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

(image by Carlos Latuff)

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

Read the Introduction: Does Jewish Law Justify Killing Civilians?

Previous: #1 Civilians Are Really Combatants

As I documented in the previous article, the first way in which Jewish law justifies the targeting and killing of civilians is by classifying civilians as combatants if they indirectly take part in the war effort–even if by “mere words.”

But what about civilians who neither directly or indirectly participate in the war effort?  Surely they will be protected, right?

Not so.

Jewish law permits targeting civilians who “passively” support the war effort.  A “hostile civilian population” is guilty of “passive” support if they fail to root out the combatants/terrorists living in their midst.  If the city’s population does not do this, then they are all liable to be killed–including women, children, and babies.

In War and Peace in the Jewish Tradition, the highly esteemed rabbi and professor Michael J. Broyde finds support for collective punishment in the Bible: on page 6, he cites the story of the Rape of Dina.  Dina is raped by a man named Shekhem, and the entire city of Shekhem is put to the sword for this crime.  (The rapist, Shekhem, has the same name as the city he lives in.)  Broyde quotes Maimonides as saying that “the inhabitants of Shekhem [the city] were liable to be killed since Shekhem [the person] stole [Dina], and the inhabitants saw and knew this and did nothing.”

Rabbi Broyde reflects on this story by saying:

Consequently, if one is in a situation where innocent people are being killed by terrorist acts that cannot be stopped by catching the perpetators themselves, and those terrorists are supported by a civilian population that passively protects them and does not condemn them, collective punishment might well be permitted by Jewish law.

Broyde permits the “collective punishment of vast segments of society for the active misconduct of the few.”  In other words, civilian populations are “liable to be killed” if terrorists commit “active misconduct” and they [“the inhabitants”] “saw and knew this but did nothing.”  If the civilian population does “not condemn them [the terrorists],” then they [the civilians] can be killed.

Rabbi Broyde invokes the views of two of the most authoritative rabbinical authorities in Jewish history, Maimonides and Nahmanides.  Broyde notes: “Both share the basic approach of permitting collective punishment.”  He writes on p.6: “Maimonides rules that…all members of society may be punished,” and on p.7 that Nahmanides would “permit regulations that include collective punishment.”

This view, justifying collective punishment, is promoted within the first few pages of the book War and Peace in the Jewish Tradition.  Prof. David Shatz writes on p.xiv of the Introduction that “Jewish sources present a view of jus in bello [conduct of war] that is more permissive than many secular accounts,” and that Jewish law permits

imposing collective punishment on vast segments of an enemy society in response to the misconduct of a few, as could happen when terrorist perpetrators escape capture.

He goes on to say that “the Jewish polity may licitly embark on hostilities in a way that might involve causing civilian deaths.”  This allowance is beyond just collateral damage–which, under Jewish law, is a given–and encompasses civilian populations that are targeted as punishment for “passively” supporting terrorism.  This “passive” support is also to be understood differently than “indirectly” supporting terrorism (“material support”).  Passive support refers to mere inaction: if the PLO and the rest of the Palestinians cannot stop terrorists from firing rockets, then they are all guilty and can be killed via collective punishment–including women, children, and babies.

*  *  *  *  *

This view is supported by Torah MiTzion, the national and international Religious Zionist movement that promotes Torah study with service in the Israel Defense Forces, providing a “generation of Religious Zionism, balancing between safra v’sayfa (book and sword).”  In an article entitled Jewish Law in Our Times, the legal adviser of the group asks rhetorically “Can Collective Punishment Against Fighters and Citizens Be Justified?”, a question which he answers in the affirmative, saying:

Whenever a battle is waged by one nation against another, there is no need to differentiate between one person and another, even if many members of that nation do not actually take part in the actual fighting.

The author goes on to say that “if we are faced with a situation defined as war, there is no obligation to differentiate between fighter and citizen.”  The principle of discrimination simply does not apply in times of war.  This is especially true “because the State of Israel has been in a perpetual state of (halachically defined) war ever since its inception.”  He then quotes the esteemed Netziv (Rabbi Naftali Tzvi Yehudah Berlin) who said that a person is only punished for spilling blood

at a time when it is otherwise appropriate to act with brotherhood [peacetime]. But this is not the case during war, when it is a time to hate. Then it is a time to kill and there is no punishment whatsoever for so doing, because this is the way of the world.

