The halachic duty to avoid civilian casualties

By Daniel Reisel, May 9, 2008
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Daniel Reisel examines how far Jewish law requires armies to protect civilians in battle

Hardly a day has gone by in recent years when Kassam rockets and mortar shells launched by militants in 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)

    Last updated: 2:04pm, June 26 2008