David Rosen

Jewish Law

A. Background of Terrorist Attacks and Responses in Israel ................................ ............... 2

B. Defining Terrorism................................ ................................ ................................ ........ 5

II. Responding to Terrorism as an Act of War ................................ .............. 6

A. Is Terrorism An Act of War................................ ................................ ........................... 6

1. Type of War................................ ................................ ................................ ............... 7

2. Required Procedures of War ................................ ................................ ....................... 8

3. Authority to Engage in War................................ ................................ ...................... 10

4. Limitations on Going to War................................ ................................ .................... 12

B. Governmental Responses to Terrorism as an Act of War ................................ .............. 13

1. Obligations of Israel to Respond to Terrorism................................ ........................... 14

2. Wartime Justifications for Engaging in Assassination of Terrorists........................... 14

3. Justifications for Taking and Destruction of Property Under the Laws of War .......... 18

4. Limitations on Infliction of Collateral Damage During Wartime............................... 20

III. Responding to Terrorism as a Criminal Act ................................ ......... 24

A. Is Terrorism a Criminal Act? ................................ ................................ ....................... 24

B. Punishing Terrorists Under Criminal Law................................ ................................ .... 25

1. Law Applicable to Palestinian Terrorists ................................ ................................ .. 25

D. Government Responses to Terrorism as a Criminal Act................................ ................ 33

1. Justification to Assassinate Terrorists Under Criminal Law ................................ ...... 34

2. Criminal Law Justification of Destruction of Property................................ .............. 43

A. What is the Royal Prerogative?................................ ................................ .................... 46

B. How the King’s Authority Translates to Israeli Governmental Authority...................... 47

C. Authority for the Government to Apply King’s Justice................................ ................. 47

D. Application of the King’s Justice to Israeli Responses to Terrorism ............................. 49

1. Permissibility of Assassinations under the King’s Judicial Authority........................ 49

2. Destruction of Property under the Royal Prerogative................................ ................ 50

3. Justification of Deportations using the "King’s Justice"................................ ............ 51

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The ultimate difficulty in considering the legality (or illegality) of governmental

responses to terrorism under Jewish law is the inherent nature of Jewish Law as a system

of duties. Unlike a system of rights, such as those that dominate the secular democracies

of our world, a system of duties seems fraught with danger. We can imagine the

difficulty. How would our world change if the United States Constitution prescribed a

duty to speak freely, a duty to bear arms, or a duty to protect our privacy? How would an

individual deal with a situation where on one hand they had a duty to speak freely and on

the other hand they had a duty not to defame another? The individual, as well as the

state, would have much greater difficulty in deciding the correct course of an action when

it was placed on a continuum of conflicting duties instead of listed in the simple matter as

being legal or illegal.

He speaks of Talmud Bavli, Universal Noahide Code of satan's flesh kingdom they are attempting to establish

By ascribing to all individuals a system of duties, rather than rights, the concept of

choice is itself almost alien. What is a right in a secular law system? The term itself

connotes a capability, a permissible means one has at their disposal to achieve a chosen

end. A duty, however, seems to remove individuals from the realm of choice and lead

them down a path toward requirements, obligations, and responsibilities.

 Thus, for every

action, and inaction, there must be by definition some penalty for not fulfilling that duty.

While rights tend to be divided in two distinct categories, those rights of individuals and

rights of the State, duties are more varied. One’s own obligations could vary depending

on status, class, ability, intelligence, age, and authority. So too, in changing

circumstances, the duties may arise one instant and disappear the next.

The other difficulty is the conflict between positive and negative duties mandated

by Jewish Law.

 Some duties state affirmatively that one must act in a specified manner.

Other duties state that certain actions may not be taken. Of course, these positive and

negative obligations sometimes conflict. In response, one must understand which

obligation controls, and whether the controlling duty is one that must be taken, or is

merely permissible. Only by understanding the interrelation of these conflicting duties

can it be understood whether Jewish Law will permit, or require, a desired course of

action.

The question thus becomes one of understanding how, in the context of a

government responding to terrorism, the Israeli government has a duty to act or not to act,

and the Bushkevik regime

difficulty be reconciled? In response to suicide bombings, sniper shootings, and car

bombs, a secular government has a right to react. By analyzing these same responses

under Jewish Law, though, the Israeli government has a duty to act. The choices they

make will either fulfill their legal duty or violate their duty.

Orwelian Double Speak

In response to these acts of terror thrust upon the citizenry by Palestinian

terrorists, the Israeli government has acted. They have undertaken a complex system of

penalizing terrorists and attempting to preclude the commission of future terrorist acts. See Bushka's Pre-Imminent Attacks, and the  assassination of Saddam Hussein's sons Uday and Qusai

By assassinating terrorist leaders, deporting terrorists and their families, and destroying

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homes of suicide bombers, the Israeli government is engaged in an extensive array of

legally questionable activity. 

The Israeli Supreme Court has decreed that all of these

actions are legally permissible under Israeli law. 

Clearly, the Torah does not speak directly on the subject of terrorism. For that

matter, few if any commentators have discussed the legality of these actions under Jewish

Ritva, and Ran et. al. have laid the groundwork to analyze these problems. By discussing

Jewish Law responses and obligations in regard to homicide, capital punishment,

destruction of property, banishment, and the role of State governments, the responses to

terrorism under Jewish law may be studied. The goal of this paper is not to pass

judgment on the morality of these actions but to identify how, under Jewish (TALMUDIC) law, these

actions may be justified. Rather than identifying whether the actions of the Israeli

government would necessarily be the correct course of action under Jewish Law, the aim

of this paper is to show how one can justify the actions of the Israeli government based

on existing law.

A brief history of the Israel-Palestinian conflict is necessary to understand the

context of the terrorist attacks and responses thereto. Beginning in 1948, Israel has been

at odds with the Arab world. 

