The Top Five Ways Jewish Law Justifies Killing Civilians; #1: Civilians Are Really Combatants

(image by Carlos Latuff)

Please make sure to read my disclaimer: Why Religious Zionism, Not Judaism, Is The Problem.

Read the Introduction: Does Jewish Law Justify Killing Civilians?

The first way in which Jewish law justifies targeting and killing civilians lies at the very heart of the issue.  The starting point of the just war theory (and international law) in regards to jus in bello (just conduct during war) revolves around the definition of combatant and civilian.  Jewish law (Halakha), as understood by mainstream Modern Orthodox Judaism in Israel, utilizes very different definitions for these two words.

International law, as enshrined in the Geneva Conventions, narrowly defines combatants as those who take direct part in hostilities of an armed conflict.  The T.M.C. Asser instituut in The Hague notes:

Article 3 [of the Fourth Geneva Convention] indicates that during non-international armed conflicts the persons who enjoy protection against the various forms of violence and infringement mentioned are ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause…’

Similarly, the following groups are protected under international law:

…medical officers, corpsmen, chaplains, contractors, civilian war correspondents and armed forces personnel who are unable to engage in combat because of wounds, sickness, shipwreck or capture (ie. POWs)…

In essence, “direct participation in hostilities” refers to using a weapon. This is the fundamental underpinning of international law with regard to distinction and protection of civilians.

Jewish law, on the other hand, deems anyone who indirectly ”participates” in the hostilities to be a combatant and therefore fair game.  Those who ”materially contribute to the war effort” can be licitly targeted and killed.  On p.xvii of War and Peace in the Jewish Tradition, Prof. David Shatz writes:

[Rabbi Michael] Broyde also raises the issue of who is a combatant.  In his view, Halakha maintains that anyone who materially contributes to the war effort is a combatant and thus a fair target.

Based on this “definition,” the modern-day state of Israel takes a very expansive view of “combatant,” legitimizing the targeting and killing of Palestinian civilians.  We clearly see an example of the great latitude taken in this regard by modern-day Jewish religious authorities in the case of the Qibya Massacre.  Rabbi Shaul Israeli, considered  “one of the most important rabbis of the Religious Zionist school of thought,” penned one of the most influential monographs on this subject, entitled “The Qibia Incident in Light of Halakhah.”  In it, he legitimized indiscriminate violence against civilians.  This tract, as we shall see, has defined the Religious Zionist view towards the issue of distinction.

The esteemed rabbi and professor Michael J. Broyde writes on p.22 [note: all citations are from War and Peace in the Jewish Tradition, unless otherwise indicated]:

Indeed, the earliest modern discussion of this topic was presented by R. Shaul Israeli in 1954 in response to the killing of civilians by Israel Defense Forces Unit 101 at Kibia (Qibya) in 1953.  R. Israeli argues that civilians who conspire to assist in the undertaking of military operations can be killed through the pursuer rationale, as they are materially aiding the murderers.

He continues:

Indeed, R. Israeli goes even further, and seems to adopt the view that those who simply extend support to terror–by encouraging acts of violence with mere words–can be labeled combatants as well. This is not, R. Israeli posits, any form of collective punishment, as only people who are guilty (whether of murder or conspiracy to commit murder) are actually being punished.

The reference to “the killing of civilians by Israel Defense Forces Unit 101 at Kibia (Qibya) in 1953″ refers to the Qibya Massacre, in which sixty-nine Arabs were slaughtered–of which two-thirds were women and children.  Prof. Avi Shlaim, a prominent Israeli historian at Oxford University, writes on p.91 of The Iron Wall:

[Acting defence minister Pinhas] Lavon’s order was executed by Unit 101, a small commando unit created in August to carry out special tasks. Unit 101 was commanded by an aggressive and ambitious young major named Ariel (“Arik”) Sharon.  Sharon’s order was to penetrate Qibya, blow up houses, and inflict heavy casualties on its inhabitants. The full and macabre story of what happened at Qibya was revealed only during the morning after the attack.  The village had been reduced to a pile of rubble: forty-five houses had been blown up, and sixty-nine civilians, two-thirds of them women and children, had been killed. Sharon and his men claimed that they believed that all the inhabitants had run away and that they had no idea that anyone was hiding inside the houses.  The UN observer who inspected the scene reached a different conclusion: ”One story was repeated time after time: the bullet splintered door, the body sprawled across the threshold, indicating that the inhabitants had been forced by heavy fire to stay inside until their homes were blown up over them.”

There are too many issues to comment on here.  There is the obvious inhumanity and depravity of the IDF–the Most Moral Army in the World™–firing upon civilians to keep them in their houses and then blowing up those houses on top of them.  Prof. Martin E. Marty writes on p.286 of Fundamentalisms Observed that, in the context of war, Halakha would indeed permit tactics “such as blowing up homes of parents of Arabs who harm Jews.”

