Introduction
This
week, we shall conclude our discussion of avoiding civilian casualties
in the course of war. In the past two weeks, we have presented the
opinion of the Maharal that when a nation wages war against another
nation, the war is waged without distinguishing between combatants and
non-combatants. Of course, this applies only when the war is a
legitimate one and only if victory cannot be achieved without risking
civilian casualties. We concluded that the Maharal constitutes
normative Halacha and fully conforms to Torah Hashkafah and ethics.
This
week, we shall discuss the application of the Maharal to Medinat
Yisrael's current struggle with Arab terrorism. We shall focus on three
critical issues. Firstly, is the current struggle categorized as war?
Next, is the struggle against a nation? Finally, must Israel risk the
lives of its soldiers in an attempt to reduce civilian casualties?
Is the Current Struggle Defined
as War?
It
is important to stress that the Torah sanctions the risk of harming
civilians only during wartime. Rav Shaul Yisraeli notes (Teshuvot Amud
HaYemini number 16) that an individual may not save his life by killing
another human being. Thus, it is critical to determine if the current
struggle against terrorism is defined as war. The intermittent battles
against terrorists are fundamentally dissimilar to a "constant" war
that Israel waged during, for example, the Yom Kippur War. Indeed, Rav
Yuval Sherlow, in his address to TABC students, noted the shifting
paradigms in determining ethical conduct during war. He commented that
we cannot frame our policies using the same standards of war that were
relevant in prior decades.
Rav
Yisraeli (ibid.) and Rav Hershel Schachter (BeIkvei HaTzon number 32)
argue that the fight against terrorism is defined as a war. Rav
Yisraeli addressed a specific situation in 1953 when the Israel Defense
Forces raided an Arab village named Kibiyeh in response to a series of
attacks, including Arab terrorists killing a woman and her two small
children in Yehud. The IDF killed sixty people, including women and
children, in the operation. Rav Yisraeli defends the legitimacy of such
action by defining it as an act of war, in which distinction is not
drawn between guilty and innocent blood. We again stress that such
permission applies only if the war is legitimate and the mission's
success hinges upon risking the lives of civilians.
Rav
Schachter cites from Rav Yaakov Kaminetzsky, who argues that Israel has
been in a constant state of war from a Halachic perspective since the
establishment of the state. Rav Yaakov accordingly ruled in 1970 that
it was forbidden to ransom the great Rav Yitzchak Hutner, who was being
held captive by Arab terrorists who had hijacked the airplane on which
he was a passenger. There was a suggestion to offer a huge sum to
ransom Rav Hutner, since Tosafot (Gittin 58a s.v. Kol) permit paying an
exorbitant sum to save a great Rav. Rav Yaakov ruled that Tosafot's
permission applies only during peacetime. Since Israel's ongoing
struggle with terrorism constitutes a war, Rav Yaakov felt it was
forbidden to ransom even one as great as Rav Hutner.
Indeed,
Rav Yuval Sherlow noted that terrorists wage war in a fundamentally
different manner than mankind has heretofore experienced. The military
response necessarily must also differ, and we cannot gauge the morality
of such responses using the paradigms of "conventional wars." The
bottom line, however, is that this struggle is defined as war even if
it differs from wars waged in prior generations.
Are We Waging War Against a
Nation?
The
Maharal's principle seems to apply only when waging war against a
nation. Is the State of Israel regarded as waging a war against the
Palestinian community? Rav Yitzchak Blau (Tradition Winter 2006 p. 17)
argues, "Even after recognizing the evil done by terrorists, can it
truly be said that modern Israel is in a state of war with the
collective body of Palestinians when Israelis frequently hire
Palestinian workers?" Nonetheless, Rav Kaminetzsky, Rav Yisraeli, and
Rav Schachter answer a resounding "Yes!" to this question.
