Endangering IDF Soldiers
in Order to Avoid Harming Enemy Civilians
In the Wake of Operation “Defensive Shield”
Eliav Shochetman
Operation “Defensive Shield”, upon which Israel embarked
in order to rout the terrorist infrastructure and strike at the terrorist
organizations, which have long been perpetrating the systematic massacre of
men, women and children, placed several questions on the public agenda, among
them those relating to military morality and purity of arms in Israel.
This paper is devoted to one of those questions and the
relevant facts, for our purposes are the following: In the framework of
Operation “Defensive Shield” (Spring 5762/2003), IDF forces entered Arab
cities in Judea and Samaria in order to apprehend fugitives and liquidate
terrorist infrastructures. Among other places, the IDF also took action in the
city of Jenin, including the refugee camp located therein, from which several
of the perpetrators of the most severe catastrophes which befell Israel in
the wake of the recent suicide bombings, had embarked. After most of the
residents of the refugee camp heeded the IDF call to evacuate the area, IDF
commanders requested authorization to bomb a certain defined area in the camp
from the air, in order to avoid inevitable casualties among the ground
forces. Authorization was not granted and as a result, on April 9, 2002, a
ground operation was initiated, in the course of which, 13 IDF soldiers were
killed. The IDF Commander of the Central Command, when asked why the site had
not been bombed from the air, responded that it stemmed from the desire to
avoid civilian casualties. A senior officer in the combat force said that he
“prefers that a soldier be killed rather than a Palestinian woman”.1
In a newspaper interview, the then Defense Minister, Binyamin Ben-Eliezer,
confirmed that it was he who had ordered the ground operation, in order to
avoid bombing from the air – which was liable to cause civilian casualties
among the refugee camp residents who remained at the site.2
The following are his comments on the matter in their
entirety, as cited in the interview:
Then Ben-Eliezer recounts the hardest day of Operation
“Defensive Shield”,
For example, the decision whether to use a plane or to enter
the Jenin Refugee Camp on foot at the height of the operation. This was the
most painful decision in my career. Senior military and intelligence officials
approached me, and said to me: “Mr. Defense Minister, sir, we request your
permission to deploy a plane in order to break the resistance in the Jenin
Refugee Camp, because there is an especially difficult stronghold there and
any attempt to advance on foot will cost us soldiers. The area is
booby-trapped. The streets are filled with mines and car bombs. We request
permission to drop a bomb from the air” – and I faced them alone and said:
“No, you’ll do it on foot.”3
Q: 13 soldiers
were killed.
A: I found
that out later. I maintained a serious exterior, but inside I cried, because
the implication of my decision was that 13 people were killed. The decision
was mine alone. I told them: “Continue to fight on foot. One step at a
time.” They did as I said, and the result was
horrible. I deal with it every day. Do you think that I sleep at night?
Q: Why did you
act against the position of the army and intelligence?
A:
Because, in my opinion, dropping a bomb from the air on a refugee camp,
could engender, in the case of the slightest error, the murder of dozens of
Palestinians.
Q: In order to
avoid endangering the lives of Palestinians, you made a decision, which
caused the death of 13 soldiers. In hindsight, does that decision torment
you?
A: I am
tormented by the thought that perhaps it was possible to have made the
opposite decision. That thought torments me greatly and I live with the
pain. But the more I continue to dig deeper and deeper into this episode, I
don’t think that any leader, commander or Defense Minister in the Jewish
state would have been willing to take responsibility and attack the camp by
means of a bomb liable to kill a Palestinian civilian population.
Q: On the day
on which the soldiers were killed, the combat was underway. Most of the
Palestinian civilian population had fled the area of combat.
A: You are
pushing me into a corner, where I don’t want to be pushed. Now, you are
trying to place me before a firing squad consisting of the 13 soldiers
killed in Jenin. It was a fundamental decision, which took everything into
consideration, including the chance that innocent citizens of Jenin or IDF
soldiers would be wounded or killed.
Q: Had you
known in advance that 13 soldiers would be killed, would you have made the
same decision?
A: Come
on, this isn’t a pita bread factory. We’re talking about human life. Believe
me, it’s hard enough for me to fall asleep at night as it is.
The question is: Is there any justification to endanger
the lives of IDF soldiers in order to avoid potential enemy citizen
casualties, especially under the circumstances of the incident in question, in
which those citizens were called upon to leave the area of the refugee camp,
and those who did not evacuate – were these not responsible for their actions?
Would a bomb from the air or an artillery barrage, under those circumstances,
have been a deviation from accepted standards of morality? We will attempt to
answer these questions below, while relating to perspectives of Jewish law,
moral principles and international law, and to the perspective of de facto
legal practice. We will begin with the Jewish law perspective.
A. The Sanctity of the Israeli Camp
The Torah (Deuteronomy 23:15) says: “Because the Lord
your God walks in the midst of your camp to deliver you and to give up your
enemies before you, therefore your camp shall be holy.” Our rabbis
interpreted:
The Holy One Blessed Be He associates His name with
Israel...only when “your camp shall be holy”, and then He rests His divine
name among you and he saves you from your enemies and delivers your enemies
[into your hands].4
A prerequisite for the resting of the Divine Presence in
the Israeli camp in times of war (and not only in times of war)5
is: “Your camp shall be holy.” The sanctity of the camp should manifest itself
in the cleanliness of the camp. This is one of the 613 commandments: “And you
shall have a paddle upon your weapon...” (Deuteronomy 23:13); the author of
Sefer HaChinukh
wrote: “That cleanliness is one of the good
qualities, which leads to holy inspiration...and it is also praiseworthy for a
nation that when the enemy scouts come and see their camp sacred and clean of
any filth.”6
The sanctity of the camp does not include only physical
cleanliness. The sanctity of the camp is a broad concept similar to the
commandment “and you shall be holy”, which according to Maimonides in his
Book of Commandments, is a commandment to “fulfill the entire
Torah. As if it said: Be holy when you do everything which I commanded you
and refrain from doing all that I warned you to refrain from doing.”7
Just as “you shall be holy” is not a detail of the commandments, but rather a
general directive regarding all of the commandments, so too “Your camp shall be holy” is not a detail of conduct in the Israeli
camp, but rather a general directive regarding the sum total of the
obligations incumbent upon the state in conducting its military campaigns.
Regarding the profound meaning of the concept, “your camp
shall be holy”, Rabbi Shaul Yisraeli wrote:
Alongside the simple interpretation of these verses, which deal
with the requirement to maintain the external cleanliness and purity of
members of the Israeli military camp, the rabbis’ interpretation of those
verses come to inform us of the obligation to maintain the spiritual
cleanliness and purity of the Israeli soldier...as both aspects of
cleanliness – external and internal, are important in terms of creating the
special climate, which should characterize the Israeli military camp...because
Israel is not like the other nations and the Israeli army is not like all
other armies! We cannot compete with the enemy in terms of quantity...and
only if the Israeli army excels in its internal qualities, its moral force,
its spiritual purity and in the passion of its belief in the God of Israel and
the sanctity of His people Israel, will it battle and emerge victorious.
Therefore, the demands made of the Israeli soldier are considerable...and
consequently his obligation in times of war is even greater, when the fixed
frameworks of life and society disintegrate and come to a stop, “Your camp
shall be holy.”8
It is possible to view the commandment of “your camp
shall be holy”, as a phrase expressing that which is commonly referred to
today as “purity of arms”.9
That expression means: The morality of the Israeli army. It is conceivable
that the expression even points to the moral superiority of the Israeli
army, which does not conduct itself according to the corrupt norms and
standards in effect in other armies. Maimonides, in explaining the commandment
of the sanctity of the Israeli camp, wrote:
The Torah comes to warn against the different types of
corruption common among camps of soldiers, as the duration of their stay away
from their homes grows longer, therefore He commands us to perform actions,
which evoke the existence of the Divine Presence among us, in order to rescue
us from those actions, therefore He said: “Your camp shall be holy and that He
see no unclean thing in thee” etc...so that the concept of the camp as a
sanctuary of God will be ingrained in each individual, unlike the camps of the
gentiles dedicated to nothing more than corruption and crime, harming others
and stealing their property, however our objective is to prime people for the
worship of God and regularize their situation.10
Regarding the individual fighter, it is said that at the
point that he engages in war, he should know that “he is fighting for the
oneness of God.”11
If the objective of war, according to the Torah outlook,
is priming people to worship God, and that it is incumbent upon each soldier
to know that he is fighting for the oneness of God, there is certainly no room
for various manifestations of moral turpitude; indeed, what could those have
to do with the worship of God and His unity? It is also important to remember
that in the continuation of the verse (Deuteronomy 23:10): “When you go forth
against your enemies”, comes the admonition: “Then keep yourself from every
evil thing.”
And Nachmanides explained:
The verse warns at a time when sin is most likely. It is well known that it is
customary among camps going to war that they eat all abominations, steal and
rob and are not even ashamed of adultery and all other kinds of contemptible
acts. That which is naturally common among people – will be replaced by
cruelty and rage...therefore the Torah admonishes: “Then keep yourselves from
every evil thing.”12
Thus, it goes without saying, that any act of cruelty –
not to mention unnecessary killing – which is totally consistent with the
objectives of war, as explained above, is absolutely prohibited, and is
included in the Torah prohibition: “Then keep yourselves from every evil
thing.” Negative phenomena of that sort cause, heaven forbid, the departure of
the Divine Presence from Israel.
