Israel and ‘The Rules of War’

The world’s media jumped much too quickly onto the accusation bandwagon last Tuesday, blaming Israel for bombing a hospital that, as the evidence later showed, was struck by a rocket fired by Islamic Jihad.

There is a double standard at work behind this kind of bias-tinged reporting. From the very start of Israel’s attacks on Gaza, much was being said about the “rules of war” and how Israel must follow them, even though these “rules” are brazenly ignored by Hamas, Islamic Jihad, Hiz-bullah, and all the other terrorist gangs.

Even the United States insists on Israel following the “rules of war.” As President Joe Biden put it, “We uphold the laws of war…. It matters.”

Senate Majority Leader Chuck Schumer (D-N.Y.) said much the same thing on CBS Morning News last week before the hospital tragedy. “Israel must live, as we do, to a higher standard of the rule of law.”

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Schumer admitted that to do so is “very difficult, but we have to live to that higher standard.”

Under the “rules of war,” combatants are forbidden to attack non-military facilities, such as homes, schools, hospitals, places of worship, cultural heritage sites, and so forth. To attack such facilities is considered a war crime.

The opposite is the case, however, when a combatant uses such a facility as a launching site for attacks. According to International Humanitarian Law and the Geneva Conventions, that is the war crime, not the attack on the site, because it had become a legitimate military target.

As Israeli military spokesman Daniel Hagari noted last Saturday, Hamas routinely operates out of buildings in the Gaza Strip and that “since the start of the fighting, 550 failed launches by Hamas and Palestinian Islamic Jihad have fallen inside Gaza and killed Gazan citizens,” the hospital attack being one such case.

“Every building we strike in Gaza is a building from which Hamas operates,” he added, saying that Hamas “does so on purpose so that we destroy buildings.”

Legal though such attacks may be, however, the rules of war require something called proportionality. The attacker must take all realistic precautions to minimize civilian casualties and damage, with emphasis on “realistic.”

Defining “realistic” in such cases may be nearly impossible. It is a matter of the eye of the beholder.

Such are the rules of war and, as both Biden and Schumer said, the United States abides by these rules, and Israel must do so too. What both ignored, however, is that Israel usually is better at observing those rules than the United States is, because it warns a civilian facility that it is about to be bombed. The U.S. does not.

There are many examples, from Hiroshima and Nagasaki to the My Lai Massacre and the Vietnam War generally, but consider this example, because of its obvious relevance:

Without any warning whatsoever and with no evidence to support it doing so, a U.S. Navy AC-130 gunship fired 211 shells on a hospital building in Kunduz, Afghanistan, operated by Doctors Without Borders. The deadly barrage came at 2:08 a.m., while “patients were sleeping in their beds or being operated on in the operating theater,” according to Doctors Without Borders. At least 42 people were killed during the attack, 24 of whom were patients, and including at least three children. An additional 37 people were injured.

Doctors Without Borders said: “Our patients burned in their beds, our medical staff were decapitated or lost limbs. Others were shot from the air while they fled the burning building. The attack from the air lasted for around one hour…. Throughout the airstrikes, our teams desperately called military authorities to stop the attack.”

The U.S. ignored those pleas, however, because its Afghan allies assured it that the hospital was being used by the Taliban to fire on Afghan soldiers on the streets outside. The U.S. made no effort to verify the claim, much less to warn the hospital.

The United States later admitted that the bombing was a “mistake.” The only Taliban fighters in the hospital were patients, and they were not firing at anybody.

The questions of when and where to attack a civilian target confront everyone who engages in war. That’s particularly true for Israel, which faces enemies, such as Hamas, that use civilian targets, including hospitals and ambulances, as shields for their attacks.

To understand what Jewish law has to say about the rules of war, first we must understand the halachic attitude to war in general.

Jewish law recognizes two kinds of “legal” war: an obligatory war, and a discretionary war that has divine sanction. Obviously, this implies a third category — a discretionary war that has no divine sanction, and so is considered an “illegal” war. Deaths that occur in the course of an illegal war are considered murders.

