Legal Advisor to Torah MiTzion
Our last column ended with the view of the Maharal of Prague in his commentary to Bereshit 34:13. The Torah, argues Maharal, made a fundamental distinction between a personal struggle battle between two adversaries and a war between nations. In the latter, whenever a battle is waged by one nation against another, there is no need to differentiate between one person and another, even if many members of that nation do not actually take part in the actual fighting. The law applicable to the townfolk routed by Shimon and Levi derived from their status as a ‘nation,’ the same as the Bnei Yaakov, the Canaanites, the Midianites etc. In the case of a war between nations, killing is justified by collective, rather than individual responsibility.
It follows that, according to the Maharal, if we are faced with a situation defined as war, there is no obligation to differentiate between fighter and citizen. Indeed, it has been argued by Rabbi Zvi Shachter, Rosh Yeshiva of Yeshiva University (BeIkvei HaTzon Ch. 32) that because the State of Israel has been in a perpetual state of (halachically defined) war ever since its inception:
“if the need arises – being that it is sometimes impossible to ascertain who are the terrorists and the combatants who are organizing the riots and the disturbances – the IDF is entitled and obligated to smite and even to kill to the extent necessary to win the war, even innocents from that nation.”
Notwithstanding the above, Rav Shachter’s words require clarification: First, what is the definition of ‘war’? Who is to define whether any given situation amounts to war – the Rabbis or the State authorities? Can the Maharal’s position, which goes against both that of the important medieval commentators, Rambam and Ramban, as well as the views of many later authorities, be sufficient grounds to establish any practical halachic conclusion? Needless to say, there are no traces of the Maharal’s position in Rabbi Goren’s writings, for he sought to advance an ethical model for the Israel Defense Forces anchored in Jewish tradition!
The Netziv: The Way of War
The great 19th century scholar and leader, Rabbi Naftali Tzvi Yehudah Berlin, dealt with the subject of war, according to Halacha in particular and the Torah’s outlook in general. In his Emek Davar commentary to the Chumash (Devarim 20), the Netziv unambiguously states: “There is no prohibition to engage in war [notwithstanding the fact that many innocent people will be killed in the process], just as the king is not cautioned against waging a permissible war (milchemet reshut)…”
The Netziv is even more explicit elsewhere, in the context of the commandment given already to the Noachides “Of every man for that of his brother I will demand the soul of man” (Bereshit 9:5), prohibiting murder to civilization. There he writes that a person is only punished for spilling blood “at a time when it is otherwise appropriate to act with brotherhood. But this is not the case during war, when it is a time to hate. Then it is a time to kill and there is no punishment whatsoever for so doing, because this is the way of the world.”
These words would appear to be of relevance not only to exonerating the killing of enemy combatants, who are killed in battle. Even the blood of innocent civilians is certainly not redder than the blood of innocent Israeli citizens. This is not to say that the Netziv sanctions an approach of deliberate killing of innocent civilians. But it equally does not require us not to step into battle, knowing that innocent civilians are likely to be killed in the process, because of the difficulty of distinguishing between combatants and civilians.
Rav Dr. Neriyah Guttel concludes his all-encompassing article in Techumin, vol. 23, on the subject of the halachic legitimacy of conducting military operations in built-up areas, with the following words:
“Were I not cautious, it seems to me that the pinpointing of a target amongst the civilian population, the destruction of a house together with the terrorists and other inhabitants, the bombing of civilian territory in which the enemy has deliberately chosen to reside etc. – so long as such actions were not carried out with the premeditated goal of killing civilians, but rather with operational discretion, these acts are permitted according to the Halacha.”
Guttel also cites from a response given by Rav Avraham Shapira, during his tenure as Israeli Chief Rabbi, to the question that was posed to him during the Operation for Peace of Galilee War:
“What is the Halacha in respect to dealing with a civilian enemy population in time of battle?
Answer: So long as there is no palpable danger to our soldiers, there is no permit to harm the enemy, whether to person or to property. However, when the danger is palpable, it must be remembered that there lies in the balance not only the combatant unit vis-à-vis the civilian population. The loss of one unit or part of a unit can harm the entire course of the war. Therefore, when required and when there is a real sense of danger there is no room to measure the numbers of our soldiers who are liable, Heaven forbid, to be harmed as against the number of enemy civilians, who are liable to face the price of war. There is clear halacha to this effect in the Rambam, and we are duty bound to save the life of every Jewish soldier.
Rabbi Dr. Aviad HaCohen reaches a more cautious conclusion in his article on “Law and Ethics in Time of War,” published on the Israeli Ministry of Justice website (Parshat Ekev, 5766, vol. 260). He states that:
“It issues such as these are complicated and extremely involved, and cannot be answered in a clear and unequivocal manner. They depend on the context and the particular circumstances, and in such cases their resolution is given to the competent authority who is obligated to exercise his discretion in a wise and responsible manner, with commonsense and with sensitivity, in order to arrive at the correct answer.
“And Yaakov was greatly afraid and distressed” (Bereshit 32:8)
There are no easy answers. The doubts and concerns that we have raised in these columns best Yaakov Avinu when approaching his brother Esav. The Rabbis teach that Yaakov was afraid “lest he be killed” and he was distressed “that he might kill others” (Bereshit Rabba 76). According to some commentaries, Yaakov was afraid that he might exercise, in the heat of the battle, too much force, which would result in unnecessary injury to innocents. In the Maharal’s words: “He was afraid lest he were to kill those who were accompanying Esav, and he was unaware whether they had come to kill him, or not in which case to kill them would be unlawful.”
The writer of the IDF code of ethics, Professor Asa Kasher, admitted during the recent war in Lebanon that the decision to bomb a house or town was quite complicated, especially if there are citizens who wanted to leave but were prohibited from doing so by Hizbullah: