Psak 5766 Sivan 24b
While it is forbidden by Jewish law to intentionally target civilians, complex ethical questions arise about terrorists or any enemy combatant who utilizes a supportive and compliant civilian population, often intertwined with the combatants themselves, as a shield and propaganda tool. The Sanhedrin, being the authorized institution to decide in such matters, issues definitive moral guidance on this matter and addresses the current administration's defense policy in Gaza.
Translation from Hebrew of the 24 Sivan, 5766 (20 June, 2006) statement: (before the hostilities in Lebanon)
Question concerning injury to the civilian population of enemy state
Question concerning injury to the civilian population of enemy state The Sanhedrin discusses the question if its permissible to [respond to such an attack that may] injure the civilian population of an enemy state on account of weapons being fired from within or near civilian population centers. (The opinion of the Sanhedrin's representatives was delivered mostly on Soldier's Memorial Day, 4th Iyyar, 5766).
[As it is known,] the Sanhedrin is the only authorized national institution to deal with the legal aspects of warfare and to give policy directives to the State concerning warfare. Enacting legislation concerning warfare always has been a distinguishing feature of the Sanhedrin.
The laws of warfare regarding a war by executive decree and the laws regarding a defensive war "defending Israel in the time of trouble" are governed by the principle "until it submits". [This in turn is derived from the halachos of concerning the siege of a city, that is,] until the surrender of the 'city', which means either banishment of the enemy or acceptance of terms -- and only after peace negotiations, establishment of peaceful borders, a fiscal system of taxes, as we learn from Joshua ben Nun "Obligatory Warfare", Maimonides, Mishne Torah, Laws of Kings 6
[In general Jewish law is not binding on non-Jews. In cases outside the scope of Jewish law, Jews are required to abide by civil law and international treaties. International treaties clearly show] the Hamas government and its terrorist offshoots, as well as the population that directly supports them are an enemy in every respect, according to to all interpretations of international law.
It is the government's duty to overpower the enemy as quickly as possible because avoiding casualties will only increase the strategic threat from day to day. The enemy receives support from many states and international organizations that adopt its position and machinations, and awaken political powers based within the state that do not recognize the State of Israel as a legitimate state.
From bitter experience these [subversive] powers, in the Land of Israel and in the world, will constrain the State of Israel causing it to compromise in existential issues that could cause its destruction, G-d forbid. Accordingly there is no choice but to launch an immediate offensive against the leaders of the Palestinian Authority, its military leaders, organizations and institutions, causing economic damage and overwhelming the enemy.
In the kind of warfare required here, limiting military response or deterring the IDF from a regional campaign is a reaction decidedly inappropriate and not reasonable. On the contrary, a feeble military doctrine - to shoot at empty fields, moderation in countering the centers of terror, without the will to extirpate the capacity of the terrorists to launch attacks, only strengthens a hostile desire to launch bombs deep inside Israeli territory. This administration will carry the responsibly for the lives of the injured people and their damaged property if it becomes apparent that they adopted a weak defense policy that is completely unreasonable when they had the opportunity to choose otherwise.
- 1. Unintentional injury to the adjacent population due to military operations against the launching of missiles [from within civilian population centers] by the enemy is unavoidable. The enemy cynically exploits the Jewish recoiling from the shedding of innocent blood in order to moderate military actions by the State of Israel. Accordingly they places firearms and missile launchers in areas the adjoining to and within civilian population centers in order to to achieve immense propaganda gains, by parading before the media injuries to children and families that were hurt, including even those who were not hurt, or were hurt maliciously by the enemy itself, for example the affair of the child Muhammad al-Dura.
- 2. According to international norms in the laws of warfare, which are customary in the courts of "the nations", one does not shrink from unintentional injuries to the civilian population, but strives to maintain a balance between the possibility of injury to civilians and a high probability of injuring actual enemy combatants.
- 3. A civilian population [that allows such actions] becomes an inseparable part of the enemy, not only do they take no steps to thwart gunfire and launching of missiles, but rather they facilitate the actions of the enemy combatants. Accordingly if unintended injuries occur, they have no legal right to complain, except to themselves.
- 4. The civilian population enlists citizens from within itself at its own instigation, even children and women, in order to execute attacks of indiscriminate homicide bombings within the Jewish population. Accordingly arbitrarily distinguishing between those who are commit crimes against humanity and those who merely assist them is misplaced. The dispassionate use of human life, and its cheapening in the eyes of the enemy, are unacceptable by all the company of mankind, and Israel, even if it will stumble G-d forbid, would not practice such hostile barbarism that constitutes a threat to the entire civilized world.
- 5. The IDF will not be able to defeat the enemy under the threat of the state's legal experts who falsely interpret the "fourth Geneva convention" in a way that does not apply de jure in Israel; even according to the understanding of the current legal advisers, there is nothing but unflagging attempts to enforce their own interpretation with the assistance of the supreme court.
- 6. The Gaza Strip ceased to be 'occupied territory' even according to those that view the six day war as a war of aggression, therefore any arguments claiming the rights of a 'civilian population under occupation' cease to apply.
- 7. It is of course understood that the Sanhedrin views the Gaza Strip as an inseparably part of the Land of Israel, and the only illegal occupation of that land is the Arab conquest of it.
We advise the government of Israel to announce a change in military policy to an offensive one, to proclaim to the Palestinian Authority as a hostile entity; and the Palestinian population be declared the population of enemy state, as requested by the IDF after the attacks on the jewish civilian population in during the intermediate days of Passover of this year; and lastly to espouse the required military actions according to this policy. The new Defense Minister has acted in a contradictory manner and gives mixed messages. On the one hand, he provides the enemy with weapons and ammunition and on the other he prevents the IDF from combating the enemy. It is impossible to continue in his policy.
FOR IMMEDIATE RELEASE For further information for the media Contact: Spokesman for the Sanhedrin: Rabbi Prof. Hillel Weiss +972 (54) 534-3545
Attached are three documents that articulate the position of the Sanhedrin's representatives on subjects that arose on the agenda of the legislature. These representatives comprise the Leadership Council and [the Sanhedrin's] highest institution. The first subject: Injury to the civilian population of enemy state, which was legislated on the 4th of Iyyar and amended on the 25 of Sivan. The other subjects: Persecution of Rabbinical authorities and [Secularizing the Jewish state through] granting of citizenship to foreign workers was legislated on the 24 of Sivan 5766 (20.6.06).
- Rabbinical deliberations, Divre Yatziv para. 81 The Sanhedrin has the authority, in certain cases, to rule differently than is currently in Jewish law, and to provide guidance in any matter not covered by Jewish law, as for example in warfare the Sanhedrin provides guidance to the ruling authorities as required by circumstance.
- Supreme court ruling 5757/04, Yoav Hass, Dan Halutz. See also Yoram Dienstein, Laws of War, "Civilian population of an enemy state", and the considerations in international law concerning the United States' actions in Japan and Britain's actions in Germany.