Bombing Shifa Hospital in Gaza City
A Halachic Case Study
This white paper was published in Hebrew by Torat HaMedina, a think-tank which explores the intersection of Halacha and politics. The original Hebrew can be found here.
One of the goals of our learning together is to delve into the Halachic process and understand how Halachic decisions are made. In our study together, I’ll quote the paper in English and then offer my comments where necessary. As we do this on many occasions, hopefully we’ll get a sense of how to arrive at a halachic decision.
Introduction
This position paper deals with the issue of bombing the Shifa Hospital in Gaza City, from the perspective of Torah sources. According to intelligence information, Shifa Hospital is used as a 'human shield' by the enemy's citizens, for the Hamas terrorist command. This position paper serves as an initial roadmap for implementing the principles of Jewish war ethics, through the prism of the Shifa Hospital issue, and argues that in light of the intelligence information, bombing Shifa is a moral and ethical obligation, according to Torah sources.
The people of Israel are a nation that desires peace. The Jewish vision aspires to a world where 'nation shall not lift up sword against nation, nor shall they learn war anymore.' Unfortunately, since ancient times, Israel's calls for peace have been answered with drawn swords by its neighbors, as it is said: 'I am for peace, but when I speak, they are for war.' Therefore, alongside the vision of peace, the Torah mandates a milchemet mitzvah (a war that’s a mitzvah).
The role of the Jewish people is to serve as a model for divine morality of good and evil, and to be a kingdom of priests and a holy nation on its own land. The ethics of war stem from the defense of the existence and destiny of the people of Israel, taking into account the early identification and neutralization of its enemies and the removal of obstacles to the realization of its spiritual destiny. The spiritual stance required of Israel's warriors is one of self-sacrifice, the prioritization of national needs, the renewal of the vision of inheriting the land, the sanctification of God's name, and the establishment of the Temple in Jerusalem, which will ultimately be a house of prayer for all nations.
Introductions like this are important because they can give us, the reader, a sense of where the author is coming from. Something that I’ve not seen discussed in halachic writings is how the preconceived notions or prior assumptions of the author affect the conclusions that the author arrives at.
As I wrote elsewhere, the most important thing you can do as a reader before you start to read something in depth is to understand the context of the work. In this piece, it’s instructive to understand that it was written within the first month of a war sparked by a truly horrific terror attack on civilians by Hamas. As you’ll see, there are definitely some underlying emotions coming through for the writers. I think that this is not a unique phenomenon here—many times you’ll see the writer of a teshuva becoming very emotional in the course of their writing, allowing other ideas about society, morality, and proper order to seep through into their halachic writing. This is an unavoidable human phenomenon, but it’s important to be aware of when you’re deciding how authoritative this argument is. A useful (but not 100% foolproof) heuristic—the validity of a halachic argument often inversely relates to the level of hyperbole and emotion in its presentation.
One more note here before we move on. In a footnote (2) the authors make the following caveat:
“It should be emphasized that the position paper deals with a human shield composed of enemy citizens and does not address a human shield composed of captives. This point requires a separate discussion.”
Modern halachic writings, on the whole, are composed in response to a particular situation. This is certainly the case with responsa, where a questioner has written in to a particular halachic authority and asked their opinion on a particular matter. This is important because people often take one author’s opinion as expressed in a particular responsa as their opinion in general regarding this halacha.
This is a mistake.
When responsa are written, they are written for a particular person or group, in a particular time frame, with a particular set of circumstances. The essential work of a rabbi, or really anyone making a halachic decision, is to מדמה מילתא למילתא, to compare one case to another and make a ruling. This is where so many machlokot arise, and it’s crucial for any good halachist to understand that each case must be judged on its own merits and not merely shoehorned into the decision of another case.
Let’s continue.
The 'Operation Returning Wind'1, Simchat Torah 5784, began with a Hamas enemy attack on the State of Israel. The enemy penetrated into the territory of the State of Israel, massacred residents of the settlements around Gaza, and many other civilians and soldiers, committed murder, arson, rape, and kidnapping. The State of Israel declared a war of necessity, for the defense of the people of Israel and the suppression of the Hamas regime. According to war plans, the destruction of Hamas requires the occupation of the Gaza Strip in a ground military attack. The questions to be addressed in the position paper are: Is it permissible to harm enemy civilians for the sake of victory and the decisive battle? Are there those who are defined as 'non-involved'? What is the law regarding civilian institutions serving as a 'human shield' for enemy forces? Is the bombing of Shifa Hospital, which serves as a shield and hiding place for Hamas terrorists, permissible or obligatory?