Rav
Blau's question emerges from his inaccurate superimposition of the
definition of war from a conventional war onto the war against
terrorism. The fact that, for example, Americans did not hire Japanese
workers World War Two is entirely irrelevant to the current war on
terrorism. Indeed, Israelis' hiring of Arab workers is intended in part
to motivate Palestinians to prefer the stability of peace. Moreover,
Rav Blau's question seems to have become moot when the Palestinians
elected Hamas to run the Palestinian Authority in 2006. How can one
reasonably claim the innocence of the Palestinian people when they
chose to elect a party that explicitly calls for Israel's destruction?
Furthermore, the Gaza Strip that is now governed entirely by Hamas
undoubtedly constitutes an enemy nation entirely analogous to the
relationship between Japan and the United States during World War Two.
Moreover,
perhaps even if one asserts that Israel is engaged in a war against the
army or community of terrorists and not the Palestinian people, the
Maharal's principle remains relevant. Recall from last week that Shaul
warned the Keini people to move away from Amaleik, lest they be killed
in the ensuing battle. We see that even though Shaul was waging war
against Amaleik, he could risk harming another people living in
proximity to the Amaleikim, regardless of whether the Keini were more
or less numerous than the Amalekites. Similarly, the Israeli army may
risk the lives of Palestinian civilians living near Palestinian
terrorists. The same applies to Hezbollah terrorists embedded among the
civilian population of Lebanon.
Placing Soldiers at Risk to
Reduce Civilian Casualties
The
Israeli army clearly is entitled to risk the lives of civilians in its
efforts to eradicate terrorists. The crucial question, though, is
whether it must risk its soldiers' lives in order to reduce civilian
casualties. The question is debated by leading Rabbanim of our
generation. Rav Aharon Lichtenstein (Techumin 4:185) believes Israel
must "absolutely consider the extent of the justification of killing a
large group [of civilians mixed with enemy soldiers] in order to save
the life of an individual [Israeli soldier]." He regards the amount of
civilian casualties as a factor to consider when conceiving battle
plans. Rav Avraham Shapira (Techumin 4:182) and Rav Dov Lior (Techumin
4:186), on the other hand, strongly disagree. Rav Lior writes, "In
times of war, there surely exists firm Halachic basis for any action
done in order to insure that not even one soldier should be, God
forbid, harmed." Rav Schachter told me (in a conversation in June 2007)
that he agrees with Rav Shapira and Rav Lior. In fact, he argues that
Israel acted immorally when it risked its soldiers in Jenin and Lebanon
in order to reduce civilian casualties. Rav Bleich (in a telephone
interview conducted in July 2007) also told me that he agrees with Rav
Shapira and Rav Lior. He agrees with Rav Schachter that it is forbidden
to risk Israeli lives in order to save Arab civilians, as occurred in
Jenin and Lebanon. My Talmid Avi Levinson reports that Rav Mordechai
Willig told him that he also agrees with the approach of Rav Shapira
and Rav Lior.
We
should note that neither side in this debate cited an explicit source
regarding this matter. Rather, it appears to be a question of
Halachic-moral intuitions. We should stress that we cannot say that one
side is more stringent or maintains a higher moral standard, since each
side believes the opposing position to be morally wrong. I simply would
add that just as we cited from Rav Yisraeli and Rav Bleich last week
that there is no Halachic source that "takes cognizance of the
likelihood of causing civilian casualties in the course of hostilities
legitimately undertaken," so too there exists no classic Halachic
source requiring or even permitting risking Israeli soldiers to save
Arab civilian lives. In the absence of explicit sources in either
direction, it is fair to say that the consensus opinion of major
rabbinic authorities does not accord with the approach of Rav
Lichtenstein on this matter.
Rav
Bleich cautions, though, that in certain situations it seems that
Israel might be justified in risking Israeli lives in order to spare
Arab civilians. One such instance would be if it feels that causing
Arab civilian casualties will later endanger Israeli lives as a result
of violence caused by Arabs seeking revenge. If Israel fears that Arabs
will be incited by civilian casualties and endanger Israeli lives,
perhaps risking Israeli soldiers to save Israeli lives is permitted.
