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Civilian Casualties in Halacha (Am Yisrael at War Part 3) By Rabbi Anthony Manning
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Delivered February 19, 2024 www.ouisrael.org facebook.com/ouisrael #OUisrael #torah #judaism #torahlectures #israel #halacha #war
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Auto-generated transcript. Not time-synced to the video.
Good morning, everybody.
Good morning. Welcome all.
It's been a few weeks since we were
together.
Um thank you for coming out in the rain.
I really appreciate that. Baruch Hashem
it's raining, but Baruch Hashem you made
it here through the rain.
The last 2 weeks, as you know, I was
away in America uh on work matters. I
apologize. 3 weeks ago I was actually
sick. I do everything I can to get in on
uh for the shear, but uh that particular
day was not even a uh uh you know, a a
half a minute to get in, but Baruch
Hashem all is well now. Um
we are going through a series of
shiurim.
We had two shiurim about the hostage
issue, which I would have dearly hoped
would have been now academic, but it's
still relevant.
Um we then had a shear for Toby
Schwartz, which only obliquely dealt
with uh the issues of war at the
beginning, but we're now getting right
back into
the thick of things with a very, I
think, a very important topic, um which
I'm going to recommend some other
reading on it in a minute, which will be
war and civilian casualties. Uh very
much in the news, the uh sort of show
trial disputation type trial that we
were forced to go through uh in America,
The Hague in the Europe, sorry, The
Hague um had uh this issue at its heart.
Um but it is an issue which I think
there are a lot of sources on. Just say
if I could remind people, please, to
shut off their phones. I usually say
that. Someone usually reminds me to say
that.
Um there are a few um books that I would
recommend strongly on this. The The
most, I think, important and timely book
uh and Mrs. Israel here just gave me
actually a piece from the paper by Rabbi
Brody is a book by Rabbi Brody.
Rabbi Brody is probably well known to
you because of his connection with
medical ethical issues um and he's
written some very uh interesting seferim
in in past on contemporary issues, but
he just published a safer I know I'm not
even sure if it's yet available in
Israel. I picked up a copy when I was in
the YU's foreign sale last week in New
York called the ethics of our fighters.
It is I actually brought it with me and
I left it in my car, which was
unhelpful. I was going to wave it in the
air and show you, but it's a very uh
it's a very green book for the IDF
colors. It's a brilliant book. I I
strongly recommend that you read it. He
goes into all the issues that I uh I
deal with here although I didn't really
have his book as a resource when I
prepared the shear. I would have liked
it, but I didn't really have it that
much. Um he also deals with what I'm not
going to be dealing with today, which is
the international law angle on this. Uh
I'm not an expert in international
humanitarian law, war crimes law, etc.
That is not my expertise. Uh I can buy
and sell you a house or a shopping
center in uh you know, in England. That
maybe I could do 30 years ago, uh but
international law is is not my thing,
but Rabbi Brody very much goes through a
lot of the analysis there. So, I've made
a few references to that in my sheet,
but I strongly recommend that you get
his book. Another interesting book is
the state um of Halakha, uh which is a
book by Rabbi Aviad Sabouri, uh which
deals with Halakhic issues to do with
the state. It's a clever name, the state
of Halakha. He brought that book out
about a year ago and I strongly
recommend that. That's easily available
from here. Rabbi Sabouri is one of my
friends and neighbors in Elon Shvut. He
also deals with with many issues, but he
deals with this as one of the issues,
but Rabbi Brody's book uh is very much
focused on this. And I would also refer
recommend a couple of articles from
around 10 years ago that I've given you
a
a link for at the bottom of the first
page, Rabbi Chaim Jachter. Rabbi Jachter
from uh Teaneck has some fantastic
material on almost everything. It is
true is the truth. And he has material
also from 2014
uh on Halakhic perspectives on civilian
casualties. If you recall back in 2014,
there was a a minor um war
operation constantly compared to what we
have right now in Gaza and there a lot
of these issues began to emerge and he
writes those articles there. So I
recommend strongly those articles. We
have a lot of sources on the sheet.
We're not going to do them all. I would
give you a little bit of an advert going
forwards that this week already is Purim
Katan. We're not quite in Purim yet. If
it were
if it were not a leap year, it'd be
Purim this week. But there again, if it
were not a leap year before we still
Pesach. So
if it is a leap year and it is Purim
Katan, but we will be looking next week
at the Sugya of Amalek, which I think is
very important as well. I will touch on
it today, but I will leave most of the
heavy lifting for next week. So let's
start.