Background
For a long time, the main headquarters of Hamas has been located under the Shifa Hospital in Gaza. Additionally, in Gaza City, there is an enormous number of hospitals in relation to the population size, which, according to intelligence sources, serve as a cover for a network of tunnels and Hamas command centers. Apart from the hospitals, the Islamic University in Gaza, schools, and mosques also serve as civilian shields for command centers, tunnels, manufacturing facilities, and Hamas ammunition depots. The IDF has published maps with precise descriptions of military facilities located near or under civilian institutions. In fact, in this system, we are dealing with a military strategy, where its defense is built upon the use of civilian institutions for defensive purposes as part of its combat method, while inappropriately demanding to apply the principles of the Geneva Conventions and the accepted laws of war in the Western world to its combat, in order to achieve victory on the battlefield and in public opinion.
This section might seem banal, but it’s actually very important to any halachic writing. Halacha is, at it’s core, a set of principles that can be applied to various situations. It has rules and methods, but the way that it appears in reality will largely be determined by the facts to which it is applied.
Before one can embark on rendering a halachic decision, one must make sure that they have all the relevant facts of the case at hand. Too often, halachic decisors will rule a certain way without any regard to the person they’re ruling for or the facts of the case, and this can have disastrous outcomes.
When analysing a halachic argument, one fruitful area of inquiry can be the facts of the case—if these are not understood well or not taken into consideration by the person making the decision, there is room for improvement.
Summary of the morals of war
A. A state of war is a struggle between nations. In war, every citizen and individual is part of the collective and therefore an inseparable part of the war.
B. During combat, victory and the lives of our soldiers take precedence over the lives of enemy civilians. We are obligated to preserve their lives even if it results in harm to enemy civilians. 'Proportionality' is not an accepted Torah and moral criterion. We must protect the lives of our soldiers, and it is forbidden to risk even one Jewish soldier unnecessarily, even if it means that many enemy civilians will be harmed. The essence of the war is the battle of good versus evil, the divine light against darkness. The derivative to the spirit of combat is, fighting wholeheartedly without fear, and readiness for self-sacrifice for the sanctity of the Name, the people, and the land. The objectives of the war derived from this concept are, overwhelming and clear victory, in the most efficient and sharp manner possible.
C. The concept of 'revenge', as a component in national combat considerations, is fundamental in both Torah and Zionist thinking. Every attack on Israeli nationality and sovereignty must be responded to. The Jewish and Zionist statements 'blood of a Jew is not ownerless', and 'Never Again', in the context of the heinous acts of Hamas, require us to act against the enemy in a sharp and clear manner, and to include revenge as a component in our combat objectives. Revenge restores justice and right, and prevents the recurrence of such acts.
D. The principle 'If someone comes to kill you, rise up and kill him first' dictates that the best defense is offense. A hostile entity that threatens Israel and plots its destruction must be confronted with a preemptive war, and of course, there is no place for allowing them to attack us first.
E. The self-definition of the Hamas entity is the destruction of Israel as a Jewish state. A public entity existing within the borders of the Land of Israel, whose consciousness is anti-Israel, and the vast majority of its citizens hold this consciousness, is perceived in Torah sources as a continuation of the path of the 'Seven Nations' and 'Amalek'. This definition entails a unique moral warfare.
F. Hamas' warfare doctrine is a war crime – Hamas consciously involves civilians in combat. It establishes its command centers in civilian areas – in hospitals, mosques, and schools. It is akin to a military force that populates its armored personnel carriers and tanks with civilians alongside soldiers, to prevent the enemy from harming its combatants. The leadership in Gaza also deliberately blurs the ability to distinguish between combatants and civilians, and for this reason, Hamas terrorists often move without uniforms. Israel's victory requires fighting Hamas without fear of harming its civilians.
International law permits attacking military targets even when they use civilians as human shields. According to the Geneva Conventions and international war laws, it is forbidden for the army to attack civilian targets without military benefit. Also, according to these treaties, the use of civilians as human shields by military forces does not prevent the right to strike military targets.
There’s a lot to say about each of these points. I’ll reserve my comments until they’re discussed in depth in the coming sections.