Donations Click Here

Collective Punishment in Halachah

After nine plagues were not enough to redeem the Jewish People, Hashem brought upon Egypt the tenth and the final plague – makas bechoros.

Moshe first warned Pharaoh of the oncoming terror: “Every firstborn son in Egypt will die, from the firstborn son of Pharaoh, who sits on the throne, to the firstborn son of the female slave, who is at her hand mill, and all the firstborn of the cattle” (Shemos 11:5).

It is clear from this warning that the plague would hit all the firstborns of Egypt, without exception. This is in fact what happened as we see in the description of the plague itself: “At midnight Hashem struck down all the firstborn in Egypt, from the firstborn of Pharaoh, who sat on the throne, to the firstborn of the prisoner, who was in the dungeon, and the firstborn of all the livestock as well” (Shemos 12:29).

The nature of the final plague suggests the issue of collective punishment. The term “collective punishment” usually implies the punishment of innocent members of a group because of guilty members of the same group. In our case, the Torah and commentaries stress that there were no innocents who were punished. All were guilty to some extent, and Hashem punished each exactly according to the crime he or she committed. However the punishment appears collective in that all were included, suggesting the topic. 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 in the present article.

The Collective Demise of Egypt

As noted above, the death of the firstborn in Egypt is an example of a punishment that included all members of a particular group, without exception.

The firstborn of the female slaves could not have sinned against the Hebrews in the same way as their Egyptian masters. Certainly, the firstborn prisoners seemed to have been innocent of persecution of the Jews – their position was probably not so different from that of the Jewish People themselves. Why did these firstborn perish together with the Egyptians?

The Sages (Tanchuma, Bo, no. 7 – as cited by Rashi, Shemos 12:29) raise this question, and suggest the following answer: “To teach you when Pharaoh issued his decrees against Israel, the prisoners were pleased.” 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 Jews in theirs!”

Because of their approval of the Egyptian affliction, even 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.

Apparently, this awareness itself, and the tacit approval of drowning Hebrew babies that went together with it, were sufficient for all to be included in the final punishment.

Collective Punishment at Shechem

Going back to the book of Bereishis, we find a classic case of apparent 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 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 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, humanity is charged with the responsibility 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 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 the killing by Shimeon and Levi of the males of Shechem was unjustified. Since the males of Shechem did nothing wrong to Yaakov’s family, it was wrong to kill them, and failure to control the evil actions of their leader does not condemn all the inhabitants of an area to death. He adds that even though they deserved to die due to other 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 Torah seems to sanction a form of collective punishment is concerning 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, which 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 worshippers 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 idolatry].”

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 attacks the Rambam is the matter of the idolatrous city. Surely, he writes, the children cannot be killed, for, “Far be it from G-d 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, and not that of Rabbi Eliezer, who was excommunicated by his peers.

In his response, Rabbi Aharon of Lunel notes the special severity of idolatry, and adds that we find certain precedents of 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, G-d’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, even the minors, so likewise concerning the condemned city.”

The emphasis 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 the court.[1]

Indiscrimination in War

Returning to the question of Shechem, we find that the Maharal (Gur Aryeh, Bereishis 34:13) adopts 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 waging war when a nation has attacked us. In war, it is permitted and even obligatory to respond to the other nation’s provocation, and this response need not distinguish between the guilty and the innocent. Shimon and Levi appropriately responded 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 would approve of the unrelenting Allied bombing of Germany towards the end of World War II, despite the killing of many innocent civilians (including women and children) in towns such as Dresden. 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 those commentaries who don’t offer the Maharal’s defense of Shimon and Levi (see, for instance, Netziv, Bereishis 34:25), may concede that in case of a justified war one may attack without distinguishing between the innocent and guilty.

A comparison with international law and norms also raises the legitimacy of the Maharal’s distinction. In this sense 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.”

Practical Applications Today

The State of Israel today faces a constant challenge to defend its borders from attack by hostile neighbors. This challenge often raises the issue of the degree to which the Jewish state must go to avoid civilian casualties in aggressor nations and groups.

Consider, for instance, the following true-life question that was raised in a halachic setting: The Israeli Air Force had located a very dangerous terrorist leader, and had the opportunity to eliminate him. The terrorist noticed the Israeli threat, and slipped into a taxi cab that had a civilian passenger. The question was whether to bomb the cab despite the presence of non-combatants in the car. Based on the analysis above, the answer might depend on whether the current situation is considered a state of warfare, or not. Certainly, the Israeli predicament is no less pressing than the case of Shechem.

The Israeli High Court has sanctioned, to some degree, the concept of collective punishment 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 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 is to safeguard the rights of enemy civilians, yet it might 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 halachah. In fact, the Israeli Army goes to extraordinary lengths to avoid harm to non-combatants, even though the fighters deliberately mingle with them, in violation of international law. Many military obervers have commented that other armies do not show such extreme concern about the collateral deaths of civilians.

The balance between “moral considerations” and the imperative to defend its civilians continues to be a major topic of discussion in Israeli society. As we have briefly outlined, halachah can certainly make a significant contribution to the debate.


[1]
     [1] Note that just as in Sedom, the righteous were saved without the right to rescue 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).

Join the Conversation

3 Comments

  1. The source of this article is Rabbi Chaim Jachter’s article on civilian casualties. This article does not credit him and also conveniently leaves out all of the Zionist rabbanim he quotes while preserving the mekoros. Where isthe yashrus and intellectual honesty???

    1. You are right. Many of the sources were taken from this excellent series of article. He is credited at the end of the article, with a reference to the series.

  2. Would this halacha of times of war to permit killing innocent civilians apply to yidden as well if for example the terriost yimach shemo hid in a yiddish taxi pls respond with a תשובה thank you gr8 piece

Leave a comment

Your email address will not be published. Required fields are marked *