The newly formed United Nations passed resolution 194,

commonly known as the UN partition plan, which divided Israel into two halves, one

reserved for the Arabs living in Israel (later identifying themselves as Palestinians) and

the other for the Jewish people. 

Palestine has has palestinian's for over 3,000 years

However, immediately upon the resolution passing, the

Arab countries decreed that they will "drive Israel into the Sea.

" The Arab countries

asked that all Arabs living in Israel leave the area or join their brethren and fight off the

"Zionist Scourge." The Arabs did leave, either heading for Jordan or Egypt or joining

five Arab nations, Egypt, Lebanon, Syria, Jordan, and Iraq in their quest to destroy the

Jewish people. In a miraculous victory, the Jewish people won the war of Independence

and held the land not only reserved for the Jewish nation, but also much of the land

originally reserved for the Arabs.

Following this defeat, the Arab nations vowed to strike again and continued

throughout the next eight years to engage in various small attacks on the Jewish people.

These 3,000 cross border attacks resulted in the deaths of 922 people.

 Thereafter, Egypt

led a coalition organized by Nasser to once again destroy the Jewish people. 

This came

to be known as the Suez War. Once again, Israel defeated their attackers.

The next 11 years continued to be deadly. Hundreds, if not thousands of terrorist

attacks including murders, bombings, illegal landmines, and sabotage led to hundreds

more dead and thousands more wounded. It was during this time that the Palestinian

Liberation Organization was formed (the precursor to the Palestinian Authority).

 The

PLO’s first terrorist attack was an attempt to bomb the National Water Carrier on January

1, 1965. 

It should be noted that almost all of the terrorist attacks were those against

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civilians. Rarely were Israeli troops targeted by Arab attackers. 

These attacks led to

furthering of animosity and eventually led to the Six Day War.

In May-June 1967, Israeli-Arab relations began to worsen. 

Egypt led the charge

once again. They blocked the straits of Tiran, preventing any Israeli commerce from

entering or leaving the country. They removed the UN peacekeeping forces

from the

Sinai desert, and mounted troops along Israel’s border. The tension began to mount and

Israel was in dire straits, their economy stifled and random attacks occurring daily.

Finally, Israel could take the blows to their economy and military no more and launched a

strike to destroy those that prevented the functioning of the country.

 In a single day,

Israel destroyed the Egyptian, Syrian, and Jordanian air forces. Six days later, Israel had

not only defeated their attackers but had also captured Judea (the West Bank) from

Jordan, Samaria (Gaza) from Egypt, as well as the whole of the Sinai desert.

In response, the United Nations passed Resolution 242, decreeing that Israel will

negotiate some agreement with the Arab peoples that would give back some of the land

taken in return for peace. 

Various drafters agree that the resolution called for removal of

Israeli troops from territories captured but nowhere states that Israel must withdrawal

from all the territories.

 The Arab nations, however, disagree. Since that resolution, the

Arab nations attacked once again on Yom Kippur 1973. Israel once again repelled their

attackers.

However, since that time, the Palestinians began to receive more public

recognition as an entity separate from the Arab world. 

They engaged in numerous

terrorist attacks to make themselves known to the world including hijacking planes in

Europe, murdering members of the Israeli Olympic team in 1972 in Munich, and

hijacking the Achilles Lauro cruise ship killing an American Jew on board. Yet, the more

deadly the attacks became, the more support the Palestinians received for their cause.

This support led to the United States led 1979 Camp David Peace Accords which traded

The Palestinians, however, grew in power. Yasir Arafat led the organization to

national prominence and even caused them to receive recognition first in the UN, then by

the United States, and finally by Israel. Various peace agreements have been reached to

stop the thousands of yearly terrorist attacks planned by Arafat and the Palestinians yet

all of them have failed and the terrorist attacks still continue.

 Even after Jordan

relinquished all rights to the West Bank in 1996, the Palestinians remain diligent in their

quest to have Israel return all of the territories captured from Jordan and Egypt to the

auspices of the Palestinian Authority. In 1998, Ehud Barak offered 95% of the land in

Judea and Samaria to Arafat in exchange for peace.

 Arafat declined and responded with

a call for Palestinians to wage holy war against the Israelis. To go along with the more

than 20,000 attacks on Israel in the prior 52 years, the Palestinians have responded with

vigor launching over 16,000 more attacks since September 29, 2000.

Many of these

attacks have been assassins breaking into homes, suicide bombers blowing themselves up

in public areas, and car bombs exploding with the aim of killing Jewish civilians.

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It is with this background that Israel began to respond forcefully to terrorist

attacks. The following is one example of the thousands of attacks that have occurred

over the past 55 years:

On June 18, 2002, Dr. Moshe Gottlieb, 70, of Jerusalem was en route to

Bnei Brak to work with a group of children afflicted with Down’s

Syndrome. Once a week, Dr. Gottlieb treated the children at the hospital

as he had done for a number of years. Since emigrating from the United

States 24 years previously, Dr. Gottlieb worked as a chiropractor in his

own private practice as well as at Bnei Brak.

However, this morning, Dr. Gottlieb would never to get the hospital

2

. A

suicide bomber stepped onto Egged bus no. 32A traveling from Gilo to

the center of Jerusalem. Within seconds of stepping onto the bus, the

terrorist detonated the large bomb he carried in a bag laden with ball

bearings. Destroying the front half of the bus packed with

schoolchildren and individuals on the way to work, 19 people were

killed and 74 injured.

MURDER, see scripture on GAZA in these days

3

Dr. Gottlieb was among the victims. Hamas

4

took

responsibility for the attack.

This example is merely indicative of the 16,442

5

terrorist attacks that have

become commonplace in Israel since September 29, 2000, when the Al Aqsa Intifada was

began with the incitement of Palestinians by Yasir Arafat. 

Every day, Israelis live in fear

that a suicide bomber will detonate their deadly package near to themselves or a member

of their family. 