B. The Sanctity of Life
The high moral standard required in the Israeli army
manifests itself in a variety of areas. Among other areas, the unique moral
outlook of the Torah manifests itself in the principle of the sanctity of life13
– including the life of the enemy. According to the Torah’s laws of war,
before initiating war, an opportunity must be accorded the enemy to flee or
surrender. The Torah negates unnecessary spilling of blood – the enemy’s as
well – unless they seek to wage war against us. Thus the verse (Deuteronomy
20:16): “You shall save alive nothing that breathes”, is only said in
reference to one who refuses to make peace, however one seeking to make peace
– while accepting Israeli rule and the seven Noahide laws – waging war against
him is prohibited.14 Even
regarding idolaters, the ruling is, that killing him is prohibited “because he
is not waging war against you.”15
In the opinion of Nachmanides, the obligation to provide
the enemy with the opportunity to flee is one of the 613 commandments and he
even emphasizes the moral-educational message which the Torah is attempting
to impart to us in this commandment:
That we were commanded, when laying siege to a city, to leave
one of the sides of the city without siege, so that if they desire to flee,
they will be able to do so in that way, so that we learn to act mercifully
even with our enemies in the midst of war, and there is also a benefit for us,
as we create an opening for them to flee rather than deploying against us.16
A similar concept can be found in the Sefer
HaChinukh regarding the commandment to offer the enemy peace before
embarking upon war against it. He wrote:
Among the rationales of the commandment is the fact that the
quality of mercy is a positive one and it is appropriate that we, the holy
seed, employ it in all of our matters, even with our idolatrous enemies, for
our own advantage, not because they deserve mercy or loving kindness, and also
because doing so is beneficial for us...And there is no advantage in killing
them, as they are willing to bear our conquest, so that by doing so there
should be no corruption or anything that might show that we are cruel, causing
all who hear to curse us.17
The words of the Sefer HaChinukh contain an
additional dimension beyond that which we found in Nachmanides, and that is:
Not only does unnecessary killing, even of enemies, contain cruelty and is,
therefore, not among the qualities appropriate for the descendants of Abraham,
Isaac and Jacob. Unnecessary killing is also useless, and is liable to cause
all who hear to curse us. In our vernacular, we would characterize it as the
need to take public opinion into consideration, which is a consideration,
which cannot be ignored either.
The Sefer HaChinukh continues and explains:
“The law of offering peace applies everywhere, that is to say, both in a holy
war and in an optional war.” Therefore, it is an absolute obligation, “and a
positive commandment, to offer peace even to the seven nations, as all of the
geonim ruled”.18
(However, see below, what we can derive from the Maharal).
And Maimonides ruled as well:
We do not wage war against anyone in the world before offering
him peace, both in optional and holy wars, as it is written (Deuteronomy
20:10): “When you approach a city in order to wage war against it, you should
offer it peace.” If they accept and accept the seven Noahide commandments –
not a soul may be killed.19
Thus, there is no doubt that regarding one who is not
waging war against us and is seeking peace – killing him is prohibited. What
was true of ancient nations, regarding whom we were commanded: “You shall save
alive nothing that breathes”, is equally true regarding enemy citizens today,
who are not taking part in battle against us.
Rabbi Shlomo Goren wrote something similar:
Despite the explicit Torah commandment regarding battle, we are
also commanded to have mercy upon our enemy, to refrain from killing even
during times of war unless necessitated for reasons of self-defense in order
to achieve the objective of conquest and victory, and not to harm a
non-combatant population, and it is especially prohibited to harm women and
children who are not taking part in the war...20
Rabbi Shimon Bar-Yohai’s statement, “The best among the
Gentiles – kill in times of war”, Rabbi Goren interprets there, as referring
to Gentiles battling against us,
however we must not derive from this a directive for the ages
that it is permissible to harm the non-combatant population even during the
time of war, because Rabbi Shimon Bar-Yohai’s statement is directed against
those battling against us and not those who are not actively involved in the
war.21
Elsewhere in his book, Rabbi Goren deals with the siege
which Israel imposed upon Beirut during the Peace for Galilee War, where
Israel enabled the civilian population to flee.
Rabbi Goren wrote:
And to a certain degree, this obligation is incumbent upon the
rabbis of Israel, to implement the quality of mercy, which appears in the
Torah and in Jewish law...lest a desecration of the name of God eventuate, as
they will say that the Torah allows the indiscriminate killing of the innocent
along with the murderers. And it is with satisfaction that I note that the IDF
acted that way throughout the duration of the siege on Beirut, in allowing
anyone wishing to flee Beirut to do so along with his wife and children, as
required by Jewish law.22
Is the requirement to have mercy on the lives of the
enemy an absolute value, which takes precedence over other values
liable to collide with it? For example, is the requirement to allow the enemy
to flee and save his life, an absolute requirement, extant even in the case of
a holy war, when the objective of the war is “saving Israel from an enemy,
which has set upon them”?23
Nachmanides, later in his commentary cited above, wrote
that the commandment is in effect throughout the generations “in all optional
wars”. Thus, one can conclude that in the opinion of Nachmanides, if the war
in question is to save Israel from its enemy, a holy war, this
obligation is non-existent. And indeed, in summing up his elucidation of this
matter, Rabbi Shaul Yisraeli posits that the requirement to enable the enemy
to flee only applies to a war of conquest, an optional war.24
Under those circumstances, the objective of the war is not the destruction of
the enemy, and therefore those who do not seek to battle against Israel should
not be killed. But in a holy war against those who rise up against us to
obliterate Israel, whose sentence is death like that of one who pursues
another to kill him, the consideration whether or not to allow the besieged to
flee,
is exclusively that of the military commanders and the government responsible
for their actions.25
Thus, according to that opinion, the upshot is that the
value of the sanctity of life as far as it relates to the lives of the enemy,
is not an absolute value. The prohibition applies to taking human life for
no reason, even if it is that of an enemy. However, when he embarks upon
war against us – there is no obligation to allow him to flee, for he is liable
to return and harm again. At the conclusion of his article, Rabbi Shaul
Yisraeli added comments in light of the siege on Beirut during the Peace for
Galilee War, at the end of which, Israel enabled the terrorists to flee.
Rabbi Yisraeli wrote:
The government’s tentativeness is punishing us at dizzying
speed, as it capitulated to external pressure and internal pressure from the
disloyal among us, and gave our enemies the opportunity to abscond, in
contravention of the Torah directive, which we elucidated above, that in a
holy war with an enemy oppressing us, no course of flight should be made
available.
Indeed, regarding the obligation to allow an exit through
which the enemy may flee, there is another opinion. Rabbi Shlomo Goren’s
opinion is that this law is in effect even in a war whose purpose is to save
Israel from an enemy, a holy war. In his opinion, even regarding a holy war,
“it is prohibited to surround the besieged city from all directions, but
rather an exit must be left open in one direction, in order to allow anyone
wishing to flee the besieged city and save his life to do so.”26
Does Rabbi Goren believe that this law should be implemented even if
consequently IDF soldiers are liable to find themselves in mortal danger? I
think not. The emphasis in Rabbi Goren’s statement is on the need to allow the
civilian population to flee. Rabbi Goren also explains that in addition to the
humanitarian objective achieved in the implementation of this law, a military
objective is also achieved: “Enabling the enemy to flee, will weaken the
resolve of those besieged to engage in battle and they will not fight to the
finish.”27 Thus, the
implementation of this law has life-saving potential. Rabbi Goren does not
address circumstances in which IDF soldiers are liable to pay with their
lives. In my humble opinion, under those circumstances, Rabbi Goren would hold
that the consideration of preserving the well-being of the soldiers takes
precedence, as he himself wrote there a bit later, the enemy must not be
allowed to exploit the direction, which remained open “in order to bring in
reinforcements in the form of people, weapons or food”. Certainly, one cannot
conclude from this law, whose objective is defeating the enemy and limiting
the threat to the Israeli army, any conclusion regarding the ostensible
priority of the value of the enemy’s life vis-à-vis the lives of the
IDF soldiers.
The conclusion to be drawn from the above is that when
there is a confrontation between two values: Preservation of the lives of our
soldiers on the one hand and the principle of the sanctity of life – even the
lives of our enemies – on the other, the value of preserving the lives of our
soldiers takes precedence.28
C. Operation “Defensive Shield” and
Jewish Military Morality
The question of the proper balance between these two
values was recently on the public agenda, in the wake of Operation “Defensive
Shield”, which was initiated in order to exterminate the cells of the
murderers, members of the various terrorist organizations, and to liquidate
the terrorist infrastructure, which has been exacting so heavy a price from
Israel, ever since the outbreak of hostilities at the dawn of New Year 5761
(2000). IDF forces refrained from bombing population centers in which
terrorists were hiding, in order to refrain from potential non-combatant
civilian casualties, even at the risk of endangering the soldiers’ lives (in
fact, a large number of soldiers were injured, wounded and killed as a result
of that policy).
That policy, which, as mentioned above, was ratified by
the Defense Minister, is based on the view that Israel must refrain from
harming enemy civilians at all costs (even unintentional damage caused despite
having taken all necessary steps to prevent that damage), even if as a result
IDF soldiers are liable to be injured (apparently, this position is derived
from what is perceived as “purity of arms”, which is a sacred principle in the
accepted Israeli Weltanschauung).
Indeed, it is doubtful whether that moral conduct is
compatible with the Torah philosophy. There is room to say, that the supreme
imperative – from the Torah perspective – that should guide the government in
giving orders to the IDF and its commanders, is: Preserving the lives of the
members of the security forces at all costs, even if as a result, enemy
civilians are liable to be hurt. The war in question is not a war initiated by
Israel for purposes of conquest (“an optional war”). It is a war, which Israel
is forced to wage against those seeking to destroy it, and to terminate the
lives of its citizens and soldiers, and the rule is: “If one comes to kill
you, kill him first.”29
This rule must be fulfilled even at the cost of possible harm to citizens, as
responsibility lies with them and their leaders, as their own people forced
Israel to initiate a defensive war.
The commentary of the Maharal on the episode of Dina
teaches us a lesson regarding the responsibility of the people from whom those
who strike at the Jewish people derive, and the license to wage war against
them even if as a result innocent people are liable to be hurt. The familiar
story is (Genesis 34:1-31) that Shechem, son of Hamor, sought to wed Dina after
defiling her. Jacob and his sons heard about the incident and when Hamor,
father of Shechem, asked that Dina be allowed to marry his son, Jacob’s sons
made their consent contingent upon the circumcision of all residents of the
city. Jacob’s sons did all this “deceitfully...as he had defiled Dina their
sister”. The end is known: On the third day after the circumcision, Shimon and
Levi attacked the city and killed all the males.