In every war, civilians are killed and
as the 20th century progressed, more and
more civilians were killed as a
proportion of casualties in the war. At
the beginning of the 20th century was
something like 15 to 20% of casualties
in a war with civilian casualties.
By the Second World War, it was I think
well over half and by the end of the
20th century, it was around 75%.
So civilians die in battle
and this is
referenced already in the Tanakh. I've
started with a few quotes that a few
citations that relate to this. The first
one is a is an interesting one because
it comes from David Hamelech. When David
is told about the death of his
military operation, the failure of a
military operation, the death in the
war, he says "Ki chazar kaze tochal ha
charev."
Because when it comes to war and the
charev, this one and that one are
killed. The Metzudat David explains "Ki
derech ha milchama hi, the nature of war
is she ochelet ha charev o kahena
kahena." People get killed in accidents,
in operations, in battles. People who
you would have thought shouldn't be
killed or shouldn't have even been
there.
It's not a few that are indeed killed.
The
nature of war is
even those who win the war, even those
who are victorious in the war, they only
do so through losing many many soldiers.
So this is something that the Torah
already alerts us to. This source of
course is
is a little difficult because this is
David talking about the death of Uriah
Hittite that he pushed into the front of
battle in order to deal with the issue
with Bathsheba. So there's a lot so
anyone who's learned
that
you'd have to
there. There's a certain irony in David
saying this and it's not so
straightforward as a source.
But certainly the idea that there is no
way to avoid innocent deaths in a war is
fundamental to war. There's even a
statement in
number
two that
the quote a proverb that people used to
say but how do you
together with the thorn lucky
the cabbage is also damaged. Meaning
when you're trying to weed your garden
to take out the weeds then it's
inevitable that every now and then
you'll take out a plant that you didn't
want to kill and and and says them
the the rashy there he says that there's
no way to avoid the death again of the
innocents. He says at the end of the of
the line here number two column
Russia like in
those people who live near Russia
live near evil people get wrapped up in
the disaster that those people cause. We
know this now so well but this is not a
new thing.
Rav Cook has a a very very interesting
piece at the beginning here of his of
the war.
And there's a a of discussion
exactly how this was put together. Rav
Kook wrote a number of important pieces
during the First World War. And you have
to understand that the First World War,
and I'm sure you're more aware of this
than I am, was was an absolute carnage
in terms of the the the death of
soldiers. I just, you know, wrote down
that on the first day of the Battle of
the Somme, a battle that my
great-grandfather was actually at and
Baruch Hashem survived, otherwise it
would be someone else giving this
today. Um over 32,000
soldiers died in a single day
on the 1st of July 1916 at the Battle of
the Somme. You see this, you know, in in
England very much when you go to even
little villages that you drive around
which have, you know, a few hundred
people in them and they have a war
memorial for the First World War for
tens and tens of their own people that
died in the war. Rav Kook was writing in
the middle of this war. Now these pieces
were put together after the war by his
son Rav Tzvi Yehudah. And there's a
whole discussion as to what extent Rav
Tzvi Yehudah inputted his own thoughts
into them as well. That's a discussion
which we'll have to leave for today. But
the piece from Rav Kook is very
important cuz she yesh milchamah gedolah
ba'olam, when there is great war in the
world, he starts here. Me'et orer koach
Mashiach.
There is a koach of an ultimate
redemption which is aroused by that.
Et hazamir higi'a, the time of zamir has
arrived. Now zamir is an interesting
word. Zmirah means pruning. It's a word
which is actually very important when it
comes to shmita, the cutting away of
those things which shouldn't be there,
you don't want there, and you need to
get rid of in order to promote the
future growth. But zamir also is from
the word zmirah, which is that there'll
ultimately be something to be praised
from this. But here the the primary
reading is it's a time for cutting away.
Zamir aritzim, the the pruning away of
the arrogance, ha'resha'im, the evil
people in this world and charedim in the
'olam can be removed from the world.
Mitbasess. And the result will be that
the world is is is more fragrant for
having been rid of them.
