Bar-Ilan University

Parshat Hashavua Study Center

VaYishlach 5775/December 6, 2014

This series of faculty lectures on the weekly Parsha is made possible by the Department of Basic Jewish Studies, the Paul and Helene Shulman Basic Jewish Studies Center, the Office of the Campus Rabbi, Bar-Ilan University's International Center for Jewish Identity and the Computer Center Staff at Bar-Ilan University. For inquiries, please contact Avi Woolf at: .

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Civilian Casualties in Military Operations

By Elishai Ben-Yitzhak[*]

One of the issues occupying Israeli society in times of war, in military operations and in confrontations with terrorist organizations, is that of civilian casualties in the war zone.[1] This question becomes all the more poignant when the other side uses civilians for terrorist actions or turns them into human shields.[2] This week's reading can provide a guide to approaching this problem. How so? In the parashah we read about Shimon and Levi's reprisal in the course of which they killed Shechem, who had violated their sister Dinah, as well as his father Hamor, and all the males in the city.

Jacob responded sharply to the brothers' action: "You have brought trouble on me, making me odious among the inhabitants of the land" (Gen. 34:30). Shimon and Levi justified their action with a simple, realistic, naïve and poignant argument: "Should our sister be treated like a whore?" (Gen. 34:31). Jacob did not respond to their argument on the spot, but gave his answer later, on his death-bed, in his "blessing" to the tribes.

Biblical exegetes have attempted to understand the brothers' sin and Jacob's anger.[3] For the purposes of this article, we shall examine the interpretations that shed light on our discussion.[4] Jacob, it seems, took a clear position on the question of civilian casualties in the course of a confrontation. This stand becomes evident on the eve of Jacob's meeting with Esau, when Scripture says, "Jacob was greatly frightened and anxious" (Gen. 32:8). The Sages explained:[5] "He was anxious lest he kill others."

Several commentators hold "others" to be those who joined Esau and had no intention of hurting Jacob; they were the ones about whom Jacob worried, lest in the course of battle with Esau harm might come to those in his entourage who actually had no interest in a confrontation with Jacob.[6] From this we see that Jacob was not unacquainted with the issue of innocent people being harmed. In the context at hand, Rabbi Samson Raphael Hirsch has dwelled on the severity of what Simeon and Levi did:[7]

From here on in begins the reprehensible behavior, which we have no intention of defending. Had they killed only Shechem and Hamor, they surely would have been justified. But they had no mercy on defenseless people, delivered powerless into their hands. Moreover, they plundered and in general made the men of the city pay for the sins of their masters. For this there was no justification. Hence also Jacob reproved them.

This approach is consonant with one of the deeply impressed characteristics of the Israelite people, as expressed in the commandment of making an overture towards peace before going to war. As Sefer ha-Hinukh says:[8]

Since being merciful is a desirable trait, as a holy people it behooves us to behave thus in all affairs, even with enemies…This is for our own benefit, and not because they deserve loving mercy and kindness.

The principle of mercy is not an empty theoretical value, rather something from which practical implications follow. For example, Maimonides, following Sifre,[9] ruled that one may not lay siege to a city from all four directions; rather, one must leave one side open for those who wish to flee unharmed.[10] Likewise, Rabbi Goren ruled:[11]

Notwithstanding the Torah's explicit commandments regarding warfare, we are commanded also to spare the enemy, not killing even in time of war except when is essential for self-defense in order to conquer and emerge victorious, and not to hurt non-combatant population. And certainly one must not harm women and children who do not participate in the war.

Alongside these reservations, however, we also find commentaries that seek to justify Shimon and Levi's action. For example, Maimonides explained that the men in the city of Shechem deserved to die because they knew and remained silent.[12] In his commentary,[13] Rabbi Hayyim ben Atar justified killing the men in the city of Shechem because they collaborated with Shechem, whether by trying to interfere and protect Shechem and his father so that they not be hurt by Simeon and Levi, whether by actually taking part in kidnapping Dinah. These circumstances made them into civilian collaborators and as such there was no reason not to harm them. Maharal, who also related to this matter in his commentary, teaches a lesson in the laws of warfare:[14]

But here, having done to Israel something…even though only one of them committed the act—since he is one of the people and since they set upon them first, they are fair game for revenge. Thus with all wars…even though there may have been many who did nothing, this does not set them apart, since they were part of the same nation that did them evil—hence they may be attacked in war. Thus is the case in all wars.

It follows from Maharal's remarks, inter alia, that when a casus belli develops, the entire nation becomes party to the act or event that provoked the war. In this context, we recall an interesting assertion made by the school of Rabbi Simeon bar Yohai:[15] "In time of war, even the most kosher of gentiles may be killed." Rabbi Ariel has explained this assertion:[16]

In time of war, even a good gentile is likely to be killed. But that is no reason for being deterred from the war itself. Therefore, the Sages felt it necessary to allay the fear that a good gentile might be killed, so that such fears would not put off the soldiers from fighting a justified war.[17]

Rabbi Kook explained that one of the characteristics of war is a situation in which civilians and individuals may be hurt, or as he put it, "perish unjustly."[18] But, one wonders, should civilian casualties influence military action? Rabbi Yisraeli concludes not only that it is out of place to weigh whether to embark on a military operation in which civilians will be hurt, but also that one should not refrain from an action in which civilians will surely be hurt:[19]

In carrying out an operation there is no need to be punctilious to avoid harming anyone who has not participated, for it is the nature of war that the righteous perish along with the wicked…and any tragedy or harm that comes to those who break the peace, or to their allies or their children, they themselves bear responsibility and shall bear their iniquity. There is no obligation to refrain from reprisals for fear that innocent people will be hurt in the course of such action, for it is not us who are the cause.

