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  Vol. 2  /  2004                              A JOURNAL OF POLITICS AND THE ARTS      

     

Endangering IDF Soldiers
in Order to Avoid Harming Enemy Civilians
In the Wake of Operation “Defensive Shield”

    Eliav Shochetman

Operation “Defensive Shield”, upon which Israel embarked in order to rout the terrorist infrastructure and strike at the terrorist organizations, which have long been perpetrating the systematic massacre of men, women and children, placed several questions on the public agenda, among them those relating to military morality and purity of arms in Israel.

This paper is devoted to one of those questions and the relevant facts, for our purposes are the following: In the framework of Operation “Defensive Shield” (Spring 5762/2003), IDF forces entered Arab cities in Judea and Samaria in order to apprehend fugitives and liquidate terrorist infrastructures. Among other places, the IDF also took action in the city of Jenin, including the refugee camp located therein, from which several of the perpetrators of the most severe catastrophes which befell Israel in the wake of the recent suicide bombings, had embarked. After most of the residents of the refugee camp heeded the IDF call to evacuate the area, IDF commanders requested authorization to bomb a certain defined area in the camp from the air, in order to avoid inevitable casualties among the ground forces.  Authorization was not granted and as a result, on April 9, 2002, a ground operation was initiated, in the course of which, 13 IDF soldiers were killed. The IDF Commander of the Central Command, when asked why the site had not been bombed from the air, responded that it stemmed from the desire to avoid civilian casualties. A senior officer in the combat force said that he “prefers that a soldier be killed rather than a Palestinian woman”.1 In a newspaper interview, the then Defense Minister, Binyamin Ben-Eliezer, confirmed that it was he who had ordered the ground operation, in order to avoid bombing from the air – which was liable to cause civilian casualties among the refugee camp residents who remained at the site.2

The following are his comments on the matter in their entirety, as cited in the interview:

Then Ben-Eliezer recounts the hardest day of Operation “Defensive Shield”,

For example, the decision whether to use a plane or to enter the Jenin Refugee Camp on foot at the height of the operation. This was the most painful decision in my career. Senior military and intelligence officials approached me, and said to me: “Mr. Defense Minister, sir, we request your permission to deploy a plane in order to break the resistance in the Jenin Refugee Camp, because there is an especially difficult stronghold there and any attempt to advance on foot will cost us soldiers. The area is booby-trapped. The streets are filled with mines and car bombs. We request permission to drop a bomb from the air” – and I faced them alone and said: “No, you’ll do it on foot.”3

Q:  13 soldiers were killed.

A:  I found that out later. I maintained a serious exterior, but inside I cried, because the implication of my decision was that 13 people were killed. The decision was mine alone. I told them: Continue to fight on foot. One step at a time. They did as I said, and the result was horrible. I deal with it every day. Do you think that I sleep at night?

Q:  Why did you act against the position of the army and intelligence?

A:  Because, in my opinion, dropping a bomb from the air on a refugee camp, could engender, in the case of the slightest error, the murder of dozens of Palestinians.

Q:  In order to avoid endangering the lives of Palestinians, you made a decision, which caused the death of 13 soldiers. In hindsight, does that decision torment you?

A:  I am tormented by the thought that perhaps it was possible to have made the opposite decision. That thought torments me greatly and I live with the pain. But the more I continue to dig deeper and deeper into this episode, I don’t think that any leader, commander or Defense Minister in the Jewish state would have been willing to take responsibility and attack the camp by means of a bomb liable to kill a Palestinian civilian population.

Q:  On the day on which the soldiers were killed, the combat was underway. Most of the Palestinian civilian population had fled the area of combat.

A:  You are pushing me into a corner, where I don’t want to be pushed. Now, you are trying to place me before a firing squad consisting of the 13 soldiers killed in Jenin. It was a fundamental decision, which took everything into consideration, including the chance that innocent citizens of Jenin or IDF soldiers would be wounded or killed.

Q:  Had you known in advance that 13 soldiers would be killed, would you have made the same decision?

A:  Come on, this isn’t a pita bread factory. We’re talking about human life. Believe me, it’s hard enough for me to fall asleep at night as it is.

The question is: Is there any justification to endanger the lives of IDF soldiers in order to avoid potential enemy citizen casualties, especially under the circumstances of the incident in question, in which those citizens were called upon to leave the area of the refugee camp, and those who did not evacuate – were these not responsible for their actions? Would a bomb from the air or an artillery barrage, under those circumstances, have been a deviation from accepted standards of morality? We will attempt to answer these questions below, while relating to perspectives of Jewish law, moral principles and international law, and to the perspective of de facto legal practice. We will begin with the Jewish law perspective.

A. The Sanctity of the Israeli Camp

The Torah (Deuteronomy 23:15) says: “Because the Lord your God walks in the midst of your camp to deliver you and to give up your enemies before you, therefore your camp shall be holy.” Our rabbis interpreted:

The Holy One Blessed Be He associates His name with Israel...only when your camp shall be holy, and then He rests His divine name among you and he saves you from your enemies and delivers your enemies [into your hands].4

A prerequisite for the resting of the Divine Presence in the Israeli camp in times of war (and not only in times of war)5 is: “Your camp shall be holy.” The sanctity of the camp should manifest itself in the cleanliness of the camp. This is one of the 613 commandments: “And you shall have a paddle upon your weapon...” (Deuteronomy 23:13); the author of Sefer HaChinukh  wrote: “That cleanliness is one of the good qualities, which leads to holy inspiration...and it is also praiseworthy for a nation that when the enemy scouts come and see their camp sacred and clean of any filth.”6

The sanctity of the camp does not include only physical cleanliness. The sanctity of the camp is a broad concept similar to the commandment “and you shall be holy”, which according to Maimonides in his Book of Commandments, is a commandment to “fulfill the entire Torah. As if it said: Be holy when you do everything which I commanded you and refrain from doing all that I warned you to refrain from doing.”7 Just as “you shall be holy” is not a detail of the commandments, but rather a general directive regarding all of the commandments, so too “Your camp shall be holy” is not a detail of conduct in the Israeli camp, but rather a general directive regarding the sum total of the obligations incumbent upon the state in conducting its military campaigns.

Regarding the profound meaning of the concept, “your camp shall be holy”, Rabbi Shaul Yisraeli wrote:

Alongside the simple interpretation of these verses, which deal with the requirement to maintain the external cleanliness and purity of members of the Israeli military camp, the rabbis’ interpretation of those verses come to inform us of the obligation to maintain the spiritual cleanliness and purity of the Israeli soldier...as both aspects of cleanliness – external and internal, are important in terms of creating the special climate, which should characterize the Israeli military camp...because Israel is not like the other nations and the Israeli army is not like all other armies! We cannot compete with the enemy in terms of quantity...and only if the Israeli army excels in its internal qualities, its moral force, its spiritual purity and in the passion of its belief in the God of Israel and the sanctity of His people Israel, will it battle and emerge victorious. Therefore, the demands made of the Israeli soldier are considerable...and consequently his obligation in times of war is even greater, when the fixed frameworks of life and society disintegrate and come to a stop, “Your camp shall be holy.”8

It is possible to view the commandment of “your camp shall be holy”, as a phrase expressing that which is commonly referred to today as “purity of arms”.9 That expression means: The morality of the Israeli army. It is conceivable that the expression even points to the moral superiority of the Israeli army, which does not conduct itself according to the corrupt norms and standards in effect in other armies. Maimonides, in explaining the commandment of the sanctity of the Israeli camp, wrote:

The Torah comes to warn against the different types of corruption common among camps of soldiers, as the duration of their stay away from their homes grows longer, therefore He commands us to perform actions, which evoke the existence of the Divine Presence among us, in order to rescue us from those actions, therefore He said: “Your camp shall be holy and that He see no unclean thing in thee” etc...so that the concept of the camp as a sanctuary of God will be ingrained in each individual, unlike the camps of the gentiles dedicated to nothing more than corruption and crime, harming others and stealing their property, however our objective is to prime people for the worship of God and regularize their situation.10

Regarding the individual fighter, it is said that at the point that he engages in war, he should know that “he is fighting for the oneness of God.”11

If the objective of war, according to the Torah outlook, is priming people to worship God, and that it is incumbent upon each soldier to know that he is fighting for the oneness of God, there is certainly no room for various manifestations of moral turpitude; indeed, what could those have to do with the worship of God and His unity? It is also important to remember that in the continuation of the verse (Deuteronomy 23:10): “When you go forth against your enemies”, comes the admonition: “Then keep yourself from every evil thing.”

And Nachmanides explained:

The verse warns at a time when sin is most likely. It is well known that it is customary among camps going to war that they eat all abominations, steal and rob and are not even ashamed of adultery and all other kinds of contemptible acts. That which is naturally common among people – will be replaced by cruelty and rage...therefore the Torah admonishes: “Then keep yourselves from every evil thing.”12

Thus, it goes without saying, that any act of cruelty – not to mention unnecessary killing  – which is totally consistent with the objectives of war, as explained above, is absolutely prohibited, and is included in the Torah prohibition: “Then keep yourselves from every evil thing.” Negative phenomena of that sort cause, heaven forbid, the departure of the Divine Presence from Israel.

