60. Dinim II: Civil Law
60.3. Halachic Perspectives on Civilian Casualties III
[From the Kol Torah Journal, Vol. 17, No. 17, Jan. 5, 2008]
by Rabbi Chaim Jachter
Today, we shall conclude our discussion of avoiding civilian casualties in the course of war. In the past two weeks, we have presented the opinion of the Maharal that when a nation wages war against another nation, the war is waged without distinguishing between combatants and non-combatants. Of course, this applies only when the war is a legitimate one and only if victory cannot be achieved without risking civilian casualties. We concluded that the Maharal constitutes normative Halacha and fully conforms to Torah Hashkafah and ethics.
This week, we shall discuss the application of the Maharal to Medinat Yisrael's current struggle with Arab terrorism. We shall focus on three critical issues. Firstly, is the current struggle categorized as war? Next, is the struggle against a nation? Finally, must Israel risk the lives of its soldiers in an attempt to reduce civilian casualties?
Is the Current Struggle Defined as War?
It is important to stress that the Torah sanctions the risk of harming civilians only during wartime. Rav Shaul Yisraeli notes (Teshuvot Amud HaYemini number 16) that an individual may not save his life by killing another human being. Thus, it is critical to determine if the current struggle against terrorism is defined as war. The intermittent battles against terrorists are fundamentally dissimilar to a "constant" war that Israel waged during, for example, the Yom Kippur War. Indeed, Rav Yuval Sherlow, in his address to TABC students, noted the shifting paradigms in determining ethical conduct during war. He commented that we cannot frame our policies using the same standards of war that were relevant in prior decades.
Rav Yisraeli (ibid.) and Rav Hershel Schachter (BeIkvei HaTzon number 32) argue that the fight against terrorism is defined as a war. Rav Yisraeli addressed a specific situation in 1953 when the Israel Defense Forces raided an Arab village named Kibiyeh in response to a series of attacks, including Arab terrorists killing a woman and her two small children in Yehud. The IDF killed sixty people, including women and children, in the operation. Rav Yisraeli defends the legitimacy of such action by defining it as an act of war, in which distinction is not drawn between guilty and innocent blood. We again stress that such permission applies only if the war is legitimate and the mission's success hinges upon risking the lives of civilians.
Rav Schachter cites from Rav Yaakov Kaminetzsky, who argues that Israel has been in a constant state of war from a Halachic perspective since the establishment of the state. Rav Yaakov accordingly ruled in 1970 that it was forbidden to ransom the great Rav Yitzchak Hutner, who was being held captive by Arab terrorists who had hijacked the airplane on which he was a passenger. There was a suggestion to offer a huge sum to ransom Rav Hutner, since Tosafot (Gittin 58a s.v. Kol) permit paying an exorbitant sum to save a great Rav. Rav Yaakov ruled that Tosafot's permission applies only during peacetime. Since Israel's ongoing struggle with terrorism constitutes a war, Rav Yaakov felt it was forbidden to ransom even one as great as Rav Hutner.
Indeed, Rav Yuval Sherlow noted that terrorists wage war in a fundamentally different manner than mankind has heretofore experienced. The military response necessarily must also differ, and we cannot gauge the morality of such responses using the paradigms of "conventional wars." The bottom line, however, is that this struggle is defined as war even if it differs from wars waged in prior generations.
Are We Waging War Against a Nation?
The Maharal's principle seems to apply only when waging war against a nation. Is the State of Israel regarded as waging a war against the Palestinian community? Rav Yitzchak Blau (Tradition Winter 2006 p. 17) argues, "Even after recognizing the evil done by terrorists, can it truly be said that modern Israel is in a state of war with the collective body of Palestinians when Israelis frequently hire Palestinian workers?" Nonetheless, Rav Kaminetzsky, Rav Yisraeli, and Rav Schachter answer a resounding "Yes!" to this question.
Rav Blau's question emerges from his inaccurate superimposition of the definition of war from a conventional war onto the war against terrorism. The fact that, for example, Americans did not hire Japanese workers World War Two is entirely irrelevant to the current war on terrorism. Indeed, Israelis' hiring of Arab workers is intended in part to motivate Palestinians to prefer the stability of peace. Moreover, Rav Blau's question seems to have become moot when the Palestinians elected Hamas to run the Palestinian Authority in 2006. How can one reasonably claim the innocence of the Palestinian people when they chose to elect a party that explicitly calls for Israel's destruction? Furthermore, the Gaza Strip that is now governed entirely by Hamas undoubtedly constitutes an enemy nation entirely analogous to the relationship between Japan and the United States during World War Two.
Moreover, perhaps even if one asserts that Israel is engaged in a war against the army or community of terrorists and not the Palestinian people, the Maharal's principle remains relevant. Recall from last week that Shaul warned the Keini people to move away from Amaleik, lest they be killed in the ensuing battle. We see that even though Shaul was waging war against Amaleik, he could risk harming another people living in proximity to the Amaleikim, regardless of whether the Keini were more or less numerous than the Amalekites. Similarly, the Israeli army may risk the lives of Palestinian civilians living near Palestinian terrorists. The same applies to Hezbollah terrorists embedded among the civilian population of Lebanon.