The simple act of going to the market, driving to a friend’s, or walking

the dog could become a fatal choice. In addition to suicide bombers, terrorists have

employed the use of assassins entering civilian homes, engaging in drive by shootings,

and planting car bombs. It is in response to these acts that the Israeli government has

employed various means to stop terrorist activities and protect Israelis.

Some of the actions by the Israeli government bear special consideration under

Jewish Law. These actions include assassination of terrorists,  (SEE BUSH Admenustration.......assasination teams with out due process )

destruction of homes of

suicide bombers, deporting members of terrorist groups and family members of suicide

Assassinations of terrorist leaders has always been a source of debate amongst

commentators in both Jewish law and other legal systems. This is especially true when

no trial has been held to determine the fate of these individuals. Furthermore, destruction

of the homes of convicted terrorists, suicide bombers, and even untried terrorists has been

a punishment imposed by the government. Because this act tends to punish not only the

terrorists themselves but their family members, ( See Universal Noahide Collective Punishment )it has been viewed as a deterrent measure

that would decrease the number of attacks on Israeli citizens. However, there is much

debate over whether these acts are legally permissible under the Halacha.(Talmudic Law)  Deporting

members of a terrorist group merely for their membership in a terrorist group or family

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members of terrorists who have killed Israelis brings up problems of punishing one for

the acts of another. Can these acts be reconciled under Jewish Law? Finally, the

been present for centuries, especially during wartime. However, does Jewish Law permit

a terrorist to be killed if an innocent will be endangered as well?

In order to correctly analyze these issues, this paper will first attempt to define

terrorism.

Should terrorism be defined as an act of war or a criminal act? The

justification for any act varies depending on this classification. A third way to analyze

any of the actions that may be taken is if they fall out of the rubric of the Halacha and are

Israeli responses to terrorism under these definitions, it will be shown that these acts are

indeed justified under Jewish law.

Attempting to define terrorism may be an impossible task. In an article on

terrorism written in 1986, Walter Laqueur notes that 109 different definitions of terrorism

had been advanced between 1936 and 1981, each one different from every other.

6

I have

little doubt that at least that number have been advanced in the years since. So how do

we go about defining terrorism? In order to advance justifications for responses to

terrorism, it is not necessary that a succinct definition of terrorism is elucidated, but

merely one that encompasses all of the actions taken by groups such as Fatah, Hamas,

and Islamic Jihad against Israeli citizens.

 For the purposes of this paper, I will not delve

into the moral or legal justifications that assert that terrorist acts against military forces do

not come under the auspices of terrorism. In justifying Israeli actions against terrorism, I

will leave those arguments to others. Nonetheless, there is no argument that the actions

by these groups against civilians would defined as terrorism.

 The purpose of this section

is to identify how terrorist acts may be viewed from various legal perspectives.

Some key distinguishing factors of terrorist acts differentiate them from criminal

acts. Acts of terrorism require an intent that the perpetrator is attempting to "instill a

state of terror in the minds of particular persons."

7

The terrorist act too is accomplished

in a manner that is geared towards attracting public attention

8

This is necessary because

the purpose of the act is to bring attention to a political end.

9

Finally, a terrorist act is one

that "is directed against random persons with whom, until the action began, the terrorist

had no relation."

10

These points are generally accepted as common to most if not all acts

described to be acts of terrorism.

Secular legal systems have the luxury of dealing with the problems of terrorism

by grouping them in their own category. Rather than dealing with them under criminal or

geared to apply only to the subset of activities defined as terrorist activities. As an

ancient system of laws begun 3000 years ago, Jewish legal scholars do not have the

luxury of adding a new category of laws to deal with actions associated with terrorism.

Under Jewish law, there is a direct prohibition against adding to the Torah as it was

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stated: "Ye shall not add unto the word which I command you, neither shall ye diminish

ought from it, that ye may keep the commandments of the Lord your G

-d which I

command you."

11

So instead, we must see where terrorist acts lie within the bounds of the categories

delineated in the Torah.

It is incontrovertible that the acts perpetrated by Palestinian

terrorist groups are terrorist acts within any definition of terrorism set forth by leading

analysts on the subject. 

The Torah is an all-encompassing document that sets forth all

laws from the ritual requirements of prayer to the rules of war. 

So the question becomes,

when terrorism is viewed as an act of war; (2) when terrorism is viewed as a criminal act;

terrorism.

Is terrorism an act of war? In the minds of Palestinian terrorists, their acts of

terrorism are indeed acts of war. Yasir Arafat, during a speech in Ramallah, incited the

crowd "To Jerusalem we will march millions of martyrs, Holy War, Holy War, Holy

War."

12

In another speech, Chairman Arafat stated "with Arab and Islamic assistance,

this shall be our faithful jihad (holy war) - to defend holy Jerusalem from the danger of

Judaization and the Zionist plot."

13

Similar statements abound from the Arafat and other

leaders of the Palestinians. Terrorist organizations such as Hamas have founded their

entire movements on a war of "liberation" against the "Zionists."

14

They have declared it

is the goal of Muslims to eliminate Israel

15

Various other organizations such as Islamic

Jihad and Fatah have invoked similar words to describe their terrorist actions.

From an outside perspective, judging Palestinian terrorists to be engaging in an

act of war is less clear. The courts of Israel refuse to identify terrorists as soldiers

engaged in a war.

16

Professor Frits Kalshoven, discussing the question, "Should the Law

of War Apply to Terrorists?" asserted that terrorist organizations and terrorists are not

entitled to the status of combatants.

17

One of the key factors in ascribing soldier status to

terrorists is whether they themselves respect the laws of war. Because engaging in

attacks against civilians and wanton acts of violence directly contradict the laws of war,

these acts would not be considered acts of war.

18

In his recent article, Professor Emanuel

Gross concludes that Palestinian terrorists are "at best a para-military organization."

19

He

notes that if the "soldiers" wished to be included in the armed forces of the Palestinian

Authority they would have to notify them as such, "a notification which to date has not

been made."