 B. The Sanctity of Life

The high moral standard required in the Israeli army manifests itself in a variety of areas. Among other areas, the unique moral outlook of the Torah manifests itself in the principle of the sanctity of life13 – including the life of the enemy. According to the Torah’s laws of war, before initiating war, an opportunity must be accorded the enemy to flee or surrender. The Torah negates unnecessary spilling of blood – the enemy’s as well – unless they seek to wage war against us. Thus the verse (Deuteronomy 20:16): “You shall save alive nothing that breathes”, is only said in reference to one who refuses to make peace, however one seeking to make peace – while accepting Israeli rule and the seven Noahide laws – waging war against him is prohibited.14 Even regarding idolaters, the ruling is, that killing him is prohibited “because he is not waging war against you.”15

In the opinion of Nachmanides, the obligation to provide the enemy with the opportunity to flee is one of the 613 commandments and he even emphasizes the moral-educational message which the Torah is attempting to impart to us in this commandment:

That we were commanded, when laying siege to a city, to leave one of the sides of the city without siege, so that if they desire to flee, they will be able to do so in that way, so that we learn to act mercifully even with our enemies in the midst of war, and there is also a benefit for us, as we create an opening for them to flee rather than deploying against us.16

A similar concept can be found in the Sefer HaChinukh  regarding the commandment to offer the enemy peace before embarking upon war against it. He wrote:

Among the rationales of the commandment is the fact that the quality of mercy is a positive one and it is appropriate that we, the holy seed, employ it in all of our matters, even with our idolatrous enemies, for our own advantage, not because they deserve mercy or loving kindness, and also because doing so is beneficial for us...And there is no advantage in killing them, as they are willing to bear our conquest, so that by doing so there should be no corruption or anything that might show that we are cruel, causing all who hear to curse us.17

The words of the Sefer HaChinukh  contain an additional dimension beyond that which we found in Nachmanides, and that is: Not only does unnecessary killing, even of enemies, contain cruelty and is, therefore, not among the qualities appropriate for the descendants of Abraham, Isaac and Jacob. Unnecessary killing is also useless, and is liable to cause all who hear to curse us. In our vernacular, we would characterize it as the need to take public opinion into consideration, which is a consideration, which cannot be ignored either.

The Sefer HaChinukh  continues and explains: “The law of offering peace applies everywhere, that is to say, both in a holy war and in an optional war.” Therefore, it is an absolute obligation, “and a positive commandment, to offer peace even to the seven nations, as all of the geonim ruled”.18 (However, see below, what we can derive from the Maharal).

And Maimonides ruled as well:

We do not wage war against anyone in the world before offering him peace, both in optional and holy wars, as it is written (Deuteronomy 20:10): “When you approach a city in order to wage war against it, you should offer it peace.” If they accept and accept the seven Noahide commandments – not a soul may be killed.19

Thus, there is no doubt that regarding one who is not waging war against us and is seeking peace – killing him is prohibited. What was true of ancient nations, regarding whom we were commanded: “You shall save alive nothing that breathes”, is equally true regarding enemy citizens today, who are not taking part in battle against us.

Rabbi Shlomo Goren wrote something similar:

Despite the explicit Torah commandment regarding battle, we are also commanded to have mercy upon our enemy, to refrain from killing even during times of war unless necessitated for reasons of self-defense in order to achieve the objective of conquest and victory, and not to harm a non-combatant population, and it is especially prohibited to harm women and children who are not taking part in the war...20

Rabbi Shimon Bar-Yohai’s statement, “The best among the Gentiles – kill in times of war”, Rabbi Goren interprets there, as referring to Gentiles battling against us,

however we must not derive from this a directive for the ages that it is permissible to harm the non-combatant population even during the time of war, because Rabbi Shimon Bar-Yohai’s statement is directed against those battling against us and not those who are not actively involved in the war.21

Elsewhere in his book, Rabbi Goren deals with the siege which Israel imposed upon Beirut during the Peace for Galilee War, where Israel enabled the civilian population to flee.

Rabbi Goren wrote:

And to a certain degree, this obligation is incumbent upon the rabbis of Israel, to implement the quality of mercy, which appears in the Torah and in Jewish law...lest a desecration of the name of God eventuate, as they will say that the Torah allows the indiscriminate killing of the innocent along with the murderers. And it is with satisfaction that I note that the IDF acted that way throughout the duration of the siege on Beirut, in allowing anyone wishing to flee Beirut to do so along with his wife and children, as required by Jewish law.22

Is the requirement to have mercy on the lives of the enemy an absolute value, which takes precedence over other values liable to collide with it? For example, is the requirement to allow the enemy to flee and save his life, an absolute requirement, extant even in the case of a holy war, when the objective of the war is “saving Israel from an enemy, which has set upon them”?23

Nachmanides, later in his commentary cited above, wrote that the commandment is in effect throughout the generations “in all optional wars”. Thus, one can conclude that in the opinion of Nachmanides, if the war in question is to save Israel from its enemy, a holy war, this obligation is non-existent. And indeed, in summing up his elucidation of this matter, Rabbi Shaul Yisraeli posits that the requirement to enable the enemy to flee only applies to a war of conquest, an optional war.24 Under those circumstances, the objective of the war is not the destruction of the enemy, and therefore those who do not seek to battle against Israel should not be killed. But in a holy war against those who rise up against us to obliterate Israel, whose sentence is death like that of one who pursues another to kill him, the consideration whether or not to allow the besieged to flee, is exclusively that of the military commanders and the government responsible for their actions.25

Thus, according to that opinion, the upshot is that the value of the sanctity of life as far as it relates to the lives of the enemy, is not an absolute value. The prohibition applies to taking human life for no reason, even if it is that of an enemy. However, when he embarks upon war against us – there is no obligation to allow him to flee, for he is liable to return and harm again. At the conclusion of his article, Rabbi Shaul Yisraeli added comments in light of the siege on Beirut during the Peace for Galilee War, at the end of which, Israel enabled the terrorists to flee.

Rabbi Yisraeli wrote:

The government’s tentativeness is punishing us at dizzying speed, as it capitulated to external pressure and internal pressure from the disloyal among us, and gave our enemies the opportunity to abscond, in contravention of the Torah directive, which we elucidated above, that in a holy war with an enemy oppressing us, no course of flight should be made available.

Indeed, regarding the obligation to allow an exit through which the enemy may flee, there is another opinion. Rabbi Shlomo Goren’s opinion is that this law is in effect even in a war whose purpose is to save Israel from an enemy, a holy war. In his opinion, even regarding a holy war, “it is prohibited to surround the besieged city from all directions, but rather an exit must be left open in one direction, in order to allow anyone wishing to flee the besieged city and save his life to do so.”26 Does Rabbi Goren believe that this law should be implemented even if consequently IDF soldiers are liable to find themselves in mortal danger? I think not. The emphasis in Rabbi Goren’s statement is on the need to allow the civilian population to flee. Rabbi Goren also explains that in addition to the humanitarian objective achieved in the implementation of this law, a military objective is also achieved: “Enabling the enemy to flee, will weaken the resolve of those besieged to engage in battle and they will not fight to the finish.”27 Thus, the implementation of this law has life-saving potential. Rabbi Goren does not address circumstances in which IDF soldiers are liable to pay with their lives. In my humble opinion, under those circumstances, Rabbi Goren would hold that the consideration of preserving the well-being of the soldiers takes precedence, as he himself wrote there a bit later, the enemy must not be allowed to exploit the direction, which remained open “in order to bring in reinforcements in the form of people, weapons or food”. Certainly, one cannot conclude from this law, whose objective is defeating the enemy and limiting the threat to the Israeli army, any conclusion regarding the ostensible priority of the value of the enemy’s life vis-à-vis the lives of the IDF soldiers.

The conclusion to be drawn from the above is that when there is a confrontation between two values: Preservation of the lives of our soldiers on the one hand and the principle of the sanctity of life – even the lives of our enemies – on the other, the value of preserving the lives of our soldiers takes precedence.28

 C. Operation “Defensive Shield” and Jewish Military Morality

The question of the proper balance between these two values was recently on the public agenda, in the wake of Operation “Defensive Shield”, which was initiated in order to exterminate the cells of the murderers, members of the various terrorist organizations, and to liquidate the terrorist infrastructure, which has been exacting so heavy a price from Israel, ever since the outbreak of hostilities at the dawn of New Year 5761 (2000). IDF forces refrained from bombing population centers in which terrorists were hiding, in order to refrain from potential non-combatant civilian casualties, even at the risk of endangering the soldiers’ lives (in fact, a large number of soldiers were injured, wounded and killed as a result of that policy).

That policy, which, as mentioned above, was ratified by the Defense Minister, is based on the view that Israel must refrain from harming enemy civilians at all costs (even unintentional damage caused despite having taken all necessary steps to prevent that damage), even if as a result IDF soldiers are liable to be injured (apparently, this position is derived from what is perceived as “purity of arms”, which is a sacred principle in the accepted Israeli Weltanschauung).

Indeed, it is doubtful whether that moral conduct is compatible with the Torah philosophy. There is room to say, that the supreme imperative – from the Torah perspective – that should guide the government in giving orders to the IDF and its commanders, is: Preserving the lives of the members of the security forces at all costs, even if as a result, enemy civilians are liable to be hurt. The war in question is not a war initiated by Israel for purposes of conquest (“an optional war”). It is a war, which Israel is forced to wage against those seeking to destroy it, and to terminate the lives of its citizens and soldiers, and the rule is: “If one comes to kill you, kill him first.”29 This rule must be fulfilled even at the cost of possible harm to citizens, as responsibility lies with them and their leaders, as their own people forced Israel to initiate a defensive war.

The commentary of the Maharal on the episode of Dina teaches us a lesson regarding the responsibility of the people from whom those who strike at the Jewish people derive, and the license to wage war against them even if as a result innocent people are liable to be hurt. The familiar story is (Genesis 34:1-31) that Shechem, son of Hamor, sought to wed Dina after defiling her. Jacob and his sons heard about the incident and when Hamor, father of Shechem, asked that Dina be allowed to marry his son, Jacob’s sons made their consent contingent upon the circumcision of all residents of the city. Jacob’s sons did all this “deceitfully...as he had defiled Dina their sister”. The end is known: On the third day after the circumcision, Shimon and Levi attacked the city and killed all the males.