The kol hat-tor nishma b'artzeinu. And
then the the voice of the the kol
hat-tor, which of course is a very
messianic redemption-oriented idea, the
voice of the turtledove
was which is of course from Rabbi
Shklov, the writings of the Tlamidim of
the Gaon. This this sound, if you like,
of redemption will be heard in our land.
And he says
hanesvim b'lo mishpat. And there are
many people who are killed, innocent
people who are killed without apparent
justification. There's no way it can be
avoided. Shebe'toch
ha'sha'ash shel shetef u'milchama,
because there's this enormous surge of
war which overturns everything. Yesh
b'mida misas tzaddikim m'chaperet. And
what you have there is the death of
tzaddikim who bring kapara
for them. Hem l'ma'ala b'shoresh
ha'chaim. These people who have been
swept up, these innocents, and here he's
talking about soldiers, who are let's
face it, our soldiers are no less, you
know, young, almost civilians than than
the civilians are. He says these these
people are raised up b'shoresh ha'chaim
u'b'atzmus chayam to the very roots of
life and with the essence of their own
lives, maybe erech klali over l'bracha
l'klal binyan ha'olam. B'chol
u'm'vunach. That they bring a
kapara, they bring a bracha, they bring
a certain goodness in every aspect of
the building and the ethics of the
world.
And after the war, and again, for him
the First World War must have seemed
like an endless war. But the First World
War, of course, gave rise to the Balfour
Declaration. And if you've ever studied
the Balfour Declaration, you will know
that the the the the chances of the
Balfour Declaration ever having been
given were almost zero. You could never
have predicted the Balfour Declaration
even 20 years earlier. That there will
be a war between Germany and France,
okay, that was fairly predictable. That
Britain would join the First World War
was not a certain thing and even if they
did, it was not clear which side they
would join on.
Why would they go with the French? When
was that ever a British a British
but they had signed the Cordiale that
the Ottomans would join the war was also
not predictable on any level. So the
fact that the British end up fighting
the Ottomans over Eretz Israel in 1917
was something that could never have been
predicted and says cook
with the end of the war make a dish of
lamb. There's a new there's a renewal in
the world
Hadash. There's a new spirit for Ragley
Messiah Gallim
and then we're one stage closer to the
strike closer to Messiah with the
brother
and
proportionate to the to the size of the
war become
in terms of the numbers that the size of
the war and the and the effects of the
war character of the spirit of the
Ragley Messiah but uh
so proportional to that is the is the is
the move towards Messiah. Now you may
like this source you may not like this
source
there's a lot I feel there's a lot of
in this source as well as his father of
cook but nevertheless the idea of
being part of the process of is not his
dish. The already says this we've looked
at these sources before. That the the
the
the Messiah the beginning of rather the
no
the
beginning of
are defined by the as when there is war
in Eretz Israel. That is that is how
that is defined. So
cook is just really coming off that
idea. Yes, it's a matter. Is there a
principle in Judaism where the
Sadiqim give a kapara For sure. Miriam,
we learn that from Miriam. The death of
Miriam. That's brought down exactly
exactly in the uh
in Hazal, 100%. And Rav Cook says that
the people who are dying in the war are
part of that enormous kapara. Now, we
need to focus today There's a lot more
to say about Rav Cook, which I don't
have time, but I wanted you to see that.
It's a very important opening. We needed
today focus on civilian casualties. And
civilian casualties is a difficult
thing. There are many many questions
that arise.
First of all, and you can read Rabbi
Brody's book, and you can read around on
this. It's very clear in international
humanitarian law that there is a
legitimate um war exercise in which
results in killing civilians. Civilians
will be killed, and uh there is there
are certain situations in which even in
international law that is considered to
be acceptable. Uh how that works is
obviously complex. What is What is the
proportional response? We've heard that
word a lot, but the proportional
response in international law is always
weighed up again um in light of the
military uh goals. That's an important
point as well. You can't just talk about
proportionality, and we'll see that
comes up in the sources in halakha as
well. Um there is a military angle to
this as well, which is very important.
Um I mean, one obvious example is it's a
legitimate military target for an army
to bomb a munitions factory, which is
making weapons for the enemy, even
though the munitions factory has within
it workers who are civilians. That's a
very straightforward case where it's
considered proportional and legitimate
for an enemy to bomb uh a factory, to
aim directly What if they're in a
hospital? Okay, one second. That's a
different question. And I'm not going to
answer all those questions, because I've
written them down here. Um how do we
distinguish between totally innocent
civilians, civilians who are not
combatants but who assist the enemy.
