Among the most critical halachic and ethical issues facing the State of Israel today is avoiding civilian casualties when battling terrorists.
Hamas has fired hundreds and thousands of rockets targeting civilian populations in Israel. Israeli retaliation has repeatedly encountered the problem of human shields. Hamas cynically exploits civilian population centers to shield their military activities, even forbidding families to evacuate after Israeli warnings were given. This is against all the modern rules of war which dictate a separation between combatants and non-combatants as one of the basic ground rules of conflict.
Israel thus has had to combat the evil of Hamas, yet to try to limit civilian casualties, at least some of whom are truly innocent.
The question we wish to address is the Torah approach to the issue. Does halachah permit or require the sacrifice of soldiers in order to reduce enemy civilian losses? In the current campaign the Arab civilian death toll is running high; but many soldiers have also been lossed. Is this justified?
In this article we will outline the Torah-ethical issues involved in addressing these difficult and critical issues – issues relevant to the entire world but in particular to Israel.
Please note that the purpose of the article is not to reach any practical halachic verdict, but only to present the issues involved and some of the possible Torah sources relevant to them. Actual guidance on such weighty, delicate and intricate matters can only come from true Torah giants who have acquired both breadth and depth in Torah knowledge, and an acute sense of the correct course of action vis-a-vis the hardest dilemmas.
The Case of Shechem
The actions of Shimon and Levi in Shechem (Bereishis 34) provide an important point of departure for the discussion.
Subsequent to the kidnapping and defilement of Dinah, Shimon and Levi attacked Shechem, killing not only Shechem and the town leader Chamor, but also all the males of Shechem. Commentaries discuss the legitimacy of this action, and dispute whether collective punishment in this instance was ethically acceptable.
The Rambam (Hilchos Melachim 9:14) justifies the actions of Shimon and Levi:
“How must the gentiles fulfill the commandment to establish laws and courts? They are obligated to set up judges and magistrates in every major city to render judgment concerning these six mitzvos and to admonish the people regarding their observance. A gentile who transgresses these seven commandments shall be executed by the sword. For this reason, all the inhabitants of Shechem were obligated to die. Shechem kidnapped. They observed and were aware of his deeds, but did not judge him.”
According to the Rambam, every human society is charged with establishing a legal system to punish crime and to eliminate evil from its midst. The failure of the males in Shechem to protest and prevent the continued abduction of Dinah was a violation of this obligation that is punishable by death (see also Sanhedrin 57a).
The Ramban, however, in his commentary to Bereishis (34:13 and 49:5-6), strongly disagrees with the Rambam’s opinion, arguing that failure to establish a competent legal system does not incur the death penalty. He writes (49:5-6) that since the males of Shechem did nothing wrong to Yaakov’s family, it was wrong for them to kill the males of Shechem, which is why Yaakov criticized his sons. He also notes that their actions were deceptive, and didn’t take into account the possibility that the dwellers of Shechem would repent.
The Maharal’s Approach
The opinions above are relevant to the issue of collective punishment, but not to general issues of war. However, The Maharal’s approach (Bereishis 34:13) makes the lessons of the episode relevant to our question of concern for civilian populations during wartime.
The Maharal agrees with the Ramban that the people of Shechem are not accountable for the actions of their leaders, for the leaders exercised a form of coercion. This can be probably be said for many civilians in Gaza, who have no choice but to comply with the orders of Hamas that are enforced by violence – though the fact remains that Hamas was voted into power, and their charter requiring the destruction of Israel was well-known.
On the other hand, the Maharal justifies the actions of Shimon and Levi. He argues that the Torah sanctions waging war when a nation has attacked us. Under such circumstances we are surely permitted (or even obligated) to respond to the other nation’s provocation, and in so doing we need not distinguish between the guilty and the innocent. Shimon and Levi responded appropriately to Shechem’s aggression. Once they responded, they were permitted to attack the entire nation because this is how war is waged.
We cannot know how the degree to which it was required to kill the entire male population in order to deal efficiently with Shechem and Chamor; the Maharal apparently understood that there was a need. It thus seems clear that according to the Maharal would be justification, for instance, for the bombing of Dresden which brought Germany to her knees at the close of World War II. According to the Maharal, civilians harmed by such bombings pay the sad price of being part of an aggressor nation involved in a ferocious war.
Contemporary Authorities
Although the Maharal’s approach is not endorsed by Rishonim and by later commentaries with regard to the incident of Dinah and Shechem, it is certainly possible that other authorities concur with the principle he sets out. The Netziv, for instance, does not appear subscribe to that interpretation of the Shechem episode, yet he agrees (Bereishis 9:5 and Devarim 20:8) that one is not punished for killing non-combatants during the course of battle (see also his commentary to Kiddushin 45a).
According to other authorities it is possible that the specific war against Shechem was unjustified, but in a just war it is permitted to attack without distinguishing between innocent and guilty, where it is impossible to wage war effectively in another manner. Note that under certain circumstances even Hashem does not distinguish between the guilty and the innocent, as we find in the final plague of Makas Bechoros.
The Maharal’s approach is in fact endorsed by a number of contemporary authorities, including Rav Zalman Sorotzkin (Oznayim LaTorah, Bereishis 34:25) and recently Rav Asher Weiss (Minchas Asher, Devarim pp. 117-122).
Rav Weiss notes that the Radak (Divrei HaYamim I 22:8) also concurs with the Maharal’s principle. In his explanation of why David was disqualified from building the Beis HaMikdash due to the “blood that he had shed,” he writes that David had killed non-combatants in the course of battle. However, he adds that David was not held accountable for their deaths, “since his intention was to eliminate evildoers so that they would not harm our nation.”
