Injuring the Uninvolved

(From "IDF Spirit")

Everything possible must be done to prevent injuries to those not involved in the fighting

As we saw in the preceding chapter, in wartime there is sometimes no alternative to taking lives, but the use of force and killing should be kept to the bare minimum.  It is therefore clear that one should not intentionally kill people who are not involved, such as children, women and the elderly, who are not part of the fighting force and have become embroiled in the battle by accident.

It is important to emphasize that the term mentioned in this context – injury to the innocent – is not exact.  War is not an act of policing against criminals and most of the time, the soldiers from both sides, are not criminals.  Injuring the soldiers of the enemy does not fall into the category of punishment.  Such injury is necessary, designed to help evade the danger represented by them.  Therefore, the main question is: under what circumstances may one injure someone who is not a direct danger to our soldiers, without connection to the question of whether or not he is innocent?

The Halacha takes a clear stand on this matter, as Rabbi Shlomo Goren stated:

Similar words were written by the man who succeeded Rabbi Goren as the Chief Rabbi of Israel, Rabbi Avraham Shapira:

In light of these words, it is clear that when it is possible to differentiate between fighters and those who are uninvolved, it is forbidden to deliberately harm someone who is uninvolved.  These words are a foregone conclusion given the prohibition of exploitation mentioned in the annals of war.  As clarified above, the Torah even limits the damage [that can be done] to trees in a period of siege, when it says: "Do not destroy its trees by putting an ax to them, because you can eat their fruit.  Do not cut them down. Are the trees people, that you should besiege them?"  It seems that the meaning of the verse is that the trees are not a target and therefore there is no permit to damage them without reason.  If there is a prohibition from cutting down trees during wartime, then clearly one must be sensitive to the lives of human beings who do not constitute a threat.

The lives of Israel's citizens and soldiers come first

All of the mitzvot we have mentioned here point to the obligation to refrain from the use of unnecessary power and killing, among them: the obligation to call for peace, the prohibition to lay siege from [all] four sides and the prohibition to cut down trees.  None of these mitzvot place preference on the lives of the enemy to those of our soldiers and citizens.

Thus, for example, the obligation to leave a fourth exit, which as we mentioned citing Rabbi Shaul Yisraeli, allows, inter alia, for someone who is not a combat soldier to leave the arena of war.  Despite this obligation, Rabbi Yisraeli said that there is no obligation to leave an escape route when the enemy may use it to isolate and threaten our soldiers.

The prohibition on cutting down trees during a siege also fails to apply when the cutting down of the trees is required in order to save lives.  In his interpretation of the Torah, the Rashbam writes:

Rashbam learns from that sentence that the prohibition exists only when the trees are not used as a hiding place for the enemy, but if the enemy uses them as a refuge, then it is clearly permissible to expose the area.

Indeed, when the lives of our soldiers and civilians are hanging in the balance and, on the other hand, there are also the lives of civilians who are not involved in the fighting, we have to give precedence to the preservation of the lives of our soldiers and civilians, and that is what the Halachic decisors decreed – that you cannot endanger our soldiers in order to prevent injury to the civilians of the enemy, as exemplified by Rabbi Avraham Shapira's words:

Rabbi Shapira (ibid) determined that we should aim for zero casualties on our side, even when there is the price of injury to uninvolved civilians and even children, because the responsibility for that rests with the enemy, as Rabbi Shaul Yisraeli writes:

Just as the principle of mutual guarantorship (arvut) obligates all of us as individuals to fight for the group, it applies equally to the enemy.  The principle of arvut changes the private individuals of the enemy into a collective unit and makes it possible to view them as a single unit against which we are fighting (see also on p. 191 below).  Rabbi Yisraeli emphasizes that the source of this perception is in the international agreement and subject to it, as we will immediately clarify.

International law

The attempt to limit the use of strength and brutality in battle began to be formulated, in the last century, into international treaties for the laws of warfare.  These treaties limit the type of combat and the force of the strike and thus lessen the extent of killing and brutality. 

Clearly, Judaism favors the solution of international disputes by peaceful means, or, if there is no alternative, by ways that minimize the amount of killing.  The minimizing of killing and brutality is a common interest for all of humanity.

