(2014/5775)

Thus far we have presented two justifications for Israel attacking Hamas while risking collateral damage—the guilt of the population for failing to overthrow an evil government (Rambam), and license to wage a legitimate war against an entire nation if necessary (Maharal). We will conclude this week by developing a third approach and then discuss the vitally important question of Israel risking the lives of its soldiers in an attempt to reduce Arab civilian casualties.

Are We Waging War Against a Nation?

 The question arises as to whether or not the State of Israel is considered to be waging a war against the Gazan community, as it seems that the Maharal’s principle only applies when waging a war against a nation. Rav Yitzchak Blau argues that, “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” (Tradition 39:4:17)?

Rav Blau’s question emerges from his misapplication of the paradigm of the definition of war from a conventional war to the war against terrorism. The fact that, for example, Americans did not hire Japanese workers during World War II is irrelevant to the current war on terrorism. Indeed, Israelis hire Arab workers with the intention, in part, of motivating them 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, which is governed entirely by Hamas, undoubtedly constitutes an enemy nation entirely analogous to the relationship between Japan and the United States during World War II.

A Third[1] Justification for Israel to Risk Civilian Casualties–Shaul’s Warning to the Keini

Moreover, even if one asserts that Israel is engaged in a war against the army or community of Hamas terrorists and not the Arabs of Gaza, Israel is Halachically justified in risking collateral damage. 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 only against Amaleik, he was allowed to risk harming another people embedded within them. Similarly, the Israeli army may risk the lives of Palestinian civilians who live among Palestinian terrorists. The same applies to Hezbollah terrorists embedded within the civilian population of Lebanon. As Rav Hershel Schachter commented to me, a war must be fought properly, not with one hand tied behind one’s back. Rav Yuval Sherlow similarly stated that there is an ethical obligation for a nation to win a justified war.

Israeli Prime Minister Binyamin Netanyahu noted in a speech to the United Nations in 2009 that a moral prohibition to risk the lives of non-combatants grants a license to terrorists to launch attacks from civilian areas without fear of retribution. While those who condemn Israel for risking collateral damage cloak themselves in morality, these condemnations are themselves profoundly immoral. Morality and Halachah demand properly waging war to eradicate evil governments such as Nazi Germany and Hamas even if it involves risking the lives of civilians for the three reasons we have outlined. Arguments to the contrary are immoral due to the fact that they permit the proliferation of evil.

Placing Soldiers at Risk to Reduce Civilian Casualties

The Israeli army is thus clearly entitled to risk the lives of civilians in Gaza during their efforts to eradicate Hamas. A crucial question, though, is whether Halachah requires Israel to risk its soldiers’ lives in order to reduce civilian casualties in Gaza. This question is debated by the leading Posekim of our generation. Rav Aharon Lichtenstein 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]” (Techumin 4:185). 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) strongly disagree. Rav Lior writes, “In times of war, there surely exists firm halachic basis for any action taken in order to ensure that not even one soldier is God-forbid harmed.” Rav Schachter and Rav Bleich told me that they agree with Rav Shapira and Rav Lior. In fact, Rav Schachter argues that Israel acts immorally when it risks its soldiers in order to reduce Arab civilian casualties. Rav Bleich concurred with Rav Schachter that it is forbidden to risk Israeli lives in order to save Arab civilians. Avi Levinson reports that Rav Mordechai Willig told him that he agrees with the approach of Rav Shapira and Rav Lior. Rav Shlomo Aviner argues that the responsibility of a government to protect its citizens even at the risk of lives of enemy civilians applies equally to its soldiers as its civilians. Thus a government is not permitted to risk its soldiers to spare the lives of enemy civilians.

We should note that neither side in this debate cites an explicit source regarding this matter. Rather, it appears to be a question of the Halachic-moral intuitions of great Posekim. We cannot say that one side of this debate is more stringent or maintains a higher moral standard, because each side believes the opposing position to be morally wrong. One could simply add that just as we cited from Rav Yisraeli and Rav Bleich 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, the intuition of nearly all of Rabbinic authorities does not accord with Rav Lichtenstein.

Professor Eliav Shochetman, though, argues that this issue is analogous to a question posed to the Radbaz (Teshuvot Radbaz 3:627). The Radbaz was asked whether it is permitted for a person to sacrifice one of his limbs in order to save his friend’s life. He responded that if there is a serious chance that the one sacrificing the limb will be endangered thereby, it is, “foolish piety” to do so, since, “his chance [of death] is more significant than his friend’s definite [survival].” It thus appears from the Radbaz that it is inappropriate for the IDF to risk its own soldiers in order to save enemies from certain death. The Radbaz’s position is accepted by most Posekim (See, for example, Teshuvot Chelkat Ya’akov Choshen Mishpat 332:143 and Teshuvot Tzitz Eliezer 9:28:3 and 9:45). Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 3:84) thus concludes, “The majority of Acharonim concur that one is forbidden to place himself in great danger in order to save his friend from certain danger.” Similarly, one could argue that risking Israeli soldiers’ lives to reduce enemy non-combatant casualties constitutes “foolish piety” (Chassid Shoteh).