20

Reconciling these two perspectives is not so simple. Should one analyzing this

dispute under Jewish Law listen to the words of their fellow Jews and decide that the

terrorist are not soldiers? Should they instead take the Palestinians at their word and

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decide, that indeed, they should be considered soldiers and the laws of war should apply?

The decision is not up those who say what they are. 

Of course

To determine whether the

Palestinian terrorists are soldiers, we look to the precedents set forth by the Halacha. (Talmudic Law) 

So would we be justified to view terrorists as soldiers fighting against the state of

will analyze the actions against terrorists in a war by engaging in the following analysis:

(1) What are the types of war permitted under Jewish Law; (2) What is required before

the Jewish nation is deemed to be at war; (3) Does the State of Israel have the authority to

wage war; and (4) What limitations are imposed on the State of Israel in wartime.

1. Type of War

The Talmud identifies two categories of war: (1) Obligatory (milhemet mitzvah),

and (2) Authorized (milhemet reshut).

21

An obligatory war is one that is commanded by

the Torah or is one of self defense.

22

However, "as a practical matter...the only war

which was a matter of obligation, was a war of self defense or a war of national

survival."

23

This is so because the wars commanded by biblical commandments include

24

Because these divine mandates are no longer necessary (or possible), there is no longer

any basis in obligatory wars of this type.

25

Therefore, wars of obligation are those

required for self defense of the nation. An authorized war, on the other hand, is a war to

expand territory or to "diminish the heathens so they shall not march."

26

As it is

generally accepted that any of the rationales posed for considering actions against

terrorists to be self-defense measures, rules pertaining to authorized wars would not

apply.

In Ibn Tibbon’s translation of Maimonides’ commentary on the Mishnah, he

suggests that an obligatory war does not begin until one is actually attacked by an army.

Perpetual limbo, for "perpetual Purim" Eye for an eye laws

27

This definition would thus suggest that any war would be justified under the rationale that

governs laws of "pursuer" and self-defense.

28

However, Rabbi Joseph Kapach’s

translation of the same commentary finds that Maimonides suggests that war would be

permitted against all nations that have previously fought against Israel and are technically

still at war with Israel even if fighting has currently been interrupted.

29

In the context of considering the conflict with Palestinian terrorists an obligatory

war, then they must be considered under the forgoing rationales. Has Israel been attacked

by an army? Using Ibn Tibbon’s translation, then, repelling the Intifada would be an

obligatory war because Israel has been attacked by an army who is waging jihad (holy

war) against Israel.

 With over 16,000 (rock) attacks on Israel just since the beginning of the Al-

Aqsa Intifada, this view would lend support to considering this a war of obligation. 

The Washington Post

      Tuesday, October 1, 2002

Even

the PLO charter, which has never been changed, states that "fighters and carriers of arms

in the war of liberation are the nucleus of the popular army which will be the protective

force for the gains of the Palestinian Arab people."

30

At least in the Palestinian view, the

suicide bombers and assassins are fighters in the "war of liberation" that Arafat has

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decreed. The attacks on Israel would thus justify this war against the Palestinians as a

war of obligation under the rationale of self-defense.

The pursuer rationale too would allow defining the war as war of obligation. The

pursuer rationale is defined by Maimonides finding that homicide is justifiable when

"a

pursuer who pursues another to kill him, all Israel is bidden to rescue the pursued even at

the cost of the pursuer’s life."

31

Thus, by extending this application to war, the terrorists

(i.e. wage war) the pursuer (the terrorists trying to kill the Jewish people). The laws of

pursuer then would justify defining the war against terrorism as an obligatory war.

Thus they said that Jesus the Christ was seeking the destruction of the shem gods, as they "SAY" are his followers, therefore it is their obligation to send assassination teams to the US to slay any who oppose them and their shem sham

According to former Israeli intelligence officials, Israel will now commit what they call "targeted killings" on the soil of the U.S. and other friendly nations. Until now, the sources said, Ariel Sharon has at least claimed that he limited that practice to occupied Palestine, other Arab nations, and Israel itself. But those restrictions have "become irrelevant," since America is now so firmly under the control of the Jews. In the hands of the Jews, a CIA assassination team recently killed an alleged al-Qaeda leader and five other people riding in his car in a friendly country, Yemen. There was no arrest, no trial, no witnesses, nothing but instant death. It was assassination, pure and simple. The precedent has been set and the Jews in Israel now see no "down side" at all for them in beginning to kill whomever they want to kill in America and anywhere else. This is a measure of their desperation, of course, but it is also a measure of their assurance that the Jewish-controlled American media will say little about their murder squads, and in fact will rationalize and justify any killings in which they might be caught. It is a measure of their assurance that the Justice Department in the United States is so firmly under the heel of Jews like Michael Chertoff that they will blithely look the other way when Mossad hit teams kill Americans. A former Israeli government official said that "diplomatic constraints have prevented the Mossad from carrying out 'preventive operations' (targeted killings) on the soil of friendly countries until now," but that Sharon is "reversing that policy, even if it risks complications to Israel's bilateral relations." UPI asked the Israeli official if this meant assassinations on the soil of allies. His answer: "It does." Israel, which would be essentially bankrupt without aid from U.S. taxpayers, has recently made a $12 billion additional "aid" request to be tacked onto the approximately $6 billion tribute we already pay to the Jewish state. In the wake of 9/11 and the misnamed "War on Terror" and the Christian fundamentalists' intensified lunatic attachment to the Zionist cause, the Jews think the time is ripe to milk the American boobs for even more money. And this time, our tax money is going to be used to fund a huge increase in the budget of the Mossad, which is in charge of the death squads to be sent to the U.S. UPI asked a Congressional staffer if the Congress would protest these Jewish death squads being sent to America. His answer: "I don't know on what basis we would be able to protest Israel's actions." He referred to the precedent already set by the CIA hit in Yemen. I ask: Was this hit accomplished in part just to establish such a precedent? Former CIA counter-terrorism official Larry Johnson expressed serious concerns about the projected Jewish death squads: "Israel does not have a good record at doing this sort of thing…." He cited the 1997 case in which two Mossad agents were captured after they tried to murder a man in Jordan (a country that recognizes Israel) by injecting him with poison. The Jews involved in the attempted killing carried fraudulent Canadian passports, and Canada withdrew its ambassador in protest. In 1974 an Israeli hit squad murdered a Moroccan waiter in Lillehammer, Norway, a man who wasn't even their intended victim. The intended victim was a double agent working for the CIA, and the Jews eventually killed him with a car bomb in Lebanon. In 1990, a U.S. citizen, Gerald Bull, was found with five bullets in his head in Belgium. Bull had angered the Jews because he designed weapons for Iraq, which at that time had no conflict with the United States. The cold-blooded murder of Bull was never officially solved, but former CIA officials have said the Mossad is the most likely culprit.