Indeed, in the history books we are told of blood-filled wars conducted by the People of Israel.  Rabbi Avraham Yitzchak HaCohen Kook explained it thus:

In the past, in a world without laws of war and international treaties it was imperative to behave brutally in battle.  It is true that Rav Kook emphasizes that there is a requirement to be careful not to jump the gun and speak in lofty tones about the morals of utopian fighting when in fact, the reality is cruel and bloody.  What this means, on a practical basis, is that we should be hoping to decrease the use of force and brutality in combat, all the time taking a sober look at reality and the enemy facing us.

In the opinion of Rabbi Shaul Yisraeli, the laws concerning injury to uninvolved bystanders are based on international custom in accordance with the rule that determines that the law of the land prevails.  He says that the determination according to which one may fight and kill during wartime without a trial and without differentiation between "righteous" and "wicked" derives from the international agreement to see war as a legal phenomenon.  If the nations agree to decrease the killing and implement this decision – then it is binding.

Indeed, Rabbi Yisraeli differentiates between a righteous war, which is a war of defense that is not dependent on the agreement of the nations – and is certainly a natural right and even a halachic obligation – and an optional war, for example, a war for the sake of economic interests which is based on agreements and is limited by the agreement of the nations.

It becomes clear that even in the case of a defensive war, there is validity to the restrictions of international treaties, as long as they do not affect the basic right and obligation of self-defense.  Therefore, even in a war of self-defense, generally, one must act according to international law.  This is how Rabbi Prof. Neria Gutel worded it in connection with the fight against terror:

It should be stressed that the validity of the treaties is conditioned upon the fact that they are indeed implemented in practice by the nations of the world, and are applied in an egalitarian manner.

The determination of rules of limitation brings about an additional limiting of the scope of the force applied, as we learn from the speech of the Cohen, the mentor in war, prior to departure for battle (Bavli, Sota 8:1):

The Cohen warns the fighters, telling them that they are forbidden to have mercy on the enemy for if they fall into captivity, they will be treated with cruelty.  Meaning, the instruction to show no mercy is the result of the accepted cruelty that prevails.  Due to the treaties and their implementation, it is possible to decrease the cruelty in fighting and facilitate more restrained combat.  

Indeed, the international judge who deals with armed conflict between countries tries to balance two considerations: the military one (safeguarding the safety of the military force) and the civilian-humanitarian one (safeguarding the rights of the individual and the enemy's civilians).  For this purpose he differentiates between fighters and military targets and between civilians and civilian targets.  Fighters are legitimate targets for military attack and civilians are protected against attack.

Indeed, according to the first additional protocol of the Geneva Convention, it is permitted to inflict damage on civilians when there has been no direct intention to do so, but where the target is a military one and the civilians are injured as the result of their close proximity to it.  The definition there of this kind of damage is one of collateral damage, meaning that international law accepts the fact there are instances when it is impossible to prevent the killing of civilians as collateral damage when attacking a military target, and provided that it was not possible to avoid the damage, for example, by warning the civilians.

In addition to this, international law requires that the damage to the civilians of the enemy is proportional to the military achievement.  In the law courts in Israel this phrase has been interpreted to mean "proportionality".  The requirement for proportionality is not defined by numbers.  The example brought in the Convention together with this definition is that "one may not destroy an entire village in order to kill a vacationing soldier."  This example, of course, does not help solve the dilemmas that are found in the battlefield.  In Israel, it is acceptable to define proportionality as the discretion of a reasonable commanding officer based on the data that he has available to him relating to the importance of the target and the number of people who are wounded.

Reducing the killing by warning civilians

Notwithstanding the clear statement that the lives of Israeli soldiers and civilians take precedence over the lives of enemy civilians, it is agreed that every effort must be made to prevent unnecessary injury to the civilian population.  One of the tools used by the IDF for this purpose is a call to civilians to leave the area of fighting.  Rabbi Shaul Yisraeli relates to this custom:

From these words, it emerges that the Halacha of leaving an opening for escape while under siege is possibly realized, because by leaving an escape route to anyone who is not involved in the fighting their deaths can be prevented if they leave.  After such a warning has been given, whoever decides to remain where he is, takes upon himself the risk that he may be accidentally injured.