According to the Talmud, Israel’s conquest of Canaan was obligatory, as is the eternal war against Amalek, while most of King David’s wars were discretionary (see the Babylonian Talmud tractate Sotah 44b). At least one of his wars actually may have been illegal, however. (See Sifre to Deuteronomy, Piska 51.)

Maimonides, the Rambam, expands the category to include wars “fought to protect Israel from an enemy that attacks it.” (See Mishneh Torah, The Laws of Kings and Their Wars, 5:1.) He ap-parently based that on two Torah verses. Numbers 10:9 recognizes the need to “go to war in your land against an enemy who oppresses you [in your land].” Leviticus 19:16 commands us “to not stand idly by the blood of your neighbor.”

Since “an enemy who oppresses” is threatening deadly physical harm to the citizens of that land, Rambam apparently saw defending against that enemy as an obligatory war. From that standpoint, the current war launched by Hamas on October 7 surely qualifies as obligatory.

Then again, Rambam simply may have been coming down on one side of a talmudic debate in BT Sotah 44b regarding whether pre-emptive wars, such as the June 1967 Six-Day War, are discretionary or obligatory. He does, however, recognize that there is a difference between the Conquest of Canaan and Amalek obligations on the one hand and defending against attack on the other. Thus, elsewhere, he describes the defensive war as a “commanded” one (a milchemet mitzvah), and the other two as “obligatory” (milchamot chovah). Other halachic decisors since then also have made this distinction.

This may sound like talmudic hair-splitting, but it is not. Different rules apply to each.

Israel, of course, has a long history of terrorist attacks against it. The United States, however, had no such history of terrorism before 9/11 and has never been attacked by the Taliban itself, although the Taliban’s ties to Al Qaeda are undeniable. It could be argued, then, that halachah would not see the U.S. response to terrorism as a sanctioned war, and so it must be limited to “the laws of the pursuer,” the rodef, the person who seeks to cause the death of another. A rodef may be pursued and even killed in order to prevent the planned murder. (See BT Sanhedrin 73a-74b for a discussion of the “pursuer” laws.)

In the case of a pursuer, collateral damage must be held to the barest minimum, and that includes the killing of non-combatants. Causing innocent casualties in such cases is forbidden. Some property damage may be permitted; most property damage probably is not.

This puts the hospital bombing in Kunduz in a very negative halachic light, but that is not the case with the Israeli bombing of targets in Gaza.

That brings us to the terms of engagement.

First, the enemy must be offered a chance to make peace, based on Deuteronomy 20:10. Rambam (see MT, Kings, 6:1) rules that this applies to both obligatory and discretionary wars, a position that has some support among talmudic sages (see Leviticus Rabbah, Parashat Tzav 9), although most decisors argue that it applies only to discretionary wars.

Second, according to Rambam, once an enemy is surrounded, there must be a way for innocent civilians and even faint-hearted combatants to escape. (See MT, Kings, 6:7.) He offers no suggestion, however, on how such a rule can be made practical. Israel has not been totally faithful to this law, but circumstances clearly make escape routes very difficult to create and keep open.

Finally, based on Deuteronomy 20:19, there must be a legitimate reason for any destruction. (See MT Kings 8 and 10.) Blowing up a building violates this rule unless it is used as a staging area for terrorist attacks.

The evidence suggests the hospital in Kunduz was the only building targeted by the U.S. air-strike, and the barrage was unleashed on it without a scintilla of actual evidence that the hospital was being used to attack Afghan soldiers.

In war, the first casualty is certainty. Decency and morality place a close second.

The world’s media and its politicians need to keep that in mind before they do their finger-pointing and apply a double standard that makes Israel the monster and Hamas the victim.

Shammai Engelmayer is rabbi of Kehillat Torat Chayim v’Chesed — a virtual congregation, and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.