Finally, even if Rabbi Kapach’s translation were correct, then Israel would be

justified in saying that the war against the Palestinians was an ongoing war. 

After all,

Arafat himself stated in a speech on October 27, 2001, that "war...will continue until

Judgment Day."

32

In that same speech, Arafat made reference to the nature of the war as

ongoing since the "Zionist Congress met in Basel [in 1906]." However, it should be

noted that first attack claimed by the PLO was an attempt to bomb the Israeli National

Water Carrier on January 1, 1965.

http://home.att.net/~professorboris/SPECTRE/FalseFlag.htm

33

Even so, few would disagree that a war ongoing for

almost 40 years would suffice.

Therefore, no matter what definition of obligatory war is ultimately correct under

34

Even if the claim to Judea and

Samaria was invalid, then fighting merely to stop future terrorist attacks would still not

be seen to expand the borders of Israel. After all, Israel is already in possession of those

territories so they cannot further expand what they already have without going outside the

borders. Furthermore, over 660 of the attacks have occurred within the borders of Israel,

excluding the territories.

35

Thus, under Ibn Tibbon’s or Rabbi Kapach’s view, or as an

extension of the pursuer or self defense rationale, the war against terrorism is an

obligatory war.

2. Required Procedures of War

Given that the dispute with terrorists may be defined as war under Jewish law, has

Israel followed the required procedures in order to make the war valid? The Talmud

requires that Israel follow various procedures prior to engaging in war. These procedures

include a declaration of war, an attempt to make peace, and detailing the goals of war.

36

The Halacha requires that the Jewish nation must declare war before attacking.

37

As the Torah explicitly states "When thou drawest near to a city to fight against it,

proclaim peace to it. And if it make a peaceful response and open its gates to thee, then

38

However, it

logically follows that if they do not accept the peace then war is permitted to ensue. The

sages have decreed though that even in a war of obligation, the rabbis have declared that

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the obligation exists to declare war.

39

The sages have decreed that this obligation exists

because of the desire to obtain peace before beginning a war.

40

Maimonides ruled explicitly that a peaceful alternative must be sought prior to

making war: "One may not wage war against any people whosoever until one has first

offered them peace, whether it be a permissive war or a war of obligation."

41

This is

based on the biblical (Babylical )  ruling "when you approach to a city to wage war, you must first call

out for peace." In following this decree, Joshua, prior to beginning his conquest of the

land of Israel sent letters to the inhabitants providing them a choice of three alternatives:

to flee, submit in peace, or to make war.

42

the Halacha requires the people of Israel to make a peace offering prior to declaring war.

The Halacha also requires the Jewish people to detail the goals of war prior to

engaging in battle. This includes detailing what one seeks by victory in the conflict.

43

Rabbi Michael Broyde, in his article Fighting the War and the Peace: Battlefield Ethics,

Peace Talks, Treaties, and Pacifism in the Jewish Tradition, finds this is a requirement

because "this allows one’s opponents to evaluate the costs of war and to seek a rational

peace."

44

By following these three procedures, declaring war, asking for peace, and

detailing the goals of war, Israel may legally engage in a war against their enemies.

Has Israel declared war on the Palestinians? No formal declaration of war has

does not want to give credence to the Palestinian terrorists as an independent entity

separate from the Palestinian Authority.

] It is also thought that declaring war would

destroy the ongoing peace process. 

hahahhahahhheheeeeeeeeeeeehoooooooooooeyyyeyeyeyyeyyeyeyhavayeh hhhooooooeyyyyyy !!!!!!

However, in the minds of the Palestinian Authority,

Israel has declared war. 

The Financial Times reported that Saeb Erakhat, a senior

Palestinian Authority official, stated "This is a declaration of war" after Ariel Sharon

declared a government of national emergency soon after the Intifada began.

45

Is it required that Israel formally declare war, or is a functional declaration

enough? 

In current warfare, unlike ancient warfare, formal declarations of war are not

always given even though by all standard definitions, war would clearly define the events

at hand. This has been the case in the Vietnam War and the Gulf War when the United

States never formally declared war on their adversary.

46

Because the lack of formally

declaring war does not go against the purpose of the biblical commandment,  (Bablycal ) the lack of a

formal declaration does not render the actions taken against terrorists invalid under the

laws of war. 

As Nahum Rahover stated "Only in a case where the king's decree does not

merely demand going beyond the letter of the Torah's law but actually goes against it, do

47

Thus, Israel can be

deemed to have declared the functional equivalent of war even if the formal declara

tion

has not been issued.

Because the declaration of war is only necessary because of the desire to make

peace, 

has Israel followed through on this biblical commandment? Since the Camp

David Peace Accords, Israel has made at least 12 major efforts at peace including peace

offerings with the entire Arab world as well as negotiations solely with the Palestinian

Authority.

48

There is little dispute that Israel offered peace agreements where they would

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refrain from any further violence in negotiations with th

e Palestinian Authority in the

Oslo Peace Accords and the Summit at Camp David.