*  *  *  *  *

As I discussed earlier, Rabbi Shaul Israeli’s “thoughtful article” is hearkened as “the starting point” for discussion of “war-related topics” in the Jewish religion; in it, R. Israeli uses a complex religio-legal argument to justify collective punishment.  He invokes the Jewish law of din rodef–the law of the pursuer–which basically says that if a person is chasing you trying to kill you, you can kill him first.  It stands to reason, therefore, that a bystander could also kill the rodef (pursuer) as well, in order to save your life.  In fact, it may even be considered obligatory to do so.  This religious law is used to justify killing civilians by transforming entire civilian populations into rodefim [pursuers].

In The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel, Prof. Ya’acov Blidstein notes the trend in halakhic circles to use “the definition of a hostile population as a rodef [pursuer], direct or indirect.”  Blidstein notes:

There is also a tendency in contemporary halakhah to categorize as rodef a population that is “supportive and encouraging” of hostile, murderous actions.

Once dutifully transformed into rodef, the entire civilian population becomes licit, or even mandatory, to kill.  This justification was given for the Qibya Massacre, in which 69 Palestinians were slaughtered (of which two-thirds were women and children).  Writes Blidstein:

In his essay, Rabbi [Shaul] Yisraeli argues that a group of civilians, such as the residents of Qibia, who were notorious for their support and encouragement of terrorist acts, are likewise to be treated as rodefim [pursuers].

He goes on to say:

Rabbi Yisraeli concludes from this that even those citizens who support and encourage acts of terror, for example, are considered rodefim, and one may deal with them in kind.  In so ruling, however, he has offered many people a very far-reaching justification for aggressive treatment of civilian populations…[He] is speaking of people who provide the murderer with support and encouragement, but do not take an active, directly conspiratorial part in the act itself.

He is also speaking of those who give “passive support” to terrorism, i.e. doing nothing other than happening to live in the same city as the terrorists.  Unless you actively hand over the terrorists or their names to the Israeli authorities, it is assumed that you are guilty–you are a rodef–as well.

*  *  *  *  *

Instead of protecting civilians from the killers, Jewish law seeks to protect the killers of civilians (by shielding them from prosecution). Prof. Ya’acov Blidstein entitles one sub-section of his article as “Protection of the Aggressor,” in which he discusses this disturbing issue.  Once the civilian population has been deemed rodefem, Jewish soldiers may kill them and are to be protected from all prosecution for doing so.  This is because the rodef–in this case the civilian population–is legally considered a “dead man” and their “blood is like water.”  Therefore, lethal force may be used, even when less than that may have sufficed. Writes Blidstein:

One who deliberately kills the rodef is in any event exempt from punishment by the court because the “pursuer” is defined as gavra katila–an individual who is already considered as if dead in a legal sense…

Rabbi [Shaul] Yisraeli follows a similar line in his article on the Qibia incident, but arrives at a more far-reaching conclusion, equating the license granted the bystander with that of the person threatened.  Not only is the bystander who kills the pursuer (when he could have used less lethal means) exempt from punishment; he is allowed to behave in such a manner ab initio [from the beginning]. “…When he [the rodef] has been warned and continues to pursue…there is no rule at all requiring one to take care to use non-lethal means, for then [spilling] his blood is permitted, and one may kill him by virtue of the rule, that his blood is like water.”

In times of war, Halakha accepts collective punishment as acceptable, even when applied to the “innocent child.”  Writes Prof. Blidstein:

Behavior in war, according to Rabbi [Ya’akov] Ariel, is based upon the collective identity of the members of the participating nations.  In this organic view, even the innocent child is an organ of the greater body of the nation.  Thus, one waging war against this body is allowed to harm the child as well, just as the fighting body may itself demand of all its organs that they devote themselves to the war effort.  This argument dismisses the question of the personal innocence of the one injured–on one side or the other–as irrelevant.

Rabbi Ya’akov Ariel reasoned:

Just as in a personal struggle…it is your right to protect yourself by striking the soft belly [of the aggressor]…so in war against the collective, you may strike those organs of the [enemy] nation that seem [appropriate] to you, in order to prevent a strike on the part of other organs.

The civilians of the enemy nation (including children and babies) become licit to kill, just as “the Biblical Simeon and Levi killed all of the inhabitants of Shechem (Gen. 34), including those who had nothing to do with the rape of Dinah.”