There are many civilians who are
civilians but will be part of the war
machine of the enemy.
And civilians who are in fact combatants
just without a uniform on. They're just
hiding like you said behind some other
apparently civilian guys.
When is it legitimate to attack a
military target which will inevitably
result in innocent civilian deaths? Is
there a difference if the hostile forces
hide behind civilians and use them as
shields? These are all questions that
are addressed. Is it legitimate to
target specifically innocent civilians?
Now, this is usually considered to be
against international law where you're
when you're specifically targeting
civilians. Although it must be said that
all sides engaged in this during the
Second World War.
And when a country is actually at war,
people often think very differently than
when it's a technical and academic
discussion about somebody else that's at
war. But the British and the Americans
certainly engaged in that directly in
the Second World War. Whether that's
legitimate or not is not for me to
discuss right now.
But more importantly and more
interestingly for us, where are we going
to get these sources from?
You can't look this up in the Shulchan
Aruch on the whole. We'll see a little
bit of Shulchan Aruch coming up. But
there are three basic options as to
where we're going to find these sources.
Option number one is
we'll have to learn them from the normal
general sources as they're normally
applied to civilians. For example, the
ideas of rodef. If somebody is chasing
after an innocent person, you are
obligated to try and kill the pursuer.
Is the are the laws of war simply rodef
writ large on a on a grander scale? Or
do you say no, those laws pertain to
civilians? If someone breaks into your
house in order to steal in the night,
you can assume in Halacha that they
would fight if they were confronted.
That gives you certain Halachic rights
obligations. Do we look at those as the
basis for the laws of war, or do we say
no? When two states are engaged in war,
it's a completely different discussion.
It's nothing to do with Rodef or Habba
Machteres. So, one option is it's the
general Halachot, but applied on a
larger scale. Another option, Rav Gorin
very much went with this option, is that
no, there are specific laws of war which
are in the Gemara. They don't make it
onto the normal pages of the Shulchan
Aruch, but they're in the Rambam. For
example, the Rambam is broader than the
Shulchan Aruch. Shulchan Aruch is a
guide to daily living, whereas the
Rambam is a Halachic, you know, excursus
to every single aspect of Jewish law.
So, Rav Gorin will claim no, we have to
find Jewish law in specific war laws of
war in specific Jewish sources that
pertain to war. And the third option,
Rav Shallit Israeli said that we we
really don't have any laws of war in
Halacha.
The laws of war between a Jewish state
and another entity which it is fighting
are the same as the international laws
as they are applied in practice
to other international conflicts.
Not as they are applied in theory when
people wish to point fingers at others.
And this is true to certain to a certain
degree even on a minor scale of Dina
d'Malchuta Dina. If you ask somebody, am
I allowed to drive at 32 mph in a 30 mph
zone?
So, many poskim will say, well, since in
practice nobody actually will enforce
and nobody really cares, the police can
be driving right behind you, they don't
care if you're driving at 32 mph in a 30
mph zone. So, that's technically
permitted in Halacha because the law
says 30, but it doesn't mean 30 and
nobody applies it as 30. Okay, if you're
going at 50 or 60, it's a different
question. So, too, what are the
international laws of war as they're
applied in practice Rabbi Yisrael we're
going to see a little bit from Rabbi
Yisrael. So let's move on because we
have a great deal to do.
Um and therefore we need to start on
page two with the question. Let's just
think a little bit at the beginning as
to what might be called a proportionate
response. And there are a number of
sources I want to bring you.
The first one actually, number four, is
from the Shulchan Aruch.
And it's based on a Gemara. Let's look
at the Gemara in in Eruvin number four.
Nochrim shitzara al Eretz Yisrael, if if
if non-Jewish bandits attack a Jewish
town, and again this is talking in Bavel
there's not talking about a Jewish
state. It's talking about small Jewish
villages that may be running their own
autonomous
local areas. Ein yotzim aleihem b'chlei
zayin. You can't fight these bandits
back with weapons just because they
they attacked the town. We'll see in a
minute when you can. V'ein mechallelin
aleihem et haShabbat. You can't just
break Shabbat cuz you hear someone's
broken in to the village. You have to be
proportionate in how you respond. You
can't just attack them with weapons and
you can't break Shabbat. Tanu rabbanan
b'rachamim taught in a braisa Nochrim
shitzara etc. It brings this idea down.
