(2014/5775)

Last week we began to discuss why it is morally repugnant to cast blame on Israel for civilian casualties inadvertently caused by its defending itself from a ruthless terrorist organization determined to eliminate every Jew in Israel. We presented one Halachic justification from the Rambam for nations engaged in a legitimate war to conduct military operations that place civilians at risk and began to present a second justification from the Maharal. The Rambam focuses on the guilt of the adult members of a society led by an evil government and the Maharal focuses on the need of a nation under attack to wage war properly. For the Maharal, this includes permission, if necessary, for the victim to attack any and all members of the aggressor nation in order to properly wage war.

Support for the Maharal

We noted last week that some dismissed the Maharal as support for Israeli actions since he constitutes a lone voice (Da’at Yachid). However, it may be argued that the Maharal constitutes a viable and relevant source. The Maharal is not a lone voice as his approach to the Shechem incident is endorsed by Rav Zalman Sorotzkin (Oznayim LaTorah, BeReishit 34:25) and Rav Herschel Schachter (BeIkvei HaTzon p. 207) argues that the Netziv advances a similar principle (Meromei Sadeh, Kiddushin 43a s.v. Mah and Eiruvin 45a s.v. Peirush Rashi).

Even if the various commentators do not share the Maharal’s defense of Shimon and Levi, they do not necessarily imply a rejection of his principle. They could simply believe that killing Shechem and Chamor alone would have sufficed to rescue Dinah, and that waging war against the entire town of Shechem was thus unjustified. In other words, the attack against Shechem was uncalled for,[1] but in a justified war, all would agree that one may attack without distinguishing between the innocent and guilty members of a nation if it is impossible to effectively wage war in another manner.

Furthermore, Rav Asher Weiss points out that the Radak (Divrei HaYamim I 22:8) also seems to subscribe 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 but was not held accountable for their deaths, “since his intention was to prevent evildoers from harming our nation.” [2]

In addition, Rav Schachter argues that a principle presented by the Minchat Chinuch (425:1) also accords with the Maharal’s approach. The Minchat Chinuch argues 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 that soldiers endanger their lives since, unfortunately, this is the normal course of war. Similarly, asserts Rav Schachter, the Torah expects that civilians will be killed during a war if this is necessary to achieve success. Rav Schachter notes that Rav Yitzchak Zev Soloveitchik (in his commentary to the Haftarah of Parashat BeShalach) and the Teshuvot Devar Yehoshua (2:48) concur with the assertion of the Minchat Chinuch. Rav Schachter cogently argues that if the Torah permits a government to risk the lives of its citizens by sending them to a legitimate war, then it is certainly acceptable to risk the lives of members of the aggressor nation in order to win a justified war.

Rav Shaul Yisraeli (Teshuvot Amud HaYemini 16 and BeTzomet HaTorah VeHaMedinah 3:253-289) 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 III: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 Halachic or moral problem.

Indeed, the Gemara (Bava Kama 92a) articulates this principle when it presents a basis in the Tanach for the folk saying, “The carob tree is struck together with its thorn.” Rashi (ad loc. s.v. BeHadei Hutza) explains that when one removes a thorn that grows by a carob tree, sometimes the carob tree is uprooted together with the thorn. The idea behind this folk saying, Rashi explains, is that, “the neighbors of evildoers are punished along with the evildoers.”

Accordingly, we see that far from being a “decidedly minority viewpoint,” the Maharal’s principle constitutes a mainstream and normative concept that is appropriately applied by leading Posekim such as Rav Ariel, Rav Schachter, and Rav Weiss. 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 his war with Amaleik. We see that Shaul was prepared to endanger civilians in the course of war, and he is not censured for this willingness 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. [3]

The Maharal and the Geneva Convention

Rav Yisraeli and Rav Gutel (Techumin 23:32) note that Halachah requires conforming to the Fourth Geneva Convention[4] and the norms of civilized countries regarding the ethical manner in which to treat non-combatants during war. This seems to apply even if the Convention contradicts Halachah, just as we were required to honor the treaty we signed with the Giv’onim (Yehoshua 9) despite the fact that it violated Halachah (see Rambam Hilchot Melachim 6:5). Rav Yisraeli notes, however, that this applies not to the theory or rhetoric, but rather to the manner in which the Geneva Convention is practiced by civilized countries.[5]

Regarding warfare, Harvard Law School 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 to Professor Dershowitz’s list the Allied blockade of the Central Powers during World War I to force them into submission via starvation and the doctrine of Mutually Assured Destruction, which prevented Soviet attack during the Cold War based on the threat of collective punishment on a massive scale. The practice of Allied forces during the two World Wars established the norm for how civilized nations practice the Geneva Convention when fighting an evil and tenacious enemy that is bent on annihilating its opponents, a norm very much in harmony with the Maharal’s principle of conduct during warfare.

Rav Ariel, Rav Schachter, and Rav Weiss are justified in following the principle articulated by the Maharal, which has a solid basis in the Tanach, Chazal, Rishonim, and Acharonim. Thus, Halachah permits waging war without excessive regard for civilian casualties if the war is justified and no viable alternative exists through which to wage a successful battle.

We should stress that the Israel Defense Forces do not deliberately target civilians in order to weaken the enemy, as the Allies did during World War II[6]. Israel certainly is justified in attacking Hamas terrorists who use civilians as human shields, despite the risk of collateral damage. The Fourth Geneva Convention applies, at most, only to specifically targeting civilians.

Conclusion

Thus far we have presented two justifications for Israel attacking Hamas while risking collateral damage—the guilt of the population for failing to overthrow an evil government (Rambam) and license to wage a legitimate war against an entire aggressor nation if necessary (Maharal). Next week we, IY”H and B”N, shall develop a third approach and then discuss the vitally important question of Israel risking the lives of its soldiers in an attempt to reduce Arab civilian casualties.

[1]These authorities would reject Shimon and Levi’s concern for a retributive attack as unlikely and thus insufficient justification to attack all the adult male population of Shechem. 

[2]One might wonder, then, why David HaMelech was disqualified from building the Beit HaMikdash.  Rav Elchanan Samet’s Iyunim BeParshiot HaShavu’a (1:68-69) explains that even for an “Aveirah Lishmah,” a sin committed with a noble objective, there are consequences.  Thus, although David acted properly, he still was disqualified from building the Beit HaMikdash.  Rav Weiss cites this consequence as evidence that civilian casualties are tolerated only if there are no alternatives. 

[3]Rav Weiss (ad loc. p. 219) defends the use of the Tanach and its commentaries to decide this issue:

Since the time of the destruction of the Beit HaMikdash and the loss of Jewish sovereignty, these types of questions were not relevant in practice and little attention was devoted [in the Talmud and its commentaries] to the issue of wars and how to wage them.  We have no choice other than to base our discussion on the wars waged by Jews as recorded in the Tanach and its commentaries throughout the generations when we come to render a decision in these matters.

[4]The Fourth Geneva Convention forbids harming non-combatants and engaging in collective punishment of non-combatants during war.  It was ratified by the State of Israel in 1949.

[5]This is similar to the idea I heard Rav Mordechai Willig cited 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 applied, 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 police did not issue a ticket for traveling at less than sixty-three miles-per-hour. 

[6] Deliberately targeting civilians constitutes a criminal offense in the State of Israel which is tried in a civilian court such as Israel’s Supreme Court, which does rule against the Israel Defense Forces when appropriate.