60. Dinim II: Civil Law
60.2. Halachic Perspectives on Civilian Casualties II
[From the Kol Torah Journal, Vol. 17, No. 17, Jan. 5, 2008]
by Rabbi Chaim Jachter
Last time, we began a discussion of what might be the most important Halachic/ethical issue facing Medinat Yisrael and the civilized world: the question of harming civilians while attacking enemy forces. The survival of Medinat Yisrael and the entire civilized world might depend on this issue, as contemporary radical Islamic terrorists' modus operandi is to shelter themselves among civilians. In this way, they seek to take advantage of western sensibilities that are offended by harming civilians in battle. Our point of departure to resolving this quandary was the dispute between the Rambam, the Ramban, and the Maharal as to how to evaluate Shimon and Levi's killing the adult male population of Shechem in the wake of the capture and rape of Dinah (Bereishit chapter 34). The Rambam supports their action, arguing that the people of Shechem deserved to be punished due to their failure to punish their leaders for abducting and raping Dinah. The Ramban, on the other hand, maintains that Shimon and Levi were not justified, as the males of Shechem did not deserve capital punishment for this failure. The Maharal claims that although the males of Shechem were innocent, Shimon and Levi were justified in killing them, because in a war between nations, one does not distinguish between the innocent and the guilty.
Applying the Different Views
The Rambam and the Ramban argue as to whether Halacha considers an entire population responsible for the evil perpetrated by its leaders. As we discussed last week, it is difficult to discern whose opinion is endorsed by the Chumash. Indeed, Rav Shaul Yisraeli (Teshuvot Amud HaYemini 16) concludes his discussion of this debate, "In practice, there is insufficient basis to permit action against an entire community that has failed to execute its duty and remove murderers from its midst so long as it is reasonable to excuse them with the claim of fear, pressure, and the like."
However, prominent Poskim such as Rav Yaakov Ariel (Arachim BeMivchan HaMilchamah p. 83), Rav Dov Lior (Techumin 4:186), Rav Hershel Schachter (BeIkvei HaTzon p. 207) and Rav Asher Weiss (Minchat Asher Devarim 217-222) rely upon the Maharal's interpretation of the Shechem episode to allow harming anyone who belongs to an enemy nation during wartime. Rav Yitzchak Blau (Tradition Winter 2006 p. 11) argues, though, that "Maharal is a decidedly minority viewpoint with regard to that story and thus is a shaky leg upon which to build a far reaching position." Rav Dr. Neriah Gutel (Techumin 23:32) expresses similar reservations about applying the Maharal's principle in practice. We will seek to demonstrate why the Maharal is a most solid source and most definitely does not constitute a "shaky leg" upon which to base a resolution to our question.
Support for the Maharal
The Maharal's approach to the Shechem incident is endorsed by Rav Zalman Sorotzkin (Oznayim LaTorah, Bereishit 34:25), a leading mid-twentieth-century Halachic authority and Torah commentator. Furthermore, Rav Gutel (Techumin 23:34-35) convincingly demonstrates that the Netziv (Bereishit 9:5 and Devarim 20:8) believes that one is not punished for killing non-combatants during the course of battle. Thus, although the Netziv does not seem to subscribe to the Maharal's interpretation of the Shechem episode, he nonetheless agrees with the principle regarding killing civilians during wartime. In addition, Rav Schachter (ad. loc.) argues that the Netziv (commentary to Kiddushin 45a) articulates a principle that accords with the Maharal's approach.
Thus, even if the various commentators do not share the Maharal's defense of Shimon and Levi, they do not necessarily reject the underlying principle. They may believe that killing Shechem and Chamor would have sufficed to rescue Dinah and that waging war against the entire town was therefore uncalled for. In other words, the war against Shechem was unjustified, but in a just war one may attack without distinguishing between the innocent and guilty if it is impossible to wage war effectively in another manner.
Furthermore, Rav Asher Weiss notes that the Radak (Divrei HaYamim 1:22:8) also subscribes to the Maharal's principle. In his explanation of why David was disqualified from building the Beit 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." For further explanation of why this nonetheless would disqualify him from building the Mikdash, see Rav Elchanan Samet's Iyunim BeFarshiot HaShavua (1:68-69).
Furthermore, Rav Schachter (ad. loc.) argues that a principle presented by the Minchat Chinuch (425:3) also accords with the Maharal's approach. The Minchat Chinuch asserts that the rules forbidding endangering oneself do not apply in a situation of war. If a war is mandated by the Torah, then by definition, explains the Minchat Chinuch, it demands from soldiers to endanger their lives since, unfortunately, this is the normal course of war. Similarly, argues Rav Schachter, the Torah expects that we endanger the lives of civilians while waging a just war if this is necessary to achieve success. Rav Schachter notes that Rav Yitzchak Zev Soloveitchik (in his commentary to the Haftarah of Parashat VaYishlach) and Dayan Ehrenberg (Teshuvot Devar Yehoshua 2:48) concur with the assertion of the Minchat Chinuch.
