A Halakhic Reaction to the Intifada

In a few weeks we shall observe the holiday of Hannukah, which celebrates the victory of the Maccabees over the Greeks. From a moral point of view, this was a simple war – a foreign invader against the people of Judea, the many against the few, the impure against the pure. The Maccabees killed and defeated thousands of Greek soldiers and nobody would express doubt about the justice of their actions.

During the last few months, we have been involved in a very different kind of war. The enemy fires on us from villages whose residents are innocent. Children and youth throw stones and fire-bombs at us and even fire at us with live ammunition. The moral situation is extremely complex and it is difficult for our soldiers, officers and leaders to know what to do. We shall, therefore, present some sources which can help us cope with the current situation:

1) There are Jews who want to kill all the Palestinians or expel them from Israel on the basis of the obligation to destroy the seven Canaanite nations mentioned in the Torah (Deut. 7:1-2; 20:17-18). However, King Solomon already ignored this command and did not destroy them (I Kings 9:20-21). Our Sages emphasized that this command does not apply to other nations (Midrash Tannaim to Deut. 20:15, p. 121) and the Rambam ruled that those nations “have disappeared” (Laws of Kings 5:4).

2) On the other hand, there is no doubt that it is permissible to kill in self-defense for the following three reasons:

One) The Torah determines that a home-owner may kill a thief who is breaking into his property at night (Exodus 22:1) and Rava concluded from this that “If somebody comes to kill you, rise early and kill him first” (Sanhedrin 72a). In other words, if someone approaches an individual with the intention of killing him, that person is permitted to kill the attacker as an act of self-defense.
Two) On the other hand, the public is allowed to defend itself against attackers, even on Shabbat. This was first determined by the Maccabees, after the Greeks killed Jews on Shabbat because they did not defend themselves (I Maccabees 2:32-40). The Talmud ruled (Eruvin 45a) that one desecrates Shabbat when gentiles come “with the intent to kill”, and in a border town one desecrates Shabbat even if they only plan to pillage the town. And so ruled the Rambam (Laws of Shabbat 2:23) and the Shulhan Arukh (Orah Hayyim 329:6-7) and the Rema adds: “and even if they only plan to come”. In other words, it is permissible to attack the enemy on Shabbat as a preventive act, and if on Shabbat all this is permissible, all the moreso on weekdays.
Three) Similarly, the Midrash determines (Midrash Samuel 22:2, ed. Buber, p. 110) that David’s war against the Philistines – which was self-defense – was a mitzvah or an obligation. Moreover, the Rambam ruled (Laws of Kings 5:1) “which is a commanded war? …to help Israel against an enemy who attacks them”.

3) Some claim that a stone is not a lethal weapon and one should not respond with live ammunition. However, it is clear from the Torah that a stone is capable of killing, even unintentionally (Numbers 35:22-23) and sinners were frequently stoned to death. Indeed, in the Halakhah a stone is considered a lethal weapon (Rambam, Laws of Murder 3:12-13; 4:1; 6:6).

4) Some feel that one should not fire on children who throw stones or firebombs. The Shulhan Arukh disagrees (Hoshen Mishpat 425:1) “One who chases after his friend to kill him and they warned him and he continues to pursue him, even if the pursuer was a minor, all Jews are commanded to save him by injuring one of the limbs of the pursuer, and if they cannot aim or save him other than by killing the pursuer, then they kill him even if he still has not killed”.

5) On the other hand, there are sources which warn us not to harm prisoners or innocent people. The Prophet Elisha forbade the King of Israel from killing prisoners who had been captured by God (II Kings 6:21-23 with the Ralbag) and Philo also condemned soldiers who kill innocent women (The Special Laws 4:224-225).

6) Finally, we must teach our soldiers to remember two sources when they go out to fight our enemies:

One) When Jacob heard that Esau was coming, it says: “And Jacob was greatly frightened and distressed” (Genesis 32:8) and the midrash explains: “frightened – lest he be killed; and distressed – lest he kill” (Genesis Rabbah 76:2).
Two) When Israel left Egypt “the angels wanted to sing. Said God: “My handiwork [=the Egyptians] are drowning in the sea and you are singing?!” (Megilah 10b).

May it be God’s will that the present violence cease; may He who makes peace, make peace between us and our neighbors!

All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.