The moral difficulty with the actions of Shimon and Levi
is that it was not only the sinner who was attacked, but also the rest of the
city’s residents who did not sin. It is possible to say that the sons acted
improperly, the proof being – Jacob’s reaction: “You have troubled me to make
me stink among the inhabitants of the land” (ibid. 34:30); and it is wrong to
say that Jacob only said that out of concern lest “[the inhabitants] shall
gather themselves against me, and slay me ; and I and my house shall be
destroyed.” As in the blessings, with which he blessed his sons before his
death, he said about Shimon and Levi (ibid. 49:6): “O my soul, come not into
their secret, unto their assembly, my honor, be not united, for in their anger
they slew a man,” and he was referring to the incident of Dina (see the
commentary of Rashi there); according to the simple interpretation of the
verse – he considered the very fact that they killed all the residents of the
city a negative act.30
However, sages who dealt with this episode, sought to explain, that the
actions of Shimon and Levi were appropriate, and offered different
explanations, which we will not detail here.31
The Maharal’s explanation is relevant to our issue. The
Maharal too raises the question: “If Shechem sinned – what sin did the rest of
the city commit to warrant their execution?”
And he answered:
And it seems that there is no
difficulty, because the relationship between the Israelites and the
Canaanites, as they are two nations is different from the relationship between
two individuals...therefore they [the Israelites] were permitted to wage war
against them [the Canaanites] (Genesis 34:16) as a nation coming to wage war
against another, which the Torah permits. And even though the Torah said
(Deuteronomy 20:10): “When you approach a city in order to wage war against
it, you should offer it peace”, that is in a situation where they have
committed no offense against Israel, but in a situation when they have
committed an offense against Israel, as in this case where they breached them
and committed scandalous acts
even though they were
committed by only one of them – because he is a member of the nation, because
they were the ones who initiated the hostilities with Israel – it is
permissible to take vengeance against them. The same is true in all wars,
which take place due to a scandalous act committed by individuals, that the
scandalous act is attributable to the entire nation, as in the case of
“Oppress the Midianites” etc. (Numbers 25:17 – The war against Midian
undertaken in the wake of abominations performed by individuals against
Israel), despite the fact that many did not participate – no distinction is
made, since those performing the harmful acts were members of the same nation
– it is permissible to wage war against them. The same is true of all wars.32
For our purposes, we can learn two things from the
Maharal’s commentary:
1. The obligation to offer peace only applies
regarding those who have committed no offense against us. Therefore, when
dealing with an enemy who declares his intention to destroy, kill and
exterminate the Jews living in Israel, and also does not cease from
committing systematic murderous acts, which clearly indicate his
intentions, there is no obligation to offer peace.
2. When war is justified, even if it breaks out as a result of the act of
an individual or individuals, in which the entire nation did not
participate, it is permissible to wage war against the entire nation – and
then even the innocent are hurt – “and the same is true of all wars.”33
In addition it should be said, that it is conceivable
that the exaggerated pursuit of peace by the leaders of Israel, even after an
infinite number of acts of murder, which is wreaking havoc among us, is
interpreted by the Arab side as a sign of weakness and increases their zeal
for murder. And Maimonides, in his well-known Letter to Yemen, apprehended
this, when writing: “And the more we tolerate from them in order to have
peaceful relations – they will rise against us in war, as David said (Psalms
120:7): ‘I am for peace and when I speak they are for war.'”34
If the sole result of the various calls for peace and the
efforts to achieve peace is an invitation to intensify the terrorist attacks
against us, it raises the question: Do the calls for peace indicate a nation’s
moral strength, which despite everything that its enemies perpetrate against
it, it remains firm in its aspiration for peace with those enemies (despite
the fact that they do not cease to declare openly their real aspirations
vis-à-vis Israel) or perhaps they – the various calls for peace –
constitute a demonstration of the moral turpitude of a nation, which does not
maintain its dignity and refrains from repaying its potential destroyer in
kind, and which, despite the clear knowledge that the enemy will respond to
every call for peace with a terrorist attack, does not cease from begging its
enemies to make peace with it; for which this nation is willing to pay
exorbitant prices in exchange.
None of the above diminishes the fundamental obligation
to strive for peace at all costs, as “peace is great...and had the Holy One, Blessed
Be He, not put peace on earth, the sword and wild animals would have decimated
the land,”35 and it is not
for naught that our rabbis (ibid., Article 4) said that, as opposed to other
commandments in the Torah, only about peace is it written: “Seek peace and
pursue it.” (Psalms 34:15) However, striving for peace must be
undertaken in ways that we will not detail here.
Many have discussed this commentary of the Maharal, regarding
the question (which in my humble opinion is unconnected to our matter): Is
there any permission, from a Torah perspective, for collective punishment?36
Collective punishment means an intentional strike against a civilian
population, which took no part in terrorist activity against Israel (when the
objective of that punishment is, for example, to deter the perpetration of
future terrorist attacks). Our question is totally different: Must one
refrain, in a time of war, from actions liable to endanger the lives of a
civilian population (which are not intended to harm the innocent), like
bombing from the air or artillery shelling, and to take pinpoint action only
against those who are responsible for terrorist attacks against us, with the
consequences of that policy liable to be: Endangering the lives of IDF
soldiers, as was in fact the case in Operation “Defensive Shield”?
We learn from the commentary of the Maharal, that when
terrorist attacks are perpetrated against the Jewish people, it is justified
to wage war against the nation from which the terrorists emerged, and that
justification also includes, among other things, harming the civilian
population, which did not participate in the terrorist acts – especially when
the damage in question is unintentional – as “the same is true of all wars.”
The objective of the justified war against terrorism is the destruction of the
perpetrators of terrorism, when in the course of the war enemy civilians are
also liable to be harmed. The supreme, guiding consideration is how to beat
the enemy with minimum casualties to our forces. If, from a military
perspective, the means exist to guarantee victory with minimal danger to our
forces, with the ramifications being potential casualties among the enemy
civilian population, and those measures are not employed – due not to military
considerations, but rather in order to avoid casualties among that population
– that is an admission of the ostensible illegitimacy of that war, while, in
actuality, there is none more justified than it, as it is a war of
self-defense, which is permissible according to all criteria – Jewish law, and
all legal and moral norms. Furthermore, that policy, which accords more value
to the lives of enemy civilians than to the lives of IDF soldiers, constitutes
renunciation of the supreme obligation of the authorities to take all steps
necessary in order to protect the lives and well-being of the IDF soldiers.
If, according to the Maharal, it is permissible to strike
even intentionally – in the course of war – innocent members of the enemy
population, it must be all the more so that it is permissible to undertake
actions that are only liable to cause unintentional casualties among
the enemy, when responsibility for the outbreak of war is exclusively the
enemy’s. Imposing a prohibition – for ostensibly moral reasons – on
implementation of effective measures to overcome the enemy, in order to avoid
potential casualties among the non-combatant population, with the direct
consequence being the placement of the lives of the IDF soldiers in danger,
which could have been averted, is a perfect illustration of the saying of our
rabbis: “He who becomes merciful to the cruel, will eventually become cruel to
the merciful”,37 and in
Maimonides’ expression: “Mercy upon the wicked – cruelty to all beings.”38
Rabbi Shaul Yisraeli arrived at a similar conclusion in
his comprehensive study regarding the Jewish law questions relating to
retaliatory actions undertaken by the IDF in which civilians are liable to be
harmed:
In executing an operation, there is no obligation to exercise
scrutiny in order to ensure that only those who participate are wounded,
because that is the way of war, that the righteous find their death along
with the wicked...and they are responsible for every disaster and harm,
which befall the rioters, their allies and their families, and they bear the
blame. And there is no obligation to refrain from retaliatory actions due to
the fear that innocents might be harmed because we are not at fault; they
are, and we are blameless.39
An additional point deserving attention in the Maharal is
the example of the Midianites, cited by the Maharal in order to prove that it
is permissible to wage war against a nation, even though not all members of
that nation are guilty of any offense against us. It seems that it is no
coincidence that the Maharal specifically chose to cite the example of the
Midianites, although it is possible to make the claim that not everyone sinned
regarding all of the wars, which Israel was commanded to wage (the Seven
Nations War, the Amalek War, etc.). Apparently, the Maharal chose to rely
specifically on the Midianite War, due to the statement of our rabbis,
“Oppress the Midianites. Why? For they oppress you.” Our rabbis concluded from
this: “One who comes to kill you, kill him first.”40
Our rabbis stated the principle: “One who comes to kill
you, kill him first” in reference to a pursuer.41
The meaning of the above statement of our rabbis is that when a nation
oppresses Israel, it – the nation as a whole – is deemed a pursuer, and
that is the case – according to the Maharal – even if it is clear that not all
of the people of that nation sinned. The classification of the nation as a
whole as a “pursuer” threatening our existence also reinforces the license to
wage war against it and to take all military steps necessary to ensure
victory, even if as a result civilians, are liable to be harmed, as they all
can be categorized as “pursuers”.42
When an individual is in danger, he is obligated to
preserve his own life – even at the cost of the life of the one pursuing him;43
the same is true when a nation is classified as a “pursuer” – it is
incumbent upon Israel to preserve the lives of its citizens and soldiers –
even if as a result of those acts of preservation, some of the people of that
nation are liable to be harmed.
At the same time, it must be emphasized that the above
only applies in the context of a war declared by Israel against that nation.
(Then, as mentioned above, there is justification to harm individuals).
However, the mere existence of hostile relations does not justify harming
individuals from that nation, unless it is clear that they are coming with the
intention to kill.
Rabbi Haim David Halevi wrote:
This is not a permit to kill an individual person, but rather
only to defend the nation. It is permissible to wage a war against an
oppressor nation like Midian. And if one day the nation’s leadership concludes
that a certain nation is preparing to wage war against Israel, it would be
permissible to launch a pre-emptive war, but it would not be permissible to
kill specific individuals from among that nation, just as it was only
permissible to kill random individual Midianites in the context of a
comprehensive war.44
D. The Parameters of Saving Lives
The conclusion that a nation is under no moral obligation
to refrain from actions liable to harm enemy citizens, with the result liable
to expose the IDF soldiers to a life-threatening situation, in my humble
opinion also stems from the parameters of saving lives.
According to standard Jewish law principles, a person is
not required to save his counterpart, when in the course of that life-saving
action he endangers his own life, even if there is only a possibility that
he will endanger himself. The source of this principle is in the responsa of
the Radvaz, who was asked: “What is the law in the case of a Jew who is told by
the regime, ‘allow me to amputate one of your limbs, a procedure, which will
not endanger your life and if you refuse, I will kill your Jewish friend.’”45
The person posing the question to the Radvaz, quoted, “There are those who
say...that he must allow them to amputate his limb as it will not lead to his
death.” In his responsa, the Radvaz writes that even if the amputation of a
limb is not life-threatening, one is under no obligation to sacrifice his limb
in order to save his counterpart, but rather it is only if he chooses to do so
out of righteousness, and certainly he should not do so if there is a chance
that he may be endangering his life.
