Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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5 - Is There a Duty to Avoid Causing Collateral Damage During Military Operations in Built-Up Areas, and If So At What Price?

“The man who wrote the IDF code of ethics, Professor Asa Kasher, has indicated that in the current circumstances in southern Lebanon, provided the appropriate precautions are taken, it may be ‘morally justified’ to obliterate areas with high concentrations of terrorists, even if civilian casualties result.

‘I don’t know what the truth is about the circumstances,’ Kasher stressed. ‘But assuming that we warned the civilians and gave them enough time to leave, and that the civilians who remained chose, themselves, not to leave, then there is no reason to jeopardize the lives of the troops.’”

Nathaniel Rosen, The Jerusalem Post, July 27, 2006

The Problems Inherent in Urban Warfare

According to the letter of the law, no innocent person should be punished for the sins of his fellow. Midrashic comments such as “Woe to the wicked, woe to his neighbor” (Rashi, Bemidbar 3:29) cannot justify causing injury to a wider innocent population, those who are neighbors under duress, who are not willing participants to the evil acts of their neighbors. The degree to which action can be authorised against a civilian population depends, first and foremost, on the degree of its hostility and collaboration with the enemy.

The problem arises when collaboration does exist between some or all of the civilian population and the enemy, which blurs any clear distinction between the two. At times it is not possible to fight against an enemy which conceals itself amongst a civilian population other than by injuring those who are not involved, at least directly, in the terrorists’ actions, including women, children and babies. This occurred during the recent war in Lebanon, with Hezbollah extremists using crowded residential areas as launch pads for rockets and heavy-caliber weapons. In the words of British Foreign Office Minister, Kim Howells: “Hezbollah took the old terrorist tactic of hiding behind the skirts of women and children to new depths. They had their rockets located inside the rooms of apartment blocks. They had caches of arms that were in schools and mosques.” Furthermore, any attempt to distinguish between the two during combat is likely to be at the cost of the lives of many soldiers.

Sometimes, a controlled, measured and considered blow to civilian population is able to win the battle and to save the lives of many soldiers and citizens alike. This reasoning was used to justify the dropping of the atomic bomb over Hiroshima during the Second World War. The flip side of this argument was voiced during the recent war in Lebanon by Internal Security Minister who stated that Israel was unwilling to bomb villages without warning and invade with massive amounts of ground troops because “you’ll kill a lot more innocent people and suffer a lot more casualties.” And IDF military spokesman Captain Mitch Pilcer argued that carpet bombing of Hezbollah strongholds would have been self-defeating for Israel, because “some of these Lebanese are our allies, and if they come back to a flattened town, they might turn around and join Hezbollah.” Israel might even be left friendless internationally and thus utterly vulnerable.

One Israeli official stated during the war in Lebanon, that: “Hezbollah has a huge arsenal and has fired 1,000 missiles at us. We are acting in self-defense. We are targeting only military objectives…, but you have to remember that Hezbollah often hides in civilian areas. We sent flyers and gave other warnings to civilians to leave before our attacks.” Vice Premier Shimon Peres said Israel has no intention to harm Lebanese civilians, but warned that civilians who live near Hezbollah weapon caches were in danger: ‘Because we know that some of their rocket caches, which are fired at Israel, are hidden in private apartments, I call on these residents to leave their homes. He who lives near a rocket is likely to get hurt.’”

Can any of our sources shed light on these complex issues?

The Torah commands Bnei Yisrael “You shall not allow any person to remain alive” (Devarim 20:16) at the end of a passage detailing the obligation to call out for peace “when you draw near to a city to wage war against it.” If the city which refuses the offer to make peace is a distant city, “Hashem shall deliver it into your hand and you shall smite all its males by the blade of a sword” (v. 13). The Sifrei learns out that both male and female children are to be spared, along with the women. By contrast, the Seven Nations, who are not distant from you, are to be utterly destroyed - men, women and children (v. 17).

Need overtures for peace to be made also to the Seven Nations? Rashi says no, while Ramban disagrees (Devarim 20:10). And Rambam agrees with Ramban: “Whether in the case of a permissible war (milchemet reshut) or an obligatory war (milchemet mitzvah), no war is to be waged without first having given the enemy the opportunity to make peace” (Hil. Melachim 6:1).

Our focus is on the stage once the overture for peace has gone unanswered and fighting ensues - at that point the doom is sealed of all of the adult males - both those bearing arms and those not bearing arms. This, then, would seem to form a precedent for the killing of citizens, even those who are not combatants. Moreover, this applies whether or not there exists any problem of mixed citizens and combatants.

With Amalek, too, we are commanded not only to remember his evil and cowardly acts but to actively destroy him: “You shall wipe out the memory of Amalek from under the heaven” (Devarim 25:19). The obliteration of the “memory of Amalek” implies destruction, irrespective of sex, age or innocence. Again, according to Rambam, they must first be given the opportunity to make peace; but, if they refuse, “no soul is to be kept alive.” This would appear to provide a license to kill anyone and everyone in time of war: combatant or citizen, male and female, young and old alike!

The head of Michlelet Orot Yisrael in Elkana, Rabbi Dr. Neriya Guttel, addresses this issue in his article on the subject of military operations in built-up areas, published in Techumin vol. 23. In matters as grave as life and death, the utmost caution must be exercised, he argues, when attempting to extrapolate from the mitzvot in the Torah. The Torah only specified the Seven Nations and Amalek as requiring total annihilation. Now, however, that these nations can no longer positively be identified (“Sancheriv, the king of Ashur, went and confused all of the nations” - Mishnah, Yadayim 4:4), we cannot apply the stringent laws that the Torah lays down to put to death those who are innocent. The definition of “enemy” cannot thus be extended to non-combatants.

The question could also be asked whether the obligation to destroy applies in an obligatory war that is intended to “save Israel from the hands of an oppressor.” Is such a war akin to war against the Seven Nations and Amalek in respect of the command “You shall not keep alive any soul”? The answer is the same, argues Rav Guttel. Despite the similarities (both are mitzvot), in such severe areas of law, one can only safely apply what the Torah lays down expressly. In addition, the rationale for obliterating those nations (“so that they should not teach you [their depraved ways]” and “Remember that which Amalek did to you…”) does not apply in the case of a war to save Israel from the hands of an oppressor.

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Ethical Dilemmas of the Jewish State at War

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moshe, 3/13/2008
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