Sunday, January 04, 2009

Civilians and War

As the war continues in Israel, it is appropriate to study some of the relevant laws and discuss the ethical issues involved in this war.

Let us address a fundamental question that is currently being asked: Is there any legitimation for the incidental killing of civilians in war? We aren't talking about targeting civilians but what is sometimes called "collateral damage", people killed incidental to an attack on a military target. Are such deaths ethically justified in Jewish law or are they murder and a deligitimation of the military strike?

Click here to read moreWhat is perhaps the classic article on the subject was written by R. Shaul Yisraeli following a 1953 IDF raid on Kibia that included civilian deaths (see his Amud Ha-Yemini, pp. 168-205). R. Yisraeli asks the following questions:

  1. Why is a Permissible War (Milchemes Reshus) ever allowed? In order to begin such a war, permission has to be received from the Sanhedrin (which does not currently exist, so such a war is currently impossible). But what gives the Sanhedrin, a body of religious judges, the right to permit what would otherwise be murder?

  2. It is clear that Jewish law recognizes the acquisition of property through conquering it, whether by Jews or Gentiles. What gives Gentiles the right to wage war in order to conquer? Isn't that murder?
Basing himself on various sources, most notably an explanation of the Netziv in his commentary on Gen. 9:5, R. Yisraeli concludes that war is permissible based on the concept of "the law of the land." Humanity as a whole allows for killing during war and, therefore, such killing is considered legal. In the cases when humanity does not allow for killing during war, then such killing is forbidden as murder. The defining rule for what is legally permitted during war is what the world at large generally accepts in practice -- what the armies of the world do and not necessarily what is written in any international rulebook.

Since collateral damage is generally accepted in military maneuvers throughout the world, it is religiously allowed. When and if the time comes that it stops being accepted practice (in reality, not just in rulebooks), then it would no longer be allowed.

There are other approaches to Jewish military ethics. In this article (link, pp. 19-20), R. Michael Broyde list five approaches to this subject. However, he feels that R. Yisraeli's view is the most convincing. See also his booklet on the subject, The Bounds of Wartime Military Conduct in Jewish Law: an Expansive Conception: link (PDF).

There is also an Orthodox Forum book on this subject but I have not seen it: War and Peace in the Jewish Tradition

See also this post on conducting a siege according to Jewish law: link

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