There is a 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:
Note that Rav Bleich is renown for his mastery of 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.
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.
Placing Soldiers at Risk to Reduce Civilian Casualties
The Israeli army clearly is entitled to risk the lives of civilians in its efforts to eradicate terrorists. The crucial question, though, is whether it must risk its soldiers’ lives in order to reduce civilian casualties. The question is debated by leading Rabbanim of our generation. Rav Aharon Lichtenstein (Techumin 4:185) believes Israel must “absolutely consider the extent of the justification of killing a large group [of civilians mixed with enemy soldiers] in order to save the life of an individual [Israeli soldier].” He regards the amount of civilian casualties as a factor to consider when conceiving battle plans. Rav Avraham Shapira (Techumin 4:182) and Rav Dov Lior (Techumin 4:186), on the other hand, strongly disagree. Rav Lior writes, “In times of war, there surely exists firm Halachic basis for any action done in order to insure that not even one soldier should be, God forbid, harmed.” Rav Schachter told me (in a conversation in June 2007) that he agrees with Rav Shapira and Rav Lior. In fact, he argues that Israel acted immorally when it risked its soldiers in Jenin and Lebanon in order to reduce civilian casualties. Rav Bleich (in a telephone interview conducted in July 2007) also told me that he agrees with Rav Shapira and Rav Lior. He agrees with Rav Schachter that it is forbidden to risk Israeli lives in order to save Arab civilians, as occurred in Jenin and Lebanon.
We should note that neither side in this debate cited an explicit source regarding this matter. Rather, it appears to be a question of Halachic-moral intuitions. We should stress that we cannot say that one side is more stringent or maintains a higher moral standard, since each side believes the opposing position to be morally wrong. I simply would add that just as we cited from Rav Yisraeli and Rav Bleich last week that there is no Halachic source that “takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken,” so too there exists no classic Halachic source requiring or even permitting risking Israeli soldiers to save Arab civilian lives. In the absence of explicit sources in either direction, it is fair to say that the consensus opinion of major rabbinic authorities does not accord with the approach of Rav Lichtenstein on this matter.
Rav Bleich cautions, though, that in certain situations it seems that Israel might be justified in risking Israeli lives in order to spare Arab civilians. One such instance would be if it feels that causing Arab civilian casualties will later endanger Israeli lives as a result of violence caused by Arabs seeking revenge. If Israel fears that Arabs will be incited by civilian casualties and endanger Israeli lives, perhaps risking Israeli soldiers to save Israeli lives is permitted. This would seem to be based on the Gemara (Shavuot 35b) that sanctions a king risking up to one sixth of the population in an attempt to secure his nation during a war. A leader may have the right to risk a small amount of soldiers in the short term in order to prevent much larger casualties in the long term. We stress, though, that in these cases, risking Israeli soldiers might be justified solely due to the consideration that it will save Israeli lives in the long run. The blood of the Israeli soldier is redder than the blood of the Arab whose brethren initiated violence against Israel, just as the blood of the American soldier was redder than the blood of Japanese civilians during World War Two.
Conclusion
The Torah wishes us to have a degree of compassion even for our enemies. For example, the Ramban (positive Miztvot that the Rambam omitted from his list of the 613 Mitzvot #5) cites the Sifri requiring that when besieging an enemy position we not completely encircle them. Rather, we should leave one side open 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. Thus, the obligation to have mercy on enemy soldiers applies only if the action taken does not impinge on waging a successful military campaign. It also would seem that the obligation to leave open a fourth side for escape applies only if it also serves to enhance our military strategy, as described by the Ramban, for why else would the Ramban mention the military benefit of leaving open the fourth side?
Nonetheless, as Rav Hershel Schachter and Rav Yuval Sherlow explain, winning a just war constitutes an ethical imperative. The compassion we must have for our enemies cannot impinge upon our ability to win a war. The first clause of the IDF’s code of ethics should state that it is a moral obligation for the Israeli army to win. The failure to recognize victory as a fundamental moral principle significantly contributed to the lack of success in the Second Lebanon War in 2006. The Israeli secular Supreme Court’s rulings (Public committee against torture vs. State of Israel, High Court of Justice 5100/94) requiring Israel to fight terrorism with one hand tied behind its back are also immoral according to the rabbinic consensus. What the Israeli Supreme Court argues is moral might very well be immoral.
Israel has made extraordinarily generous offers for peace towards its Arab neighbors throughout the past decades. It accepted the Peel Partition Plan of 1937 and the United Nations Partition Plan of 1947, offered to exchange land for peace immediately after the Six Day War in 1967, and offered stunning concessions to Yasser Arafat at Camp David in 2000. Arabs have rejected every one of these concessions and responded with wars intended to destroy the State of Israel and exterminate its citizens. Israel clearly is within its rights to defend itself and enjoys the ethical right, nay, obligation, to wage war successfully. Misplaced compassion for enemy soldiers and civilians cannot hamstring our efforts to effectively wage war. The failures of 2006 clearly demonstrate this point.
Avraham Avinu experienced moral anguish over the enemy soldiers that he killed in the war he successfully waged against the four Mesopotamian kings (see Bereishit Rabbah 44:5 cited by Rashi to Bereishit 15:1). However, this emotion was appropriately expressed – only after the war. Before and during the war, he focused on his moral obligation to wage war vigorously and properly against the Mesopotamian aggressors.
Avraham Avinu teaches timeless lessons about ill-timed compassion towards our enemies. It is improper to experience anguish over enemy loss during a legitimate battle. It would have been patently immoral for American soldiers during World War Two to anguish over the battle they were fighting against the Nazis and Japanese. Similarly, the consensus rabbinic opinion regards the risking of Israeli soldiers and restraint from waging war properly in order to reduce Arab civilian casualties as blatantly immoral.
May Hashem send peace to His nation and the entire world.
Rabbi Jachter
Kol Torah