On p.24 of War and Peace in the Jewish Tradition, Rabbi Broyde writes of Rabbi Ariel:

War is the collective battle of societies, R. Ariel posits, and thus there are no innocent civilians, even babes in their mothers’ arms are to be killed, as harsh as that sounds. [96]

In footnote 96, Broyde gives his view, agreeing with the statement but limiting the right of killing “innocent civilians, even babes in their mothers’ arms” to the [Israeli] government.  Here is footnote 96, found on page 40:

96.  R. Yaakov Ariel, “Haganah Atzmit (ha-intifida ba-halakhah),” Tehumin 10:62-75 (1991).  He basis his view on the famous comments of the Maharal on the biblical incident of Shekhem, which defend the killing of the innocent civilians in that conflict along such a rationale.  R. Shlomo Goren, “Combat Morality and the Halakhah,” Crossroads 1:211-231 (1987) comes to the opposite conclusion.  See also the article of R. Yoezer Ariel (brother of Yaakov Ariel), who also reaches a different conclusion; R. Yoezer Ariel, “Ha’onashat Nokhrim,” Tehumin 5:350-363 (1979).  In this writer’s view, R. Yoezer Ariel’s paper correctly distinguishes between individual and national goals in this matter.

As can be garnered from Broyde’s own words, R. Yoezer Ariel agrees with his brother R. Ya’akov Ariel in principle, permitting targeting and killing innocent civilians (including children and even babies).  He does, however, limit this right to the government (the Israeli state), not to individuals (such as Israeli settlers).  This is the most popular view among Religious Zionists: the Israeli state is allowed to impose collective punishment, targeting and killing “hostile civilian populations.”

Should we call these views representative of The Halakha (Jewish law), just as Zionist Islamophobes insist on categorizing one particular interpretation of Islamic law as The Sharia?  Should we smear all of Judaism because of such views, just as Zionist Islamophobes would smear all of Islam for the views of Radical and Ultra-Conservative Muslims?

Note: Page II of “Collective Punishment is Kosher” will be published within 24-72 hours…

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  • Just Stopping By

    @Talisman: thanks for the compliment, but I would not want to go up against Danios in some type of quiz bowl!

    There are good books and web sites out there, but I don’t have time to track them down now but could do so after the holiday if you wish.

    If I am knowlegeable, I owe a lot of thanks to my family and teachers, who encouraged us to approach other religions with the same type of generous spirit that we bring to our own, meaning to recognize that most members of the religion would treat the peaceful portions of texts as central and the “problem” texts as peripheral to their views. With that view coming in, it is a lot easier to appreciate another religion and to find how similar it is to your own.

  • mindy1

    Thanks Daniel, I like being the good Jooo ;) , but seriously we need to stop the hating if are to be at peace.

  • Danios

    @ Dehnus:

    do we have to stoop to the level of Spencer and Geller to get our point across?

    I am certainly not “stooping to the[ir] level.” The clarification of my views, which I have reiterated numerous times, makes it clear that the conclusion I am drawing from all this is radically different from Robert Spencer and Pamela Geller. They draw the hateful conclusion that Muslims are crazy, whereas I draw the conclusion that we all are. All races, religions, nations, etc. are full of crazy people.

  • Daniel

    Hmmm…

    It’s good to know that “Supporting the Troops” would make one guilty of their acts, according to this interpretation of Jewish law. That would mean that if Muslims used this same standard, everyone in the US would be equally guilty of whatever our government’s troops did.

    It seems as though also obvious that in a democracy, at least the majority of the voting populace should be held equally culpable for their government’s crimes–either in the US or Israel. By this standard, one could not condemn any act of “terrorism” as such–it’s just all war, and any acts in pursuit of victory are acceptable–in this interpretation.

    Any Jew who believes in this interpretation–and I pray there are not many–has exactly zero room to condemn “terrorism” when the people they love are the victims. Indeed, why would Hitler be condemned, if this standard was used to judge him? Maybe he could be condemned as an enemy, but in no way would he be uniquely evil, other than being an enemy of the Jewish people.

    Some Jewish law is beautiful in it’s wisdom and compassion. This, however, is odious and repellent and I think it’s up to the millions of good Jews–like Mindy–to condemn it. (And I know many have.)

  • Dehnus

    Seriously… do we have to do this? I mean.. do we have to stoop to the level of Spencer and Geller to get our point across? Almost no Jewish person agrees with this, yet is hurt by these kind of articles. Plus it gives the likes of Geller more ammo to blast us with and saying we are “anti Semitic” for saying that most Muslims don’t think like the one’s in Iran and that we are against Militaristic Zionism and militant religious groups (From Islam, To Judaism).

  • Talisman

    @Just Stopping By

    Actually, I find these similarities really interesting and would like to delve into that topic more. Maybe I will find a good book on the subject.

    Thank you for your clarification….you seem very knowledgeable.