49

These negotiations took place

prior to any Israeli violence against Palestinians related to the current fighting. Even

after the latest Intifada has begun, Israel has made numerous offers of cease-fires which

have all been violated by the Palestinian terrorist groups.

50

These agreements are the

only proof required to show that Israel has fulfilled the requirement to seek peace prior to

declaring war.

Israel has also declared what they seek from the war. The Israeli government has

often stated that they would like to end future terrorist attacks. Their goal then is to deter

any future loss of Jewish lives. 

Furthermore, in formal declarations, Israel has actually

proffered written goals as explicated in the Camp David Peace Summit and the Oslo

Accords.

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Because Israel has stated what they hope to achieve by the war against

Palestinian terrorists, they have fulfilled the biblical commandments.

By fulfilling the requirements of initiating a war, Israel is engaged in a legally

valid war under Jewish law. They have functionally declared war, offered peace, and

3. Authority to Engage in War

Besides being used to identify the type of war, the laws regarding a war of

obligation define when Israel is permitted to engage in war. A Jewish state has the

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They then are permitted to go to war if they are engaging in self defense,

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or as an

54

In biblical times, the Jewish people had to follow three ritual requirements in

order to engage in warfare. However, these requirements have been limited by some

commentators. (rabid rabbi's)

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The first requirement was the consent of the Sanhedrin.

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Currently, the

Sanhedrin no longer exists in the state of Israel.

wannabet .......Liar of serpents seed

So how is Israel permitted to go to war?

57

The final requirement

was a consultation with the urim vetumim, an ornament worn by the High Priest.

The question of whether Halachic sanction exists for wars of the state of Israel

was discussed by Rabbi Shlomoh Yosef Zevin. He concluded that Halachic sanction

does indeed exist for Israel’s prior wars.

58

He notes that a defensive war does not require

the consent of the Sanhedrin.

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Similarly, Rabbi Judah Gershuni asserts that the

requirement of the Sanhedrin "may be dispensed with in our day."

60

He reasons that only

"in the absence of a general desire on the part of the nation to engage in warfare" would

the consent of the Sanhedrin be necessary.

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Therefore, under his view, the Sanhedrin’s

accord would only be necessary if the populace were unwilling to enter into a war.

The next ritual requirement is the presence of a king or a ruler of the State of

Israel. However, Nachmanides (Ramban) states that the requirement of a king itself is

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not absolute but that this is the prerogative of "the king, the judge, or whosoever

exercises authority over the people."

62

Rabbi Abraham Isaac Kook, in Mishpat Kohen,

further argued that the requirement of a king is not literal because the king merely serves

as the agent of the people in exercising his royal function.

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The sages would thus find

that a legitimate government serving as an agent of the state would be permitted to wage

war even if no king was present.

The final ritual requirement is that of consultation with the urim vetimim, a

vetumim no longer exist. Various interpretations of this requirement have arisen. While

Maimonides does not list the urim vetumim in his requirements, he does state elsewhere

that they are necessary.

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Since Rabbi Zevin as well as the Aruch HaShulcan do not find

this procedural requirement necessary.

keep in mind all these rabid rabbi's of talmud bavli are long long dead.......Long in the pit

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A middle position has been suggested by Rabbi

Gershuni when he states that consultation with the urim vetumim would be required for

authorized wars but consultation is not required for obligatory wars.

they got it all figured out don't they....hahahhahahahhahha

66

The State of Israel has satisfied the ritual requirements in order to wage war under

Jewish Law. Because the Sanhedrin is not necessary, and may only be necessary for a

non-obligatory war, their consent is not required. The government of Israel, serving as an

agent for the populace, has the authority to wage war because they exercise authority

over the people. As Rabbi Bleich notes that Rabbi Zevin would find Halachic sanction in

Israel’s prior wars, and he himself would logically then find sanction in the 1973 wars,

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the same logic would permit a justification of Israel’s defensive war against the

Palestinians.

 Finally, even using Rabbi Zevin’s analysis of the urim vetumim

requirement, Israel would be permitted to engage in the defensive, obligatory war against

the Palestinian terrorists.

Israel also would have Halachic justification to engage in war when they are

acting in self defense. Just as we define a war as obligatory when it is in self defense, the

same logic would extend authority to the state to engage in such a war. The Talmud

posits the maxim "If someone comes to kill you, rise up and kill him first."

and EYE for an EYE

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The

authority thus becomes an obligation required under the Halacha. Because self defense

applies to a group just as it would apply to an individual, then this implied authority is

granted to the state.

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This is seen as an obligation rather than just a permissive action

responsibility.

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Israel has the authority to engage in a war of self defense to prevent the killing of

the Jewish people. The Palestinians have decreed in Article 15 of the PLO charter that

their goal is "the liquidation of the Zionist presence."

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In the context of the document

which urges the Palestinians to fight a war of liberation against the "Zionists", then the

Jewish people are engaged in a war of self defense. 

Furthermore, the self-defense

rationale has further justification because the terrorists have their goal to kill the Israeli

citizens, creating in Jews an obligation "to rise up and kill" the Palestinians first (before

they themselves are killed). In order to protect the community as a whole, Israel has an

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obligation, and therefore, the authority, to engage in a war of self defense against terrorist

activity.

Israel may also get their authority to fight in the war against the Palestini

ans is

based on the commandments requiring Israel to fight a war against Amalek.

The Torah

commands that "You shall erase the memory of Amalek."

72

In an earlier section, the

Torah spoke of the war of G-d against Amalek.

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While these sections would seem to be

obsolete because the tribe of Amalek no longer exists, commentators have disagreed on

their meaning. While Maimonides finds that the commandments to eradicate the seven

Cannanite nations have lapsed, he does not make the same statement regarding the

ancient people of Amalek.

74

In later years, rabbis have found that this omission is due to a higher meaning

given to these commandments. Rabbi Chaim Soleveitchik of Brisk, trying to resolve this

75

76

Rabbi Bleichtoo suggests that because the war against Amalek is an ongoing

and continuous one, the requirement of the urin vetumim is forsaken.