He concludes the responsa:
Know that the danger of losing a limb is serious as it is even
permissible for a Jew to desecrate the Sabbath by performing all actions
proscribed by rabbinic interdiction in order to save the limb. In addition,
the verse says: “Its paths are paths of peace”, and the laws of our Torah
should coincide with reason and logic, and how could we even consider that a
person would allow one to blind his eye or sever his arm or leg in order to
prevent the death of his counterpart. Therefore, I see no point to this law
except for one who chooses to do so out of righteousness and blessed is he who
would be able to withstand it. And if there is a chance that he is endangering
his life, he is a righteous fool, as the potential threat to his own life
supercedes the certain threat to his counterpart’s life.
In other words, a person must not take action, which
endangers his life – even if there is only the potential of danger – in order
to save his counterpart, because a person is not commanded to sacrifice his
life in order to save his counterpart (unless there is no danger to him, in
which case he is obligated to save him46).
One who seeks to act in a righteous manner and unjustifiably endanger his
life, is a “righteous fool” and his actions entail “loss of life”, in language
used by the Radvaz in a different responsa.47
This principle of the Radvaz was widely accepted by the arbiters of Jewish
law, who applied it to a variety of matters in which the rescuer is absolved
of his duty to rescue when doing so would entail self-endangerment.48
The significance of that relief is that not only is he not obligated to do so,
there is no room for stringency either, as stringency in that case would be
recklessness vis-à-vis his own life, and the law is that even a
possible threat to his own life takes precedence over the life of his
counterpart.49
The application of this principle in our case mandates
the conclusion that a soldier may not engage in an action which endangers his
own life or even potentially endangers it, in order to save someone else from
danger. This rule, which applies to the soldier, applies to the same extent on
those entrusted with the safety and well being of the soldier. In our
circumstance: No military action may be undertaken which endangers the lives
of the soldiers (a ground action, which involves the certain loss of human
life), with the purpose of sparing potential casualties among enemy civilians,
under circumstances where the military objectives could have been achieved by
a different action (bombing from the air or artillery shelling) which would
not endanger the lives of the IDF soldiers. And if regarding a situation where
one has done no harm but someone needs help, the principle that one need not
endanger oneself in order to save him is in effect, it is all the more so that
there is no obligation to endanger oneself for one whose emissaries and
leaders oppress Israel and compel Israel to wage war in order to protect its
citizens.
It is worth noting that regarding the question whether a
soldier is required to place himself in a situation of potential danger in
order to save his fellow soldier from danger, Rabbi A.I. Waldenberg
ruled that it is permissible.50
In his opinion, “just as waging war with all of its circumstances and
missions, which places the entire nation in danger, is permissible, so too one
of its rules is that each member of the combat force is required to give his
life in order to save his comrade from danger confronting him due to the war.”
And the reason for that is:
It is reasonable to state that just as it is impossible to use
that which is permissible in times of war as a precedent for other situations,
so too it is impossible to use that which is prohibited elsewhere as a
precedent for times of war; and just as the principle “and you shall live by
them” does not apply in war, so too the rule that “your life takes precedence”
also does not apply in war. As one, each and every individual is required to
give his life in order to save the life of his comrade. This is included in
the principles of communal law and the conduct of a state and its interests.
It goes without saying that this exception has no
ramifications for the issue at hand.51
One can certainly not claim that in the framework of “principles of communal
law and the conduct of a state and its interests”, there is a principle
imposing upon a soldier or upon the state authorities the obligation to take
life-threatening risks in order to avoid potential casualties among the
citizens of the enemy which is fighting against them. On the contrary:
“Principles of communal law and the conduct of a state and its interests”
require the placement of the consideration of preservation of the soldiers’
lives at the top of the list of priorities due to the simple human principle,
“your life takes precedence over the life of your enemy.”
E. Balance Between Values
According to the accepted principles of jurisprudence in
the State of Israel, no value – important though it may be – is absolute, and
the proper balance must be found between it and other values, which are likely
to confront it. For example, Chief Justice Aharon Barak wrote the following
regarding the principle of freedom of conscience and religion:
Freedom of conscience, faith, religion and worship...are not
absolute...The right to pray does not permit me to trespass on my neighbor’s
property or to make myself a nuisance to him. Freedom of conscience, faith,
religion and worship are relative freedoms. A balance must be struck between
those rights and interests, which also merit protection, like personal and
communal property and freedom of movement. One of the interests, which must be
given due consideration is that of public order and communal security...52
Even the sanctity of life is not an absolute value in
Israeli jurisprudence, and a balance must be struck between it and other
values likely to clash with it. Justice A. Witkon addressed this matter many
years ago:
The consideration of the sanctity of life – is unchallenged,
and I would say that it is a matter of consensus and does not require proof.
Human life is considered a valuable asset which must be protected to the
utmost, everywhere, with no difference between different religions and
nationalities. The problem is that this sublime consideration is not the sole
consideration which must be taken into account.53
Regarding the same issue, Justice Moshe Zilberg
elaborated on this matter from the perspective of Jewish law:
Judaism, from time immemorial, glorifies and exalts the great
value of human life. The Torah is not a philosophical system of opinions and
beliefs, but rather a Torah of life – of life and for life “which man shall
fulfill and live in accordance with them” (Leviticus, 18:5); “and he shall
live in accordance with them and not that he die in their fulfillment.” (Yoma,
85b)...It is clear that Judaism too does not view life as the most sublime
value. There are superior objectives and more sublime ideals, for which it is
worthwhile – and we are commanded – to sacrifice our lives...However, within
the orderly framework of society, and according to the Torah’s list of
priorities, life is the most sacred asset, the preservation of which
supercedes every other sanctity...“There is nothing which supercedes the
saving of life, with the exception of idolatry, incest and murder.” (Ketubot,
19a)54
The proper balance between those values sacred to us must
also be implemented in the issue at hand. Human life is a sacred value. Even
regarding an enemy – an enemy may not be killed without reason. But, the value
of the enemy’s life must not be sanctified when it clashes with the value of
defending the lives of IDF soldiers and members of the security forces charged
with our security. IDF soldiers are civilians in uniform, and their right to
protect their lives and well being is a constitutional right guaranteed by the
authority of a Basic Law: Human Dignity and Freedom.55
The objective of the war is victory over the enemy. It is only natural, that
in the course of achieving victory, enemy civilians are liable to be hurt.
According to every moral criterion, there is no obligation to refrain from
those actions – when they are militarily necessary – and thereby place the
lives of the IDF soldiers in danger. The proper balance between the values
requires taking all required military actions in a manner which will
optimally minimize the danger to the lives of the IDF soldiers, even if as a
result, enemy civilians might be hurt (despite taking steps to minimize the
damage); responsibility for their bloodshed rests on the enemy’s leaders, who
brought upon them and upon us the unending cycle of terrible bloodshed.
The need to strike a balance between various values
exists in other areas as well, both in accordance with the law practiced in
Israel, as mentioned above, and in accordance with Jewish legal tradition.
Thus, for example, the principle of the “sanctity of contracts” in Jewish law
requires the honoring of agreements – even with an enemy – even if it is
possible to renounce the obligation due to subterfuge. The reason for this is
due to the desecration of God’s name, so that Gentiles will not say that Jews
do not fulfill their commitments. This we derived from the episode of the
Givonites (Gittin, 46a). Saul, who violated the commitment given to the
Givonites in the time of Joshua, brought an awful punishment upon his nation
and his family (Samuel II, 21; Yevamot 78b). However, it seems that when
fulfillment of the agreement involves the loss of Jewish life – which was not
the case with the Givonites – insistence on the fulfillment of the agreement
at all costs contains an element of being a righteous fool, and here too, the
“sanctity of life” should take precedence over the “sanctity of contracts”,
and obligate renunciation of the agreement in order to prevent extraneous
bloodshed, since “there is nothing about which the Torah was as exacting as it
was about bloodshed.”56
F. Military Morality and the Principles of International
Law
The State of Israel is a law-abiding country, which
accepts – even in times of war – the humanitarian principles of international
law, whose objective is to protect the civilian population: “Even during a
period of combat, everything must be done to protect the civilian population.”57
At the same time, military actions in which a civilian
population is liable to be hurt are possible according to international law in
light of the directive of Article 28 of the Fourth Geneva Convention, and
Article 51(7) of the first protocol of the 1977 Geneva Convention, which
establishes the following: “The presence or movements of the civilian
population or individual civilians shall not be used to render certain points
or areas immune from military operations, in particular in attempts to shield
military objectives from attack or to shield, favor or impede military
operations.”
This article explicitly determines that a combat force
may not exploit a civilian presence in order to provide itself with immunity
against military actions against it.58
Thus, a military action taken against a combat force, which illegally exploits
the presence of a civilian population, is legitimate and the potential
endangerment of civilians in those conditions and circumstances is in
accordance with the principles of public international law. Of course, there
is no basis for a demand to refrain from an action of that sort, when the
alternative action will endanger the soldiers of the attacking force.
It is certainly correct to say – from the perspective of
public international law – that there is justification for a military action,
as mentioned above, even if there is a degree of danger that non-combatant
enemy civilians may be hurt, in circumstances in which IDF forces enabled the
besieged enemy civilians to flee the battlefield and avoid harm;59
once the IDF acted in that manner, there is no legal or moral flaw in the
conduct of military actions against the enemy, when as a result civilians are
liable to be hurt.
Thus, Israel fulfilled articles 57 and 58 of the first
protocol of the 1977 Geneva Convention, according to which the combating
parties must take all possible steps to avoid or limit civilian casualties. It
is doubtful whether the Arab side is careful to fulfill the prohibition
against using civilians as living shields for the combat forces, as required
by Article 51 Paragraph 7 of the protocol (cited below). Furthermore,
according to Article 8(2) XXIII B of the 1988 Rome Convention, it is a war
crime to exploit the presence of others in order to render military areas or
forces immune to military activity. At this point I would like to emphasize
that in mentioning the laws of war from this point on, I am in no way implying
that Israel’s war against terrorism falls into the category of “war” in the
sense that it is employed in public international law (if for no other reason
than that the side against whom the IDF is taking action is not a state but
rather a collection of terrorist organizations). The point is, that even if we
apply – in a metaphoric sense – the laws of war to our issue, the activities
undertaken by Israel by means of its security forces are without fault, both
legally and morally. In any case, it is noteworthy that the position of the
State Attorney is that the hostile acts recently perpetrated by the
Palestinians qualify as acts of combat, and the rules of combat, which
constitute a part of international law, apply to them (as far as the
justification for the policy of targeted killings is concerned).
