Does Jewish law prohibit killing noncombatant civilians during warfare?

He contended that a civilian who actively encourages or supports terrorist activity may be deemed a “pursuer” (rodef) who is liable to being killed.

By RABBI SHLOMO BRODY
May 11, 2016 11:59
4 minute read.
Gadi Eisenkot

IDF chief of staff Lt.-Gen. Gadi Eisenkot . (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

Over the last several years, international critics have accused Israel of war crimes because of civilian casualties during military operations in Gaza. Israeli officials, independently backed by a High Level Military Group report comprised of international military officials, have convincingly retorted that the IDF has gone well beyond contemporary standards to minimize civilian casualties, which are an unintended result of all tragic warfare. They argue that the IDF code of ethics, which is inspired by the so-called “purity of arms” doctrine, has been bravely manifested in Israeli missions.

In fact, some internal critics go so far as to excuse the IDF of jeopardizing its own soldiers to prevent civilian casualties.

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Does Jewish law require avoiding enemy civilian losses? An affirmative answer might be found in some midrashim. Abraham was anxious before going to war against the four kings who had taken his nephew Lot captive. According to one midrash, he feared killing righteous people among the enemy population, only to be reassured by God that in this specific case, all of his victims would be guilty. A similar midrash asserts that Jacob was distressed to confront the 400 men accompanying his vengeful brother Esau, even though Jacob was acting out of self-defense. Several commentators explain that while violence is justifiable in such circumstances, Jacob feared killing those who could have been less lethally neutralized or who were coerced combatants not truly interested in fighting.

While significant, these passages remain homiletic comments to biblical narratives, not clear legal statements.

More bona fide halachic support might stem from the biblical commandment to leave the fourth side of a besieged city open to allow civilians to escape. Nahmanides asserted that this provision teaches us to show mercy to our enemies, even during wartime. Together, these passages might indicate that Jewish law demands attempting to minimize civilian harm during warfare.

OTHER BIBLICAL passages may signal contrary tendencies. Moses condemned the Jewish people for leaving alive Midianite women who had seduced Israelite men, along with scorning them for not killing all male children. Yet as Rabbi Neria Gutel has noted, such vengeance might be reserved for cases of explicit Divine command, as it certainly does with the commandments to wipe out the seven Canaanite nations or Amalek.

Elsewhere, following the rape of Dinah, her brothers Simeon and Levi vengefully wipe out the city of Shechem. Many commentators assert that the citizens were themselves guilty of misdeeds related to Dinah’s rape and therefore worthy of death. However, one Biblical commentator, Maharal of Prague, asserted that the brothers’ action was justified because in wartime the entire nation is treated as a collective, combatants and noncombatants alike. Yet as Rabbi Yaakov Ariel has noted, this comment may justify only why the brothers were not punished for killing civilians among the combatants: in war, civilians are inevitably harmed. It does not justify, however, directly targeting innocents. Indeed, as Rabbi Asher Weiss notes, Maharal himself had argued that Jacob feared being punished for killing Esau’s reluctant warriors, who should certainly be held more culpable than noncombatant bystanders.



Notwithstanding, these and other figures have cited Maharal’s interpretation to argue that Jewish law allows attacking military targets without abundant concern for noncombatant casualties. This position, however, was rejected by Rabbi Shlomo Goren, who argued that the end of the biblical narrative – in which Jacob censures his sons while on his deathbed – proves that Simeon and Levi acted wrongly. As he writes, “We are commanded... even in times of war... not to harm the noncombatant population, and certainly one is not allowed to harm women and children who do not participate.... ” Similar sentiments were expressed by Rabbi Aharon Lichtenstein, who stressed that strategists should take into account expected losses on both sides and that moral constraints remain relevant in wartime.

ONE DIFFICULT ethical question relates to defining who is a noncombatant. Following the massacre at Kibya in 1953, Rabbi Shaul Yisraeli wrote a frequently cited essay that revived Jewish legal thinking on sovereign warfare after nearly 2,000 years of exile.

He contended that a civilian who actively encourages or supports terrorist activity may be deemed a “pursuer” (rodef) who is liable to being killed.

This would be especially true if civilians were given an opportunity to flee, as King Saul provided for the Kenites. Yisraeli somewhat tempered this novel (and far-reaching) conclusion by noting that if their support for terrorists stemmed from social pressure, one could not apply the rodef classification to them. This broader position was rejected by Rabbi Hayyim David Halevi, who contended that the rodef classification could not be applied to anyone who was not actively involved in attacking someone.

In any case, Yisraeli asserted that Jewish law recognizes international norms of warfare, as long as they were universally adopted and enforced. Accordingly, Geneva Convention protocols adopted by Israel would be binding on it, including the requirements to discriminate between military and nonmilitary targets and to measure the proportionality and necessity of strikes that might cause unintended harm to nonbelligerents. Such criteria, of course, lend themselves to broad interpretation. Moreover, as rabbis Ido Rechnitz and Elazar Goldschmidt have argued, care must be taken to ensure that soldiers are not excessively endangering themselves in order to prevent noncombatant casualties, particularly when facing the new strategic challenges posed by asymmetric warfare. Jewish law deeply desires to minimize civilian casualties yet recognizes that, when push comes to shove, priority must be given to one’s own soldiers.

The writer directs the Tikvah Overseas Student Institute and serves as a junior research scholar at the Israel Democracy Institute. His book, A Guide to the Complex: Contemporary Halakhic Debates, received a National Jewish Book Award. Facebook.com/RabbiShlomoBrody


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