Last
week, 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.
Conclusion
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.
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