In my humble opinion, this conclusion is also the result
of the Supreme Court ruling regarding another matter related to the episode of
the Jenin battle under discussion.60
Among other things, a complaint was raised concerning this matter against the
IDF forces firing at Red Cross and Red Crescent medical teams and against
their prevention of the evacuation of wounded and dead during the combat.
In response to the petition, the State claimed:
This is a result of the combat itself, as in the course of the
fighting it became clear that in a number of cases, explosives were
transported in ambulances and terrorist fugitives found refuge in
hospitals...The IDF considers itself obligated to fulfill the principles of
humanitarian justice, not only because these principles are mandatory
according to international law, but also as obligatory from a moral
perspective, and even for utilitarian reasons...Our combat forces were
instructed to act in accordance with these principles... The IDF even devotes
many forces and resources to coordinate and grant humanitarian aid in the
combat zone.
In light of those explanations, the decision was made to
reject the petition. Among other things the ruling determined:
We want to emphasize that our combat forces are required to
fulfill the humanitarian principles relating to the treatment of the wounded,
the sick and the corpses of those killed. The misuse of the medical teams in
the hospitals and ambulances required the IDF to act to prevent that activity,
but in and of itself does not permit a blanket violation of humanitarian
principles. And indeed, that is the declared position of the State. This
position is dictated not only by international law, upon which the petitioners
are relying, but also by the values of the State of Israel as a Jewish,
democratic state.
Please note: Even illegal conduct according to the
standards of international law by enemy forces does not justify a sweeping
violation of humanitarian principles by IDF soldiers. The State does not
renounce its commitment to those principles; it is just that the exigencies of
war do not always allow absolute protection of the civilian population. What
is true about that which was alleged regarding the IDF forces in this
petition, is true regarding any military activity whose objective is to
prevent attacks against IDF soldiers, even if, as a result, citizens are
liable to be hurt when the IDF employs the necessary steps to prevent
casualties of that kind (by calling upon the citizens to evacuate). Once the
IDF took those steps, it fulfilled its obligation in terms of these
humanitarian principles.
In another ruling the court also said:
We can be certain that the commander of IDF forces in Judea and
Samaria – and no one claimed otherwise before us – instructed and will
instruct his soldiers to do everything necessary to avoid non-essential
casualties among the innocent.61
Military activity, the purpose of which is to prevent
certain casualties among IDF soldiers, as a result of which civilians are
liable to be hurt, certainly does not fall into that category; indubitably
one could not characterize an action of that sort as a non-essential action.
Regarding the justification for attacking military
targets intermingled with civilian populations, we find explicit statements in
a publication of the headquarters of the Chief Military Attorney which said
that along with the principle prohibiting attacking civilian targets, there
are circumstances in which there is no avoiding an attack of that sort:
A situation is feasible in which a target will change its
nature from civilian to military or vice-versa. Thus, for example, if
anti-aircraft missile batteries are deployed on the roof of a school, or if a
sniper sits in the minaret of a mosque, the immunity to which the site is
entitled as a civilian target will be removed and the attacker will be
permitted to strike at it. Legal responsibility for civilian deaths in the
case of an attack on a civilian target, which was utilized for military
purposes, will fall on the side which improperly exploited the civilian
target – and not on the side which responded to the attack.62
As to the methods of action which the army should employ
vis-à-vis the enemy forces intermingled with a civilian population, it
says there “one cannot expect a military force completely to hold its fire in
every situation in which civilians are liable to be hurt”, and that in order
to ease the way to finding the right answer, several principles for the
conduct of war in an area or objective in which civilians are located were
established in the laws of war.
These are the rules:
1. An attempt should be made
to distance the civilian population from military targets. This obligation
can be fulfilled in several ways, among them dissemination of fliers,
announcements with loudspeakers and passing on warnings through the
communication network. This obligation must be fulfilled meticulously,
unless compelling military needs preclude doing so (immediate attack,
surprise).
2. The means of attack should
be planned in a manner, which will prevent, or at least restrict casualties
among the civilian population.
3. Even when there is no
possibility to isolate civilians from the attack, and there is no
alternative to attack, that does not constitute a green light to cause
unlimited civilian casualties. The commander is required to refrain from an
attack likely to cause casualties among the civilian population,
disproportionate to the anticipated military gain.
Regarding the appropriate proportion mentioned in rule 3,
it says there among other things:
The laws of war would accept a reaction including shooting,
even against a civilian target, when gunfire is originating there or when the
battle is raging on the edge of a civilian area.
It seems to me that the application of these principles
to the incident in question, leads to an unequivocal conclusion, that after
the IDF took action to distance the civilian population from the battle zone,
no fault would have been found if the IDF had shelled the compound from which
gunfire had been directed at the IDF forces with artillery, or bombed it from
the air, in circumstances when a ground attack was likely to cost lives among
the IDF forces, which, unfortunately, did indeed happen. The responsibility,
in this case, for the possible death of civilians who did not respond
to the calls for evacuation, was “on the shoulders of the side, which
improperly exploited the civilian target, and not the side which responded to
the attack”.
The justification for military activity intended to
prevent casualties among IDF soldiers even when enemy civilians are liable to
be hurt, also corresponds to the philosophy of Michael Walzer, considered one
of the most important modern thinkers on the subject of military morality.63
In his book, Michael Walzer devotes a special chapter to the question of
“immunity of non-combatants and military inevitability”.64
Among other things, he deals with one of the principles of what he calls
“military conventions”, i.e. the obligations of the states at war and the
individuals in combat (commanders and soldiers).
That principle determines that:
It is forbidden to attack non-combatants at all. They may not
serve as targets or objectives of military activities... Many times
non-combatants are placed in dangerous situations not because someone set out
to attack them, but rather because of their proximity to a battle directed
against someone else...What is required in a situation of that sort is not the
termination of the battle, but rather employing a certain amount of care in
order to prevent civilian casualties – in other words, simply to recognize to
whatever degree possible, their rights in the framework of war. What degree of
care must be exercised? What is the price to be exacted from the relevant
soldiers? The laws of war say nothing about these matters. They leave the most
difficult decisions to the people to make a decision on the spot, relating to
their usual concepts of morality or the military tradition of the army in
which they are serving.65
According to Walzer’s assertion,
It is permissible to perform a reasonable action whose
consequences will be bad (the killing of non-combatants), as long as the
following four conditions are fulfilled:
1.
It is a good, or at least not a bad, action in and of itself, in other
words – it serves our purpose as a legitimate military action.
2.
The direct result is acceptable from a moral perspective – the destruction
of military supplies, for example, or the killing of enemy soldiers.
3.
The intention of the one performing the act is good, in other words, he
strives exclusively to achieve the acceptable result; the evil result is
not one of his objectives, neither is it a means to achieve his
objectives.
4.
The positive result is positive enough to make up for causing the negative
result; it must be justified according to Sedgwick’s relativity principle.66
According to the relativity principle of Henry Sedgwick,
the 19th century British philosopher, in the course of hostile
actions, it is prohibited to commit “any purposeful act not intended to
achieve the objective (victory), or any purposeful act whose benefit in
achieving the objective is minimal relative to the extent of the damage
involved.”67
If we seek to assess the morality of the IDF action
against the terrorists, had an order been given to bomb the compound in which
the terrorists were entrenched in order to prevent certain deaths among
our soldiers, the conclusion is that that action would have been without
fault, even according to the rigorous relativity principle of the British
philosopher Sedgwick.
Let us assess an action of that sort in light of these
principles, in the order in which they were cited above:
1. The action itself, i.e. the
war against the perpetrators of terrorist acts, whose objective is the
systematic slaughter of men, women and children whose only fault is that
they are Jews – an action, which according to all criteria, constitutes
genocide – is a good one, and there is no doubt regarding Israel’s
legitimate right to fight against all who ride up against it.
2. The direct result of the
action is morally acceptable, as the intent of the action is to strike at
the instigators of terrorism and its perpetrators, and not at non-combatant
civilians.
3. The intention behind the
decision to bomb the compound in which the terrorists were entrenched was
worthy, as the objective was exclusively to achieve the morally acceptable
objective of liquidating the perpetrators of terrorism; the potential
negative consequence of non-combatant civilian casualties is not one of the
action’s objectives, neither is it a means to achieving those objectives.
4. The positive result of
liquidation of terrorists is positive enough in order to compensate for the
causing of the negative consequence of possible civilian non-combatant
casualties. In the circumstances of the incident, the certain
consequence of refraining from prior bombing from the air or artillery
shelling is the loss of life and casualties among IDF forces, which would be
forced to conquer the area by means of a ground action. On the other hand,
after the IDF informed all of the non-combatant civilians that they must
evacuate, there was no certainty that civilians were liable to be hurt;
certainly, the IDF had no intention to harm civilians. According to
Sedgwick’s rigorous principle, only “a purposeful act whose benefit in
achieving the objective is minimal relative to the extent of the damage
involved”, is prohibited. Under the circumstances of the incident in
question, the benefit of the action (prevention of certain IDF
casualties) is relatively greater than the degree of damage involved
(killing non-combatant civilians), which in itself is uncertain (as
it is entirely unclear that non-combatant civilians will be hurt).
In speaking of the degree of danger, which must be
undertaken by the soldiers in combat in the framework of a just war in order
to avoid potential, unintentional non-combatant civilian casualties, Michael
Walzer writes:
There is a limit to the dangers which we are demanding. We are
speaking, after all, of death caused unintentionally in the course of
legitimate military actions, and the absolute rule proscribing attacks against
civilians does not apply here. The war necessarily endangers civilians: That
is another aspect of the hell. We can only demand that the soldiers minimize
the dangers, which they engender.68
Therefore, it is not only according to the Maharal of
Prague that there is justification for causing non-combatant civilian
casualties in the framework of a just war; justification for this is also
provided by modern philosophers of military morality (and of course the
reference is to unintentional casualties, as mentioned above, when all
necessary actions are taken to prevent those casualties), and they are also
anchored in the principles of public international law.