The moral difficulty with the actions of Shimon and Levi is that it was not only the sinner who was attacked, but also the rest of the city’s residents who did not sin. It is possible to say that the sons acted improperly, the proof being – Jacob’s reaction: “You have troubled me to make me stink among the inhabitants of the land” (ibid. 34:30); and it is wrong to say that Jacob only said that out of concern lest “[the inhabitants] shall gather themselves against me, and slay me ; and I and my house shall be destroyed.” As in the blessings, with which he blessed his sons before his death, he said about Shimon and Levi (ibid. 49:6): “O my soul, come not into their secret, unto their assembly, my honor, be not united, for in their anger they slew a man,” and he was referring to the incident of Dina (see the commentary of Rashi there); according to the simple interpretation of the verse – he considered the very fact that they killed all the residents of the city a negative act.30 However, sages who dealt with this episode, sought to explain, that the actions of Shimon and Levi were appropriate, and offered different explanations, which we will not detail here.31

The Maharal’s explanation is relevant to our issue. The Maharal too raises the question: “If Shechem sinned – what sin did the rest of the city commit to warrant their execution?”

And he answered:

And it seems that there is no difficulty, because the relationship between the Israelites and the Canaanites, as they are two nations is different from the relationship between two individuals...therefore they [the Israelites] were permitted to wage war against them [the Canaanites] (Genesis 34:16) as a nation coming to wage war against another, which the Torah permits. And even though the Torah said (Deuteronomy 20:10): “When you approach a city in order to wage war against it, you should offer it peace”, that is in a situation where they have committed no offense against Israel, but in a situation when they have committed an offense against Israel, as in this case where they breached them and committed scandalous acts even though they were committed by only one of them – because he is a member of the nation, because they were the ones who initiated the hostilities with Israel – it is permissible to take vengeance against them. The same is true in all wars, which take place due to a scandalous act committed by individuals, that the scandalous act is attributable to the entire nation, as in the case of “Oppress the Midianites” etc. (Numbers 25:17 – The war against Midian undertaken in the wake of abominations performed by individuals against Israel), despite the fact that many did not participate – no distinction is made, since those performing the harmful acts were members of the same nation – it is permissible to wage war against them. The same is true of all wars.32

For our purposes, we can learn two things from the Maharal’s commentary:

1. The obligation to offer peace only applies regarding those who have committed no offense against us. Therefore, when dealing with an enemy who declares his intention to destroy, kill and exterminate the Jews living in Israel, and also does not cease from committing systematic murderous acts, which clearly indicate his intentions, there is no obligation to offer peace.
 

2. When war is justified, even if it breaks out as a result of the act of an individual or individuals, in which the entire nation did not participate, it is permissible to wage war against the entire nation – and then even the innocent are hurt – “and the same is true of all wars.”33

In addition it should be said, that it is conceivable that the exaggerated pursuit of peace by the leaders of Israel, even after an infinite number of acts of murder, which is wreaking havoc among us, is interpreted by the Arab side as a sign of weakness and increases their zeal for murder. And Maimonides, in his well-known Letter to Yemen, apprehended this, when writing: “And the more we tolerate from them in order to have peaceful relations – they will rise against us in war, as David said (Psalms 120:7): ‘I am for peace and when I speak they are for war.'”34

If the sole result of the various calls for peace and the efforts to achieve peace is an invitation to intensify the terrorist attacks against us, it raises the question: Do the calls for peace indicate a nation’s moral strength, which despite everything that its enemies perpetrate against it, it remains firm in its aspiration for peace with those enemies (despite the fact that they do not cease to declare openly their real aspirations vis-à-vis Israel) or perhaps they – the various calls for peace – constitute a demonstration of the moral turpitude of a nation, which does not maintain its dignity and refrains from repaying its potential destroyer in kind, and which, despite the clear knowledge that the enemy will respond to every call for peace with a terrorist attack, does not cease from begging its enemies to make peace with it; for which this nation is willing to pay exorbitant prices in exchange.

None of the above diminishes the fundamental obligation to strive for peace at all costs, as “peace is great...and had the Holy One, Blessed Be He, not put peace on earth, the sword and wild animals would have decimated the land,”35 and it is not for naught that our rabbis (ibid., Article 4) said that, as opposed to other commandments in the Torah, only about peace is it written: “Seek peace and pursue it.” (Psalms 34:15) However, striving for peace must be undertaken in ways that we will not detail here.

Many have discussed this commentary of the Maharal, regarding the question (which in my humble opinion is unconnected to our matter): Is there any permission, from a Torah perspective, for collective punishment?36 Collective punishment means an intentional strike against a civilian population, which took no part in terrorist activity against Israel (when the objective of that punishment is, for example, to deter the perpetration of future terrorist attacks). Our question is totally different: Must one refrain, in a time of war, from actions liable to endanger the lives of a civilian population (which are not intended to harm the innocent), like bombing from the air or artillery shelling, and to take pinpoint action only against those who are responsible for terrorist attacks against us, with the consequences of that policy liable to be: Endangering the lives of IDF soldiers, as was in fact the case in Operation “Defensive Shield”?

We learn from the commentary of the Maharal, that when terrorist attacks are perpetrated against the Jewish people, it is justified to wage war against the nation from which the terrorists emerged, and that justification also includes, among other things, harming the civilian population, which did not participate in the terrorist acts – especially when the damage in question is unintentional – as “the same is true of all wars.” The objective of the justified war against terrorism is the destruction of the perpetrators of terrorism, when in the course of the war enemy civilians are also liable to be harmed. The supreme, guiding consideration is how to beat the enemy with minimum casualties to our forces. If, from a military perspective, the means exist to guarantee victory with minimal danger to our forces, with the ramifications being potential casualties among the enemy civilian population, and those measures are not employed – due not to military considerations, but rather in order to avoid casualties among that population – that is an admission of the ostensible illegitimacy of that war, while, in actuality, there is none more justified than it, as it is a war of self-defense, which is permissible according to all criteria – Jewish law, and all legal and moral norms. Furthermore, that policy, which accords more value to the lives of enemy civilians than to the lives of IDF soldiers, constitutes renunciation of the supreme obligation of the authorities to take all steps necessary in order to protect the lives and well-being of the IDF soldiers.

If, according to the Maharal, it is permissible to strike even intentionally – in the course of war – innocent members of the enemy population, it must be all the more so that it is permissible to undertake actions that are only liable to cause unintentional casualties among the enemy, when responsibility for the outbreak of war is exclusively the enemy’s. Imposing a prohibition – for ostensibly moral reasons – on implementation of effective measures to overcome the enemy, in order to avoid potential casualties among the non-combatant population, with the direct consequence being the placement of the lives of the IDF soldiers in danger, which could have been averted, is a perfect illustration of the saying of our rabbis: “He who becomes merciful to the cruel, will eventually become cruel to the merciful”,37 and in Maimonides’ expression: “Mercy upon the wicked – cruelty to all beings.”38

Rabbi Shaul Yisraeli arrived at a similar conclusion in his comprehensive study regarding the Jewish law questions relating to retaliatory actions undertaken by the IDF in which civilians are liable to be harmed:

In executing an operation, there is no obligation to exercise scrutiny in order to ensure that only those who participate are wounded, because that is the way of war, that the righteous find their death along with the wicked...and they are responsible for every disaster and harm, which befall the rioters, their allies and their families, and they bear the blame. And there is no obligation to refrain from retaliatory actions due to the fear that innocents might be harmed because we are not at fault; they are, and we are blameless.39

An additional point deserving attention in the Maharal is the example of the Midianites, cited by the Maharal in order to prove that it is permissible to wage war against a nation, even though not all members of that nation are guilty of any offense against us. It seems that it is no coincidence that the Maharal specifically chose to cite the example of the Midianites, although it is possible to make the claim that not everyone sinned regarding all of the wars, which Israel was commanded to wage (the Seven Nations War, the Amalek War, etc.). Apparently, the Maharal chose to rely specifically on the Midianite War, due to the statement of our rabbis, “Oppress the Midianites. Why? For they oppress you.” Our rabbis concluded from this: “One who comes to kill you, kill him first.”40

Our rabbis stated the principle: “One who comes to kill you, kill him first” in reference to a pursuer.41 The meaning of the above statement of our rabbis is that when a nation oppresses Israel, it – the nation as a whole – is deemed a pursuer, and that is the case – according to the Maharal – even if it is clear that not all of the people of that nation sinned.  The classification of the nation as a whole as a “pursuer” threatening our existence also reinforces the license to wage war against it and to take all military steps necessary to ensure victory, even if as a result civilians, are liable to be harmed, as they all can be categorized as “pursuers”.42

When an individual is in danger, he is obligated to preserve his own life – even at the cost of the life of the one pursuing him;43 the same is true when a nation is classified as a “pursuer” – it is incumbent upon Israel to preserve the lives of its citizens and soldiers – even if as a result of those acts of preservation, some of the people of that nation are liable to be harmed.

At the same time, it must be emphasized that the above only applies in the context of a war declared by Israel against that nation. (Then, as mentioned above, there is justification to harm individuals). However, the mere existence of hostile relations does not justify harming individuals from that nation, unless it is clear that they are coming with the intention to kill.

Rabbi Haim David Halevi wrote:

This is not a permit to kill an individual person, but rather only to defend the nation. It is permissible to wage a war against an oppressor nation like Midian. And if one day the nation’s leadership concludes that a certain nation is preparing to wage war against Israel, it would be permissible to launch a pre-emptive war, but it would not be permissible to kill specific individuals from among that nation, just as it was only permissible to kill random individual Midianites in the context of a comprehensive war.44

 D.   The Parameters of Saving Lives

The conclusion that a nation is under no moral obligation to refrain from actions liable to harm enemy citizens, with the result liable to expose the IDF soldiers to a life-threatening situation, in my humble opinion also stems from the parameters of saving lives.