Rav Shaul Yisraeli (ad. loc.) notes that "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." The vast response literature and that an assertion such as this made by Rav Bleich carries great weight.
Accordingly, we see that far from being a "decidedly minority viewpoint," the Maharal constitutes a mainstream and normative concept that is appropriately applied by the aforementioned leading Poskim. This is hardly surprising in light of King Shaul's warning to the Keini to evacuate their homes lest they be harmed in the course of war with Amaleik (Shmuel 1:15:6). We see that Shaul was prepared to endanger civilians in the course of war (and therefore told them to leave), and he was not censured for this by either the Tanach or Chazal. Both Rav Ariel (Techumin 4:190) and Rav Bleich (ad. loc.) cite this as strong support for the principle articulated by the Maharal. Moreover, this precedent extends the principle to harming even another nation living in proximity to the enemy if no viable alternative exists.
The Maharal and Imitating Hashem
We can further support the opinion of the Maharal from the principle of "Acharei Hashem Elokeichem Teileichu" (Devarim 13:5). This principle obligates us to imitate Hashem's actions. Chazal (Sotah 14a) offer such examples as "Just as Hashem visits the sick, we too should visit the sick" and "Just as Hashem buries the dead, we too should bury the dead." Rav Yosef Dov Soloveitchik in particular was fond of presenting further examples, such as "Just as Hashem is creative, we too should be creative" (see Ish HaHalacha pp. 84-85).
I would suggest that the Maharal's principle also constitutes an example of imitating Hashem. The Gemara (Bava Kama 60a) states, "When permission is given to an angel to destroy, it does not distinguish between good people and bad people." Rashi (commenting on Bereishit 6:13 s.v. Keitz Kol Basar) writes that whenever there is immorality, utter destruction comes to the world and kills the good with the bad. Note that had we not distinguished ourselves from the Egyptians (see Rashi to Shemot 12:6 s.v. VeHayah), our firstborns would have suffered the same fates as those of the Egyptians.
It seems obvious that Hashem, Who is good and merciful to all (Tehillim 145:9), would punish the good along with the bad only if no alternative exists. Similarly, when waging a legitimate war against a nation that has perpetrated evil, we may, or perhaps must, punish the innocent along with the guilty if no other viable alternative exists in order to wage a winning campaign.
The Maharal and the Geneva Convention
Rav Yisraeli and Rav Gutel note that Halacha seems to require conforming to the Geneva Convention and the norms of civilized countries regarding the ethical manner of waging war. This appears to apply even if the convention contradicts Halacha, just as we were required to honor the treaty we signed with the Givonim (Yehoshua chapter nine) despite the fact that it violated Halacha (see Rambam Hilchot Melachim 6:5).
Rav Yisraeli notes, however, that this applies not to the theory or rhetoric of the Geneva Convention, but rather to the manner in which it is practiced by civilized countries. This is similar to the idea I heard Rav Mordechai Willig cite in the name of Rav Aharon Kotler and Rav Moshe Feinstein that the rule of Dina DeMalchuta Dina (the obligation to honor the laws of land in which we reside) applies to the law as it is practiced and not as it is written. For example, Rav Kotler permitted driving sixty two miles-per-hour in a fifty five mile-per-hour zone, since the police did not issue a ticket for traveling at less than sixty three miles-per-hour.
Regarding warfare, liberal Harvard Professor Alan Dershowitz writes ("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."
We may add the following examples to Professor Dershowitz's list: The Allied blockade of the Central Powers to force them into submission via starvation and the doctrine of Mutually Assured Destruction, which prevented Soviet nuclear attack during the Cold War and which was predicated on the threat of collective punishment on a massive scale. I would argue that the practice of Allied forces during World Wars One and Two establishes the norm for how civilized nations should practice the principles articulated in the Geneva Convention when fighting an evil and tenacious enemy that is bent on annihilating its opponents. This standard is very much in harmony with the Maharal's principle of conduct during warfare.
Rav Ariel, Rav Lior, Rav Schachter, and Rav Weiss are without a doubt fully justified in following the principle articulated by the Maharal, which has a rock-solid basis in Tanach, Chazal, Rishonim, Acharonim, and basic Hashkafic principle. Thus, Halacha permits waging war without regard for civilian casualties if the war is justified and no viable alternative exists with which to wage a successful battle. Next week, we shall discuss the application of this principle to the current struggle of Israel and the civilized world against militant Islamic terror. We will focus on the critically important question of whether we should sacrifice "small" numbers of our soldiers in order to avoid large numbers of enemy casualties.