  • Just Stopping By

    @Talisman: Sure. There was a lot of intellectual sharing between Jews and Muslims in Muslim countries. This is notable in some of the mystical areas (kaballah and sufism) and philosophy. While halakha and sharia would naturally have many differences, there are also areas that are similar (for example, slaughter of animals using a single cut with a sharp unblemished blade so as to minimize any pain the animal may feel). Given that Judaism did not develop rules of war, as most of the technical developments occurred after the Babylonian conquest, I think that using what sharia says on the topic would be a good starting point.

  • Talisman

    @Just Stopping By

    “Given the historical interplay between Jewish and Muslim legal developments, I think it would be a much better starting point to begin with (some version of) the Muslim rules of war and adapt them as necessary to Halakha than to say that there is pretty much a blank slate out there in which “there are no ‘real’ restrictions” codified.”

    I’m not clear on what you are saying here. Will you clarify?

  • Saladin

    ^^He is just showing the double standards the Islamophobes use he is not saying this is the Jewish religion but rather this one interpretation that is used by many Jewish people not all. His point is to put those Islamophobes who claim that Islams has mostly violent interpretation and while Christianity and Judaism do not on the other side with the same standards they judge Islam with. What he is trying to say is you can take the extremist interpretation from any religion and cast a whole group in a negative light, but the Islamophobes only want to do that with Islam not other faiths. Correct me if I misrepresented you Danios.

  • Jewish religious Left

    And to think you have a problem with people misrepresenting Islamic religion…

  • Fox news

    Great work. The islamophobic theme works on how the “Judeo-Christian” values are quite different from “Islamofascist” values where the latter is inhuman and barbaric thereby responsible for all the troubles of humanity; and henceforth not be allowed to exist in the world nor anyone associated be allowed to flourish. While the “Judeo-Christian” values are the saintly “apple of the eye” of human values. Now that we have a balanced open comparision for all to see, let the islamophobes get a taste of the real “watch.com”. I can hear Geller and co. e-moaning already.

  • Fox news

    Great work. The islamophobic theme works on how the “Judeo-Christian” values are quite different from “Islamofascist” values where the latter is monsterous and barbaric thereby cannot be allowed to exist in the world nor anyone associated be allowed to flourish while the former is “apple of the eye” of humanity. Now that we have a legitimate comparision, the real fun has just started as we watch the obsessed haters get wacked hard with their own stick and chicken out quickly.

  • Al

    Wow Danios, you’re on a roll. Knock’em out the box!

  • Danios

    @ Just Stopping By:

    Thanks for your comment.

    In the quote you provided, Broyde says “so long as” it “…do[es] not violate international treaties.” Yet, in a later part of my article series–entitled The Top Five Ways Jewish Law Justifies Killing Civilians; #5, There Are No Rules in Times of War (II)–I”ll quote Broyde saying that international conventions and treaties do not apply to Israel’s current conflict.

  • Just Stopping By

    @Danios: Again, a very interesting piece, and one that reveals some highly disturbing Halakhic views that I was not aware of.

    My one comment here is to note that on page 6 of War and Peace in the Jewish Tradition, the author notes that the analysis “heads in a direction that is deeply uncomfortable to me: Jewish law has no ‘real’ restrictions on the conduct of the Jewish army during wartime, so long as the actions being performed are all authorized by the command structure of the military in order to fulfill a valid and authorized goal and do not violate international treaties.”

    Basically, the author is saying, as I have read previously elsewhere, that with around 2000 years with no Jewish army, Jewish law never developed any modern rules of law, thus never really codified forms of prohibited conduct. Given that, I can understand an academic analysis that says that no rules of war had yet been codified in Halakha, but I would recoil from any interpretations that say that that does not mean that one should not develop such rules in a way that demonstrates high ethical standards that go above and beyond international treaties. Sadly, as you document, there are reputable Jewish scholars who do not feel this way.

    Given the historical interplay between Jewish and Muslim legal developments, I think it would be a much better starting point to begin with (some version of) the Muslim rules of war and adapt them as necessary to Halakha than to say that there is pretty much a blank slate out there in which “there are no ‘real’ restrictions” codified.

  • David

    During the Gaza massacre, religious rabbis were handing out materials telling soldiers that Palestinians were “Amalek” — evil personified. Amalek has always been general-purpose boogeyman, serving for every evil dude to come down the pike since the Torah was written. Hamaan was Amalek. Hitler was Amalek, Obama has been called Amalek (at least until followed AIPAC’s advice and got with the program). IMO AIPAC is Amalek.

  • mindy1

    Sad that the middle east is full of people who want to hurt each other, rather than try to get along :(

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