According to standard Jewish law principles, a person is not required to save his counterpart, when in the course of that life-saving action he endangers his own life, even if there is only a possibility that he will endanger himself. The source of this principle is in the responsa of the Radvaz, who was asked: “What is the law in the case of a Jew who is told by the regime, ‘allow me to amputate one of your limbs, a procedure, which will not endanger your life and if you refuse, I will kill your Jewish friend.’”45 The person posing the question to the Radvaz, quoted, “There are those who say...that he must allow them to amputate his limb as it will not lead to his death.” In his responsa, the Radvaz writes that even if the amputation of a limb is not life-threatening, one is under no obligation to sacrifice his limb in order to save his counterpart, but rather it is only if he chooses to do so out of righteousness, and certainly he should not do so if there is a chance that he may be endangering his life.

He concludes the responsa:

Know that the danger of losing a limb is serious as it is even permissible for a Jew to desecrate the Sabbath by performing all actions proscribed by rabbinic interdiction in order to save the limb. In addition, the verse says: “Its paths are paths of peace”, and the laws of our Torah should coincide with reason and logic, and how could we even consider that a person would allow one to blind his eye or sever his arm or leg in order to prevent the death of his counterpart. Therefore, I see no point to this law except for one who chooses to do so out of righteousness and blessed is he who would be able to withstand it. And if there is a chance that he is endangering his life, he is a righteous fool, as the potential threat to his own life supercedes the certain threat to his counterpart’s life.

In other words, a person must not take action, which endangers his life – even if there is only the potential of danger – in order to save his counterpart, because a person is not commanded to sacrifice his life in order to save his counterpart (unless there is no danger to him, in which case he is obligated to save him46). One who seeks to act in a righteous manner and unjustifiably endanger his life, is a “righteous fool” and his actions entail “loss of life”, in language used by the Radvaz in a different responsa.47 This principle of the Radvaz was widely accepted by the arbiters of Jewish law, who applied it to a variety of matters in which the rescuer is absolved of his duty to rescue when doing so would entail self-endangerment.48 The significance of that relief is that not only is he not obligated to do so, there is no room for stringency either, as stringency in that case would be recklessness vis-à-vis his own life, and the law is that even a possible threat to his own life takes precedence over the life of his counterpart.49

The application of this principle in our case mandates the conclusion that a soldier may not engage in an action which endangers his own life or even potentially endangers it, in order to save someone else from danger. This rule, which applies to the soldier, applies to the same extent on those entrusted with the safety and well being of the soldier. In our circumstance: No military action may be undertaken which endangers the lives of the soldiers (a ground action, which involves the certain loss of human life), with the purpose of sparing potential casualties among enemy civilians, under circumstances where the military objectives could have been achieved by a different action (bombing from the air or artillery shelling) which would not endanger the lives of the IDF soldiers. And if regarding a situation where one has done no harm but someone needs help, the principle that one need not endanger oneself in order to save him is in effect, it is all the more so that there is no obligation to endanger oneself for one whose emissaries and leaders oppress Israel and compel Israel to wage war in order to protect its citizens.

It is worth noting that regarding the question whether a soldier is required to place himself in a situation of potential danger in order to save his fellow soldier from danger, Rabbi A.I. Waldenberg ruled that it is permissible.50 In his opinion, “just as waging war with all of its circumstances and missions, which places the entire nation in danger, is permissible, so too one of its rules is that each member of the combat force is required to give his life in order to save his comrade from danger confronting him due to the war.”

And the reason for that is:

It is reasonable to state that just as it is impossible to use that which is permissible in times of war as a precedent for other situations, so too it is impossible to use that which is prohibited elsewhere as a precedent for times of war; and just as the principle “and you shall live by them” does not apply in war, so too the rule that “your life takes precedence” also does not apply in war. As one, each and every individual is required to give his life in order to save the life of his comrade. This is included in the principles of communal law and the conduct of a state and its interests.

It goes without saying that this exception has no ramifications for the issue at hand.51 One can certainly not claim that in the framework of “principles of communal law and the conduct of a state and its interests”, there is a principle imposing upon a soldier or upon the state authorities the obligation to take life-threatening risks in order to avoid potential casualties among the citizens of the enemy which is fighting against them. On the contrary: “Principles of communal law and the conduct of a state and its interests” require the placement of the consideration of preservation of the soldiers’ lives at the top of the list of priorities due to the simple human principle, “your life takes precedence over the life of your enemy.”

 E.   Balance Between Values

According to the accepted principles of jurisprudence in the State of Israel, no value – important though it may be – is absolute, and the proper balance must be found between it and other values, which are likely to confront it. For example, Chief Justice Aharon Barak wrote the following regarding the principle of freedom of conscience and religion:

Freedom of conscience, faith, religion and worship...are not absolute...The right to pray does not permit me to trespass on my neighbor’s property or to make myself a nuisance to him. Freedom of conscience, faith, religion and worship are relative freedoms. A balance must be struck between those rights and interests, which also merit protection, like personal and communal property and freedom of movement. One of the interests, which must be given due consideration is that of public order and communal security...52

Even the sanctity of life is not an absolute value in Israeli jurisprudence, and a balance must be struck between it and other values likely to clash with it. Justice A. Witkon addressed this matter many years ago:

The consideration of the sanctity of life – is unchallenged, and I would say that it is a matter of consensus and does not require proof. Human life is considered a valuable asset which must be protected to the utmost, everywhere, with no difference between different religions and nationalities. The problem is that this sublime consideration is not the sole consideration which must be taken into account.53

Regarding the same issue, Justice Moshe Zilberg elaborated on this matter from the perspective of Jewish law:

Judaism, from time immemorial, glorifies and exalts the great value of human life. The Torah is not a philosophical system of opinions and beliefs, but rather a Torah of life – of life and for life “which man shall fulfill and live in accordance with them” (Leviticus, 18:5); “and he shall live in accordance with them and not that he die in their fulfillment.” (Yoma, 85b)...It is clear that Judaism too does not view life as the most sublime value. There are superior objectives and more sublime ideals, for which it is worthwhile – and we are commanded – to sacrifice our lives...However, within the orderly framework of society, and according to the Torah’s list of priorities, life is the most sacred asset, the preservation of which supercedes every other sanctity...“There is nothing which supercedes the saving of life, with the exception of idolatry, incest and murder.” (Ketubot, 19a)54

The proper balance between those values sacred to us must also be implemented in the issue at hand. Human life is a sacred value. Even regarding an enemy – an enemy may not be killed without reason. But, the value of the enemy’s life must not be sanctified when it clashes with the value of defending the lives of IDF soldiers and members of the security forces charged with our security. IDF soldiers are civilians in uniform, and their right to protect their lives and well being is a constitutional right guaranteed by the authority of a Basic Law: Human Dignity and Freedom.55 The objective of the war is victory over the enemy. It is only natural, that in the course of achieving victory, enemy civilians are liable to be hurt. According to every moral criterion, there is no obligation to refrain from those actions – when they are militarily necessary – and thereby place the lives of the IDF soldiers in danger. The proper balance between the values requires taking all required military actions in a manner which will optimally minimize the danger to the lives of the IDF soldiers, even if as a result, enemy civilians might be hurt (despite taking steps to minimize the damage); responsibility for their bloodshed rests on the enemy’s leaders, who brought upon them and upon us the unending cycle of terrible bloodshed.

The need to strike a balance between various values exists in other areas as well, both in accordance with the law practiced in Israel, as mentioned above, and in accordance with Jewish legal tradition. Thus, for example, the principle of the “sanctity of contracts” in Jewish law requires the honoring of agreements – even with an enemy – even if it is possible to renounce the obligation due to subterfuge. The reason for this is due to the desecration of God’s name, so that Gentiles will not say that Jews do not fulfill their commitments. This we derived from the episode of the Givonites (Gittin, 46a). Saul, who violated the commitment given to the Givonites in the time of Joshua, brought an awful punishment upon his nation and his family (Samuel II, 21; Yevamot 78b). However, it seems that when fulfillment of the agreement involves the loss of Jewish life – which was not the case with the Givonites – insistence on the fulfillment of the agreement at all costs contains an element of being a righteous fool, and here too, the “sanctity of life” should take precedence over the “sanctity of contracts”, and obligate renunciation of the agreement in order to prevent extraneous bloodshed, since “there is nothing about which the Torah was as exacting as it was about bloodshed.”56

F.   Military Morality and the Principles of International Law

The State of Israel is a law-abiding country, which accepts – even in times of war – the humanitarian principles of international law, whose objective is to protect the civilian population: “Even during a period of combat, everything must be done to protect the civilian population.”57

At the same time, military actions in which a civilian population is liable to be hurt are possible according to international law in light of the directive of Article 28 of the Fourth Geneva Convention, and Article 51(7) of the first protocol of the 1977 Geneva Convention, which establishes the following: “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attack or to shield, favor or impede military operations.”

This article explicitly determines that a combat force may not exploit a civilian presence in order to provide itself with immunity against military actions against it.58 Thus, a military action taken against a combat force, which illegally exploits the presence of a civilian population, is legitimate and the potential endangerment of civilians in those conditions and circumstances is in accordance with the principles of public international law. Of course, there is no basis for a demand to refrain from an action of that sort, when the alternative action will endanger the soldiers of the attacking force.

It is certainly correct to say – from the perspective of public international law – that there is justification for a military action, as mentioned above, even if there is a degree of danger that non-combatant enemy civilians may be hurt, in circumstances in which IDF forces enabled the besieged enemy civilians to flee the battlefield and avoid harm;59 once the IDF acted in that manner, there is no legal or moral flaw in the conduct of military actions against the enemy, when as a result civilians are liable to be hurt.

