chillul Hashem—as well as going out of our way (if it won’t put lives at risk) to create an active kiddushHashem.

May we achieve both of these ideals, maintaining our achdus as we debate these serious matters. And may these attacks end quickly, leaving all such questions academic in nature as we herald Moshiach Tzidkeinu.

NOTES

1. Igros Moshe Choshen Mishpat 2:68.
2. See Shulchan Aruch Yoreh Deah, siman 158:1. Regarding the application of this concept today, see, for example, Rambam Hilchos Melachim 5:4, and Tashbeitz 93.
3. See Rama Yoreh Deah 157:1 et al.
4. See note 20 in Rabbi Bleich’s “Torture and the Ticking Time Bomb” for further details on this type of rodef.
5. USA Today, 10/3/06. See also the thorough study conducted by Seton Hall’s Center for Research and Development, which reports that 50.67% of the detainees housed there are overweight!
6. See the strong words of Rav Moshe in Choshen Mishpat 2:69:4.
7. Vol. 3, maamar 4, page 4, 185-194.
8. Gittin 46.

Hilchos Melachim 6:5.