The Top Five Ways Jewish Law* Justifies Killing Civilians; #5: There Are No Rules in Times of War (I)
NOTE: As you no doubt are aware, LoonWatch just finished raising funds through an IndieGoGo campaign. Contributors to the campaign will receive an advanced copy of my upcoming book, The J Word: Jihad, Between Hype and Reality. The book dispels the myth that Islam is the most violent religion on earth. In it, I not only understand the Islamic tradition and its relationship to violence, but I also look into the other various faith traditions, revealing the uncomfortable truths in them. The intention here is not to launch an attack against these other faiths, but rather to give the reader some much needed perspective when evaluating the Islamic tradition. In other words, my intention is not to attack these other faiths, but only to prove that Islam is not uniquely violent as claimed by the Islamophobes, many of whom are ultra-Zionist Jews and extremist Christians.
In the media and on the internet, we always hear the uncomfortable truths about the Islamic tradition (and many untruths as well), without ever hearing about many of the uncomfortable truths in other faith traditions, including the dominant Judeo-Christian tradition. How many countless “What’s wrong with Islam?” talks must we bombarded with, with hardly anyone asking similar questions like “What’s wrong with Judaism?”
In this particular article series, I take a critical look into the Jewish faith tradition. If the Sharia is to be demonized by so many, then shouldn’t these same people be up in arms about Halakha (Jewish law)? Naturally, I don’t think any religious tradition ought to be maligned. Instead, the problematic nature of various religious traditions can be acknowledged, while keeping in mind that no faith has “clean hands.” This realization ought to make us all a bit more tolerant towards The Other. (In other article series, I look into the Christian and Buddhist traditions, so this is not meant to target Judaism in specific.)
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* Please make sure to read my disclaimer Why Religious Zionism, Not Judaism, Is The Problem wherein I clarify that “Jewish law” here is not meant to be understood in a blanket way. Certainly, there exist alternative, more compassionate understandings of Halakha. I understand that many readers are deeply uncomfortable with characterizing “Jewish law” in such a sweeping manner as we have done in this “thought exercise”–but that’s the point of the article series: if you refuse to do it to Halakha, then why do you do it to Sharia?
Read the Introduction: Does Jewish Law Justify Killing Civilians?
Islamophobes often claim that the Sharia permits almost anything to further the cause of the Islamic religion. On p.79 of The Politically Incorrect Guide to Islam (and the Crusades), Robert Spencer claims that “Islam allows for lying, as well as stealing and killing” in order to advance the religion. He concludes that “Islam’s only overarching moral principle is ‘if it’s good for Islam, it’s right.'” Similarly, Pamela Geller–a Zionist Islamophobe–has over eighty posts dedicated to the idea that Islam allows “deception to advance Islam.”
But could the same charge be levied against her own religion? We have already seen, for instance, that Jewish law* permits:
With such lax rules of war, one wonders if anything is forbidden in times of war. In fact, in the introduction to War and Peace in the Jewish Tradition—a book written by the world’s leading Orthodox Jewish minds–there is a confession that in reality Halakha* has norules in war. Ethics are temporarily suspended in war time. Whatever needs to be done–to protect the interests of the Jewish religion and nation–can and must be done. In a section entitled “Jus in Bellow: The Conduct of War” (p.xvii), Prof. David Shatz of Yeshiva University admits:
If you can risk people’s lives to go to war in the first place, the argument goes, surely you can take risks with enemy lives to win the war. In [Rabbi Michael] Broyde’s words: “[O]nce ‘killing’ becomes permitted as a matter of Jewish law, much of the hierarchical values of Jewish law seem to be suspended as well, at least to the extent that the ones who are hurt are people who also may be killed.” In war we have a type of horaat sha’ah [emergency principle], a temporary measure which partially suspends normal halakhic rules.
Horaat Sha’ah is the “emergency principle” in Jewish law, which permits almost anything under the sun in a time of emergency. The argument goes like this: if Israel is under attack and its existence is threatened (do Israelis ever think otherwise?) then the normal rules and ethical considerations do not apply any more. The Jewish state is then given a free hand to do as it pleases. Certainly, killing enemy civilians becomes permissible.
Rabbi Michael J. Broyde admits on the same page that “Jewish law has few if any rules of battles,” but even these few can become suspended in “an emergency.” In other words, if the various allowances under Jewish law* (killing civilians who indirectly support the war, collective punishment, ethnic cleansing, and terrorism) are not enough to legitimize killing civilians, then “horaat sha’ah” can be invoked.
Further down the page, we read:
The basis thesis of Broyde’s essay, then, is that the conduct of war is in fact thesuspension of the normative ethics of Jewish law to prevent the eradication of Jewish society. Ethics in warfare are therefore fundamentally different from ethics in all other situations. Broyde goes on to note that this explains what he regards as the paucity of halakhic material on the conduct of war. Since Halakhah envisions war to entail the suspension of all violations–from the prohibition to kill downward–it permits the violation, as military need requires, of every prohibition with the single exception ofavodah zorah [idolatry]. Assessing this need falls under the purview of military leaders, not rabbis or ethicists.