Another source noted by Rav Weiss is the warning given by King Shaul to the Keini to evacuate their homes lest they be harmed in the course of war with Amalek (Shmuel 1:15:6). We see that Shaul was prepared to endanger civilians in the course of war (and therefore told them to leave). This source actually extends the principle of the Maharal to civilians who are not even members of the enemy nation. Where no viable alternative is available, it is permitted (after warning) to harm even another nation living in proximity to the enemy.
Further proof to the principle can be adduced from the case of Sheva ben Bichri (Shmuel II 20). In his pursuit of Sheva, Yoav (the commander in chief of Kind David’s armies) laid siege to the city of Beis Ma’acha, and threatened to kill the entire town in order to bring Sheva to justice (see Tosefta, Terumos 7:23). Yoav’s willingness to go to such extremes again demonstrates that in times of war and hostility, the harming of innocents is permitted.
Of course – and this needs to be stressed – it it only permitted to harm civilians where this is a necessary part of a military campaign. Where there is no such need, it remains forbidden to harm or kill any human being. The delicate question is what constitutes “part of a military campaign,” what is actually considered a need weighty enough to warrant the human tragedy of “collateral damage.”
No Source to the Contrary
Another support for the position whereby one may harm enemy civilians is the lack of any source bringing up the issue. This is noted by Rav Shaul Yisraeli (Teshuvos Amud HaYemini, no. 16), who writes, “We do not find the obligation in war to distinguish between blood and blood (combatants and non-combatants). In the course of war, when laying siege to a city and the like, there is no obligation to make such distinctions.”
Rav J. David Bleich (Contemporary Halakhic Problems 3 p. 277) echoes this observation: “Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians, but to this writer’s knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem.”
Although a possible source of support, this argument remains weak; the general lack of material on the subject derives from the fact that authorities in general simply didn’t address this issue.
International Law
A comparison with international law and norms also raises the legitimacy of the Maharal’s distinction.
Harvard Professor Alan Dershowitz has written (The Case for Israel p. 167): “Although collective punishment is prohibited by international law, it is widely practiced throughout the world, including the most democratic and liberty-minded countries. Indeed, no system of international deterrence can be effective without some reliance on collective punishment. Every time one nation retaliates against another, it collectively punishes citizens of that country. The American and British bombings of German cities punished the residents of those cities. The atomic bombings of Hiroshima and Nagasaki killed thousands of innocent Japanese for the crimes of their leaders. The bombing of military targets inevitably kills civilians.”
This statement might be true; the question however is the scope and the “proportionality” of the harm caused to civilians, which is what raises the dilemmas we know.
In fact, Articles 51 and 54 of Protocol I (the 1977 amendment to the Geneva Conventions relating to the protection of victims of international armed conflicts) relate directly to the issue of civilian casualties. The Articles outlaw indiscriminate attacks on civilian populations, and destruction of food, water, and other materials needed for survival (again, the Torah does mention the possibility of laying siege to a city; see also below).
Indiscriminate attacks include directly attacking civilian (non-military) targets, but also using technology such as biological weapons, nuclear weapons and land mines, whose scope of destruction cannot be limited. A total war that does not distinguish between civilian and military targets is considered a war crime.
However, Articles of the Protocol are not always practical. For instance, Article 56 outlaws attacks on places of worship. Can this be possible in a campaign where the enemy keeps stashes of rockets in mosques or uses hospitals as headquarters for terror cells?
Although compliance with international law is important, and involves aspects of Kiddush and Chilul Hashem (certainly in an age when all actions are immediately documented and reported by media outlets), it is incumbent on us to remember what is right and what is wrong. If the Torah mandates a specific course of action, we must take it even if other nations will object. And at the end of the day, we also know that if other countries would face Israel’s predicament, their actions would surely be no more moral than Israel’s.
Conclusion
Enemies are human beings no less than any other. The Torah thus demands a degree of compassion even for enemies. For example, the Ramban (positive Miztvot that the Rambam omitted from his list of the 613 Mitzvot, no. 5) cites the Sifri requiring that, when besieging an enemy position, we not completely encircle them. Rather, we should leave an opening in order to give the enemy a chance to escape.
The Ramban explains one reason for this rule is that we should have mercy on the enemy soldiers. He also explains that it is our interest to do so, since it will encourage enemy soldiers to escape and thereby weaken the morale of our opponents. The directive will surely not apply where the campaign is compromised by leaving the escape route open.
The Israeli Supreme Court has sanctioned the harming of civilians in the context of Israeli security concerns. For instance, a petition of pro-Arab groups against the policy of distancing Palestinians from the newly-built security fence was rejected by the court, on the grounds that a campaign against terror cannot avoid causing harm to innocent civilians (High Court of Justice 9961/03).
On the other hand, the High Court of Justice has also voiced a policy whereby Israel is required – on moral grounds – to fight terrorism “with one hand tied behind its back” (High Court of Justice 5100/94). Having a hand tied behind one’s back serves to safeguard the rights of enemy civilians – yet it is liable to endanger Israel’s soldiers and its own civilian population.
Although the decision was much admired by the international community, it does not appear to be congruent with the Torah approach. Moreover, the Israeli Army goes to extraordinary lengths (and is doing so even in the present campaign) to avoid harm to non-combatants – though enemy fighters deliberately mingle with them, in violation of international law. Many military observers have commented that other armies do not show such extreme concern about the collateral deaths of civilians.
The balance, of course, it extremely hard to strike, and we have only come to raise the issues involved.
Our hope and prayer is that all our precious soldiers should come home, safely and speedily.
