Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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6 - The Wars of Bnei Yisrael and the Wars of Medinat Yisrael Compared

In our last column, we noted the Torah’s commandment to first call out for peace “when you draw near to a city to wage war against it” (Devarim 20:16). If the city which refuses the offer to make peace is a distant city (i.e. not one of the Seven Nations or Amalek), we are told, “Hashem shall deliver it into your hand and you shall smite all its males by the blade of a sword” (v. 13). The Sifrei learns out that only the adult males are to be killed; both male and female children are to be spared, along with the women. Can this incident serve as a precedent to justify what ought to be Israel’s proper response in the course of a war against nations other than the Seven Nations - to wit, the war in Lebanon?

War Against a Distant City - “Kill all the Males” (Devarim 20:13)

Rabbi Dr. Neriya Guttel, the head of Michlelet Orot Yisrael in Elkana, addresses this issue in his eye-opening article on the subject of military operations in built-up areas, published in Techumin vol. 23. He has three objections to using the command to indiscriminately kill all the males in the course of a war against a ‘distant city’ - as a precedent for Israel to follow in its modern-day wars:

(1) The principle of killing all males is predicated on a situation in which one ‘nation’ fights against Israel, in such a way that all of its citizens fall into one regime and support the acts of the regime. When it is a group of individuals - even many individuals - who are fighting against Israel, these cannot necessarily be viewed as ‘group representatives’ where it cannot be clearly established that they are clearly acting at the bidding of a sovereign nation and on its behalf. Perhaps one or more individuals are prepared to make peace? In such case, each individual must be judged on his own merits. Israel’s Intifadas, for example, despite rhetorical outbursts, do not come from the hand of a combatant ‘nation.’ There is no official direction, which can be said to be calling the shots, one nation against other nation. Sadly, we are not dealing with a cluster of individuals but a multitude; nevertheless, they do not represent any ‘state entity.’

(2) There is some room to doubt whether the Torah intended “males” to include all men. It is not implausible to limit its remit to the combatants only, rather than to those who have not fired a gun. Therefore, even in the wars of Israel in the last generation against a ‘warring nation’ it is possible that the Torah did not impose an obligation to put to death all of the men, only those actually bearing arms.

(3) Finally, the law to kill all the males is stated in the context of a full-fledged war, not in the course of reprisals and retribution. This law cannot apply when it is not known for certainty whether women and children will also be victims.

It therefore follows that the Torah’s commands to wipe out the Seven Nations and Amalek, and to kill all the males in battles against other warring nations, cannot justify the killing of innocent people during warfare.

Were Shimon and Levi wrong to indiscriminately kill all the males” (Bereshit 34:25)? Was their response to their sister’s rape proportionate?

One of the more well-known texts that Rav Goren used in his book, Response to War: Responsa on Matters of the Military, War and Security, to advance the development of a military ethic is the story of Yaakov’s sons, Shimon and Levi, as recounted in Bereshit Chapter 34. Their sister Dinah had been raped by Shechem, the son of Hamor, the Prince of the land. Her brothers, enraged, came to an agreement with the men of the city according to which Shechem could marry their sister on the condition that all of the men were circumcised. But after the city’s men fulfilled the agreement, “on the third day [after their circumcision), when they were in pain, Shimon and Levi, Dinah’s brothers, each took his sword and they came upon the city confidently, and they killed all of the males” (Bereshit 34:25). Subsequently, Yaakov impassionedly cursed the two brothers (or at the very least expressed reservation at their acts), a curse that lasted for generations (49:5-7).

Shimon and Levi did not make do with killing Shechem, not even with killing Hamor. Rather, they killed all of the males, and took captive “all of their children and their wives” - even though, these were, ostensibly, innocent of any sin. This, then, would seem to constitute a Biblical precedent to the killing of innocent civilians and to punishing and taking captive people who may have done nothing wrong - assuming that Shimon and Levi were right in acting the way they did.

ASSUMING. Because, to quote Rav S.R. Hirsch’s words (34:25-31): “Now the disparagement comes to light and we are unable to cover it up. Had Shimon and Levi killed only Shechem and Hamor, they certainly would have been justified, but they showed no pity for defenseless people… Moreover, they plundered the city and essentially revisited on the townsfolk of the city the sins of their overlording fathers. There was no justification for them to act in this manner. And this is why Yaakov rebuked them…” Assuming (again) that Yaakov was right, at least for that time, and possibly for all times as well, it would be prohibited to kill innocent civilians.

The position is complicated somewhat by the medieval Biblical commentators (the Rishonim) in their commentaries on the passage.

Rambam (Hil. Melakhim 9:14) and others held that the men of the city deserved punishment because they had not prevented the rape and had not subsequently seen that justice was done. Therefore, in his opinion, the brothers had been justified in killing all of the men! According to Rambam, every individual (Hebrew and Noachide alike) is charged with implementing the mitzvah of “dinim” (setting up courts of justice to secure adherence to the law). Therefore, the silence of the townsfolk of the city and their failure to protest the acts of their leaders turned them also into sinners! And a ben-Noach (Noachide) who transgresses one of the Seven Noachide Laws must be put to death. It follows that, according to Rambam, Yaakov was not disputing the legal justification for the brothers’ acts, only the time and place for their commission.

By contrast, Ramban vehemently refutes this opinion, harshly condemning the brothers’ action. In his opinion, the action can in no way be justified, which is the reason that Yaakov cursed the brothers. The brothers’ action had been violent and deserving of Yaakov’s curse, claimed Ramban, because they had killed innocent people. And not only had they been innocent, they had circumcised themselves and, as such, had accepted the laws of God that were in force at the time.

According to Ramban (34:13), there is no personal obligation to set up a just and fair judicial system. A comprehensive and orderly system of civil law is all that is required - one that parallels our own system of Choshen Mishpat. It is true, concedes Ramban, that B’nei Noach are also commanded “to establish courts in every city, like the Jews” but they are not killed if they fail to do so, being a positive commandment and not a negative one (see Sanhedrin 57a; 59b). Instead, the Ramban sees each of the men of Shechem as worthy of death for his own sins and wickedness: worshipping idols, committing adultery etc. Shimon and Levi were therefore justified in their judgment, even if their timing - in Yaakov’s view - was off.

It follows, then, that both according to Rambam and Ramban the people of Shechem were not innocent. According to Rambam, all were willing collaborators in their leaders’ crime, inasmuch as they did not stand up against them. Ramban, by contrast, argues that, while each person needs to be judged on their own merits, can it truly be said that the inhabitants of Shechem really fulfilled all of the Seven Noachide Laws? If not, then the majority of the townsfolk were not innocent.

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Ethical Dilemmas of the Jewish State at War

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moshe, 3/13/2008
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