It does not go without saying that the perception that a
country must, first and foremost guarantee the lives of its own soldiers, even
if at the cost of potential casualties among enemy civilians, guided, and
still guides, a proper country, like the United States – a country, which in
everyone’s opinion attaches importance to human life – in the conduct of its
military campaigns over the years. At the end of World War II, when the
surrenders of Germany and Japan were delayed, the USA dispatched its airplanes
on massive bombing raids on the city of Dresden, and dropped, for the first
time in history, an atom bomb on two Japanese cities. As a result of those
bombings, hundreds of thousands of civilians were hurt or killed. From a military
perspective, those actions were totally extraneous, as at that stage, it was
clear that the Allied victory was just a matter of time, and the downfall of
Germany and Japan was near. The aforementioned bombs were deployed in order to
shorten the duration of the war, and to spare the lives of American
soldiers, who were likely to be killed, had the ground war activity
continued. This policy also guided the American administration in the US
military actions in recent years, in Yugoslavia, Iraq and Afghanistan –
actions in which thousands of civilians were killed, in the course of bombing
from the air designed to spare the lives of the American ground forces.69
G. The Israeli Legislation
The conclusion, that there is total justification for a
military action designed to prevent certain fatalities among IDF soldiers even
if as a result enemy non-combatant civilians are liable to be hurt –
unintentionally, as mentioned above, stems not only from moral principles and
the rules of international law, but also from the directives of internal
Israeli law.
First, we must address the defense of “need” in
accordance with article 34a of the Penal Code, 5737/1977. This article
establishes that:
A person will not bear criminal liability for an action which
was necessary immediately to save his life, his freedom, his body or his
property, his or someone else’s, from a tangible threat of serious damage,
stemming from a given situation at the time, and there was no alternative to
doing so.
An action undertaken, motivated by the need to save life,
cannot constitute the basis of ascribing criminal responsibility to the
perpetrator of that action, when there was no alternative to doing so. This is
not the proper forum to engage in a detailed discussion of the conditions for
the application of the “need” defense in order to render the action
permissible. It is worth noting that the law demands that the action be
necessary “for the saving of life...his or someone else’s”, the upshot is that
it is justified to “take the risk of harming another – even if the ‘other’
bears no responsibility for the existence of the danger”.70
In other words, the rescue will not constitute a crime, even in a situation
where its execution involves harming a third party, totally unrelated to any
responsibility for the existence of the “given situation”, which “negates the
criminality of that action”.71
And applying the principle in the specific case: The
circumstances of the incident in question, in which IDF forces are in mortal
danger, serve as the basis for permitting any action necessary to save their
lives, even if a “third” party is liable to be hurt, which in our case are
enemy non-combatant civilians who bear no responsibility for the existence of
the threat.
Indeed, in light of the most recent Supreme Court ruling,
it is doubtful whether it is possible to use the “need” defense as an a priori
basis for sanctioning the actions in question. Regarding the use of
illegitimate means of interrogation by the GSS (when the objective is to save
lives) they ruled that:
The “need” exception does not provide the GSS interrogators
with the authority to employ physical means in the course of an
interrogation...The “need” exception does not provide...authorization to the
administration to employ physical means to perform actions, which fulfill the
“need” exception. The mere fact that a certain action does not constitute a
crime (due to the “need” exception), does not, in and of itself, authorize the
administration to carry out that action and, thereby, violate human rights.72
At the same time, it is important to remember that as
opposed to the interrogation tactics employed by the GSS, and which were
deemed invalid – with no legal basis – the IDF military actions in question
were totally legitimate actions, and if any concern arises regarding the
degree of legitimacy of a military action, the result of which is liable to
lead to non-combatant civilian casualties, certainly, the “need” exception can
be employed in order to remove that concern, in light of the fact that it is a
justified action which is immediately essential in order to save the lives of
the IDF soldiers.
In that context, it is worth mentioning the legal
distinction between defenses due to lack of criminality and defenses due to
lack of liability.
Boaz Sangero wrote on that topic:
Thus, for example, we exonerate the insane from criminal
responsibility, because we understand his situation and forgive him, however
we do not justify his action, which is criminal. We would definitely prefer
that he not commit the crime, which he committed. On the other hand, when a
policeman does his duty and apprehends a criminal, we do not exonerate him
from responsibility for the crime of false arrest, but we even justify his
action. In justification, we mean the legal ramification of an ethical-moral
decision that under the special circumstances in which the crime was committed
(in accordance with its legal definition), the action is no longer bad, and on
the contrary, it is good. On the other hand, when speaking of exoneration, the
action is still perceived by society as evil, even under the special
circumstances leading to the exoneration (based on understanding and
forgiveness and does not constitute moral justification).73
Not only is military activity immediately essential to
save lives exempt from criminal responsibility, but it can even be justified a
priori, even if as a result, non-combatant civilians are liable to be hurt –
unintentionally of course.74
The distinction between defenses due to lack of criminality and defenses due
to lack of liability is not included in the language of the relevant law
(Article 34/11 of the Penal Code) but the law does not negate it either.
The justification for military activity, which involves
endangering enemy civilians, is also ostensibly dictated by the ruling dealing
with the State responsibility for damages caused as a result of IDF “martial
activity”.
According to Article 5 of the Torts Directive [New
Version]: “The State is not responsible for an action accomplished through an
Israeli Defense Forces military action.”
The question is, what is a “martial action”? According to
the ruling:
The action is martial if it is a combat action or an
operational-military action of the army. It is not required that the action be
implemented against a state’s army. Actions against terrorist organizations
might be considered martial activities. Thus, for example, the combat nature
of the action directed against the enemy (whether a regular army or a
terrorist entity) seeking to harm soldiers, is liable to create the special
threat justifying the granting of immunity to the State... If a military
patrol in a village or a city encounters a life-threatening situation or the
threat of severe bodily harm due to being fired upon or having rocks or
Molotov cocktails thrown at them, it shoots in order to extricate itself and
injures someone, the gunfire is a “martial action”, as the danger in the
action is a special action.75
Therefore, a military action necessary for saving the
lives of IDF soldiers, when in the wake of the action enemy civilians are
liable to be hurt, is justified, both in terms of criminal responsibility and
in terms of civilian responsibility.
The justification for a military action, as mentioned
above, whose objective is to prevent certain danger to the lives of IDF
soldiers, also stems, in my opinion, from the obligation incumbent on the IDF
command to exercise caution as far as the soldiers subject to their authority
are concerned. The implication of that obligation to exercise caution is,
among other things, refraining from making decisions which are liable to
endanger the soldiers’ lives (for any reason other than security, of course).
In the ruling, it was determined:
An obligation to exercise caution is
incumbent upon the military commanders of all ranks to take measures – in
order to avert dangers threatening the lives and health of their charges
during actions imposed upon
those charges in the
framework of the army... The aforementioned obligation to exercise caution is
a requirement mandated by the military framework as to the extent that the
citizen of the state is serving in the military, the possibility of taking
independent action is negated from him, and the military framework requires
him to engage in activity, which at times involves danger to his life and his
health, without him having the freedom independently to take the actions
necessary to avert that danger.
The fundamental values extant in the army regarding
commander-soldier relations therefore place the responsibility to see to the
well-being of his subordinate as incumbent on the commander and he is
obligated, among other things, to act reasonably in order to reduce to the
extreme minimum the threat to life and health, which the soldier’s action in
the military framework entails.76
In this case, the incident in question was a tragedy,
which took place during a training exercise. The military tribunal did not
ignore the fact that military activity at times requires one to engage in
actions, which by their very nature are dangerous, but specifically for that
reason – so it was determined – one must assess whether or not the risk is
necessary and whether or not the requisite measures of caution to prevent
those dangers were taken.77
The above ruling, which was handed down regarding
training exercises, is, in my opinion, no less true regarding activity in the
heat of combat. The key phrase is: “One must assess whether or not the risk is
necessary.” In a case where, according to information available to the
IDF, there is certain danger to the lives of the soldiers if a ground action
is undertaken, and the possibility exists to remove or limit significantly
that threat if alternative military steps are undertaken which are liable
to engender enemy civilian casualties, then, ostensibly, the risk is not
essential. The obligation to exercise caution incumbent upon IDF commanders
ostensibly requires avoiding taking that non-essential risk (especially in the
circumstances of the incident in question, when the IDF took all of the
requisite steps in order to facilitate the timely flight of the civilians from
the combat zone).
This conclusion, regarding the obligation of the authorities
to defend the lives of IDF soldiers and to avoid taking non-essential risks,
is further reinforced in light of that which is written in Article 4 of the
Basic Law: Human Dignity and Freedom: “Every person is entitled to defend his
life, his body and his dignity.” This right is constitutional and
extra-constitutional, and each governmental authority – including the security
authorities – must abide by it (Article 11 of the Basic Law).
And finally, it is impossible to omit in this context,
the ancient dictum: “You shall not stand against the blood of your neighbor.”
(Leviticus 19:16) The obligation to save another dictated by this commandment
is incumbent on every person with the ability to help one who is in danger,
and even more so applies to the authorities in charge of security.78
This obligation is established in Article 1 of the “You Shall Not Stand
Against the Blood of Your Neighbor Law”, 5758/1998, where it says that it is
an obligation to extend assistance “to someone whom he sees, who, due to a
sudden incident, is in clear and present danger to his life, the integrity of
his body or his health”. The spirit of the law indicates that when IDF
soldiers are in certain mortal danger, the requisite military actions must be
undertaken in order to avert the danger from them (of course, while taking all
necessary steps to avoid civilian casualties, as discussed above).
H. “The IDF Spirit” (“The Ethical
Code”)
It seems to me that this perception, that there is
justification for military action, which can prevent certain fatalities among
IDF soldiers, even if, as a result, enemy civilians are liable to be hurt, is
also mandated by the document known as the “IDF Spirit”, or by its previous
name: The IDF “Ethical Code”.79
Among the values detailed in that document, are two,
which are relevant to our matter: “Human Life” and “Purity of Arms”. The
following is what is written there about those two entries:
Human Life: The soldier will act in an intelligent
and secure manner in everything that he does, recognizing the supreme
significance of human life. During combat, he will endanger himself and his
comrades to the degree necessary to carry out the mission.