Rav Bleich cautions, though, that in certain situations, Israel might be justified in risking soldiers’ lives in order to spare Arab civilians if it concludes that causing Arab civilian casualties will later endanger Israeli lives as a result of unjustified international condemnations. One might add that if Israel fears that Arabs in neighboring countries will be incited by large scale civilian casualties and pressure their leaders to wage war against Israel, thereby endangering Israeli lives, risking Israeli soldiers to save other Israeli lives might be permitted. We should stress, though, that in these cases, risking Israeli soldiers may be justified since it will also save Israeli lives in the long run. Rabi Akiva’s famous dictum that, “Chayecha Kodemim LeChayei Chaveircha,” “One’s life takes priority over another person’s life,” is most applicable and relevant to this situation. The lives of Israel’s soldiers enjoy precedence over the lives of enemy civilians.

Rav Shalom Rosner noted (during a Shiur I delivered in Woodmere, New York) that this is similar to the criticism leveled by Ya’akov Avinu to Shimon and Levi (BeReishit 34:30). He did not criticize the morality of their actions, but noted the pragmatic consequences of their killing of Shechem: “We are a tiny people and now the nations of Cana’an will gather and massacre us.” Similarly, Israel is justified in risking their soldiers’ lives if the leadership’s role is not only to spare enemy civilians, but also to avoid an escalation of the Gazan war into an all-out war with its Arab neighbors.

Philosophical and Hashkafic Reflections

The Torah implores us to have a degree of compassion even for our enemies. For example, the Ramban (Mitzvat Aseih 5 of those the Rambam omitted) cites the Sifri that requires that when besieging an enemy position, we should not completely encircle them. We should leave one side open in order to give the enemy a chance to escape. The Ramban explains that one reason for this rule is that we should have mercy on the enemy soldiers. He adds that it is our interest to do so, since it will encourage enemy soldiers to flee, thereby weakening the morale of our opponents. Thus, compassion for our enemies is appropriate only when it also furthers our legitimate interests of proper defense.

 Rav Hershel Schachter and Rav Yuval Sherlow cogently note that Israel is morally obligated to emerge victorious in its battle against the Amaleik-like Hamas. The compassion we must have for our enemies cannot impinge upon our ability to win a war. Indeed, Rav Sherlow suggests that the IDF’s code of ethics’ first clause should state that it is a moral obligation for the Israeli army to win its justified battles. 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 of 2006.

The Jewish leadership in Eretz Yisrael has made extraordinarily generous offers for peace towards its Arab neighbors throughout the past decades. It accepted the Peel Partition Plan of 1937, the United Nations Partition Plan of 1947, offered to exchange land for peace immediately after the Six Day War in 1967 and, in 2000, Prime Minister Ehud Barak offered stunning concessions to Yasser Arafat at Camp David (as is fully documented in Dennis Ross’ work, The Missing Piece). Arab leaders have rejected every one of these concessions and have responded with wars intended to destroy the State of Israel and exterminate its citizens. Israel undoubtedly possesses the right to defend itself and enjoys the ethical right and obligation to wage war successfully. Misplaced compassion for enemy soldiers and civilians cannot hamstring our efforts to effectively wage war.

Our patriarch Avraham experienced moral anguish over the enemy soldiers that he killed in the successful war that he waged against four Mesopotamian kings (see BeReishit Rabbah 44:5 and Rashi to BeReishit 15:1). However, this emotion did not prevent him from executing his moral obligation to wage war vigorously and properly against the Mesopotamian aggressors.

Avraham teaches timeless lessons about misplaced compassion towards our enemies. 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 misguided unless it is also done in order to avoid an escalation of the war. May Hashem bless His nation with peace and render this discussion an entirely theoretical concern.

 Conclusion

 Israel’s Ambassador to the United States Ron Dermer is absolutely correct in saying during the Gazan war that the IDF deserves a Noble Peace Prize for the extraordinary efforts and sacrifices it makes to reduce non-combatant deaths among Gazans. No nation in the history of warfare makes the efforts[2] Israel does to spare enemy civilians, which often cause the loss of its soldiers. Condemnation of Israel’s inadvertent killing of Arab civilians is itself evil since it strengthens the resolve and efforts of the evil Hamas. The blame for civilian deaths in Gaza lies completely with Hamas for attacking Israel with no justification.

 We hope that just as the drastic measures taken by the Allied nations during World War II convinced the people of Germany and Japan to embrace democracy and reject evil governments, so too Israeli pummeling of Hamas in the summer of 2014 will lead the residents of Gaza to spurn Hamas in favor of leadership that will live in peace with Israel and focus on the building of a better life for its residents instead of allocating most of its resources in a futile effort to weaken the State of Israel.[3]

[1]One could argue that this is essentially the argument of the Maharal or an expansion of the Maharal’s principle of victims properly waging a legitimate war.

[2]Such as engaging in a ground war instead of “carpet bombing” Gaza, and warning civilians to evacuate before an attack thereby losing the critical element of surprise and facilitating Hamas’s deadly ambushes in the Gazan War of 2014.

[3]An issue raised by this past summer’s Operation Protective Shield needs to be addressed. Israel’s air force uses computer guided bombs to insure pinpoint accuracy to reduce civilian casualties but the infantry fires thousands of shells that do not have these expensive computers attached to them and therefore does greater harm to non-combatants. The question is whether Israel is required to make a huge expenditure in computer guided bombs in order to reduce collateral damage. One could argue that making this investment may cause the loss of Israeli lives in that less money will be available for Israel’s defense and other lifesaving expenses such as health care.