A warning of this nature was also acceptable in the days of King Saul:

That is exactly the way the IDF behaved in the Second Lebanon War when it called on the residents of Southern Lebanon to evacuate their homes.  The IDF acted in the same manner, in Operation Cast Lead in the Gaza Strip when it telephoned Palestinian civilians and called upon them to leave their homes.  In other cases the "knock on the back" procedure was followed, where a low-impact missile was fired as a warning at a house, prior to it being bombed.  Despite such warnings, there were instances in which the Palestinians chose to remain in the houses on the assumption that they were being protected even though they were serving as a human shield for the terrorists.  But their assumption was a mistaken one and in such an instance it is permissible to injure them incidentally in the course of injuring the fighters.

Commentary on the "Spirit of the IDF" document

In light of what we have been clarifying until now, it is important to understand that the wording of the relevant paragraph of the "Spirit of the IDF" document is this: "The IDF serviceman shall not use his weapon and his power to injure individuals who are not fighters or captives, and he will do everything in his power to prevent unnecessary harm to human life, body, honor and property."

Those who formulated the IDF code of ethics deviated in this value from the normal style of the code.  The Code’s values are generally defined without getting into the question of their realization, whereas in this instance, there is a very clear operating instruction.

The deviation in this wording is problematic, since, on the face of it, it does not facilitate the discretion required in order to relate to complex situations in which, for example, the soldiers of the enemy are operating deliberately from inside the civilian population.  As mentioned, in such cases, according to Halacha, morals and international law, it is permissible to inflict injury on uninvolved bystanders if their injuries are not intentional.  This is also the stance of one of the people who drafted the "IDF Spirit" document, Prof. Assa Kasher:

This idea was expanded upon in Prof. Kasher's article about Operation Cast Lead, in which he divides the methods of action into three different standards:

A.  Standard of conduct in the presence of a group of enemy fighters only.

B.  Standard of conduct in the presence of a group of enemy civilians who are not fighters, and who are not participating in the fighting and are not in the vicinity of the enemy's fighters.

C.  Standard of conduct in the presence of a group of enemy civilians, some of whom are enemy fighters and others who are not.

He determines that according to Standard A. one may freely attack fighters in accordance with the rules of war.  By contrast, Standard B. makes it absolutely forbidden to attack them, while according to Standard C. it is permissible to attack the enemy even when there is a risk to the lives of its citizens.  From what he continues to say, we see that the principle that the State’s responsibility to safeguard the lives of its soldiers is greater than its responsibility to safeguard the lives of the enemy's citizens.  In his words, the paragraph that appears in the "IDF Spirit" Code relates to Standard B. only and not to Standard C.

To summarize, notwithstanding the permit to fight, importance is given to the avoidance of not causing deliberate killing and destruction of uninvolved bystanders.  This is justified according to the principles of ethics, according to the Torah and the Halachic decisors, as well as according to international law.  However, there is no doubt that despite this, the obligation in respect of the lives of our soldiers, who were sent by us on their mission, exceeds the obligation to safeguard the lives of enemy citizens, especially in instances where the enemy deliberately uses its civilians as human shields.

Indeed, even when we allow some slackening, this does not mean that we permit random killing or obviate the attempt to decrease the killing to the extent possible.  It is our primary obligation to safeguard the lives of the IDF's soldiers and the citizens of the State of Israel, and only when we have achieved this, to do what we can to minimize unnecessary killing and destruction.

Laws of war as opposed to the threats of terror

Everything that has been written and agreed in the laws of war and international treaties, concerns wars between nations.  The way we regard terrorists who are not fighting on behalf of a nation and who operate from within a civilian population is hardly discussed.  True, the State of Israel chose, of its free will to adopt moral standards even in the fight against terror, but this is not something that it is obligated to do under international law.

Even though there is a trend in international law and the potential to reduce the unnecessary killing of civilians, we see, mainly in the wake of terror and asymmetric warfare, that the dream is not fulfilled.  The laws are not implemented at all by the terrorist organizations or by the countries that back them and support their operations.  Worse than this, these countries and terrorist organizations cynically take advantage of international law so that they use their civilians as a human shield against the fighters of the opposing side, who are discouraged from injuring civilians due to the fear that they will be considered as war criminals.

