60. Dinim II: Civil Law

60.1. Halachic Perspectives on Civilian Casualties I

[From the Kol Torah Journal, Vol. 17, No. 17, Jan. 5, 2008]

by Rabbi Chaim Jachter


Perhaps the most critical Halachic/ethical issue facing the Jewish State and indeed the entire civilized world is the question of avoiding civilian casualties when battling terrorists. Groups such as Al Qaeda and Hezbollah take advantage of Western sensibilities by deliberately embedding themselves within civilian populations and cynically using them as human shields. The civilized world struggles to strike a balance between combating such evil groups on one hand and trying to limit civilian casualties on the other.

Israel in particular must confront this terrible challenge. In recent years, Israel has risked and lost many of its precious soldiers in order to reduce Arab civilian casualties. For example, after a series of horrific terrorist attacks in the first half of 2002 (including the bombing of the Park Hotel in Netanya in which 29 people partaking in a Pesach Seder were murdered by a homicide bomber), the Israeli army launched an operation with the goal of severely weakening terrorist groups. A hotbed of terrorists had been the Jenin refugee camp in the Northern Shomron. The Israeli army could have bombed this refugee camp, but instead it chose to send foot soldiers house to house to eliminate the terrorists located in the camp, by which it hoped to reduce civilian casualties. Such casualties certainly were kept to a minimum in this effort. However, 23 Israeli soldiers were killed in the Jenin operation who would have been spared had Israel attacked only from the air.

Similarly, in the summer of 2006 Hezbollah mercilessly pounded Northern Israel with hundreds of rockets. Israel could have responded by "carpet bombing" Southern Lebanon but instead it chose to attack Southern Lebanon with a combination of air attacks and ground forces hoping to reduce civilian losses. While Israel certainly reduced non-combatant deaths, more than one hundred Israeli soldiers were killed, and the stated goal of eliminating Hezbollah's presence in Southern Lebanon was not achieved. We must ask whether the Israeli government made an appropriate moral decision in both Jenin and Lebanon. In other words, does Halacha permit and/or require the sacrifice of our soldiers in order to reduce enemy civilian losses?

Rav Yuval Sherlow, the Rosh Yeshiva of the Hesder Yeshiva of Petach Tikvah and an advisor to the Israeli army on ethical matters, visited the Torah Academy of Bergen County in March 2007 and told the students of a specific issue in this regard that he was asked to resolve. The Israeli Air Force had located a very dangerous terrorist leader and had the opportunity to eliminate him. The terrorist noticed the plane and slipped into a taxi cab that had a passenger. The question was whether to bomb the cab despite the presence of non-combatants in the car.

In this series, we shall outline the Halachic and Hashkafic issues involved in resolving such critical issues. We will not address the political and military questions involved in making these decisions, leaving such considerations for experts in these areas. There has been extensive Halachic discussion of this issue, including a Teshuvah written by Rav Shaul Yisraeli (Teshuvot Amud HaYemini number 16 and BeTzomet HaTorah VeHaMedinah 3:253-289) and a lengthy essay written by Rav Dr. Neriah Gutel (Techumin 23:18-42). We will seek to discover a consensus approach that has emerged from the prominent Rabbanim who have addressed this issue, who include Rav Yisraeli, Rav Yaakov Ariel, Rav J. David Bleich, Rav Aharon Lichtenstein, Rav Hershel Schachter, and Rav Mordechai Willig.

Shimon and Levi at Shechem

The point of departure for this discussion is the evaluation of Shimon and Levi's actions at Shechem (Bereishit 34). Subsequent to the kidnapping and rape of Dinah, Shimon and Levi attacked Shechem, killing not only the rapist Shechem and the town leader Chamor, but also all of the males of Shechem who had a Brit Milah. (For a discussion of whether they killed every male in the city, including those without a Brit Milah, see Megadim 23:14). We shall survey the three primary views: the respective approaches of the Rambam, the Ramban, and the Maharal. For a full analysis of this event, see Binyamin Mallek's essay that appears in Megadim (23:9-30).

The Rambam (Hilchot Melachim 9:14) believes that Shimon and Levi acted appropriately at Shechem. He notes that Halacha demands of all of humanity to eliminate evil from its midst. This is the obligation of Dinim, one of the seven Noahide laws. The failure of the males in Shechem to protest and prevent the rape and continued abduction of Dinah was a violation of the Noahide Code punishable by death (see Sanhedrin 57a).