Conclusion:

The tension between these two approaches—Jacob's approach, not only concerned with justice but also with the international reaction of the peoples in the region and the practical implications of civilian casualties, on one hand, and Simeon and Levi's notion of natural justice, unwilling for the offenders on the opposing side to escape from the incident unscathed, especially when they played a part in the way Shechem behaved, be it by helping commit the transgression, by protecting the one who committed the transgression, or by not purging harmful elements from the society, on the other hand—remains with us, plaguing us to this day. We might think it is completely legitimate for us to cause civilian casualties, but we must also listen to Jacob's criticism, our sensitivity[20] and our critical faculties in judging whether indeed a given action is essential.

Translated by Rachel Rowen

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[*] Adv. Elishai ben-Yitzhak (LL.M., Hebrew University) has a law office and is an adjunct lecturer at Sha`arei Mishpat Academic Center. This article is in memory of Tehillah Hayah, daughter of Michal, who passed away at a tender age.

[1] For an extensive discussion of this issue, see E. Shohetman, "Sikun Hayalei Zahal le-Shem Meni`at Pegi`ah be-Ezrahei Oyev be-Shulei Mivtza Homat Magen," Netiv, Ariel Center for Policy Studies, Position Paper no. 151; N. Gutel, "Lehimah be-Shetah Ravui Okhlosiyah Ezrahit," Tehumin 23 (2003), p. 18; S. Yisraeli, "Matzor Beirut le-Or ha-Halakhah," Tehumin 4 (1983), p. 25; I.E. Yakobovitz, "Avedot Ezrahiyot be-Mivtza Shelom ha-Galil," Seridim 7 (1986), p. 4; S. Goren, "Ha-Matzor al Beirut," Torat ha-Medinah (1996), p. 402.

[2] On the level of international law and the laws of warfare, see Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol 1); International Committee of the Red Cross, Geneva 1977. The State of Israel is not signed on this convention, nor is it party to it.

[3] B. Melek, Simeon ve-Levi Ahei Dinah—Iyyun be-Ma`aseh Shechem u-ve-Mekhirat Yosef, Talelei Orot 8 (1998-1999), p. 20.

[4] Another issue that arises from this episode is the question of collective punishment. N.b., there is a difference between collective punishment and civilian casualties during combat. The latter is primarily a side-effect to the main concern—standing up to the enemy—although there may be collateral civilian casualties as a result. This is not the case with collective punishment, where hurting civilians is not a side-effect but rather belongs to the main thrust of the action.

[5] Genesis Rabbah (Vilna ed.), Va-Yishlah, ch. 76.

[6] For example, Mizrahi (Re'em) Gen. 32:8, s.v. "va-yitzer lo shema yaharog aherim." Maharal of Prague, Gur Aryeh, Genesis, loc. cit.

[7] Rabbi Samson Raphael Hirsch, Genesis 34:25-31.

[8] Sefer Ha-Hinukh, commandment 427.

[9] Sifre Numbers, Parashat Matot, par. 157.

[10] Maimonides, Hilkhot Melakhim 6.7.

[11] S. Goren, Meshiv Milhamah, Part 1, par. 1.

[12] Maimonides, Hilkhot Melakhim 9.14. See Nahmanides' criticism of this interpretation by Maimonides. Nevertheless, Nahmanides presents a different argument justifying Simeon and Levi's action. See Nahmanides on Gen. 34:13.

[13] Or ha-Hayyim on Genesis 34:25, s.v. "va-yehargu kol zakhar."

[14] Maharal's commentary, Gur Aryeh, in Ha-Mizrahi (of Re'em), Warsaw 1862, p. 93, par. 13.

[15] Tractate Soferim 15.7.

[16] Y. Ariel, "Ha-Musar ha-Milhamti ba-Torah," Halakhah be-Yameinu—Morashtah, Limudah, Hara'atah ve-Yisumah (2010), p. 379.

[17] For a different reading, see S. Goren, Meshiv Milhamah, Vol. 3, Section 5 (1986), who interprets Rabbi Simeon bar Yohai's words as pertaining to soldiers and not to civilians who are not party to the hostilities.

[18] Rav Kook, Orot ha-Milhamah, par. 1.

[19] S. Yisraeli, Amun ha-Yemini, 16.5.31 (1966).

[20] This sensitivity finds expression in the concept of the "purity of arms," defined in the IDF's doctrine of ethics: "The soldier shall make use of his weaponry and power only for the fulfillment of the mission and solely to the extent required; he will maintain his humanity even in combat. The soldier shall not employ his weaponry in order to harm non-combatants or prisoners of war, and shall do all he can to avoid harming their lives, body, honor and property."