Thus, Israel fulfilled articles 57 and 58 of the first protocol of the 1977 Geneva Convention, according to which the combating parties must take all possible steps to avoid or limit civilian casualties. It is doubtful whether the Arab side is careful to fulfill the prohibition against using civilians as living shields for the combat forces, as required by Article 51 Paragraph 7 of the protocol (cited below). Furthermore, according to Article 8(2) XXIII B of the 1988 Rome Convention, it is a war crime to exploit the presence of others in order to render military areas or forces immune to military activity. At this point I would like to emphasize that in mentioning the laws of war from this point on, I am in no way implying that Israel’s war against terrorism falls into the category of “war” in the sense that it is employed in public international law (if for no other reason than that the side against whom the IDF is taking action is not a state but rather a collection of terrorist organizations). The point is, that even if we apply – in a metaphoric sense – the laws of war to our issue, the activities undertaken by Israel by means of its security forces are without fault, both legally and morally. In any case, it is noteworthy that the position of the State Attorney is that the hostile acts recently perpetrated by the Palestinians qualify as acts of combat, and the rules of combat, which constitute a part of international law, apply to them (as far as the justification for the policy of targeted killings is concerned).

In my humble opinion, this conclusion is also the result of the Supreme Court ruling regarding another matter related to the episode of the Jenin battle under discussion.60 Among other things, a complaint was raised concerning this matter against the IDF forces firing at Red Cross and Red Crescent medical teams and against their prevention of the evacuation of wounded and dead during the combat.

In response to the petition, the State claimed:

This is a result of the combat itself, as in the course of the fighting it became clear that in a number of cases, explosives were transported in ambulances and terrorist fugitives found refuge in hospitals...The IDF considers itself obligated to fulfill the principles of humanitarian justice, not only because these principles are mandatory according to international law, but also as obligatory from a moral perspective, and even for utilitarian reasons...Our combat forces were instructed to act in accordance with these principles... The IDF even devotes many forces and resources to coordinate and grant humanitarian aid in the combat zone.

In light of those explanations, the decision was made to reject the petition. Among other things the ruling determined:

We want to emphasize that our combat forces are required to fulfill the humanitarian principles relating to the treatment of the wounded, the sick and the corpses of those killed. The misuse of the medical teams in the hospitals and ambulances required the IDF to act to prevent that activity, but in and of itself does not permit a blanket violation of humanitarian principles. And indeed, that is the declared position of the State. This position is dictated not only by international law, upon which the petitioners are relying, but also by the values of the State of Israel as a Jewish, democratic state.

Please note: Even illegal conduct according to the standards of international law by enemy forces does not justify a sweeping violation of humanitarian principles by IDF soldiers. The State does not renounce its commitment to those principles; it is just that the exigencies of war do not always allow absolute protection of the civilian population. What is true about that which was alleged regarding the IDF forces in this petition, is true regarding any military activity whose objective is to prevent attacks against IDF soldiers, even if, as a result, citizens are liable to be hurt when the IDF employs the necessary steps to prevent casualties of that kind (by calling upon the citizens to evacuate). Once the IDF took those steps, it fulfilled its obligation in terms of these humanitarian principles.

In another ruling the court also said:

We can be certain that the commander of IDF forces in Judea and Samaria – and no one claimed otherwise before us – instructed and will instruct his soldiers to do everything necessary to avoid non-essential casualties among the innocent.61

Military activity, the purpose of which is to prevent certain casualties among IDF soldiers, as a result of which civilians are liable to be hurt, certainly does not fall into that category; indubitably one could not characterize an action of that sort as a non-essential action.

Regarding the justification for attacking military targets intermingled with civilian populations, we find explicit statements in a publication of the headquarters of the Chief Military Attorney which said that along with the principle prohibiting attacking civilian targets, there are circumstances in which there is no avoiding an attack of that sort:

A situation is feasible in which a target will change its nature from civilian to military or vice-versa. Thus, for example, if anti-aircraft missile batteries are deployed on the roof of a school, or if a sniper sits in the minaret of a mosque, the immunity to which the site is entitled as a civilian target will be removed and the attacker will be permitted to strike at it. Legal responsibility for civilian deaths in the case of an attack on a civilian target, which was utilized for military purposes, will fall on the side which improperly exploited the civilian target – and not on the side which responded to the attack.62

As to the methods of action which the army should employ vis-à-vis the enemy forces intermingled with a civilian population, it says there “one cannot expect a military force completely to hold its fire in every situation in which civilians are liable to be hurt”, and that in order to ease the way to finding the right answer, several principles for the conduct of war in an area or objective in which civilians are located were established in the laws of war.

These are the rules:

1. An attempt should be made to distance the civilian population from military targets. This obligation can be fulfilled in several ways, among them dissemination of fliers, announcements with loudspeakers and passing on warnings through the communication network. This obligation must be fulfilled meticulously, unless compelling military needs preclude doing so (immediate attack, surprise).

2. The means of attack should be planned in a manner, which will prevent, or at least restrict casualties among the civilian population.

3.  Even when there is no possibility to isolate civilians from the attack, and there is no alternative to attack, that does not constitute a green light to cause unlimited civilian casualties. The commander is required to refrain from an attack likely to cause casualties among the civilian population, disproportionate to the anticipated military gain.

Regarding the appropriate proportion mentioned in rule 3, it says there among other things:

The laws of war would accept a reaction including shooting, even against a civilian target, when gunfire is originating there or when the battle is raging on the edge of a civilian area.

It seems to me that the application of these principles to the incident in question, leads to an unequivocal conclusion, that after the IDF took action to distance the civilian population from the battle zone, no fault would have been found if the IDF had shelled the compound from which gunfire had been directed at the IDF forces with artillery, or bombed it from the air, in circumstances when a ground attack was likely to cost lives among the IDF forces, which, unfortunately, did indeed happen. The responsibility, in this case, for the possible death of civilians who did not respond to the calls for evacuation, was “on the shoulders of the side, which improperly exploited the civilian target, and not the side which responded to the attack”.

The justification for military activity intended to prevent casualties among IDF soldiers even when enemy civilians are liable to be hurt, also corresponds to the philosophy of Michael Walzer, considered one of the most important modern thinkers on the subject of military morality.63 In his book, Michael Walzer devotes a special chapter to the question of “immunity of non-combatants and military inevitability”.64 Among other things, he deals with one of the principles of what he calls “military conventions”, i.e. the obligations of the states at war and the individuals in combat (commanders and soldiers).

That principle determines that:

It is forbidden to attack non-combatants at all. They may not serve as targets or objectives of military activities... Many times non-combatants are placed in dangerous situations not because someone set out to attack them, but rather because of their proximity to a battle directed against someone else...What is required in a situation of that sort is not the termination of the battle, but rather employing a certain amount of care in order to prevent civilian casualties – in other words, simply to recognize to whatever degree possible, their rights in the framework of war. What degree of care must be exercised? What is the price to be exacted from the relevant soldiers? The laws of war say nothing about these matters. They leave the most difficult decisions to the people to make a decision on the spot, relating to their usual concepts of morality or the military tradition of the army in which they are serving.65

According to Walzer’s assertion,

It is permissible to perform a reasonable action whose consequences will be bad (the killing of non-combatants), as long as the following four conditions are fulfilled:

1.   It is a good, or at least not a bad, action in and of itself, in other words – it serves our purpose as a legitimate military action.

2.   The direct result is acceptable from a moral perspective – the destruction of military supplies, for example, or the killing of enemy soldiers.

3.   The intention of the one performing the act is good, in other words, he strives exclusively to achieve the acceptable result; the evil result is not one of his objectives, neither is it a means to achieve his objectives.

4.   The positive result is positive enough to make up for causing the negative result; it must be justified according to Sedgwick’s relativity principle.66

According to the relativity principle of Henry Sedgwick, the 19th century British philosopher, in the course of hostile actions, it is prohibited to commit “any purposeful act not intended to achieve the objective (victory), or any purposeful act whose benefit in achieving the objective is minimal relative to the extent of the damage involved.”67

If we seek to assess the morality of the IDF action against the terrorists, had an order been given to bomb the compound in which the terrorists were entrenched in order to prevent certain deaths among our soldiers, the conclusion is that that action would have been without fault, even according to the rigorous relativity principle of the British philosopher Sedgwick.

Let us assess an action of that sort in light of these principles, in the order in which they were cited above:

1. The action itself, i.e. the war against the perpetrators of terrorist acts, whose objective is the systematic slaughter of men, women and children whose only fault is that they are Jews – an action, which according to all criteria, constitutes genocide – is a good one, and there is no doubt regarding Israel’s legitimate right to fight against all who ride up against it.

2. The direct result of the action is morally acceptable, as the intent of the action is to strike at the instigators of terrorism and its perpetrators, and not at non-combatant civilians.

3. The intention behind the decision to bomb the compound in which the terrorists were entrenched was worthy, as the objective was exclusively to achieve the morally acceptable objective of liquidating the perpetrators of terrorism; the potential negative consequence of non-combatant civilian casualties is not one of the action’s objectives, neither is it a means to achieving those objectives.

4. The positive result of liquidation of terrorists is positive enough in order to compensate for the causing of the negative consequence of possible civilian non-combatant casualties. In the circumstances of the incident, the certain consequence of refraining from prior bombing from the air or artillery shelling is the loss of life and casualties among IDF forces, which would be forced to conquer the area by means of a ground action. On the other hand, after the IDF informed all of the non-combatant civilians that they must evacuate, there was no certainty that civilians were liable to be hurt; certainly, the IDF had no intention to harm civilians. According to Sedgwick’s rigorous principle, only “a purposeful act whose benefit in achieving the objective is minimal relative to the extent of the damage involved”, is prohibited. Under the circumstances of the incident in question, the benefit of the action (prevention of certain IDF casualties) is relatively greater than the degree of damage involved (killing non-combatant civilians), which in itself is uncertain (as it is entirely unclear that non-combatant civilians will be hurt).

In speaking of the degree of danger, which must be undertaken by the soldiers in combat in the framework of a just war in order to avoid potential, unintentional non-combatant civilian casualties, Michael Walzer writes:

There is a limit to the dangers which we are demanding. We are speaking, after all, of death caused unintentionally in the course of legitimate military actions, and the absolute rule proscribing attacks against civilians does not apply here. The war necessarily endangers civilians: That is another aspect of the hell. We can only demand that the soldiers minimize the dangers, which they engender.68

Therefore, it is not only according to the Maharal of Prague that there is justification for causing non-combatant civilian casualties in the framework of a just war; justification for this is also provided by modern philosophers of military morality (and of course the reference is to unintentional casualties, as mentioned above, when all necessary actions are taken to prevent those casualties), and they are also anchored in the principles of public international law.