What is truly amazing, however, is that this scenario–the Israelis blowing up and bulldozing Palestinian homes–is a pattern repeated throughout Israel’s short history.  All this was done to terrorize the Palestinian population, in order to get more Palestinians to flee their homes to make way for Israeli settlers.  This perfectly fits the quintessential definition of terrorism, yet all we ever hear about is Hamas this or Hamas that.

Then, there is the fact that the war criminal responsible for carrying out this massacre, Ariel Sharon, would later be elected Israel’s prime minister.  Such is the moral state of the modern day state of Israel–war criminals and terrorists are voted into power.  One continually hears about how evil the Palestinians are for voting in Hamas to power, while hearing almost nothing about how Israelis have routinely voted terrorists and war criminals into office.

Another interesting thing to comment on is that discussions of Ariel Sharon and Israel’s war crimes focus on events such as the Sabra and Shatila Massacre, in which Israel only played a support role.  It is my opinion that the focus on the Sabra and Shatila Massacre is a mechanism that deflects attention away from those massacres that were directly carried out by Israeli soldiers.  There are countless such instances, so why the emphasis on Sabra and Shatila?

In any case, it was following the Qibya Massacre that Rabbi Shaul Israeli published a monograph entitled “The Qibia Incident in Light of Halakhah,” which articulated the halakhist view towards the targeting and killing of “hostile civilian populations.”  It was reprinted with some expansions under the title “Military Actions for the Protection of the State” in chapter 16 of Amud ha’Yamini.  This work has had lasting influence in modern halakhic discussions in Israel, and came to form the majority view of the Religious Zionist movement, which is the dominant form of Orthodox Judaism in Israel.  On p.32 of War and Peace in the Jewish Tradition, Rabbi Michael Broyde refers to Rabbi Shaul Israeli’s article as a “thoughtful article” that is “the starting point” for such discussions. Commenting on a vast collection of Jewish articles on “war-related issues,” Broyde notes that “the overwhelming number of [them] agree with the starting point of R. Israeli.”

But perhaps we ought to look at a dissenting opinion to see what is contained in Rabbi Shaul’s tract.  Prof. Ya’acov Blidstein published an article entitled The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel in which he criticizes R. Israeli’s view, saying:

[Rabbi Shaul] Yisraeli develops a systematic and extensive discussion concerning the issue of the attitude to be taken toward a hostile civilian population that supports and encourages violent, murderous acts.

He notes that Rabbi Israeli legalized the killing of entire civilian populations “for their support and encouragement of terrorist acts,” instead of just those actually involved in terrorist acts. ”People who provide the murderer with support and encouragement, but do not take an active, directly conspiratorial part in the act itself” are licit to kill.  Therefore, “‘supportive and encouraging’ civilian population[s]” become “combatants” and can be killed en masse.

Prof. Blidstein notes that “the exact meaning of the terms ‘encourage’ and/or ‘support’” are left wide open.  That the state of Israel takes the widest possible meaning is apparent by the incident in which the view itself was first articulated by R. Israeli: in the Qibya Massacre, “two-thirds of them [were] women and children.”  How children and babies can be guilty of “encouragement and support” of terrorism and be licitly killed by the Israeli military is as much a mystery to me as the Canaanite or Amalekite children and babies being killed in the Bible for the “crime of idolatry.”

Blidstein concludes:

It seems to me that the general direction revealed here is quite clear.  Most of the authors surveyed read the halakhic sources in a manner that allows for extremely forceful action toward various Arab populations, whether these populations encourage and support hostile activity, or only have Arab ethnic identity.

He notes ruefully:

We have also encountered authors who attempted to limit this tendency, but these seem to be less than fully effective in their treatment, and are, within the school surveyed, in a minority.

Prof. Blidstein says his “general thesis” is

that there is a tendency in this school [Religious Zionism] to legitimate more aggressive activity against the civilian population, and to read rather narrowly those restrictions intended to limit and circumscribe such activity.

The fast and loose way in which Israel strips non-combatants of their protected civilian status is very disturbing.  Here, we have the justification of a brutal massacre of 69 civilians of which two-thirds were women and children–an act of state terrorism in its purest form–based on the claim that these were “civilians who conspire[d] to assist the undertaking of military operations”–those who supposedly “simply extend[ed] support to terror–by encourag[ing] acts of violence with mere words.”  In reality, however, there is no way to reasonably determine even this much, and it is simply assumed that the civilians “encouraged and supported” terrorism.

The truth is that the state of Israel routinely strips civilians of their protected status by claiming that they “materially contribute[d] to the war effort.”  This is a very easy charge to levy, requiring very little proof and certainly the issue of proof becomes moot when the civilians have already been killed.  It is especially convenient considering that most indigenous populations indirectly support resistance movements against the occupiers, and the Palestinians can hardly be expected to be different in this regard.