Purity of Arms: The soldier will use his weapon
and his strength solely in carrying out his mission, and exclusively to the
degree necessary to do so, and he will maintain his humanity, even during
combat. The soldier will not use his weapon or his strength in order to harm
non-combatant people or prisoners, and will do everything in his power to
prevent harm to their lives, bodies, dignity and property.
Thus, “human life” is a sacred value – even when speaking
of people aligned with the enemy. The IDF soldier must do everything in his
power to prevent harm to human life. This is not an absolute requirement
to preserve enemy lives at all costs. The document does not detail what is
considered “everything in his power”, as there is no general formula for this,
and action must be taken in each case in accordance with its circumstances.
Even regarding his own life, the soldier is only required
to endanger his own life “to the extent required to carry out the mission”.
There is no absolute obligation to endanger himself, only to the extent
required to carry out the mission. And again, the document does not specify
any rules; everything depends on the circumstances of each case. What are
the criteria according to which one can determine the anticipated norms and
requisite forms of behavior in each given case? In my opinion, Jewish
tradition throughout the generations has an important contribution to make on
this matter.
It was determined in the IDF “Ethical Code” that the “IDF
Spirit” – the guidelines for action derived from which, constitute the IDF
ethical code – is drawn from four sources:
-
The IDF tradition and its
combat legacy as the Israel Defense Force.
-
The tradition of the State
of Israel, its democratic principles, its laws and its institutions.
-
The tradition of the
Jewish people throughout the generations.
-
Universal moral values
based on the value of man and his dignity.
It seems to me, that the perception that one should take
every military action which will prevent unnecessary victims among IDF
soldiers, even if it is liable to result in enemy casualties, and to refrain
from actions, which unnecessarily endanger IDF soldiers, corresponds with all
four of the sources of the “IDF Spirit”. It certainly corresponds with “the
tradition of the Jewish people throughout the generations”, as explained
above.
If indeed it is correct to interpret the “IDF Spirit” in
this way, i.e. that the “degree necessary” to endanger IDF soldiers does not
include endangering themselves in order to prevent enemy civilian casualties,
and that non-intentional damage of that sort does not constitute a violation
of the sacred principle of “purity of arms”, and especially because the IDF
did “everything in its power” to prevent damage of that sort,80
the conclusion is that the directive issued by the Defense Minister in the
course of Operation “Defensive Shield”, to refrain from taking military action
liable to cause enemy civilian casualties, even though it was clear that
Israel would pay a price in terms of the lives of its soldiers, not only does
it not correspond with Jewish tradition throughout the generations, but it also
does not correspond with that which is dictated by the IDF ethical code (not
to mention to that which is dictated by the directive of Article 34 of the
Penal Code, subject to what was discussed above in the matter of that
article).
Conclusion
It seems that according to all of the criteria detailed
above, there is no justification to endanger the lives of IDF soldiers in
order to avoid possible enemy civilian casualties, under the circumstances in
which prior warning was given to the civilian population to evacuate, and the
forces against whom the IDF was fighting blatantly violated the international
conventions on the matter. Responsibility for the possible civilian casualties
in the course of combat rested completely on the terrorist organizations and
their leaders, who act in the way that they act, committing crimes against
humanity, and not on the IDF, which, to the best of its ability, attempts to
avoid civilian casualties; and all of its actions are beyond reproach in terms
of the humanitarian principles of international law. It is highly doubtful
whether there is another army in the world, in which the moral criteria which
guide it in combat, can equal those which guide the IDF and its commanders.
In order to prevent unnecessary tragedies in the future,
heaven forbid, clear criteria regarding this matter should be established –
after an in-depth study of the issue by the IDF legal authorities, which will
obligate all decision-makers in the defense system. In consolidating these
criteria, it would be wise to learn from the wisdom of others. However, it
would be fitting to accord the appropriate significance to our sages
throughout the generations.
Endnotes
1 |
HaZofeh, April 7, 2002. |
2 |
Maariv, May 31, 2002 (An article by Sari Makover, “I Will
Be Prime Minister”,
Weekend
supplement, p. 18). See also the articles
by Danny Shalom, HaZofeh, June 12, 2002, and Assaf Buznak,
Tel Aviv Magazine, August 2, 2002. Further expression of
this policy was also given in the ruling of the Supreme Court, H.C.
4/02-3116, Bracha v. Defense Minister and Others; Tibi v. Prime Minister
and Others; Adallah – The Legal Center for the Rights of the Arab
Minority in Israel and Others v. The Commander of the IDF Forces in the
West Bank, P.D. 56(3) 11, which dealt with a different aspect of the
Jenin battle in question, in which it said that “the army fought from
house to house and not by dropping bombs from the air, in order to
prevent possible civilian casualties.” |
3 |
See also the statement by the Defense Minister on this matter, “Letters
to the Editor”, Maariv, Weekend supplement,
June 21, 2002. |
4 |
Midrash Rabah, Numbers, Section 9, Article 7. |
5 |
This verse was interpreted by the sages regarding matters unrelated to
army and war. See for example: Berachot 25a regarding reciting the
Shema in a filthy place; Shabbat 103a regarding thinking about
matters of Torah in a bathhouse or a bathroom. And for those who
questioned the fact that a verse written about army and war is
interpreted regarding other matters, see the responsa Arugat
Habosem, Orah Haim Chapter 18, and the responsa
Tzitz Eliezer, Volume 8, Chapter 1, Paragraph 21. |
6 |
Sefer Hachinukh, Commandment 566. |
7 |
Introduction to the Book of Commandments by Maimonides,
Principle Four, Chavel Edition, Jerusalem 1981, p. 64. |
8 |
“On the Purity of the Israeli Military Camp”, Mazkeret
Le’Moshe, in memory of Moshe Efraim Efrati, Jerusalem 1975, pp.
66, 72-73. |
9 |
See: Rabbi Shlomo Aviner, “Purity of Arms”, in: Halichot Tzava,
Yeshiva Ateret Kohanim Publishers, Jerusalem [1994], p. 12. |
10 |
The Guide for the Perplexed, Section 3, Chapter 41, Rabbi Y.
Kapah Edition, Jerusalem 1972, p. 618. |
11 |
Maimonides, Hilchot Melachim, 7:15. At the end of the law,
Maimonides mentions the verse at the end of Samuel I, 25:28, “For God
fights the wars of God.” And see Meshiv Milchama, by Rabbi
Shlomo Goren, Volume 1 Chapter 1, Jerusalem 1983, p. 11: “And our
intention should be exclusively to sanctify the name of God.” |
12 |
See also the commentary of Nachmanides, Exodus, 15:5. And see in that
context, Rabbi A. Sherman, “Jewish Law Principles in Military Morality”
Techumin 9 (1988), pp. 231-232. Later in his paper, p.
233, the writer discusses the soldier’s obligation to know that he is
going to war over the unity of the name of God. |
13 |
See: Rabbi Shlomo Goren, Meshiv Milchama, Part 1, Chapter
1, p. 3: “There is no doubt that human life is the preeminent value in
the Torah, in Jewish law and according to the morality of the prophets.
And the reference is not only to Jewish life but also to the lives of
everyone created in the image of God.” |
14 |
Maimonides, Hilchot Melachim, 6:1,5,7. |
15 |
Maimonides, Avoda Zara, 10:1. |
16 |
Book of Commandments, Omissions from the Positive
Commandments, 5. |
17 |
Sefer HaChinukh, Commandment 527. |
18 |
Responsa by Rabbi Eliyahu Mizrahi, Chapter 57. |
19 |
Hilchot Melachim, 6:1. And see: Rabbi Shear Yashuv Cohen,
“Calling for Peace in Israeli Wars”, Torah She’ Be’al-Peh,
21 (1979), pp. 74-81. Compare to the interpretation of Rashi in
Deuteronomy 20:10. In his opinion, the requirement to call for peace is
only in an optional war; see also the commentary of Rabbi Eliyahu Mizrahi
on Rashi, ibid. |
20 |
Responsa Meshiv Milchama, ibid (endnote 13 above), p. 14. |
21 |
Tractate Soferim, Higer Edition, Chapter 15:6. |
22 |
Responsa Meshiv Milchama, ibid, vol. 3, Section
5, Jerusalem 1986, pp. 264-265. |
23 |
See: Maimonides, Hilchot Melachim, 5:1. |
24 |
See: Maimonides, ibid. |
25 |
Rabbi S. Yisraeli, “The Siege on Beirut in Light of Jewish Law”,
Techumin 4 (1983), pp. 25, 35-36. |
26 |
Responsa Meshiv Milchama, ibid (footnote 22 above), p.
245. |
27 |
Ibid, p. 240. See also Rabbi Y. Gershuni, “The ‘Peace for Galilee’ War
in Lebanon and its Consequences”, Or Hamizrah, 31 (1983)
pp. 217, 222. |
28 |
Regarding the responsibility incumbent upon the authorities and the IDF
commanders to protect the soldiers’ lives, see: Rabbi Shlomo Goren,
Meshiv Michama
Part I, pp. 29-38. |
29 |
Sanhedrin 72a. |
30 |
See also the commentary of Rashi, Genesis 34:25 according to the Midrash:
“They were Jacob’s sons, however, Shimon and Levi acted like everyone
else who were not his sons, as they did not consult with him.”
Nachmanides in his commentary on Genesis 34:13, wrote: “And they killed
them for nothing, because they had not wronged them, and that is what he
said: ‘Their tools are tools of robbery.’” And see Rabbi Yaakov Ariel,
“The Institution of War in the Torah”, in Arachim Be’Mivchan
Ha’Milchama, in memory of Ram Mizrahi, Jerusalem 1985, pp. 80, 83. |
31 |
See for example, Maimonides’ explanation, Hilchot Melachim,
9:14. Compare with the commentary of Nachmanides on the Torah, Genesis
34:13. And see Meshiv Milchama (endnote 11 above), pp.