It does not go without saying that the perception that a country must, first and foremost guarantee the lives of its own soldiers, even if at the cost of potential casualties among enemy civilians, guided, and still guides, a proper country, like the United States – a country, which in everyone’s opinion attaches importance to human life – in the conduct of its military campaigns over the years. At the end of World War II, when the surrenders of Germany and Japan were delayed, the USA dispatched its airplanes on massive bombing raids on the city of Dresden, and dropped, for the first time in history, an atom bomb on two Japanese cities. As a result of those bombings, hundreds of thousands of civilians were hurt or killed. From a military perspective, those actions were totally extraneous, as at that stage, it was clear that the Allied victory was just a matter of time, and the downfall of Germany and Japan was near. The aforementioned bombs were deployed in order to shorten the duration of the war, and to spare the lives of American soldiers, who were likely to be killed, had the ground war activity continued. This policy also guided the American administration in the US military actions in recent years, in Yugoslavia, Iraq and Afghanistan – actions in which thousands of civilians were killed, in the course of bombing from the air designed to spare the lives of the American ground forces.69

 G.   The Israeli Legislation

The conclusion, that there is total justification for a military action designed to prevent certain fatalities among IDF soldiers even if as a result enemy non-combatant civilians are liable to be hurt – unintentionally, as mentioned above, stems not only from moral principles and the rules of international law, but also from the directives of internal Israeli law.

First, we must address the defense of “need” in accordance with article 34a of the Penal Code, 5737/1977. This article establishes that:

A person will not bear criminal liability for an action which was necessary immediately to save his life, his freedom, his body or his property, his or someone else’s, from a tangible threat of serious damage, stemming from a given situation at the time, and there was no alternative to doing so.

An action undertaken, motivated by the need to save life, cannot constitute the basis of ascribing criminal responsibility to the perpetrator of that action, when there was no alternative to doing so. This is not the proper forum to engage in a detailed discussion of the conditions for the application of the “need” defense in order to render the action permissible. It is worth noting that the law demands that the action be necessary “for the saving of life...his or someone else’s”, the upshot is that it is justified to “take the risk of harming another – even if the ‘other’ bears no responsibility for the existence of the danger”.70 In other words, the rescue will not constitute a crime, even in a situation where its execution involves harming a third party, totally unrelated to any responsibility for the existence of the “given situation”, which “negates the criminality of that action”.71

And applying the principle in the specific case: The circumstances of the incident in question, in which IDF forces are in mortal danger, serve as the basis for permitting any action necessary to save their lives, even if a “third” party is liable to be hurt, which in our case are enemy non-combatant civilians who bear no responsibility for the existence of the threat.

Indeed, in light of the most recent Supreme Court ruling, it is doubtful whether it is possible to use the “need” defense as an a priori basis for sanctioning the actions in question. Regarding the use of illegitimate means of interrogation by the GSS (when the objective is to save lives) they ruled that:

The “need” exception does not provide the GSS interrogators with the authority to employ physical means in the course of an interrogation...The “need” exception does not provide...authorization to the administration to employ physical means to perform actions, which fulfill the “need” exception. The mere fact that a certain action does not constitute a crime (due to the “need” exception), does not, in and of itself, authorize the administration to carry out that action and, thereby, violate human rights.72

At the same time, it is important to remember that as opposed to the interrogation tactics employed by the GSS, and which were deemed invalid – with no legal basis – the IDF military actions in question were totally legitimate actions, and if any concern arises regarding the degree of legitimacy of a military action, the result of which is liable to lead to non-combatant civilian casualties, certainly, the “need” exception can be employed in order to remove that concern, in light of the fact that it is a justified action which is immediately essential in order to save the lives of the IDF soldiers.

In that context, it is worth mentioning the legal distinction between defenses due to lack of criminality and defenses due to lack of liability.

Boaz Sangero wrote on that topic:

Thus, for example, we exonerate the insane from criminal responsibility, because we understand his situation and forgive him, however we do not justify his action, which is criminal. We would definitely prefer that he not commit the crime, which he committed. On the other hand, when a policeman does his duty and apprehends a criminal, we do not exonerate him from responsibility for the crime of false arrest, but we even justify his action. In justification, we mean the legal ramification of an ethical-moral decision that under the special circumstances in which the crime was committed (in accordance with its legal definition), the action is no longer bad, and on the contrary, it is good. On the other hand, when speaking of exoneration, the action is still perceived by society as evil, even under the special circumstances leading to the exoneration (based on understanding and forgiveness and does not constitute moral justification).73

Not only is military activity immediately essential to save lives exempt from criminal responsibility, but it can even be justified a priori, even if as a result, non-combatant civilians are liable to be hurt – unintentionally of course.74 The distinction between defenses due to lack of criminality and defenses due to lack of liability is not included in the language of the relevant law (Article 34/11 of the Penal Code) but the law does not negate it either.

The justification for military activity, which involves endangering enemy civilians, is also ostensibly dictated by the ruling dealing with the State responsibility for damages caused as a result of IDF “martial activity”.

According to Article 5 of the Torts Directive [New Version]: “The State is not responsible for an action accomplished through an Israeli Defense Forces military action.”

The question is, what is a “martial action”? According to the ruling:

The action is martial if it is a combat action or an operational-military action of the army. It is not required that the action be implemented against a state’s army. Actions against terrorist organizations might be considered martial activities. Thus, for example, the combat nature of the action directed against the enemy (whether a regular army or a terrorist entity) seeking to harm soldiers, is liable to create the special threat justifying the granting of immunity to the State... If a military patrol in a village or a city encounters a life-threatening situation or the threat of severe bodily harm due to being fired upon or having rocks or Molotov cocktails thrown at them, it shoots in order to extricate itself and injures someone, the gunfire is a “martial action”, as the danger in the action is a special action.75

Therefore, a military action necessary for saving the lives of IDF soldiers, when in the wake of the action enemy civilians are liable to be hurt, is justified, both in terms of criminal responsibility and in terms of civilian responsibility.

The justification for a military action, as mentioned above, whose objective is to prevent certain danger to the lives of IDF soldiers, also stems, in my opinion, from the obligation incumbent on the IDF command to exercise caution as far as the soldiers subject to their authority are concerned. The implication of that obligation to exercise caution is, among other things, refraining from making decisions which are liable to endanger the soldiers’ lives (for any reason other than security, of course).

In the ruling, it was determined:

An obligation to exercise caution is incumbent upon the military commanders of all ranks to take measures – in order to avert dangers threatening the lives and health of their charges during actions imposed upon those charges in the framework of the army... The aforementioned obligation to exercise caution is a requirement mandated by the military framework as to the extent that the citizen of the state is serving in the military, the possibility of taking independent action is negated from him, and the military framework requires him to engage in activity, which at times involves danger to his life and his health, without him having the freedom independently to take the actions necessary to avert that danger.

The fundamental values extant in the army regarding commander-soldier relations therefore place the responsibility to see to the well-being of his subordinate as incumbent on the commander and he is obligated, among other things, to act reasonably in order to reduce to the extreme minimum the threat to life and health, which the soldier’s action in the military framework entails.76

In this case, the incident in question was a tragedy, which took place during a training exercise. The military tribunal did not ignore the fact that military activity at times requires one to engage in actions, which by their very nature are dangerous, but specifically for that reason – so it was determined – one must assess whether or not the risk is necessary and whether or not the requisite measures of caution to prevent those dangers were taken.77

The above ruling, which was handed down regarding training exercises, is, in my opinion, no less true regarding activity in the heat of combat. The key phrase is: “One must assess whether or not the risk is necessary.” In a case where, according to information available to the IDF, there is certain danger to the lives of the soldiers if a ground action is undertaken, and the possibility exists to remove or limit significantly that threat if alternative military steps are undertaken which are liable to engender enemy civilian casualties, then, ostensibly, the risk is not essential. The obligation to exercise caution incumbent upon IDF commanders ostensibly requires avoiding taking that non-essential risk (especially in the circumstances of the incident in question, when the IDF took all of the requisite steps in order to facilitate the timely flight of the civilians from the combat zone).

This conclusion, regarding the obligation of the authorities to defend the lives of IDF soldiers and to avoid taking non-essential risks, is further reinforced in light of that which is written in Article 4 of the Basic Law: Human Dignity and Freedom: “Every person is entitled to defend his life, his body and his dignity.” This right is constitutional and extra-constitutional, and each governmental authority – including the security authorities – must abide by it (Article 11 of the Basic Law).

And finally, it is impossible to omit in this context, the ancient dictum: “You shall not stand against the blood of your neighbor.” (Leviticus 19:16) The obligation to save another dictated by this commandment is incumbent on every person with the ability to help one who is in danger, and even more so applies to the authorities in charge of security.78 This obligation is established in Article 1 of the “You Shall Not Stand Against the Blood of Your Neighbor Law”, 5758/1998, where it says that it is an obligation to extend assistance “to someone whom he sees, who, due to a sudden incident, is in clear and present danger to his life, the integrity of his body or his health”. The spirit of the law indicates that when IDF soldiers are in certain mortal danger, the requisite military actions must be undertaken in order to avert the danger from them (of course, while taking all necessary steps to avoid civilian casualties, as discussed above).

 H.   “The IDF Spirit” (“The Ethical Code”)

It seems to me that this perception, that there is justification for military action, which can prevent certain fatalities among IDF soldiers, even if, as a result, enemy civilians are liable to be hurt, is also mandated by the document known as the “IDF Spirit”, or by its previous name: The IDF “Ethical Code”.79

Among the values detailed in that document, are two, which are relevant to our matter: “Human Life” and “Purity of Arms”. The following is what is written there about those two entries:

Human Life: The soldier will act in an intelligent and secure manner in everything that he does, recognizing the supreme significance of human life. During combat, he will endanger himself and his comrades to the degree necessary to carry out the mission.

