Is there an halachic basis for allowing attacks that may or even will result in civilian casualties?

Question

I’d learned at some point that you cannot kill someone who isn’t directly threatening a life even under threat of death from someone else (along with abandoning God and adultery) and that you should accept death instead.

It is perfectly understandable that we’ll pursue those who are themselves trying to kill us but I’ve been curious for a long time now whether Israel’s military action would have been authorised by halachic authorities.

I don’t imagine Religious Zionists would have any problem with it but I wonder if there is an actual justification for it.

The only argument I can think of is that all Palestinians are considered accomplices but that sounds to me like a rather weak argument.

I’m not trying to start a political discussion here, I just want to know what Halacha would dictate here.

Answer 1

The Torah has very specific rules about besieging an enemy city- how to offer peace to the inhabitants, not to destroy the fruit trees around the city, etc.

A city- not a military base or a fort, but davka a city, which by its very nature contains civilians. The very fact that these halachot exist prove that it is permisible to do so.

Answer 2

Even in a defensive war (which will be the presumed context going forward), first you offer peace. Then you offer anyone from the enemy who wishes to flee to be able to flee, and let them - both of these are for the sake of being compassionate and humanitarian (see Sefer HaChinuch 527)*.

We, who have learned Torah for 3000 years and have absorbed its unique lessons in the infinite value of human life, do indeed have a deep seated fear that we will end up killing someone innocent (see Tanchuma Lech Lecha 19), which should lead us to be a compassionate nation who tries to minimise the death of the enemy population in any way we can, so long as those are not ways that will increase the risk or sacrifice to our own population in any way. Some say that we are bound by international law when it comes to wars in galus, so note that this is indeed something that would go above and beyond that.

However, once all of the above is done and the enemy has not surrendered or fled, you go to war, and you do so in order to win, in a way that brings back peace, which is a decisive win that totally subjugates the enemy to put them off trying again. This is the only moral way to fight a defensive war, as anything less than this will lead to escalating violence and entire generations growing up knowing nothing but war, leading to far more destroyed lives and death than a single, decisive victory.

The only thing that may be relevant is what to do with the enemy women and children.

Note, this halacha about sparing the women and children (Rambam Melachim 6:4) is presented in the same halacha the one that says one should kill every adult male. Note how the halachot do not make a distinction between "combatant" and "civilian". It makes 3 distinctions:

1. Those who wish to flee.
2. Men.
3. Women and children.

It is pretty clear from the context then, that the Rambam is not saying that one should sacrifice one's own in order to protect the enemy, even the women and children. One should keep the women and children alive lechatchila, when there is no reason (quick and lasting peace, or protecting one's own) to kill them. A defensive war by definition is there to defend one's own nation! (and therefore is not to do with viewing one's own side as inherently more valuable). An even more compelling reason to accept this (logical) argument is by looking at the pasukim in Devarim 20:13-14 which reveal that we are talking about a situation where ונתנה ה' אלקיך בידך, Hashem gives them over to your hand, i.e. we have already won and are dealing with the survivors.

^{Everyone knows this, not a single nation in the world will command their soldiers to lay down their arms and let them or their civilians get slaughtered by an enemy combatant because he is hiding behind children, nor would they expect the soldiers to retreat and allow the enemy escape to fight another day.}

Torah never makes a distinction between soldier and civilian because doing so is evil: every human being is infinitely valuable, and we never make any human beings "expendable", which is what this false dichotomy of "soldier" and "civilian" implies - the soldiers are somehow fair game and expendable ch'v. It is nation against nation in a war, not army against army, and the law is one fights in order to win and bring peace, as has been said. The calculations of who to kill are centered around this principle, rather than comparing the value of human lives, therefore one does this in whatever way will be the quickest, and involve the least bloodshed to both sides, but with veto priority to one's own side.

Who makes this calculation? The halacha is very clear: the military commanders, and not the political leaders (and kal vechomer not the civilians, no matter how opinionated and passionate). [source to follow bli neder, I must go get ready for Shabbat now]

tl;dr The basic rule is this: the goal of the defensive war is to eliminate the threat to peace. Therefore the victory must be swift and decisive, and not a single person more or less than necessarily is allowed to be killed in order to achieve that goal. There's no distinction between combatants and non-combatants in terms of human value, so the only real consideration is what will bring the most effective peace, at the minimial cost to one's own side first, and the other side second.

---

^{* This is debatable, according to Rav Shlomo Goren from his letters in 1982, the Ramban and the Sefer HaChinuch imply that a defensive war is similar in this regard to a "permitted" war, rather than an "obligatory" war.}

Answer 3

This probably depends on whether a war is considered מלחמת מצווה - a war that must be fought, or מלחמת רשות - a war that may be fought. A war fought to protect Am Yisrael is considered a מלחמת מצווה, as the Rambam says (Mishna Torah, Hilchos Melachim U'Milchamos 5:1):

ואי זו היא מלחמת מצוה זו מלחמת שבעה עממין ומלחמת עמלק ועזרת ישראל מיד צר שבא עליהם

And which is a war that must be fought? This is a war against the seven nations, a war against Amalek, and helping Yisrael against an oppressor who comes against them

Even assuming the current war is a מלחמת מצווה, there are a few obligations that must be met. Later in the same set of halachos (6:1), the Rambam says that peace must be offered first, on condition that the nation accepts Israeli sovereignty (i.e. they will not hold positions of power, they will pay taxes, they will do the 7 mitzvot of Bnei Noach, and they will serve the king). Seeing as Israel has offered peace on better terms than that, and was refused, I'd say this condition has been met.

However, even then the Rambam doesn't give the all clear. He says (6:4):

והורגין כל הזכרים הגדולים... ואין הורגין אשה ולא קטן שנאמר "והנשים והטף"... במה דברים אמורים במלחמת הרשות שהוא עם שאר האומות. אבל שבעה עממין ועמלק שלא השלימו אין מניחים מהן נשמה

And all the adult males are killed... But the women and children aren't killed, as it says "the women and children"... This is in the case of a war of choice which is with other nations. But in a war against the seven nations or Amalek who haven't made peace, no one is left alive

The Rambam doesn't specify what to do in a case of מלחמת מצווה against other nations (when they attack), however, he seems to imply that only males may be killed [I didn't see any mefarshim on the Rambam who addressed this case specifically]. So it seems as though it would be prohibited to kill any women or children, but all men can (and should) be killed.

The Rambam also says that when a city is being besieged, one side must be left open for people to escape. This is being done by the Israeli army, which has opened a humanitarian corridor for multiple hours a day in order to help Palestinians escape the fighting. (Though technically it should, according to the Rambam, be open at all times).

So, there seem to be two halachic problems. Killing women and children, and not leaving an escape route at all times.

Of course, today the situation is slightly different for two reasons: some of the women, and even some of the children are actively fighting; and without killing women and children, killing the men will be impossible or cost many Israeli soldiers' lives.

I couldn't find any responsa in light of that, but seemingly the reason that we would generally kill all the men would be to neutralise any threat, presumably killing any women and children who are actively fighting can be killed. Killing non-combatants still seems to be a problem, though.