There is a “suspension of all violations” except idolatry, including killing and fornication/adultery (on the same page, we are told that “seducing an opposing general with the aim of discovering war plans” is permitted). Would this be a form of Huma Abedin style “Stealth Jihad”?
Perusing Judaism’s Orthodox writings on war, I become somewhat accustomed to reading justifications of the murder of civilians (hardly anything can faze after reading that it is permissible to kill a baby in her mother’s arms). Therefore, I was actually more surprised by the permission to fornicate in order to advance the cause of the religious state. (One recalls the Islamophobic claim that Islam gives permission to do anything in the cause of Islam.) On this topic, Ynet, Israel’s most popular news website, reported:
New halachic study says seducing enemy agents for the sake of national security is ‘going above and beyond’ and an ‘utmost mitzvah’ [religious commandment]
A new halachic study ruled that seducing an enemy agent for the sake of national security is an important mitzvah, Yedioth Ahronoth reported Monday.
The ruling, made by Rabbi Ari Shvat, was included in the latest issue of “Tehumin,” an annual collection of articles about Jewish law and modernity, which is published by the Zomet Institute, a non-profit organization dedicated to seamlessly merging Halachic Judaism with modern Israeli life.
Rabbi Shvat explores the issue of women used to seduce enemy agents in order to cajole information out of them or see them captured.
The use of “Valentine operatives” or “honey traps”, as they are called in intelligence circles, was applied in the case of atom spy assassination of senior Hamas operative Mahmoud al-Mabhouh in Dubai, last January.
Shvat cites in his study the biblical cases of Queen Esther, who slept with Persian King Ahasuerus to save her community, and Yael wife of Heber the Kenite, who seduces and killed the Canaanite general Sisera. He notes that the subject of “sleeping with the enemy” evokes heated arguments in the Talmud, as well.
The latter, Shvat argues, ruled that sexual intercourse with a gentile for the sake of a national cause is not only sanctioned, but is a highly important mitzvah…
Rabbi Shvat concludes his article by saying that not only should such actions be sanctioned, “Our Sages of Blessed Memory elevate such acts of dedication to the top of the Halacha’s mitzvahs pyramid.”
This, even though Orthodox Judaism–like ultra-conservative Islam and fundamentalist Christianity–have been known to have an unhealthy preoccupation with stamping out societal sexuality. The fact that the Horaat Sha’ah, or emergency principle of Jewish law, permits even this, means that virtually anything is allowed to further the cause of the Jewish nation.
Rabbi Michael J. Broyde writes:
[W]ar has, by its very nature, an element of hora’at sha’ah, in which basic elements of “regular” Jewish law are suspended–once ‘killing’ becomes permitted as a matter of Jewish law, much of the hierarchical values of Jewish law seem to be suspended as well…
We arrive at a somewhat inevitable tautology. In an emergency situation, there is ahora’at sha’ah (suspension of “regular” morality): killing of civilians becomes permitted. All war is a type of emergency situation. Ergo, killing of civilians is always permitted in war.
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Halakha* permits killing civilians whenever “military need requires.” Here, an important distinction is made with regard to civilian deaths: necessary and unnecessary civilian deaths. This is yet another adjective attached to the word “civilian” by Jewish law*: not only are civilians who “indirectly” or “passively” support the war effort allowed to be killed, but those civilians who are “necessary” to be killed should be killed: “their death, when militarily necessary, is according to Broyde unfortunate but halakhically proper” (p.xviii ofWar and Peace in the Jewish Tradition).
Rabbi Michael J. Broyde writes on p.4:
This view–that all conduct in war that is needed to win is permitted by Halakhah–was adopted by the late Rabbi Shaul Israeli, judge of Supreme Rabbinical Court in Jerusalem, in a famous essay. Certainly there is a deep consensus that every violation of Jewish law other than ervah and idolatry would be permitted in the course of fulfilling valid military orders.
He writes on p.5:
Rabbi Joseph Karo in his commentary to Maimonides’ Code explicitly notes that the power of a beit din (rabbinical court) includes the authority not only to kill people who are guilty of some violation of Jewish law but whose conviction otherwise lacks in technical proof, but also to kill people who are completely innocent, if in the judgment of the rabbinical court the exigencies of the times requires such. The authority for a beit din to make such a determination stems from its leadership role over the nation (manhigei ha-kehillah). The same ability thus applies to duly authorized governments (secular and Jewish), and can be relegated to their structures of military command.
Rabbi Broyde concludes on p.7:
Jewish law has no “real” restrictions on the conduct of the Jewish army during wartime.