This would seem to be based on the Gemara (Shavuot 35b) that sanctions
a king risking up to one sixth of the population in an attempt to
secure his nation during a war. A leader may have the right to risk a
small amount of soldiers in the short term in order to prevent much
larger casualties in the long term. We stress, though, that in these
cases, risking Israeli soldiers might be justified solely due to the
consideration that it will save Israeli lives in the long run. The
blood of the Israeli soldier is redder than the blood of the Arab whose
brethren initiated violence against Israel, just as the blood of the
American soldier was redder than the blood of Japanese civilians during
World War Two.
Conclusion
The
Torah wishes us to have a degree of compassion even for our enemies.
For example, the Ramban (positive Miztvot that the Rambam omitted from
his list of the 613 Mitzvot #5) cites the Sifri requiring that when
besieging an enemy position we not completely encircle them. Rather, we
should leave one side open in order to give the enemy a chance to
escape. The Ramban explains one reason for this rule is that we should
have mercy on the enemy soldiers. He also explains that it is our
interest to do so, since it will encourage enemy soldiers to escape and
thereby weaken the morale of our opponents. Thus, the obligation to
have mercy on enemy soldiers applies only if the action taken does not
impinge on waging a successful military campaign. It also would seem
that the obligation to leave open a fourth side for escape applies only
if it also serves to enhance our military strategy, as described by the
Ramban, for why else would the Ramban mention the military benefit of
leaving open the fourth side?
Nonetheless,
as Rav Hershel Schachter and Rav Yuval Sherlow explain, winning a just
war constitutes an ethical imperative. The compassion we must have for
our enemies cannot impinge upon our ability to win a war. Indeed, Rav
Sherlow argues that the first clause of the IDF's code of ethics should
state that it is a moral obligation for the Israeli army to win. He
believes that the failure to recognize victory as a fundamental moral
principle significantly contributed to the lack of success in the
Second Lebanon War in 2006. One may add that the Israeli secular
Supreme Court's rulings (Public committee against torture vs. State of
Israel, High Court of Justice 5100/94) requiring Israel to fight
terrorism with one hand tied behind its back are also immoral according
to the rabbinic consensus. What the Israeli Supreme Court argues is
moral might very well be immoral.
Israel
has made extraordinarily generous offers for peace towards its Arab
neighbors throughout the past decades. It accepted the Peel Partition
Plan of 1937 and the United Nations Partition Plan of 1947, offered to
exchange land for peace immediately after the Six Day War in 1967, and
offered stunning concessions to Yasser Arafat at Camp David in 2000.
Arabs have rejected every one of these concessions and responded with
wars intended to destroy the State of Israel and exterminate its
citizens. Israel clearly is within its rights to defend itself and
enjoys the ethical right, nay, obligation, to wage war successfully.
Misplaced compassion for enemy soldiers and civilians cannot hamstring
our efforts to effectively wage war. The failures of 2006 clearly
demonstrate this point.
Avraham
Avinu experienced moral anguish over the enemy soldiers that he killed
in the war he successfully waged against the four Mesopotamian kings
(see Bereishit Rabbah 44:5 cited by Rashi to Bereishit 15:1). However,
this emotion was appropriately expressed - only after the war. Before
and during the war, he focused on his moral obligation to wage war
vigorously and properly against the Mesopotamian aggressors.
Avraham
Avinu teaches timeless lessons about ill-timed compassion towards our
enemies. It is improper to experience anguish over enemy loss during a
legitimate battle. It would have been patently immoral for American
soldiers during World War Two to anguish over the battle they were
fighting against the Nazis and Japanese. Similarly, the consensus
rabbinic opinion regards the risking of Israeli soldiers and restraint
from waging war properly in order to reduce Arab civilian casualties as
blatantly immoral.
May
Hashem send peace to His nation and the entire world.
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