The Goldstone Report and Jewish Law

In "The Goldstone Report and Jewish Law", Rabbi Ido Rechnitz, Director of the Mishpetei Eretz Institute, displays his unfamiliarity with the Law of War that underlies the Goldstone Report. Some of what he proposes as Jewish law is no different from the Law of War, such as the permissibility of killing civilians where there is military necessity ("collateral damage") and the demand to reduce civilian casualties. He misreads the Law of War as based on the distinction between individual and collective responsibility, and argues that Gaza should be treated as a collective entity under the rule of Hamas. Again, this assertion is perfectly compatible with the Goldstone report, which does not argue that Israeli should treat Hamas combatants as criminals, and Gazans as innocent bystanders.

Where Rabbi Rechnitz gets it right, and where Jewish law does indeed differ from contemporary Law of War, is his claim that wars are fought between collectives. According to Jewish law, there is no fundamental distinction between combatants and non-combatants, although in the Bible there is occasionally a distinction drawn between potential combatants on the one hand, and women and children on the other. The Law of War, on the other hand, draws a sharp line between combatants and non-combatants, and for good reason: the genocides and war crimes of the twentieth century, including the Holocaust, were predicated on the notion that peoples must suffer along with their combatants because they are collectively responsible for their leaders' actions. According to postwar law and conventions of war, wars are, or should be, fought between armies and not between peoples.

There are some collectivist approaches in recent discussion of just war theory – I will elaborate next week – but not in the manner that Rabbi Rechnitz mentions.

On Rabbi Rechnitz's reading of Jewish law, it would be perfectly permissible for Syria to bomb Tel Aviv and kill thousands of Jewish civilians in a war. The Syrian army would not have to risk its soldiers life in order to avoid harm to Israeli civilians; it could bomb yeshivot and synagogues. It couldn't do so only for the sake of killing, but would need some cause, such as punishing Israel for its aggression. Perhaps Rabbi Rechnitz assumes that civilians can be killed with impunity only when the war is just. So let us assume, for the sake of argument, that Syria is fighting a just war against Israeli aggression, and let us assume further, for the sake of Rabbi Rechnitz, that the government of Israel is run by pork-eating heretics. On his view of the Jewish ethics of war, if the Syrian army could bomb a girls' seminary and thereby achieve a military objective, without risking its own soldiers, then that would be permissible.

The Goldstone Report does not criticize Israel for harming Palestinians where there was military necessity. The Goldstone Report argues that for many operations it examined there was no military necessity; and in some cases where there was military necessity, the damage was disproportionate (another term apparently unfamiliar to Rabbi Rechnitz) to the military objective. If securing a position can be achieved by killing 50 civilians, it is wrong and illegal to kill 500. It is also wrong and illegal to destroy civilian installations, even if one recognizes some sort of collective responsibility. That is because the whole thrust of the laws of war after WWII is to ensure that civilians are removed from the picture.

That Rabbi Rechnitz and Hamas want to return civilians to the picture shouldn't surprise anybody who knows how much political-fundamentalist Judaism and Islam share in common