Purity of Arms: The soldier will use his weapon and his strength solely in carrying out his mission, and exclusively to the degree necessary to do so, and he will maintain his humanity, even during combat. The soldier will not use his weapon or his strength in order to harm non-combatant people or prisoners, and will do everything in his power to prevent harm to their lives, bodies, dignity and property.

Thus, “human life” is a sacred value – even when speaking of people aligned with the enemy. The IDF soldier must do everything in his power to prevent harm to human life. This is not an absolute requirement to preserve enemy lives at all costs. The document does not detail what is considered “everything in his power”, as there is no general formula for this, and action must be taken in each case in accordance with its circumstances.

Even regarding his own life, the soldier is only required to endanger his own life “to the extent required to carry out the mission”. There is no absolute obligation to endanger himself, only to the extent required to carry out the mission. And again, the document does not specify any rules; everything depends on the circumstances of each case. What are the criteria according to which one can determine the anticipated norms and requisite forms of behavior in each given case? In my opinion, Jewish tradition throughout the generations has an important contribution to make on this matter.

It was determined in the IDF “Ethical Code” that the “IDF Spirit” – the guidelines for action derived from which, constitute the IDF ethical code – is drawn from four sources:

  1. The IDF tradition and its combat legacy as the Israel Defense Force.
     

  2. The tradition of the State of Israel, its democratic principles, its laws and its institutions.
     

  3. The tradition of the Jewish people throughout the generations.
     

  4. Universal moral values based on the value of man and his dignity.

It seems to me, that the perception that one should take every military action which will prevent unnecessary victims among IDF soldiers, even if it is liable to result in enemy casualties, and to refrain from actions, which unnecessarily endanger IDF soldiers, corresponds with all four of the sources of the “IDF Spirit”. It certainly corresponds with “the tradition of the Jewish people throughout the generations”, as explained above.

If indeed it is correct to interpret the “IDF Spirit” in this way, i.e. that the “degree necessary” to endanger IDF soldiers does not include endangering themselves in order to prevent enemy civilian casualties, and that non-intentional damage of that sort does not constitute a violation of the sacred principle of “purity of arms”, and especially because the IDF did “everything in its power” to prevent damage of that sort,80 the conclusion is that the directive issued by the Defense Minister in the course of Operation “Defensive Shield”, to refrain from taking military action liable to cause enemy civilian casualties, even though it was clear that Israel would pay a price in terms of the lives of its soldiers, not only does it not correspond with Jewish tradition throughout the generations, but it also does not correspond with that which is dictated by the IDF ethical code (not to mention to that which is dictated by the directive of Article 34 of the Penal Code, subject to what was discussed above in the matter of that article).

Conclusion

It seems that according to all of the criteria detailed above, there is no justification to endanger the lives of IDF soldiers in order to avoid possible enemy civilian casualties, under the circumstances in which prior warning was given to the civilian population to evacuate, and the forces against whom the IDF was fighting blatantly violated the international conventions on the matter. Responsibility for the possible civilian casualties in the course of combat rested completely on the terrorist organizations and their leaders, who act in the way that they act, committing crimes against humanity, and not on the IDF, which, to the best of its ability, attempts to avoid civilian casualties; and all of its actions are beyond reproach in terms of the humanitarian principles of international law. It is highly doubtful whether there is another army in the world, in which the moral criteria which guide it in combat, can equal those which guide the IDF and its commanders.

In order to prevent unnecessary tragedies in the future, heaven forbid, clear criteria regarding this matter should be established – after an in-depth study of the issue by the IDF legal authorities, which will obligate all decision-makers in the defense system. In consolidating these criteria, it would be wise to learn from the wisdom of others. However, it would be fitting to accord the appropriate significance to our sages throughout the generations.


Endnotes

1

HaZofeh, April 7, 2002.

2

Maariv, May 31, 2002 (An article by Sari Makover, “I Will Be Prime Minister”, Weekend supplement, p. 18). See also the articles by Danny Shalom, HaZofeh, June 12, 2002, and Assaf Buznak, Tel Aviv Magazine, August 2, 2002. Further expression of this policy was also given in the ruling of the Supreme Court, H.C. 4/02-3116, Bracha v. Defense Minister and Others; Tibi v. Prime Minister and Others; Adallah – The Legal Center for the Rights of the Arab Minority in Israel and Others v. The Commander of the IDF Forces in the West Bank, P.D. 56(3) 11, which dealt with a different aspect of the Jenin battle in question, in which it said that “the army fought from house to house and not by dropping bombs from the air, in order to prevent possible civilian casualties.”

3

See also the statement by the Defense Minister on this matter, “Letters to the Editor”, Maariv, Weekend supplement, June 21, 2002.

4

Midrash Rabah, Numbers, Section 9, Article 7.

5

This verse was interpreted by the sages regarding matters unrelated to army and war. See for example: Berachot 25a regarding reciting the Shema in a filthy place; Shabbat 103a regarding thinking about matters of Torah in a bathhouse or a bathroom. And for those who questioned the fact that a verse written about army and war is interpreted regarding other matters, see the responsa Arugat Habosem, Orah Haim Chapter 18, and the responsa Tzitz Eliezer, Volume 8, Chapter 1, Paragraph 21.

6

Sefer Hachinukh, Commandment 566.

7

Introduction to the Book of Commandments by Maimonides, Principle Four, Chavel Edition, Jerusalem 1981, p. 64.

8

“On the Purity of the Israeli Military Camp”, Mazkeret Le’Moshe, in memory of Moshe Efraim Efrati, Jerusalem 1975, pp. 66, 72-73.

9

See: Rabbi Shlomo Aviner, “Purity of Arms”, in: Halichot Tzava, Yeshiva Ateret Kohanim Publishers, Jerusalem [1994], p. 12.

10

The Guide for the Perplexed, Section 3, Chapter 41, Rabbi Y. Kapah Edition, Jerusalem 1972, p. 618.

11

Maimonides, Hilchot Melachim, 7:15. At the end of the law, Maimonides mentions the verse at the end of Samuel I, 25:28, “For God fights the wars of God.” And see Meshiv Milchama, by Rabbi Shlomo Goren, Volume 1 Chapter 1, Jerusalem 1983, p. 11: “And our intention should be exclusively to sanctify the name of God.”

12

See also the commentary of Nachmanides, Exodus, 15:5. And see in that context, Rabbi A. Sherman, “Jewish Law Principles in Military Morality” Techumin 9 (1988), pp. 231-232. Later in his paper, p. 233, the writer discusses the soldier’s obligation to know that he is going to war over the unity of the name of God.

13

See: Rabbi Shlomo Goren, Meshiv Milchama, Part 1, Chapter 1, p. 3: “There is no doubt that human life is the preeminent value in the Torah, in Jewish law and according to the morality of the prophets. And the reference is not only to Jewish life but also to the lives of everyone created in the image of God.”

14

Maimonides, Hilchot Melachim, 6:1,5,7.

15

Maimonides, Avoda Zara, 10:1.

16

Book of Commandments, Omissions from the Positive Commandments, 5.

17

Sefer HaChinukh, Commandment 527.

18

Responsa by Rabbi Eliyahu Mizrahi, Chapter 57.

19

Hilchot Melachim, 6:1. And see: Rabbi Shear Yashuv Cohen, “Calling for Peace in Israeli Wars”, Torah She’ Be’al-Peh, 21 (1979), pp. 74-81. Compare to the interpretation of Rashi in Deuteronomy 20:10. In his opinion, the requirement to call for peace is only in an optional war; see also the commentary of Rabbi Eliyahu Mizrahi on Rashi, ibid.

20

Responsa Meshiv Milchama, ibid (endnote 13 above), p. 14.

21

Tractate Soferim, Higer Edition, Chapter 15:6.

22

Responsa Meshiv Milchama, ibid, vol. 3, Section 5, Jerusalem 1986, pp. 264-265.

23

See: Maimonides, Hilchot Melachim, 5:1.

24

See: Maimonides, ibid.

25

Rabbi S. Yisraeli, “The Siege on Beirut in Light of Jewish Law”, Techumin 4 (1983), pp. 25, 35-36.

26

Responsa Meshiv Milchama, ibid (footnote 22 above), p. 245.

27

Ibid, p. 240. See also Rabbi Y. Gershuni, “The ‘Peace for Galilee’ War in Lebanon and its Consequences”, Or Hamizrah, 31 (1983) pp. 217, 222.

28

Regarding the responsibility incumbent upon the authorities and the IDF commanders to protect the soldiers’ lives, see: Rabbi Shlomo Goren, Meshiv Michama Part I, pp. 29-38.

29

Sanhedrin 72a.

30

See also the commentary of Rashi, Genesis 34:25 according to the Midrash: “They were Jacob’s sons, however, Shimon and Levi acted like everyone else who were not his sons, as they did not consult with him.” Nachmanides in his commentary on Genesis 34:13, wrote: “And they killed them for nothing, because they had not wronged them, and that is what he said: ‘Their tools are tools of robbery.’” And see Rabbi Yaakov Ariel, “The Institution of War in the Torah”, in Arachim Be’Mivchan Ha’Milchama, in memory of Ram Mizrahi,  Jerusalem 1985, pp. 80, 83.

31

See for example, Maimonides’ explanation, Hilchot Melachim, 9:14. Compare with the commentary of Nachmanides on the Torah, Genesis 34:13. And see Meshiv Milchama (endnote 11 above), pp. 26-28.

32

Gur Aryeh, Genesis, 34:13.

33

 See also Rabbi Yaakov Ariel, “The Torah’s Military Morality”, Arachim Be’Mivchan Ha’Milchama, ibid., pp. 85-86.