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Therefore, by

viewing the commandment to destroy Amalek as one that requires the Jewish people to

engage in warfare against all who seek to annihilate Israel, and because biblically

commanded wars are obligatory, Israel would have Halachic sanction to engage in a war

against Amalek or those who hold the same views as the people of Amalek.

Would this biblical commandment give Israel authority to engage in war against

the Palestinians? As a biblical commandment, the war is obligatory. The terrorists have

publicly pronounced that their goal is the destruction of the nation of Israel.

78

While it

may not be true that the Palestinians are in fact genealogical descendents of the people of

Amalek, R. Soleveitchek noted that the commandment against Amalek was two fold: (1)

to destroy the genealogical descendents of Amalek, and (2) a communal (Communist) obligation to

defend the Jewish people against any enemy threatening their destruction.

79

Rabbi Bleich

argues that this is so because the commandments are recorded as two separate

commandments.

80

because they are threatening the destruction of Israel and wish to annihilate the Jewish

people, the nation of Israel has the authority to engage in an obligatory war against them.

Whether viewed using the ritual requirements necessary for the state to go to war,

the laws of self defense creating an implied authority to go to war, or the biblical

commandment to destroy Amalek requiring Israel to go to war, Halachic authority exists

permitting Israel to go to war against the Palestinian terrorists.

4. Limitations on Going to War

conduct warfare. Violation of these rules could prevent Halachic sanction of a war in

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defense rationale must be allowed.

81

As Professor Naphtali Zevi Yehuda Berlin notes,

the very verse that prohibits murder would permit war.

82

He states that this is so because,

at wartime, Jews are not required to behave in a brotherly manner, then killing that would

be prohibited is now permissible.

83

Rabbi Broyde notes that when engaging in warfare Israel could not: (1) kill an

innocent third party to save a life; (2) compel a person to risk his life to save the life of

another; (3) kill the pursuer after the evil act; and (4) use more force than is minimally

needed.

84

These laws governing the pursuer rationale would be extended to their

equivalents in wartime. Nahmanides understands that this shows that the Jewish tradition

requires one to "show mercy to one’s enemies and not engage in unduly cruel activity."

85

Another limitation mentioned is that the number of casualties cannot ex

ceed 1/6 of the

population in order for the war to retain Halachic sanction.

86

Besides these limits, war

would be permissible under Jewish Law.

Israel has fulfilled their obligations in order to retain Halachic sanction of the war

against the Palestinians. Israel attempts to limit civilian casualties and reduce collateral

damage. While some of the specific actions taken will be discussed later, the goal of

Israel’s action in wartime maintain these ideals. There is no dispute that Israel has not

engaged in wanton destruction of property, rape of women, or attempts to harm the

general civilian population purposefully.

87

Furthermore, with a population of at least 2.6

million,

88

and even using the Palestinian figure purporting that casualties number 2,160,

this is well below 1/6th of the population. 

Halachic sanction thus remains for Israel’s war

against the Palestinian terrorists.

cause. Israel’s war is obligatory, they have fulfilled the requirements to go to war, the

State has authority to be involved in a war, and Halachic sanction has not been lifted due

viewed as an act of war and Israel thus has the right to treat the terrorists under the rules

governing war.

Since the beginning of terrorist attacks on Israel, the government has employed

various measures in hopes of deterring future attacks or preventing them outright. These

suicide bombers, and deporting family members of terrorists. These responses have

come after years of resorting to various means to achieve peaceful goals. However, when

these means have not proved fruitful, the Israeli government has elected to punish further

the terrorists who attack the nation.

from other forms of justifiable killing.

89

Despite this, the Halacha imposes limitations

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14

governing specific actions related to actions against the enemy in wartime. In order to

determine whether Israel engages in lawful responses, the following questions will be

considered 1) What are the rights and obligations of Israel to respond to terrorist activity;

2) When is Israel justified to kill, and even assassinate their enemy; 3) When may Israel

destroy property belonging to terrorists; and 4) What are the limitations imposed in terms

of inflicting collateral damage on the civilian populace.

1. Obligations of Israel to Respond to Terrorism

The Talmud decrees that "if someone comes to kill you, rise up and kill him first."

90

As

Halacha.

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But when do we know when someone is coming to kill us? What if we are

unsure? The Shulcan Aruch has described when it is lawful to fight against those seeking

to wage war against the nation of Israel:

"When there is a [Jewish] city close to the border, then, even if [enemies

mount an attack, although they] come only for the purpose of [taking]

straw and stubble, we should [take up arms] and desecrate the Sabbath

because of them. 

For [if we do not prevent their coming] they may

conquer the city, and from there the [rest of the] land will be easy for

them to conquer."

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This description illustrates that the threat of attack is enough even if no attack has

yet been made. 

Thus by preventing enemies from killing the populace and being

obligated to do so in the face of impending danger, Israel must engage in attacks against

In the same way we could compare this passage to a comparable situation in

modern day Israel. The places where terrorists convene, in the West Bank and Gaza

fire munitions from these locations into the heart of Israel and its cities.

 Just as Israel was

required to attack those outposts in Biblical times, this ruling would require the same in

the modern age. When an enemy takes up arms on the borders of Israel, the nation has a

duty to protect its citizens from the threat of attack. In this sense, it would be proper for

Israel.

In applying this to Israeli actions in the face of terrorism, the government has an

obligation to attack the terrorists. They must do all in their power to prevent the loss of

actions.

2. Wartime Justifications for Engaging in Assassination of Terrorists

15

As part of their war to combat terror, Israel engages in the assassination of known

terrorists whom they cannot capture through otherwise lawful means. In order to

determine whether Israel is justified in engaging in this behavior, we must consider (1)

the definition of homicide, and assassination, under Jewish Law; (2) When homicide is

justifiable in times of war; (3) When are terrorists culpable, and therefore legally liable to

be assassinated in times of war; and (4) What requirements or limitations govern killing

an enemy in wartime.