However, it qualifies it. B'meh dvarim
amurim, when does this apply that you
cannot fight back with weapons and you
cannot break Shabbat? K'she ba'u l'iskei
mamon, when they came just to steal.
Somebody came to raid the farm and and
steal a few sheep. So then you can't
break Shabbat and fight them back with a
whole army.
Aval ba'u l'iskei nefashot, but if they
came with intention to actually kill
people, then of course yotzim aleihem
b'chlei zayin. Of course you can fight
back with weapons. U'mechallelin aleihem
et haShabbat. Of course you can can can
fight back on Shabbat cuz they've came
they've come to kill people.
U've'ir hasmucha l'safar, but with a
town that is on the border
with an enemy state, then that's it's
completely different. A few love is
going to fight even if you know that
they didn't come to kill.
A
heaven for cash and just came to steal
straw.
Nevertheless,
you have to respond with force or
and you have to break shabbos because on
the border,
the country is much more vulnerable.
And this is not even talking about a
state. This is talking about a Jewish
autonomous region, let's say. But on the
borders, there are different halachas
because the borders are the beginning of
an encroachment that never ends. If you
move the border, okay, well, we'll just
give up on the border towns. We'll move
the border. There's also there's a new
border and a new border and a new border
and eventually there's nobody left. The
Shulchan Aruch paskins this in Hilchos
Shabbos. You won't find this in Hilchos
war in Milchamah, you'll find this in
Hilchos Shabbos. Number five, but he
adds a couple of things. Al kamcha
tzarah Yisrael, if a non-Jew attacks
Jewish towns, in mamon, in mechallel
Shabbos, ba in nefashos, afilu stam,
even if you don't know why they've come,
he adds that in. I don't know what their
intentions are. The Gemara didn't give
that case, but the Shulchan Aruch does.
Then
mechallel Shabbos, then you can respond
with force or mechallel Shabbos or
be'iras parah in a city which is close
to the border, afilu skei heaven v'kash,
even if they only came to raid,
mechallel Shabbos, you can break Shabbos
because of the implications of the
border. And then the Remah adds an
interesting thing.
V'afilu bo adayin, even if they haven't
yet attacked,
elo ro'im lav but you have intelligence
that they intend to attack,
you're allowed to make a preemptive
strike at them to prevent the attack,
which is very interesting. Again, he's
not talking about a state and you could
turn around to me and say, "Rabbi, this
this has got nothing to do with the
state of Israel." That's a legitimate
question, but it does find its
expression in Hilchos Shabbos, and it
may indeed impact on things on a larger
scale, which of course have other
implications, political, strategic,
tactical, etc. as well. So, I wanted to
show you that Halacha in Hilchos Shabbos
because for us having, you know, an
issue on our borders, it very much
speaks to one of the issues that we're
facing with now. So, that's one possible
There's another source which is quoted
which is a little bit enigmatic. Look at
number six. The Amora Shmuel, Shmuel
brings a Halacha.
Malchusa
a government, country de katla
mishita b'alma that kills one in six.
Now, what is this killing? What are Who
are they killing? Why are they killing?
Lo y'ansha will not be punished.
Meaning, up to one in six is an
acceptable
casualty rate. Again, we'll see what
this is talking about. He brings a
possuk from Yishaya Shir Hashirim. Not
going to go into the exact details where
he gets this ratio. There's 1,200 versus
200. He brings a one in six ratio that's
legitimate. Now, there are a number of
ways of understanding this, some of
which have nothing to do with our
situation today. Rashi, for example,
number seven, says de katla chad
mishita, one in six. B'angaria d'avoda
d'amelech, he's simply talking about the
king taking his own people into slavery.
The king is allowed to recruit forcibly
people from his own country to work in
his own palace, etc. So, according to
Rashi, this is saying, "Yeah, but not
everybody. You can bring in one in six
of the population, but more than that,
then you're a despot. You can't do
that." Okay, there are limits. Again,
nothing to do with war. Um other
commentators I brought you just to
mention here to the Ram the Rashba and
the Ritba says it's it's to do with
Mishpat Hamelach, that the king can kill
up to one in six. Meaning, if you
remember the story of when the people
ask for a king in Shmuel Aleph, and
Shmuel tells them, "Well, you think you
want a king, but let me tell you what
this king is going to be able to do."