26-28. |
32 |
Gur Aryeh, Genesis, 34:13. |
33 |
See also Rabbi Yaakov Ariel, “The Torah’s Military Morality”,
Arachim Be’Mivchan Ha’Milchama, ibid., pp. 85-86. |
34 |
See: Rabbi D. Lior, “The Jewish Law Approach to the Peace Talks in Our
Times”, Shevilim, Vol. 33-35, pp. 146, 150. |
35 |
Tractate Derech Eretz, The Chapter of Peace, Law 1.
|
36 |
Rabbi Yoezer Ariel, “Punishing Gentiles”, Techumin 5
(1984), pp. 350-363; Y. Blidstein, “The Schechem Incident – Collective
Punishment and Modern Jewish Legal Thought”, Et Ha’Da’at I
(1997), pp. 48-55; S. Leibowitz, “The Dina Episode, Shedding Innocent
Blood or Justified Punishment?”, Alon Shvut Bogrim 12
(1998), pp. 65-78. |
37 |
Tanhuma, Metzora, 1. |
38 |
The Guide for the Perplexed, Section 3, 39. |
39 |
Amud Hayemini, Section 16, Chapter 5, Article 31,
Jerusalem 1966, pp. 204-205. |
40 |
Midrash Rabba, Numbers, Section 21: 4. |
41 |
Berachot 58a and 62b; Yoma 85b;
Sanhedrin 72a. |
42 |
Amud Hayemini, Rabbi Shaul Yisraeli, Section 16, Chapters
3-4. That which was written there was written regarding retaliatory
actions carried out by the IDF in the early years of the state against
population concentrations which supported the murderers. And see Rabbi
J. A. Jacobovits, “Civilian Losses in Operation ‘Peace for the Galilee’
in Light of Jewish Law”, Seridim 7 (1986), p. 4, and what
he wrote on pp. 9-11 on that matter. There he quotes the interpretation
of the Or HaHaim of the Dina episode (Leviticus 34:25), where he
explains why the innocent residents of Shechem were punished: “All
residents of the city were willing to fight against Shimon and Levi in
order to save their king and therefore they killed them in accordance
with the law of the pursuer.” According to the Or HaHaim as well, the
people of Shechem were pursuers, however, in his opinion, the reason for
that is that they constituted a threat (and not only because they were
members of the nation against which they battled, as the Maharal said). |
43 |
See: Responsa Da’at Cohen, Chapter 84, s.v. And regarding
this issue it can be said: It is important to remember that in order for
one to be characterized as a “pursuer”, there is no need for him to have
intention to attack, and there is no need to prove any guilt on his
part; even a fetus in his mother’s womb, who threatens her life is
considered a “pursuer” and it is permissible to kill him, although no
intention to harm his mother can be attributed to him, and no guilt can
be ascribed to him, see: Sanhedrin 72b; Maimonides, The Laws of the
Murderer 1:9; Responsa Iggerot Moshe, Even Haezer, Part 1,
Chapter 39, s.v. And to Maimonides; Responsa Yahel Yisrael,
Chapter 73, s.v. |
44 |
Rabbi H.D. Halevi, “The Law of ‘One Who Comes to Kill You, Kill Him
First’ in Our Public Lives”, Techumin 1 (1980), pp.
343, 346; and see also Rabbi Yizhak Shilat, “Who is Innocent”,
Nekudah, Issue 251, Iyar 2002, pp. 32-35. |
45 |
Responsa of the Radvaz, Section 3, Chapter 627. |
46 |
As it is said (Leviticus 19:16): “You shall not stand against the blood
of your neighbor.” And see Maimonides, The Laws of the Murderer,
1:14; Shulhan Arukh, Hoshen Mishpat, Chapter
426, Paragraph 1. This obligation is incumbent upon the State of Israel
by the authority of the “You Shall Not Stand Against the Blood of Your
Neighbor Law”, 5758/1998. It is worth noting that according to the law,
this obligation is only in effect in circumstances where rescuing the
other does not involve endangering oneself (Article 1 of the law). |
47 |
Responsa of the Radvaz, Section 4, Chapter 67. According to the
Mishna, Sota, 2:4, a righteous fool is among those who “wear out the
world” and according to another version: “destroy the world”.
Sefer Hasidim, Margaliot Edition, Chapter 126 cites the verse
(Ecclesiastes 7:16): “Don’t be too righteous,” and Maimonides, in his
commentary on the Mishna Sota, ibid., writes that he is included among
those on whom it is said: “Someone who is exempt from doing something
and does it anyway is called a layman.” (Yerushalmi
Berachot 2:9; Shabbat 1:2) |
48 |
See for example: Responsa Helkat Yaakov, Hoshen
Mishpat, Chapter 33 (regarding events during the Holocaust). |
49 |
Responsa Tzitz Eliezer, Volume 9, Chapter 28. |
50 |
Responsa Tzitz Eliezer, Volume 12, Chapter 57. Also see
what he said in Volume 13, Chapter 100. |
51 |
Other exceptions to this rule, which also are not relevant to our issue
are: (a) A doctor administering medical care to a patient and is liable
to be infected by the patient. (b) When Israel as a whole is in danger,
there is room to permit one to give his life to save the public. |
52 |
A. Barak, Interpretation in Law (Hebrew), Volume 3,
Jerusalem 1994, pp. 225-226, in his mention of H.C. 292/83, Ne’emanei
Har Habayit v. Commander of the Jerusalem Police District, P.D. 38(2),
pp. 449, 455. |
53 |
Appeals 461/462 Zim v. Maziar, P.D. 17, pp. 1319, 1337. |
54 |
Ibid., p. 1333. |
55 |
See:
Appeals 2495/95 Ben Lulu v. Elias, P.D. 51(1), pp. 557, 601. A.
Barak, ibid (footnote 52 above), p. 319. |
56 |
Maimonides, Hilchot Rotze’ach, 1:4. |
57 |
H.C. 3116-4/02 Barake v. Defense Minister and Others; Tibi v. Prime
Minister and Others; Adallah – The Legal Center for the Rights of the
Arab Minority in Israel and Others v. IDF Commander in the West Bank,
P.D. 56(3) 11 (Chief Justice Barak), 364. |
58 |
And see Yoram Dinstein: The Laws of War (Hebrew), pp. 135
and 141 and following. Israel did not ratify the protocol
(because it applied not only to disputes between states but also to
various liberation movements). Nevertheless, the humanitarian principles
of the document are part of de facto international law. These principles
were adopted by a large number of countries, and they reflect an
international consensus regarding what is permissible and what is
prohibited, in terms of humanitarian principles, in the framework of
military struggles. This de facto law was adopted by the State of
Israel’s internal legal system. |
59 |
See more about
these topics: G.H. Aldrich, “The Laws of War on Land”, American
Journal of International Law, Vol. 94, Jan. 2000, 42, p. 52. |
60 |
See the Article
by Shmuel Diklo in Globes, March 20, 2002. Indeed, a
distinction exists in international law between legal and illegal
fighters, and a man who fights outside the framework of legal combat
“the protection provided by the laws of combat is removed from him,” in
the language of Yoram Dinstein, endnote 58 above, p. 97. |
61 |
H.C. 2936/02,
2941 Doctors’ Organization for Human Rights and Others v. IDF Commander
in Judea and Samaria, P.D. 56(3) 3. |
62 |
H.C. 2977/02,
Adallah – The Legal Center for the Rights of the Arab Minority in Israel
and Others v. IDF Commander in Judea and Samaria, P.D. 56(3) 6. See also
H.C. 3022/02 Canon (LAW) – The Palestinian Organization for Defense of
Human Rights and the Environment and Others v. The IDF Commander on the
West Bank and Others, P.D. 56(3) 9. |
63 |
The Laws
of Combat in the Battlefield, published by the School of
Military Law, Department of Military Law, Michael Ben-David, Command of
the Chief Military Attorney, 5759, pp. 47-49. |
64 |
M. Walzer,
Just and Unjust Wars, Hebrew Edition, Tel Aviv [1984], p.
202. |
65 |
Ibid., pp.
165-190. |
66 |
Ibid., p. 181. |
67 |
Ibid., pp.
182-183. |
68 |
Ibid., p. 154. |
69 |
Ibid., p.186. |
70 |
A discussion of
the institutional aspects of bombing concentrations of civilian
population in the course of a war for the purpose of expedience, see M.
Walzer, Ibid., p. 299 and following. This question, of course, does not
concern us: As our matter is totally unintentional damage caused to a
non-combatant civilian population, which is liable to take place as a
result of military activities, which are in and of themselves,
justified. For a discussion of the Jewish law aspect of intentional
bombing of civilian population concentrations in the framework of
Israel’s war against the terrorist organizations, see the above-cited
article by Rabbi J.A. Jacobowitz (endnote 42 above). |
71 |
Y. Kedmi,
On Criminal Law, Part 1, Correction and Completion, p. 119. |
72 |
Ibid., p. 120.
Indeed, according to Article 1(a) of the “You Shall Not Stand Against
the Blood of Your Neighbor Law”, 5758/1998, one is obligated to provide
assistance in order to save lives, but that is “without endangering
himself or others”. However, Article 3 of the same law establishes, that
“the directives of this law do not detract from the directives of any
law.” Therefore, the justification provided by Article 34a of the Penal
Code to take any action necessary to save lives, even if as a result a
third party is liable to be hurt, is not compromised at all. |
73 |
H.C. 5100/94 The
Public Committee against Torture in Israel v. The Israeli Government,
P.D. 53(4), 817, pp. 842-843. |
74 |
B. Sangero,
Self-Defense in Criminal Law, Jerusalem, 2000, p. 30. |
75 |
On conducting a
balance of interests and “the lesser of two evils”, see ibid., p. 98 and
following. |
76 |
Court of
Appeals, 5964/92, Beny Uda v. The State of Israel, Laws – Supreme Court,
vol. 61, 280, Ruling 10. |
77 |
Appeals 58/19,
The Chief Military Prosecutor v. Lieutenant Yahalom and Sergeant Regev,
Selected rulings of the Military Appeals Tribunal, 1958, p. 307, pp.
313-314. |
78 |
See A. Mudrick,
“Commander: Authority, Responsibility and Guilt”, Crime B
(1981), 249, p. 256; On Criminal Responsibility and the
Responsibility of Commanders – Legal Aspects, published by the
School of Military Law, Command of the Chief Military Attorney, p. 25.
For additional military rulings on this matter, see ibid., pp. 34-58. |
79 |
On the
responsibility of the authorities and on the obligation of commanders
regarding protection of soldiers’ lives, see: Rabbi Shlomo Goren,
Meshiv Michama
Part I, pp. 29-38. |
80 |
Cited on the
IDF website <www.idf.il>
in the section: “Combat Theory”.
|