The story of the flood and the death of, “everything that is on the earth” (Bereishis 6:17), raises the question of the legitimacy of collective punishment. As a result of the flood, “all is whose nostrils was the breath of the spirit of life, of everything that was on dry land, died” (7:22). All that existed, “from man to animals to creeping things and to the bird of the heavens,” was blotted out from the earth.

Were all of them guilty of sin? Did they all reach a level of corruption that warranted their destruction? Were all part of “the earth is filled with robbery through them” (6:11)?

The Midrash indicates that this was indeed the case. With the exception of Noach, his wife, his three sons and their three wives, there were no other individuals worthy of salvation (Bereishis Rabba 18:24; see also Rashi to Bereishis 18:32). The Meshech Chochmah (Shemos 14:29) adds that the entire generation had become completely morally corrupt. While Hashem has compassion on those who sin before Him, those who cross the line of moral corruption cannot be redeemed.

At the same time, the flood also presents an example of collective punishment. As Rav Saadya Gaon writes, even youth and children perished in the deluge, though they were innocent of sin (Emunos Ve’Deos, Maamar 8, p. 241). He explains that sometimes the innocent are swept up in the collective punishment, and they receive their recompense in the World to Come (Maamar 9, p. 266).

The indiscriminate nature of the flood thus raises the issue of collective punishment. What is the Torah’s approach to the concept of collective punishment? Is it legitimate to punish an entire group or town because of the sins of the few? Will the answer change if the town is supportive of the crime, even if it is not partner to it? Is there a distinction between wartime and peacetime?

These questions, among others, are discussed below.

The Collective Demise of Egypt

Another example of collective punishment is the death of all the Egyptian firstborn, including even the firstborn of Egyptian slaves (Shemos 12:29). This would seem to indicate that there was no discrimination between the guilty and the not guilty. The firstborn of female slaves would seem unlikely to have sinned against the Hebrews together with their Egyptian masters. Certainly, firstborn prisoners would seem innocent  of sin. (Their position was probably not so different from that of the Hebrews themselves.) Why did these firstborn perish together with the guilty Egyptians?

Chazal (Tanchuma, Bo 7, as cited by Rashi, Shemos 12:29) raise this question, and suggest the following answer: “To teach you that when Pharaoh decreed his decrees against Israel, the prisoners were pleased with them.” In the Midrash Ha-Gadol we find a similar concept. The prisoner firstborn died because they declared: “Our wish is that we should stay in our captivity, and the Hebrews in theirs!”

Because of their even merely passive approval of the Egyptian oppression, the non-Egyptian firstborn were thus included in the punishment.

A similar concept is found concerning the final drowning of all Egyptian men at the sea. The Midrash (Tanna De-bei Eliyahu Rabbah 7) questions why all the Egyptians were drowned at the sea, and answers: “Because it is written: Pharaoh instructed his entire nation, saying: ‘Any boy who is born shall be thrown into the Nile.’” The Midrash explains that an instruction (tzav) implies a public proclamation, of which all of the Egyptian people were aware.

It seems that this tacit approval (of drowning Hebrew babies) that went together with it, were sufficient for all to be included in the final punishment.

Thus we see that Hashem does not mete out collective punishment. This is what Avrohom argued when Hashem informed him of the impending destruction of Sedom and Hashem agreed with Avrohom that He does not mete out collective punishment. This is also how Hashem is described in Haazinu: a “Just G-D.”

Collective Punishment at Shechem

Going back to Bereishis, we find an apparent case of collective punishment in the actions of Shimon and Levi at Shechem (Bereishis 34).

Subsequent to the kidnapping and defilement of Dinah, Shimon and Levi attacked Shechem, killing not only Shechem and his father the town leader Chamor, but also all the males of Shechem. Commentaries discuss the legitimacy of this action, and dispute whether such collective punishment is justified.

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 commands shall be executed by decapitation. 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, all of humanity is charged with the responsibility to eliminate evil from its midst. The failure of the males in Shechem to protest and prevent the continuing abduction of Dinah was a violation punishable by death for gentiles (see also Sanhedrin 57a).

The Ramban, however, in his commentary to Bereishis (34:13 and 49:5-6), disagrees with the Rambam. He explains that even if they deserved to die due to violations of the Seven Noahide Laws, Shimon and Levi were not authorized to execute such punishment.

The Destruction of the Idolatrous City

Another instance in which the Rambam appears to endorse a form of collective punishment relates to an idolatrous city—ir ha-nidachas—in which a majority of citizens become idolaters. The laws of the idolatrous city are outlined in Devarim 13. Verse 16 states that the city must be utterly destroyed: “You shall surely smite the inhabitants of that city by the sword. You shall utterly destroy it and all that is in it, and its animals, by the sword.”