And he has a whole list of what's called
Mishpat Hamelech. The king's going to be
able to take your children to work for
the army, and the king's going to be
able to, you know,
requisition your property, etc., etc.
So, maybe this is just a limit on how
many people the king could ever kill in
it's limited to one in six. And then
people say, "Is it a bit harsh in
America?"
Okay, fine. Just uh try and forget I
opened the window. Okay.
However, Tosfos say the following. And
this may be relevant to us. The
What does it mean the king can kill one
in six?
When the king goes out on a Milchemet
Reshut. We'll see in a minute what is a
Milchemet Reshut. So, there, says
Tosfos, the Gemara is putting a limit.
You can't kill more than one in six. The
Jewish king can't kill more than one in
six. So, again, what does that refer to?
Is it one in six of our own army?
Of the Jewish army? We'll see later
an idea that that might be the case.
Meaning, what is the acceptable
casualty rate even in a Milchemet
Reshut. Maybe in a Milchemet Mitzvah
it's different. And we'll see the
difference there. And what we're
fighting now is a Milchemet Mitzvah. But
maybe even in a Milchemet Reshut, you
can have casualties, but only up to a
certain amount. If you If ends up that
more than one in six of your own
soldiers are dying, then that's an
illegitimate campaign. Now, every single
soldier that has died in the war is
connected to us either directly or just
one or two, um, you know, places
removed. So, we feel in every case that
every single soldier who's died is is
like a member of our family. That's one
of the reasons why it hits us very hard.
But at the end of the day, the total
number of soldiers that have died, and
this should be the last number, there
should be no more, is 236 out of a an
army that we have down there of around
3-400,000 people. So, God forbid we
should ever get anywhere close to one in
six, but one in six is given as a figure
that. Or maybe it means the enemy.
But if it means the enemy, why should
there be a limit as to how many in the
enemy that you kill? If you're fighting
a legitimate war, why should there be?
Or maybe it means the enemy civilian
population. But again, where would you
get that from? How would you know that
that is the case? Um,
in terms of who is the the Melech, I
just brought you in 9 and 10 sources
that I don't propose to look into in
great detail, but Rav Kook and the
Ramban indicate that the Melech doesn't
just mean David, a man with a
crown on his head. The Melech is any
body of organization that represents the
will of the people. Let's maybe just
look in number nine for a second.
I said I wasn't going to, but let's look
at it together. The Chut says Rav Kook,
it seems to me clear.
When
there is no physical king
doing what a king used to do,
since the king basically means the state
of the nation. The king is the nation.
The king represents the nation. That's
what David had to say to Michal, that
that your father, Shaul, was too busy
focused on himself. The king doesn't
exist as an individual. He represents
the nation. David said, I I don't have
my my own kavod. My kavod is the
nation's kavod. And that's why a king is
not allowed to be mochel on his kavod,
cuz he is the nation. Therefore, says
Rav Kook, when there is no king, those
rights go back to the people as a whole.
So, the people are the king.
That's that's who's the king.
But when the people appoint a
government. Manhega ummah lechol tzarkha
besignon malchuti in a in a governmental
role. Al pi dat haklal vedat bet din.
Okay, it's an interesting question, what
does that mean? According to the das of
the bet din. We're getting into what
that means now. Vadai omeid ubimkom
melech.
Then that the the government is the
king. So from Rav Kook's and to a large
degree from a religious Zionist point of
view, the king of Israel today is the
Israeli government. It's not any one
individual within the Israeli
government, it's the body of the
government that we the people, I don't
mean to be American there, have have
elected
um to be our representatives.
That is the melech as far as we're
concerned. So these halachot of what the
melech can do and what the melucha can
do are very much still relevant, says
Rav Kook. I brought you the Ramban who
makes a very similar idea. So okay,
where are we going to bring our
precedents from? We don't know what this
1/6 means exactly. Maybe it means the uh
the the servants, maybe it means the
mishpat hamelech, maybe it means the
casual disease.
