The Elor Azaria Case. What does Jewish Law have to say?

The Elor Azaria case is in the news again, and has raised the question of whether a soldier can kill a neutralized terrorist according to Jewish Law.

Obviously, one must abide by both the Law of the Land and in the case of Azaria, the procedures of the army and security forces, and there are various schools of thought in Jewish Law with regards to this matter.

Again, the purpose of this post is not to be practical, but rather to show how the topic is discussed in Jewish Law and the different opinions. For more of these types of discussions, look to the IsraelB website I run.

When you look through the sources and opinions, the underlying goal is the saving of human life – Irrespective of religious belief or nationality.

A) Rabbi Haim David Halevi

Jewish law allows killing in self-defense: “If someone comes to kill you, get up and kill him first” (Babylonian Talmud, Tractate Sanhedrin 72a).

Rabbi Halevi was asked: Does Jewish law require minimal use of force? In other words, if a person could have used minimal force to head off an attack, but in fact ends up killing the attacker, is that person liable for the attacker’s death?

Rabbi Halevi:
“It is exceedingly clear,” he wrote, “and beyond any doubt that if a person can defend his property without killing the thief or the intruder that this is what the law prefers over killing in self-defense.”

Here Rabbi Halevi uses the Maimonides who based on the view of Rabbi Yonatan ben Shaul – that if someone kills their attacker when they could have used more minimal force, the person who did the killing in theory faces a death penalty.

Rashi, says this also applies to bystanders trying to stop the attacker.

Rabbi Halevi goes on to clarify that it is extremely difficult to expect someone to make such an assessment while they are being attacked, and consequently they are not liable for murder if they kill the attacker. But the preference is clearly for minimal use of force.

B) Maimonides vs Mishneh Le’Melech

• Maimonides – Maimonides in Hil. Nezikin/ Hil. Rotzeach- says that you can only neutralize the attacker and cannot kill him, once your life is no longer in danger. Only if you need to kill the terrorist can you kill him. If neutralizing is enough then that’s all you can do.
• Mishneh Le’Melech on Maimonides– The question of if you can just neutralize the attacker only applies if you are the 3rd party, ie: you come to the scene. If you are the 2nd party-the person being attacked, you can kill the terrorist.

C) Contemporary Schools of Thought:

1) Ha’Rav David Stav: ”In these days in which the blood is boiling it is important to preserve our moral superiority; [we must] not harm those involved in murderous acts who have already been neutralized and do not represent a threat,” he ruled.

This is based on the law of ”Rodef”. The law of ‘Rodef’ – You can incapacitate or even kill a pursuant who is threatening your life- Only applies if your life is under threat. Once it no longer is, you cannot. So, once the terrorist has been neutralized you can’t kill them.

Question is though, will the terrorist continue to be a threat afterwards? If so maybe you can kill him/ her.

2) Rabbi Shmuel Eliyahu – a terrorist who had committed murder should be killed. This is based on the law of ‘‘Goel Hadam”. The relatives of a murdered person, can take revenge on the murderer.

The problem with this is that you need ‘mishpat’, before doing this and cannot take revenge independent of judicial approval.

Another problem with this approach is if as in this case in Chevron in the news at the moment, the terrorist had not actually killed anyone yet – therefore ‘Goel Hadam’ doesn’t apply.

3) Chief Rabbi Yaakov Ariel, ”Milchama”. Seeing the current situation as a time of war would broaden the issue and may lead one to being able to kill the terrorist. In an all out war, you fight to win.

Rav Yaakov Ariel backed Rav Stav’s initial comments, replying that only when the terrorist still presents a danger is it permitted to kill him.“If the danger has passed and the terrorist is restrained or injured, [people] must act wisely, judiciously and not through spontaneous emotion”

4) Rav Osher Weiss: Contemporary Rabbi and Posek. If the terrorism is part of a national struggle and threatens national survival, there maybe more room to kill and not just neutralize the terrorist.

One question that arises is, is it just the authorities – the soldiers/ police, who can carry this out, as only they represent the authorities. Regular civilians can’t.

I hope this clarifies the various schools of thought that exist within Jewish Law.