The Ramban (commentary to Bereishit 34:13 and 49:5-6) strongly disagrees with the Rambam's opinion. He believes that Shimon and Levi were justified in killing Shechem and Chamor. However, he argues that the killing of the males of Shechem was entirely unjustified. His basic argument is that it was wrong for Shimon and Levi to kill the males of Shechem, since they did nothing wrong to Yaakov's family. The Ramban asserts that the residents of an area do not deserve death for failure to control the evil actions of their leader. He adds that even if they deserved to die due to other violations of the Noahide Code, Shimon and Levi were not authorized to execute such punishment.

Proofs to the Rambam and the Ramban

The Ramban supports his opinion from the fact that Yaakov Avinu strongly criticized Shimon and Levi's actions (Bereishit 34:30). The Rambam could answer that the Torah (ibid. verse 31) records Shimon and Levi's justification of their actions. Moreover, Yaakov Avinu does not respond to this justification, and the Torah gives the last word to Shimon and Levi. On the other hand, the Ramban could argue that Yaakov criticizes Shimon and Levi on his deathbed (Bereishit 49:5-7). Thus, the Torah in fact gives the last word to Yaakov Avinu. The Rambam might reject this proof by noting that Yaakov on his deathbed criticized Shimon and Levi for their leading roles in the sale of Yosef, not for killing the inhabitants of Shechem. (The Ramban would disagree, since he believes that Yaakov never discovered that it was the brothers who sold Yosef; see his comments to Bereishit 45:27.) Indeed the words "Ish" and "Shor" used in Bereishit 49:7 fit Yosef, as he is referred to as a Shor in Moshe Rabbeinu's final blessing (Devarim 34:17) and as an Ish no less than fourteen times in Sefer Bereishit (as noted in Megadim ibid. 25-26).

I would suggest that the Rambam interprets Peshuto Shel Mikra as implicitly sanctioning the actions of Shimon and Levi at Shechem. In Devarim chapter 27, Moshe Rabbeinu describes the future placement of the Shevatim on Har Gerizim and Har Eival (located in Shechem) during the ceremony announcing the various Berachot and Kelalot that will come upon those who do/do not keep the Torah. The Berachah is given on Har Gerzim and the curse on Har Eival. It is interesting to note that of the three sons whom Yaakov criticized on his deathbed, Reuven alone was placed on Har Eival, while Shimon and Levi were placed on Har Gerizim. It is hardly surprising that Reuven was positioned on Har Eival for this ceremony, which included, "Cursed is the man who sleeps with his father's wife" (Devarim 27:20), a sin to which Reuven had connection (see Bereishit 35:22). However, it is quite noteworthy that Shimon and Levi were placed on Har Grizim despite the fact that the ceremony would occur in an area where their ancestors sinned (according to the Ramban). The positioning of Shimon and Levi on Har Gerizim might be interpreted as Hashem sanctioning the actions of Shimon and Levi at Shechem more than two hundred years earlier.

The Maharal and Twentieth-Century Applications

The Maharal (Gur Aryeh to Bereishit 34:13) adopts a compromise of sorts between the Rambam and the Ramban. On one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leaders, for the leaders exercised a form of coercion. 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. In such circumstances, we are permitted and perhaps obligated to respond to the other nation's provocation. In responding, we attack the other nation and do not distinguish between the guilty and the innocent members of that nation. Shimon and Levi appropriately responded to Shechem's aggression. Once they responded, they were permitted to attack the entire nation, because this is the manner in which war is waged.

It would appear obvious that the Maharal does not sanction frivolous attacks on civilian members of an enemy nation. When the proper execution of battle plans necessitates killing non-combatants, though, he would permit doing so. For example, it appears that the Maharal would sanction the dropping of atomic bombs on Hiroshima and Nagasaki in 1945 despite the Japanese babies who were killed in this attack. He also would sanction the unrelenting Allied bombing of Germany towards the end of World War Two despite the killing of German babies in towns such as Dresden.

I should stress that many people probably would not be alive today had it not been for these attacks. My father, for example, served as a combat soldier in the Pacific during World War Two and might not have survived an American invasion of Japan. Many Holocaust survivors owe their survival to the relentless Allied bombing of Germany, which brought that evil nation to its knees. The Maharal believes that my father's blood was "redder" (see Pesachim 25b) than the blood of the Japanese babies who perished in the bombings of Hiroshima and Nagasaki in 1945. This is the price of being a member of an aggressor nation.

Next, we shall discuss how contemporary Poskim apply the dispute between the Rambam, the Ramban, and the Maharal to the awful challenges faced by Israel today.