Do we have any precedents in Tanakh? And
you may turn around and say, "Well,
since when do we use Tanakh as a
halachic source?" And the answer is,
"Well, we don't use Tanakh as a pure
halachic source when we also have
Gemara, Rishonim, Shulchan Aruch,
Achronim, and Poskim. But says Rav Asher
Weiss, and he has I give you reference
to his teshuvah in the the notes here,
when maybe all we have is the Tanakh
because we didn't have this process of
analysis through the centuries because
we haven't had a Jewish state since
we've had a Tanakh. At the time of the
Gemara, we didn't have a Jewish state.
At the time of the Rishonim and
Achronim, we didn't have a Jewish state.
So maybe these sources in Tanakh are now
legitimate sources that they wouldn't be
in Hilchos Shabbos. You couldn't turn
around in Hilchos Shabbos and say,
"Well, there's a pasuk that says this."
And say, "What are you talking about?
I'm I'm not interested in what the
pesukim say. I'm interested in the
analysis." Maybe for the laws of war it
is legitimate. So where are we going to
find precedents? So, here we have to
tread very, very carefully. Where does
it talk about war in the Torah? So,
these are our ideas that I'm going to
flesh out a little bit more next week,
but as Hashem, but there are a few
precedents for war. In number 11, I
brought you the that deal with a war
against the seven nations.
Where the
Sukkot rather say explicitly, whenever
you approach a nation to make war, you
have to offer peace.
That is the first thing. You have to
offer peace.
Um and when you fight the war, but look
look in the second line you'd bet. If
if they don't make peace with you, but
ask them
and they choose to make war, they
meaning your first option has to be
peace. If they won't make peace and they
insist on fighting, but
then you can fight them. God
will give them up to you. This is the
this is a generally and we'll see the
seven nations in a minute. The is called
okay, and
you will kill all the males.
See whether this has any relevance to
our modern-day situation.
The
women and the children you may not kill,
but they can be taken as spoils, it says
here. You
can use you can consume the
the the the booty of your enemy. I
should not look at her.
This
is what you have to do to any town which
is far away from you.
Which is you're fighting a war against a
nation which is outside the boundaries
of Israel.
Not I shall not marry
which is not from the local seven
nations. But
from these seven nations
in the land that God is giving you, not
to
call the Shama.
You You let anybody live. Everybody has
to die.
Okay, so is this in any way relevant to
us? We'll see in a minute Rav Goren says
this is not in any sense halachically
relevant to anything we're doing today
and we can analyze a little bit more why
that is the case, but there is one
precedent here or two precedents in
number 11 for a war against a faraway
nation in a biblical sense. There is a
mitzvah to kill the men but to save the
women and the children.
And in a war against the seven nations,
it appears that there's a mitzvah to
kill everybody. With Amalek, again which
we'll talk about more next week. I
brought you in number 12 the of Amalek
which is well known. You may not let any
Amalekite live and this is what was the
the issue with King Saul
with Agag and we know these stories very
well. And let's just look at it in the
Rambam in Halacha. The Rambam paskins
this in Hilchos Melachim number 13. The
Shleimu, if they don't want to make
peace and by the way the Rambam rules
that even with Amalek and even with the
seven nations, we'll see this next week,
you first have to offer peace.
Meaning there's no such thing as a
genocidal Halacha.
Even Amalek is only Amalek if they
choose to be Amalek. If they turn around
and say you know something, you're
right, we're wrong, we're not going to
act like Amalek, then
you can have a you can be geirim. They
can come and join us. Okay? But Amalek
says the Rambam if they if you offer
peace, im lo yishlimu, if they don't
make peace, or
lo yikblu sheva mitzvos, or if they in
theory accept peace but they insist on
remaining
against the sheva mitzvos, murderers,
etc. Oisinam milchama, then you may have
a war. V'horgan kol zochor migdolim, you
you can kill the the the male adults.
U'vozez can take the children. Lo ein
horgim isha,
you may not kill a woman. V'lo katan,
and you may not kill a child. Shenemar
v'ata etc. Zeh tzahav shel zachar.
B'madim amurim, when does this apply?