In other words, anything goes. This is especially true during Obligatory wars (a special class of war under Jewish law)–which all of Israel’s modern-day wars are considered (more on this later). During Obligatory wars, the few “restrictions” and ethical considerations are abandoned. Writes Broyde on p.12:
[M]any of the restrictions placed by Jewish law on the type of conduct permitted by war is frequently limited to Authorized rather than Obligatory wars.
Rabbi Broyde argues that “the Jewish tradition has within it a moral license that permits war (and killing) that differs from the usual rules of self-defense for individuals” (p.7) and “permits even killing of otherwise innocent civilians” (p.5).
On pp.4-5, Rabbi Broyde writes:
Rabbi Abraham Isaac Kook, for example, permits the sacrifice of oneself as a form of hora’at sha’ah [temporary edict/suspension of law] that is allowed by Jewish law to save the community. While the voluntary act of heroic self-sacrifice and the killing of an unwilling victim are not parallel, I think that one who would permit a Jewish soldier to kill himself to save the community, would permit the killing of “less innocent” enemy soldiers or even civilians in such situations as well. In grave times of national war, every battle and every encounter raises to such a level, I suspect.
In “every battle and every encounter,” it is permitted to kill “even civilians.” Broyde goes on to say: “War is the collective battle of societies, R. [Ya’akov] Ariel posits, and thus there are no innocent civilians, even babes in their mother’s arms are to be killed,harsh as that sounds” (pp.23-24). This is a statement Broyde agrees with in the footnote, saying:
I would apply this rule in modern combat situations to all civilians who remain voluntarily in the locale of the war in a way which facilitates combat.
To translate that into a familiar context: non-Israeli (i.e. Palestinian) civilians “facilitate combat” (simply by virtue of “remain[ing] voluntarily” in the area being attacked by the Israeli army) and thus ought to be killed. This is of course another justification for ethnic cleansing.
“The idea of refraining from harming civilian non-combatants,” concedes Rabbi Norman Lamm on p.228, “has no explicit origin in Torah.” And yet, Rabbi Lamm somehow has the gall to say:
One might say that only the most radical pacifist is entitled to complain about the classical Jewish views of warfare.
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If Halakha* itself does not prohibit killing civilians, wouldn’t Israel’s commitment to international laws and treaties compel it to refrain from doing so? Rabbi Michael J. Broyde acknowledges that in general a Jewish state should abide by such conventions, but notes that the commitment to do so is “voluntary” and therefore “optional.” Such treaties and conventions certainly do not apply in Israel’s current conflict with the Palestinians. Broyde writes on p.11:
Of course, this approach R. Berlin recognizes that treaties restrict the rights of combatants, but that exercise in self-restraint stems from a voluntary decision to agree to such rules and is thus beyond the scope of this paper and of limited applicability to the modern wars against terrorism fought by both America and Israel.
Thus, conventions do not govern many of the unconventional techniques increasingly employed even by national entities, let alone terrorist armies (such as Hezbollah or the Iraqi resistance).
In the introduction to War and Peace in the Jewish Tradition, Prof. David Shatz writes:
As Broyde notes, this position [of following international law and treaties] is of limited relevance to Israel in its conflict with an enemy who does not consent to restraining rules.
Rabbi Jeremy Wieder of Yeshiva University writes on p.245 that “Halakhah would not recognize the international community’s authority to impose any restrictions on unwilling nations.” In other words, the Jewish nation is above international law.
As I stated previously:
To be fair, [it is not only Orthodox Jews who hold such troubling views.] Israeli apologists from “liberal, secular” Judaism voice similar ideas. Case in point: Harvard law professor Alan Dershowitz, who is one of Israel’s greatest defenders from the “liberal, secular” spectrum of the Jewish faith. Dershowitz is credited as being “Israel’s single most visible defender” and “the Jewish state’s lead attorney in the court of public opinion.”
Dr. Norman Finkelstein documents on p.46 of Beyond Chutzpah:
Dershowitz goes on to proclaim that “[t]he time has come for the United States to insist that international law of war be changed” and that for the united States to lead the fight to revise ‘archaic’ international laws and conventions”–in particular, “the Geneva Convention.” Indeed, in a shocking pronouncement at an Israeli conference, he asserted that Israel isn’t at all bound by international law: “Israelis are obliged to follow the rule of law that exists in the democracy called Israel the way I am obliged to follow the rule of law in the democracy called the United States . . . Your moral obligation to comply with the letter of the rule of international law is voluntary; it is a matter of choice and a matter of tactic, not a matter of moral obligation or democratic theory.”
Dershowitz’s original quote can be found in the article Defending Against Terrorism Within the Rule of Law. Dershowitz defended himself from Finkelstein’s attack by arguing that he wasn’t asking for Israel to violate international law, but rather to change international law altogether. As we shall see in the next article, Israel is leading the push to change international law in attempt to eliminate the pesky principle of distinction.
Note: The next article in the series will be published shortly.
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