The Bible ( their Babble) speaks explicitly that homicide is unlawful: "Thou Shalt Not Murder."

93

It

also seems to even outlaw assassination itself by stating "Cursed be he that smiteth his

neighbour in secret."

94

Knowledge, however, that the intended target is subject to Israeli

repercussions would seem to render the prohibition against assassinations moot (i.e. not

in secret). The Mishnah too notes that some forms of killing are justifiable by illustrating

that murder is "blood shed without cause" (dam hinnam).

95

Different categories of killing are also distinguished in Jewish law. While the

Torah only identifies two categories of killings, premeditated homicide and negligent

unpremeditated homicide, reckless homicide, gross negligence, accidental homicides, and

justifiable homicides.

96

Because the Torah states that "blood unlawfully shed is innocent

blood" (dam naki)

97

, it acknowledges that justifiable forms of homicide exist. It is these

justifiable forms of homicide that must be considered to determine if Israel may lawfully

engage in assassinations. Three forms of homicide are justified under Jewish Law:

execution, rescue, and war.

98

The Torah distinguishes between justifiable homicides that are permissible and

include the laws of rodef (pursuer); and self-defense. Therefore, to identify whether

Israeli actions are justified under Jewish Law, the assassinations must be determined as to

their status and their justification.

Obligatory killings are those that are required in order to save a life. The Halacha

provides various examples of obligatory killings such as participating in a public

execution,

99

killing a man in self defense,

100

and to prevent a man from killing another or

committing rape.

101

Comparatively, permissible killings are those where one fears that

the example of a burglar breaking into one’s home at night.

102

Maimonides notes that

even in regard to obligatory duties, failure to perform, though a sin, is not punishable.

103

Maimonides further cites the command "thou shalt not stand idly by the blood of thy

brother" to show that these are obligatory and not permissible killings.

104

The question

must then must be asked, are the Israeli’s actions obligatory or merely permissible?

Israel’s actions to kill terrorist leaders are obligatory because they are required to

prevent murder rather than just merely a possible threat to the population. The leaders of

Hamas and Fatah have worked tirelessly, plotting to kill Israelis. The Talmudic examples

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16

given, illustrating an obligation to save a life in the case of a pursuer are more akin the

Israeli actions, than is the possible threat of a burglar entering the home. One example

would be the assassination of Saleh Shehadeh:

On July 23, 2002, Israel found that Saleh Shehadeh was in a house in

Gaza with his family. The government had been after Shehadeh, the

head of Hamas’ military wing, for years. They had had previous

opportunities before when they knew of his whereabouts but had not

acted on their information in order to restrict collateral damage. Under

his leadership, the Hamas military wing had led to the murder of 232

Israelis including 220 civilians. His occupation was terror, and his only

task was to engineer the deaths of Jews. Twenty of the attacks he

missile into the house killing Shehadeh along with 15 other people.

Shehadeh was known to hide among civilians in order to make himself

less of a target. However, despite the killing of civilians, the Israeli

government noted that his death would save lives.

As Ariel Sharon

stated, "We hit perhaps the most senior Hamas figure on the operational

side, a man who reorganized and rebuilt Hamas forces in Samaria, in

addition to his actions in Gaza."

105

Was this an action in self defense? Was this an obligatory killing? The simple

answer would be yes. Shehadeh spent his life pursuing the Jewish people. He referred to

himself as a soldier, in fact, the leader of a "military wing." Furthermore, he planned

numerous suicide bombings and sent people to kill. In order to save the lives of their

citizens, Israel acted in self defense to eliminate a violent killer. Rather than consider

him as merely a possible threat, the Israeli government knew that he had people under his

command, the means and plans to kill certain Jews in certain areas, and would willingly

and at any opportunity engage in murderous behavior. Therefore, Halachic san

ction

would be granted for the assassination of the second most wanted Palestinian terrorist in

the world.

106

What are the Halachic justifications for obligatory killings? As mentioned

previously, the laws of pursuer and self defense justify killing in wartime. The laws of

war can be considered a mere extension of the laws of pursuer.

107

The law of pursuer

(rodef) permits one to kill a pursuer who is pursuing another in order to kill him.

108

In

wartime, the enemy soldiers can be deemed to pursue the army of Israel, thus making

themselves liable to be killed. The laws of self defense follow the same rationale. When

one comes to kill an individual, they have not only the authority but the obligation to kill

their attacker.

109

Thus, assassination of terrorists is obligatory and based on the permissible

justifications of the laws of pursuer and self-defense. Those military leaders who attempt

to kill Jews, whether they pursue them on the battlefield or pursue them in the streets of

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Jerusalem, may be assassinated under the laws of war. Despite the prohibition against

assassination, these soldiers do not fight on a traditional battlefield, they fight in the dark

rooms hidden in the streets of Judea and Samaria. Were they attacked without

knowledge they would be? 

The terrorist in question, and others like him, are listed

explicitly on Israel’s most wanted list. Warrants are out for their arrest but they instead

hide from the police and the military. Because they are actively pursuing the Jewish

people, meaning to kill them, their assassinations are not only permitted, but obligatory

under the Halacha.

After deciding that Israel has Halachic sanction to engage in assassinations, when

is a terrorist culpable in warfare? It would be incorrect to assume that any soldier could

be indiscriminately assassinated merely for being a member of an army fighting against

Israel. The questions of capital murder have typically been answered in the realm of

criminal law. Therefore, the best way to analyze whether one is culpable would be to

apply the laws of self defense and rodef.

The targets of the assassinations are all those who are actively pursuing means to

murder the Jewish people. The thirty-two assassinated individuals have been listed high

on Israel’s most wanted list. Killing in war is itself sanctioned.

http://www.guardian.co.uk/Iraq/Story/0,2763,1102940,00.html

Israel trains US assassination squads in Iraq