The Tosefta (Sanhedrin 14:3) cites a dispute among Tana’im concerning whether children of the idolatrous city are killed together with adult transgressors. According to Rabbi Akiva they are not killed, whereas Rabbi Eliezer maintains that they, too, are killed.

The Rambam (Avodah Zarah 4:6) rules in accordance with Rabbi Eliezer: “Every human being who was in the city is killed by the sword, including children and women, if the entire city was led astray. And if the idol worshipers are found to be only the majority [and not the entire population], then all the children and wives of the idolaters are killed by the sword [but not the families of those who did not worship idols].”

The Rambam’s statements concerning the killing of the women and children aroused some debate between the Ramah (Rabbi Meir Ha-Levi) and the Provencal sages of Lunel (in the year 1199). Rabbi Meir Ha-Levi sent a letter from Toledo to the sages of the city of Lunel listing his critiques of many points in the Rambam’s Mishneh Torah. Rabbi Aharon bar Meshulam of Lunel responded to each of his criticisms, and this correspondence is included in the Ramah’s Book of Letters.

One of the points on which the Ramah disagrees with the Rambam is the matter of the idolatrous city. Surely, he writes, the children cannot be killed, for “far be it from God to perform wickedness! Since when is a minor held responsible and condemned?” He adds that the halachic ruling should surely follow the opinion of Rabbi Akiva, as it usually does.

In his response, Rabbi Aharon of Lunel notes the special severity of idolatry, adding that we find precedents for collective punishment in Hashem’s punishing of heinous sins.

Rabbi David Zvi Hoffmann, in his commentary on Devarim, expounds on this idea: “There is no reason to question why the minors are put to death. The nation of Israel, in this instance, is representing the Holy One. The city that is condemned to destruction is like Sedom and Amorah. Israel, God’s nation, is commanded to carry out the verdict. Like the example of the great flood and the overturning of Sedom and Amorah where everyone was destroyed including the minors, so likewise concerning the condemned city.”

The point here is that the punishment of the idolatrous city is a kind of Heavenly punishment, and Israel’s role in carrying it out is only to act as Hashem’s agent. This enables us to understand the deviation of this law from the regular limitations on punishments by a court.

Note that just as in Sedom, the righteous were saved without the right to keep their possessions, so too in the idolatrous city the righteous are not killed, but their possessions are destroyed together with the city (Rambam 4:7).

The Indiscrimination of War

Returning to the question of Shechem, we find that the Maharal (Gur Aryeh, Bereishis 34:13) suggests a compromise of sorts between the Rambam and the Ramban. On the one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leaders. On the other hand, the Maharal nonetheless justifies the actions of Shimon and Levi.

He argues that the Torah sanctions fighting back when a nation attacks us. In a war, it is permitted and even obligatory to respond to the other nation’s provocation, and this response cannot and need not distinguish between guilty and innocent. Shimon and Levi responded appropriately to Shechem’s aggression. Once they responded, it was permitted for them to attack the entire nation, because this is the manner in which war is waged.

To cite a practical example, it is clear that the Maharal will thus sanction the broad Allied bombing of Germany towards the end of World War II, despite their killing of many civilians (including women and children) in towns like Dresden, Munich and others. On the other hand, he does not sanction the killing of innocent people where doing so is not part of a military campaign against an aggressor nation.

The Maharal’s approach to the Shechem incident is endorsed by Rav Zalman Sorotzkin (Oznayim La-Torah, Bereishis 34:25). Furthermore, the Netziv (Bereishis 9:5 and Devarim 20:8) writes that that one is not punished for killing non-combatants in the course of battle (see also commentary of Netziv to Kiddushin 45a; Radak, Divrei Ha-Yamim 1:22:8).

Moreover, even the commentaries who reject the Maharal’s defense of Shimon and Levi (see, for instance, Netziv, Bereishis 34:25) can concede that in case of a justified war one may attack in the knowledge that some innocent civilians will be killed—known today as “collateral damage.” As all with experience of war know, the bombing of even purely military targets often kills civilians.

Practical Applications Today

The questions of collective punishment and collateral damage are with us today no less than in the past. Even last week’s raid that killed ISIS leader Abu Bakr al-Baghdadi involved the death of women and young children whose lives could not be saved.

The State of Israel is also no stranger to similar circumstances, and Israel’s peacetime is a constant war on terror. Israel’s enemies deliberately locate many military targets in the midst of civilians to make them hard to target without causing civilian casualties, and then accuse Israel of targeting civilians.

As we have seen, many sources recognize the moral imperative to minimize civilian casualties. At the same time, most halachic authorities determine that the imperative to defend one’s own civilian population will generally take precedence, even at the price of civilian deaths.

 

 

 

 

 

 

 

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