34

See: Rabbi D. Lior, “The Jewish Law Approach to the Peace Talks in Our Times”, Shevilim, Vol. 33-35, pp. 146, 150.

35

Tractate Derech Eretz, The Chapter of Peace, Law 1.

36

Rabbi Yoezer Ariel, “Punishing Gentiles”, Techumin 5 (1984), pp. 350-363; Y. Blidstein, “The Schechem Incident – Collective Punishment and Modern Jewish Legal Thought”, Et Ha’Da’at I (1997), pp. 48-55; S. Leibowitz, “The Dina Episode, Shedding Innocent Blood or Justified Punishment?”, Alon Shvut Bogrim 12 (1998), pp. 65-78.

37

Tanhuma, Metzora, 1.

38

The Guide for the Perplexed, Section 3, 39.

39

Amud Hayemini, Section 16, Chapter 5, Article 31, Jerusalem 1966, pp. 204-205.

40

Midrash Rabba, Numbers, Section 21: 4.

41

Berachot 58a and 62b; Yoma 85b; Sanhedrin 72a.

42

Amud Hayemini, Rabbi Shaul Yisraeli, Section 16, Chapters 3-4. That which was written there was written regarding retaliatory actions carried out by the IDF in the early years of the state against population concentrations which supported the murderers. And see Rabbi J. A. Jacobovits, “Civilian Losses in Operation ‘Peace for the Galilee’ in Light of Jewish Law”, Seridim 7 (1986), p. 4, and what he wrote on pp. 9-11 on that matter. There he quotes the interpretation of the Or HaHaim of the Dina episode (Leviticus 34:25), where he explains why the innocent residents of Shechem were punished: “All residents of the city were willing to fight against Shimon and Levi in order to save their king and therefore they killed them in accordance with the law of the pursuer.” According to the Or HaHaim as well, the people of Shechem were pursuers, however, in his opinion, the reason for that is that they constituted a threat (and not only because they were members of the nation against which they battled, as the Maharal said).

43

See: Responsa Da’at Cohen, Chapter 84, s.v. And regarding this issue it can be said: It is important to remember that in order for one to be characterized as a “pursuer”, there is no need for him to have intention to attack, and there is no need to prove any guilt on his part; even a fetus in his mother’s womb, who threatens her life is considered a “pursuer” and it is permissible to kill him, although no intention to harm his mother can be attributed to him, and no guilt can be ascribed to him, see: Sanhedrin 72b; Maimonides, The Laws of the Murderer 1:9; Responsa Iggerot Moshe, Even Haezer, Part 1, Chapter 39, s.v. And to Maimonides; Responsa Yahel Yisrael, Chapter 73, s.v.

44

Rabbi H.D. Halevi, “The Law of ‘One Who Comes to Kill You, Kill Him First’ in Our Public Lives”, Techumin 1 (1980), pp. 343, 346; and see also Rabbi Yizhak Shilat, “Who is Innocent”, Nekudah, Issue 251, Iyar 2002, pp. 32-35.

45

Responsa of the Radvaz, Section 3, Chapter 627.

46

As it is said (Leviticus 19:16): “You shall not stand against the blood of your neighbor.” And see Maimonides, The Laws of the Murderer, 1:14; Shulhan Arukh, Hoshen Mishpat, Chapter 426, Paragraph 1. This obligation is incumbent upon the State of Israel by the authority of the “You Shall Not Stand Against the Blood of Your Neighbor Law”, 5758/1998. It is worth noting that according to the law, this obligation is only in effect in circumstances where rescuing the other does not involve endangering oneself (Article 1 of the law).

47

Responsa of the Radvaz, Section 4, Chapter 67. According to the Mishna, Sota, 2:4, a righteous fool is among those who “wear out the world” and according to another version: “destroy the world”. Sefer Hasidim, Margaliot Edition, Chapter 126 cites the verse (Ecclesiastes 7:16): “Don’t be too righteous,” and Maimonides, in his commentary on the Mishna Sota, ibid., writes that he is included among those on whom it is said: “Someone who is exempt from doing something and does it anyway is called a layman.” (Yerushalmi Berachot 2:9; Shabbat 1:2)

48

See for example: Responsa Helkat Yaakov, Hoshen Mishpat, Chapter 33 (regarding events during the Holocaust).

49

Responsa Tzitz Eliezer, Volume 9, Chapter 28.

50

Responsa Tzitz Eliezer, Volume 12, Chapter 57. Also see what he said in Volume 13, Chapter 100.

51

Other exceptions to this rule, which also are not relevant to our issue are: (a) A doctor administering medical care to a patient and is liable to be infected by the patient. (b) When Israel as a whole is in danger, there is room to permit one to give his life to save the public.

52

A. Barak, Interpretation in Law (Hebrew), Volume 3, Jerusalem 1994, pp. 225-226, in his mention of H.C. 292/83, Ne’emanei Har Habayit v. Commander of the Jerusalem Police District, P.D. 38(2), pp. 449, 455.

53

Appeals 461/462 Zim v. Maziar, P.D. 17, pp. 1319, 1337.

54

Ibid., p. 1333.

55

See: Appeals 2495/95 Ben Lulu v. Elias, P.D. 51(1), pp. 557, 601. A. Barak, ibid (footnote 52 above), p. 319.

56

Maimonides, Hilchot Rotze’ach, 1:4.

57

H.C. 3116-4/02 Barake v. Defense Minister and Others; Tibi v. Prime Minister and Others; Adallah – The Legal Center for the Rights of the Arab Minority in Israel and Others v. IDF Commander in the West Bank, P.D. 56(3) 11 (Chief Justice Barak), 364.

58

And see Yoram Dinstein: The Laws of War (Hebrew), pp. 135 and 141 and following. Israel did not ratify the protocol (because it applied not only to disputes between states but also to various liberation movements). Nevertheless, the humanitarian principles of the document are part of de facto international law. These principles were adopted by a large number of countries, and they reflect an international consensus regarding what is permissible and what is prohibited, in terms of humanitarian principles, in the framework of military struggles. This de facto law was adopted by the State of Israel’s internal legal system.

59

See more about these topics: G.H. Aldrich, “The Laws of War on Land”, American Journal of International Law, Vol. 94, Jan. 2000, 42, p. 52.

60

See the Article by Shmuel Diklo in Globes, March 20, 2002. Indeed, a distinction exists in international law between legal and illegal fighters, and a man who fights outside the framework of legal combat “the protection provided by the laws of combat is removed from him,” in the language of Yoram Dinstein, endnote 58 above, p. 97.

61

H.C. 2936/02, 2941 Doctors’ Organization for Human Rights and Others v. IDF Commander in Judea and Samaria, P.D. 56(3) 3.

62

H.C. 2977/02, Adallah – The Legal Center for the Rights of the Arab Minority in Israel and Others v. IDF Commander in Judea and Samaria, P.D. 56(3) 6. See also H.C. 3022/02 Canon (LAW) – The Palestinian Organization for Defense of Human Rights and the Environment and Others v. The IDF Commander on the West Bank and Others, P.D. 56(3) 9.

63

The Laws of Combat in the Battlefield, published by the School of Military Law, Department of Military Law, Michael Ben-David, Command of the Chief Military Attorney, 5759, pp. 47-49.

64

M. Walzer, Just and Unjust Wars, Hebrew Edition, Tel Aviv [1984], p. 202.

65

Ibid., pp. 165-190.

66

 Ibid., p. 181.

67

 Ibid., pp. 182-183.

68

 Ibid., p. 154.

69

Ibid., p.186.

70

A discussion of the institutional aspects of bombing concentrations of civilian population in the course of a war for the purpose of expedience, see M. Walzer, Ibid., p. 299 and following. This question, of course, does not concern us: As our matter is totally unintentional damage caused to a non-combatant civilian population, which is liable to take place as a result of military activities, which are in and of themselves, justified. For a discussion of the Jewish law aspect of intentional bombing of civilian population concentrations in the framework of Israel’s war against the terrorist organizations, see the above-cited article by Rabbi J.A. Jacobowitz (endnote 42 above).

71

Y. Kedmi, On Criminal Law, Part 1, Correction and Completion, p. 119.

72

 Ibid., p. 120. Indeed, according to Article 1(a) of the  “You Shall Not Stand Against the Blood of Your Neighbor Law”, 5758/1998, one is obligated to provide assistance in order to save lives, but that is “without endangering himself or others”. However, Article 3 of the same law establishes, that “the directives of this law do not detract from the directives of any law.” Therefore, the justification provided by Article 34a of the Penal Code to take any action necessary to save lives, even if as a result a third party is liable to be hurt, is not compromised at all.

73

H.C. 5100/94 The Public Committee against Torture in Israel v. The Israeli Government, P.D. 53(4), 817, pp. 842-843.

74

 B. Sangero, Self-Defense in Criminal Law, Jerusalem, 2000, p. 30.

75

 On conducting a balance of interests and “the lesser of two evils”, see ibid., p. 98 and following.

76

Court of Appeals, 5964/92, Beny Uda v. The State of Israel, Laws – Supreme Court, vol. 61, 280, Ruling 10.

77

 Appeals 58/19, The Chief Military Prosecutor v. Lieutenant Yahalom and Sergeant Regev, Selected rulings of the Military Appeals Tribunal, 1958, p. 307, pp. 313-314.

78

See A. Mudrick, “Commander: Authority, Responsibility and Guilt”, Crime B (1981), 249, p. 256; On Criminal Responsibility and the Responsibility of Commanders – Legal Aspects, published by the School of Military Law, Command of the Chief Military Attorney, p. 25. For additional military rulings on this matter, see ibid., pp. 34-58.

79

On the responsibility of the authorities and on the obligation of commanders regarding protection of soldiers’ lives, see: Rabbi Shlomo Goren, Meshiv Michama Part I, pp. 29-38.

80

 Cited on the IDF website <www.idf.il> in the section: “Combat Theory”.