The terrorist organizations openly breach all international law when they fire missiles at civilian targets.  They actually choose to fight from inside densely populated civilian areas using the civilians as a human shield, without military identification markings (as required by international law), and sometimes, even from facilities that are under international and religious protection.

In light of this behavior, a dilemma has been created as to how one should deal morally with terrorists who use civilians as a human shield and operate deliberately against our civilians.  This dilemma will be discussed separately in the chapter: Definition of the Enemy in the Battle Against Terror.

Summary

It is a halachic obligation for soldiers of the IDF to prevent any unnecessary attack on anyone who is not a fighter.  Therefore, they must act to minimize the attacks on uninvolved bystanders, by, for example, by forewarning them.  However, according to the Halacha, one may not risk the lives of Israel's soldiers and civilians in attempts to minimize the damage caused to citizens of the enemy.

International law also limits the use of force in battle.  This law is also valid according to Halacha, provided it is actually carried out and is not only a dead letter.  International law itself permits reasonable collateral damage to uninvolved individuals when there is an attack on fighting forces.

Indeed, the relevant section in the "IDF Spirit" Code was written in a way that forbids any attack on uninvolved individuals, but Prof. Assa Kasher clarified that the meaning is with regard to an instance in which this is a defined group of civilians.  This commentary is in line with international law and Jewish ethics.

Minimizing the use of force and killing in battle is the outstanding Jewish objective.  In view of the apocalyptic "nation shall not lift up sword against nation" we must therefore take measured steps in our times, as well.  However, this advancement must be carried out with our eyes wide open, given the dangers and threats facing us.

Expansions

Innocents or Uninvolved Individuals

One of the most quoted sources is the words of Rabbi Shimon Bar Yochai: ”’He took six hundred select chariots’ (Exod. 14:7)’ – Where did all these animals come from? ...They [belonged] to those who feared the word of the Lord [i.e., to those who drove their servants and their livestock into the houses as in Exod. 9:20]. From this it is apparent that those who feared the word of the Lord caused Israel to stumble. Rabbi Shimon ben Yochai would thus say, "[Even] the best of the Egyptians -- [you must] kill" (Mechilta de’Rabbi Yishmael, Beshalach).

In other words, at the time of the departure from Egypt, the Egyptians mounted a chase after the Children of Israel on horses that belonged to those who feared the word of God, who brought their animals into the house when Moshe Rabbeinu threatened Pharaoh that he would bring the plague of hailstones upon his people, and they did not therefore, die during that plague.  From this, Rabbi Shimon ben Yochai concluded that one must kill even the "best of the Egyptians."

Tosefot (Avoda Zara 26b, s.v. lo moridin) wrote that this is referring specifically to a "time of war."  The meaning behind this is that in wartime there is no significance to the question of any particular individual's personal qualities when he belongs to the enemy army.  As mentioned, war is not a punishment for a personal crime but a national struggle, and therefore, even a good individual can turn into a dangerous entity when he is part of the enemy army.

Rabbi Shlomo Goren summarized the situation as follows:  "This does not mean that it is permissible, heaven forbid, to kill them when they are not fighting us and do not represent a danger to us, but it is to teach us that we must always be careful of them and should not place our trust in them … but this does not serve as a reason or reference or permit of any kind to kill someone who is not actually fighting against us even during wartime and even our enemy if they do not pose a danger to us … but this should not be viewed as a ruling for all time that it is permitted, heaven forbid, to attack a non-combatant population even during wartime, because the words of Rabbi Shimon ben Yochai are directed towards those who are fighting against us and not against those who are not actually involved in the war” (Responsa, Meishiv Milchama I, p. 15).

In the modern context, we can expand the principle that emerges from this lesson and say that during wartime it is possible and desirable to attack even those civilian infrastructures that support the military effort, for example industry, energy and communications infrastructures, etc.  Indeed, a significant part of the modern war effort is based on these infrastructures, with the understanding that a strike on them contributes directly to the military victory (see also: Rabbi Ya'akov Ariel, Halacha in Our Times, pp. 378-379).