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