The ha­lachic duty to avoid civil­ian ca­su­al­ties

Daniel Reisel ex­am­ines how far Jewish law re­quires armies to pro­tect civil­ians in bat­tle

The Jewish Chronicle - - JUDAISM -

HARDLY A day has gone by in re­cent years when Kas­sam rock­ets and mor­tar shells launched by mil­i­tants i n Gaza have not landed on the West­ern Negev. In­evitably, Is­rael’s mil­i­tary re­sponse has pro­voked con­tro­versy in the wider world be­cause of civil­ian ca­su­al­ties. Is­rael coun­ters that it is not al­ways pos­si­ble to pro­tect civil­ians when re­turn­ing fire in densely pop­u­lated ar­eas like Gaza.

But should Is­rael be wor­ried about pro­tect­ing them at all? Some rab­bis do not be­lieve so. The Ye­sha Rab­bini­cal Coun­cil, the set­tler um­brella or­gan­i­sa­tion, re­cently ruled that it was per­mit­ted to re­turn in­dis­crim­i­nate fire on Pales­tinian civil­ian ar­eas whence an at­tack had been launched. In 2006, un­der the lead­er­ship of Rabbi Dov Lior, the coun­cil is­sued an even sterner rul­ing. It stated that there is no such thing as a civil­ian in war­fare, and that such a view was at­trib­ut­able to the in­flu­ence of so-called “Chris­tian moral­ity”.

How­ever, there ex­ists a ha­lachic tra­di­tion that of­fers a rad­i­cally dif­fer­ent approach to civil­ians in war. In his book Laws of Kings and Wars, Mai­monides cod­i­fies the re­li­gious obli­ga­tions per­tain­ing to the siege of a city. A siege, he writes, should not sur­round the city on all four sides, but only on three, al­low­ing an es­cape path for any­one who wishes to save his life (Mish­neh To­rah, Hil­chot Melachim 6:7). It is an opin­ion that the Ram­bam bases on a Tal­mu­dic read­ing of the Is­raelite war against Mid­ian.

A law re­quir­ing be­siegers to leave open the fourth side of a city flies in the face of mil­i­tary logic. Af­ter all, a city be­sieged on three sides is not re­ally be­sieged. Al­low­ing open pas­sage could aid the es­cape of civil­ians, but it could also fa­cil­i­tate the pas­sage of sup­plies and weapons into the city. Gaza is a case in point. Un­sur­pris­ingly, it is an approach that stands in marked con­trast to siege war­fare as prac­tised through­out Euro­pean his­tory.

So why take the risk? Nach­manides, in his com­men­tary on the Book of Com­mand­ments (Hasagot Haram­ban L’se­fer Hamitzvot, pos­i­tive com­mand­ment 5), ex­plains: “God com­manded us that when we lay siege to a city, we leave one of the sides with­out a siege so as to give them a place through which to flee. It is from this com­mand­ment that we learn to deal with com­pas­sion even with our en­e­mies, even at a time of war.”

When the fourth Chief Rabbi of Is­rael, the late Rabbi Shlomo Goren, was asked whether this law would not aid the ar­ma­ment of ter­ror­ists, he de­fended it, say­ing: “We do not un­der­stand the se­crets of God” — in other words, the God who gave the law will save us. Our con­cern should be to act eth­i­cally and in ac­cor­dance with the com­mand­ments.

Aharon Barak, the for­mer pres­i­dent of the Is­raeli Supreme Court, ar­gued in a sim­i­lar vein in an in­flu­en­tial le­gal opin­ion in 1999. He stated: “This is the des­tiny of a democ­racy — it does not see all means as ac­cept­able, and the ways of its en­e­mies are not al­ways open be­fore it. A democ­racy must some­times fight with one hand tied be­hind its back. Even so, a democ­racy has the up­per hand.”

On this view, the pur­pose of the halachah is to teach us to re­main sen­si­tive to the value of hu­man life. Mil­i­tary strength must be bal­anced with a con­cern for the hu­man cost. The law makes it clear that there are two types of in­di­vid­u­als in war: civil­ians and com­bat­ants. Th­ese two pop­u­la­tions must be sep­a­rated be­fore the on­set of bat­tle. Pro­tec­tion must be of­fered to civil­ians and re­stric­tions must be placed on the mil­i­tary in the event that civil­ians are un­able to es­cape. And it states un­equiv­o­cally that this pro­tec­tion of civil­ians is a re­li­gious obli­ga­tion.

In­trigu­ingly, a bib­li­cal story makes a sim­i­lar point. It con­cerns Abra­ham’s con­fronta­tion with the four kings. Lot, Abra­ham’s nephew, has been taken cap­tive and Abra­ham launches a mil­i­tary cam­paign to free him. Abra­ham is vic­to­ri­ous, yet af­ter the fight­ing, God tells him: “Fear not, Abra­ham” (Ge­n­e­sis 15:1). This is some­what puz­zling. Surely the time to be afraid would have been be­fore or dur­ing the bat­tle. Why be afraid af­ter the bat­tle is over?

The fol­low­ing midrash makes a strik­ing sug­ges­tion: Abra­ham was afraid he might have caused the deaths of in­no­cent peo­ple. “Abra­ham was filled with mis­giv­ing, think­ing to him­self, ‘Maybe there was a righ­teous or God-fear­ing man among those troops whom I slew’” (Bereishit Rab­bah 44:4).

From the out­set, our tra­di­tion makes it clear that mil­i­tary strength, while nec­es­sary, is not suf­fi­cient. Abra­ham was coura­geous in go­ing to war to free his nephew from cap­tiv­ity. Yet courage is not the only value. Our tra­di­tion also at­tributes to Abra­ham moral con­cern re­gard­ing the harm­ing of civil­ians in the midst of that war.

We read in Proverbs: “Praise­wor­thy is the one who is al­ways afraid” (28:14). How can it be praise­wor­thy to be fear­ful? Again, a midrashic com­men­tary sug­gests a pos­si­ble ex­pla­na­tion: “This refers to Abra­ham, who was wor­ried lest he had caused the deaths of in­no­cent peo­ple in bat­tle” (Tanchuma Lech Lecha 19).

As Is­rael con­tin­ues to ne­go­ti­ate the dif­fi­cult road ahead, we should take strength from Abra­ham’s courage. How­ever, we should also be guided by Abra­ham’s im­per­a­tive not to harm the in­no­cent among the en­emy. It is an im­per­a­tive that forms the nu­cleus of an ethic cod­i­fied in our law and, not­with­stand­ing the ex­cep­tion taken by the Ye­sha Rab­bini­cal Coun­cil, one that is au­then­ti­cally grounded in the Jewish tra­di­tion. Dr Daniel Reisel is teach­ing a six-week evening course on moral­ity and halachah in the Is­raeli army at Stan­more & Canon’s Park Syn­a­gogue, Lon­don, from May 20 (www. stan­more-slc.org.uk)

PHOTO: AP

Is­raeli tanks re­turn from a clash last month in Gaza, whose dense pop­u­la­tion can make civil­ian ca­su­al­ties hard to avoid

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