By this all-encompassing definition of combatant, the American women factory workers during World War II who produced parts for planes and tanks would be classified as “combatants” and become licit to kill.  By this definition, American journalists who wrote in support of the war against Nazi Germany would become “combatants” and become fair game.  The millions of American citizens who bought war bonds would similarly become “combatants.”  When we apply this standard to ourselves, it seems truly unthinkable, immoral, and evil.  But when we apply it to Palestinians, it becomes something acceptable.

*  *  *  *  *

To be fair, Israeli apologists from “liberal, secular” Judaism voice similar ideas.  Case in point: Harvard law professor Alan Dershowitz, who is one of Israel’s greatest defenders from the “liberal, secular” spectrum of the Jewish faith.  Dershowitz is credited as being “Israel’s single most visible defender” and “the Jewish state’s lead attorney in the court of public opinion.”

One would hope that as a law professor and self-professed liberal Alan Dershowitz would adhere to international law by respecting the idea of distinction and protection of civilians.  Unfortunately, one would be quickly disabused of such a notion by reading Dershowitz’s writings.  He argues that the word civilian is “increasingly meaningless.”  Dr. Norman Finkelstein documents Dershowitz’s morally repugnant ideas on p.xvi of Beyond Chutzpah:

The main target of Dershowitz’s “reassessment of the laws of war” has been the fundamental distinction in the laws of armed conflict between civilians and combatants.  “The preservation of this sharp dichotomy,” Yoram Dinstein has written [a world-renowned expert on international law and the laws of war], “is the main bulwark against methods of barbarism in modern warfare.”  However, ridiculing what he deems the “increasingly meaningless word ‘civilian’” and asserting that, in the case of terrorist organizations like Hezbollah, “‘civilianality’ is often a matter of degree, rather than a bright line,” Dershowitz proposes to replace the civilian-combatant dichotomy with a “continuum of civilianality”:

Near the most civilian end of this continuum are the pure innocents–babies, hostages and others completely uninvolved; at the more combatant end are civilians who willingly harbor terrorists, provide material resources and serve as human shields; in the middle are those who support the terrorists politically, or spiritually. [189]

[189] He goes so far as to suggest that combatants might deserve more solicitude than civilians in time of war, depending on “the precise nature of the civilian’s ‘civilianality.’” (Preemption, p.247)

Prof. Alan Dershowitz is but one voice in a pro-Israeli movement trying to “revise” international law in order to strip civilians of their protected status (more on this later).  By “revising” the definition of “civilian” to include those who provide “indirect” assistance to the war effort–or who “materially support” the war (even if by “mere words”)–these pro-Israeli defenders are taking a sledgehammer to international law.

One can imagine the absolute outrage if the shoe was on the other foot–if pro-Palestinian groups were justifying the targeting of Israeli civilians for their “material support” of the war effort and military occupation.  If, in the words of these Orthodox Jewish authors, “mere words” in support of the combatants stripped civilians of their protected status–or if, in the words of the “liberal, secular” Jewish law professor Alan Dershowitz, “politically[] or spiritually” supporting the war effort reduced one’s “civilianality”–then the majority of the Israeli population would no longer be considered purely civilian; in that case, wouldn’t Hamas or Hezbollah be legitimated in targeting and killing them?

But as Dr. Finkelstein notes on p.xvii, Dershowitz “imagines that this revision won’t apply to Israel because ‘the line between Israeli soldiers and civilians is relatively clear.’”  Finkelstein asks:

But is this true?  Israel has a civilian army, which means a mere call-up slip or phone call separates each adult Israeli male from a combatant.

As Finkelstein quips presciently on p.xviii, “it remains to consider Dershowitz’s own location on the continuum of civilianality.”  Wouldn’t being “Israel’s single most visible defender” constitute providing “material support” to Israel’s military occupation of the Palestinians?  Using the elusive and expansive word “material support” one is able to strip most civilians of their protected status.

During the Gaza War, in which Israel massacred scores of civilians, the Israelis used this “extended definition” of “combatant.”  Amos Guiora, who served as a military lawyer in Israel for 19 years, wrote:

Israel declared war on an organisation [Hamas], and by extension on all those involved in that organization – active and passive alike.

Prof. Alan Dershowitz is certainly correct about one thing: Israel’s apologists, from the Orthodox Jewish to secular sectors, have successfully rendered the word civilian “increasingly meaningless.”  By extending combatant status to civilians who “indirectly” contribute to the war effort, the Israeli state is able to justify killing civilians whenever it wants: wherever Israeli rockets land, there is a Palestinian terrorist.  Ergo, Israel never targets anyone but terrorists.

The principle of distinction and protection of civilians is the basis for war ethics under international law: could it be said then that Jewish law is fundamentally at odds with the just war theory?  Wouldn’t this be the conclusion our anti-Muslim Zionist opponents would arrive at if this were about Islam?

Next: The Top Five Ways Jewish Law Justifies Killing Civilians; #2 Collective Punishment is Kosher (I)

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