Placing Soldiers at Risk to Reduce Civilian Casualties
The Israeli army clearly is entitled to risk the lives of civilians in its efforts to eradicate terrorists. The crucial question, though, is whether it must risk its soldiers' lives in order to reduce civilian casualties. The question is debated by leading Rabbanim of our generation. Rav Aharon Lichtenstein (Techumin 4:185) believes Israel must "absolutely consider the extent of the justification of killing a large group [of civilians mixed with enemy soldiers] in order to save the life of an individual [Israeli soldier]." He regards the amount of civilian casualties as a factor to consider when conceiving battle plans. Rav Avraham Shapira (Techumin 4:182) and Rav Dov Lior (Techumin 4:186), on the other hand, strongly disagree. Rav Lior writes, "In times of war, there surely exists firm Halachic basis for any action done in order to insure that not even one soldier should be, God forbid, harmed." Rav Schachter told me (in a conversation in June 2007) that he agrees with Rav Shapira and Rav Lior. In fact, he argues that Israel acted immorally when it risked its soldiers in Jenin and Lebanon in order to reduce civilian casualties. Rav Bleich (in a telephone interview conducted in July 2007) also told me that he agrees with Rav Shapira and Rav Lior. He agrees with Rav Schachter that it is forbidden to risk Israeli lives in order to save Arab civilians, as occurred in Jenin and Lebanon. My Talmid Avi Levinson reports that Rav Mordechai Willig told him that he also agrees with the approach of Rav Shapira and Rav Lior.
We should note that neither side in this debate cited an explicit source regarding this matter. Rather, it appears to be a question of Halachic-moral intuitions. We should stress that we cannot say that one side is more stringent or maintains a higher moral standard, since each side believes the opposing position to be morally wrong. I simply would add that just as we cited from Rav Yisraeli and Rav Bleich last week that there is no Halachic source that "takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken," so too there exists no classic Halachic source requiring or even permitting risking Israeli soldiers to save Arab civilian lives. In the absence of explicit sources in either direction, it is fair to say that the consensus opinion of major rabbinic authorities does not accord with the approach of Rav Lichtenstein on this matter.
Rav Bleich cautions, though, that in certain situations it seems that Israel might be justified in risking Israeli lives in order to spare Arab civilians. One such instance would be if it feels that causing Arab civilian casualties will later endanger Israeli lives as a result of violence caused by Arabs seeking revenge. If Israel fears that Arabs will be incited by civilian casualties and endanger Israeli lives, perhaps risking Israeli soldiers to save Israeli lives is permitted. This would seem to be based on the Gemara (Shavuot 35b) that sanctions a king risking up to one sixth of the population in an attempt to secure his nation during a war. A leader may have the right to risk a small amount of soldiers in the short term in order to prevent much larger casualties in the long term. We stress, though, that in these cases, risking Israeli soldiers might be justified solely due to the consideration that it will save Israeli lives in the long run. The blood of the Israeli soldier is redder than the blood of the Arab whose brethren initiated violence against Israel, just as the blood of the American soldier was redder than the blood of Japanese civilians during World War Two.
The Torah wishes us to have a degree of compassion even for our enemies. For example, the Ramban (positive Miztvot that the Rambam omitted from his list of the 613 Mitzvot #5) cites the Sifri requiring that when besieging an enemy position we not completely encircle them. Rather, we should leave one side open in order to give the enemy a chance to escape. The Ramban explains one reason for this rule is that we should have mercy on the enemy soldiers. He also explains that it is our interest to do so, since it will encourage enemy soldiers to escape and thereby weaken the morale of our opponents. Thus, the obligation to have mercy on enemy soldiers applies only if the action taken does not impinge on waging a successful military campaign. It also would seem that the obligation to leave open a fourth side for escape applies only if it also serves to enhance our military strategy, as described by the Ramban, for why else would the Ramban mention the military benefit of leaving open the fourth side?
Nonetheless, as Rav Hershel Schachter and Rav Yuval Sherlow explain, winning a just war constitutes an ethical imperative. The compassion we must have for our enemies cannot impinge upon our ability to win a war. Indeed, Rav Sherlow argues that the first clause of the IDF's code of ethics should state that it is a moral obligation for the Israeli army to win. He believes that the failure to recognize victory as a fundamental moral principle significantly contributed to the lack of success in the Second Lebanon War in 2006. One may add that the Israeli secular Supreme Court's rulings (Public committee against torture vs. State of Israel, High Court of Justice 5100/94) requiring Israel to fight terrorism with one hand tied behind its back are also immoral according to the rabbinic consensus. What the Israeli Supreme Court argues is moral might very well be immoral.
Israel has made extraordinarily generous offers for peace towards its Arab neighbors throughout the past decades. It accepted the Peel Partition Plan of 1937 and the United Nations Partition Plan of 1947, offered to exchange land for peace immediately after the Six Day War in 1967, and offered stunning concessions to Yasser Arafat at Camp David in 2000. Arabs have rejected every one of these concessions and responded with wars intended to destroy the State of Israel and exterminate its citizens. Israel clearly is within its rights to defend itself and enjoys the ethical right, nay, obligation, to wage war successfully. Misplaced compassion for enemy soldiers and civilians cannot hamstring our efforts to effectively wage war. The failures of 2006 clearly demonstrate this point.
Avraham Avinu experienced moral anguish over the enemy soldiers that he killed in the war he successfully waged against the four Mesopotamian kings (see Bereishit Rabbah 44:5 cited by Rashi to Bereishit 15:1). However, this emotion was appropriately expressed - only after the war. Before and during the war, he focused on his moral obligation to wage war vigorously and properly against the Mesopotamian aggressors.
Avraham Avinu teaches timeless lessons about ill-timed compassion towards our enemies. It is improper to experience anguish over enemy loss during a legitimate battle. It would have been patently immoral for American soldiers during World War Two to anguish over the battle they were fighting against the Nazis and Japanese. Similarly, the consensus rabbinic opinion regards the risking of Israeli soldiers and restraint from waging war properly in order to reduce Arab civilian casualties as blatantly immoral.
May Hashem send peace to His nation and the entire world.