B'milchemes reshus
in a war of an optional war against
the other nations of the world
should always be but if there's a Malik
or the seven nations and they won't make
peace
you may not let any of them live and he
brings the
by the seven nations and by a Malik now
and again we're going to see that this
is not relevant to us we're going to
have to look further for what is
coming up in by midbar remember the war
against midbar midbar had effectively
tried to undermine the Jewish people
with the with the women the more by
women the mid tonight women etc. And God
tells motion right it's time for you to
to to take midbar and motion tells the
people to make war against midbar and if
you remember the story that they they
kept all the women and the children
alive and motion was very unhappy with
this and insisted they kill
some of the women
so again are these precedents relevant I
just want to bring you one line from Rav
Goren this is from obviously a much much
much bigger piece we don't have time to
look at the whole thing but if you look
in number 14 says Rav Goren ain't little
mode may him we may not learn how lucky
we from them meaning the milk could do
much the end of wars of ancient times
but he may not whether it says
you may not let anyone live
we may not God forbid God forbid learn
from those ten acts presidents I'll milk
a lot for other wars the owls may know
all things which are applying the
contemporary world not relevant
and again next week we'll talk a little
bit about why that is but in case you
want to reach into
and bring something out from there you
have to tread says Rav Goren extremely
carefully there is another type of war
let me bring you a number 15 which need
not be in the time of Tanakh. If you
look in number 15, "Ein haMelech
milchamah yotzei ela milchemet mitzvah."
says the Rambam. A king may not go out
to war ela milchemet can go out to war
without getting permission from the
Sanhedrin and the Urim ve Tumim, etc. is
milchemet mitzvah. "Ve eizehi milchemet
mitzvah?" What is a milchemet mitzvah?
He brings three options. "Zo milchemet
shiv'at ha'amim." The war against the
seven nations. "Milchemet Amalek." The
war against Amalek. And "Ve hatzalat
Yisrael miyad tzar sheba aleihem." And
saving the Jewish people from enemies
that fall on them.
And for that reason and many others,
many, many poskim define the wars that
we've had to fight over the last um 70
years, 75 years, including very much our
current war as a milchemet mitzvah.
So what are the laws in a milchemet
mitzvah?
Is that Does that change? Does that
apply any of the principles that we saw
before? Rav Gorion says, "No." Rav
Gorion agrees that it's a milchemet
mitzvah explicitly. I I brought you in
number 16, which I'm not going to read
through now. He says, "This is a
milchemet mitzvah. Everybody has to
fight. Nobody has an excuse. Everybody
has to do whatever they can."
But even though it's a milchemet
mitzvah, he says you cannot use the
biblical precedents in order to answer
your questions on proportionality,
casualties, etc. etc. So what what can
we use? What are we going to do? So soon
we're going to see a very, very
important Maral. But we're going to have
to go a little bit quickly. We finished
the series now 10:20 to 11:20. That's
now the official time. So we'll finish
at 11:20. Okay? That's the official
timing in in the Torah Tidbits now.
What are we going to uh draw precedent
from? Well, what about Shimon and Levi?
And we'll see in a minute how Shimon and
Levi works. Remember the story Bereishit
chapter 34. Shimon and Levi um Dinah is
raped. She's She's kidnapped. She's
abused. she's raped. Shimon and Levi
find out about this and they say that's
just not something that we can live with
and and Jewish blood cannot be left, you
know, for hefker for the whole world and
therefore they raid they trick and they
raid the town of Shechem and they kill
Shechem and Hamor who are the leaders,
but they also kill all the people in
Shechem. And the question is did they or
did they not do the right thing?
That's a very important question. We're
dealing with the issue of civilian
casualties. Let's have a look here
number 17. Go over to page five. The
Rambam. The Rambam rules that they did
do the right thing. Why did they do the
right thing? Number 17. Kates Mitzvot
al Hadinim. He goes through the Sheva
Mitzvot and he says that one of the
seven Mitzvot that non-Jews have to do
is they have to establish courts of
justice. They cannot have a society
which is based on injustice. Chaim la
Shif Shoftim. They have to have judges
appointed b'chol pelech u'pelech in all
of the different regions that non-Jewish
people live la dun b'shesh Mitzvot and
they have to keep and enforce these six
laws which include murder and immorality
and theft etc. kidnapping.
Mitzvot la hazhiram and they have to
keep the people you know clear that they
can't do these prohibitions. U'ben Noach
aver al Mitzvot
Eilu. If a non-Jew breaks one of the
seven Mitzvot
yehareg b'saif. He says there's no
you know in between cases. That's it's a
death penalty as far as halakha is
concerned. If a non-Jew does not keep
the seven Mitzvot b'nei Noach they are
in principle obligated to the death
penalty. And then he says and he adds in
halakha it's in the Mishneh Torah. This
is not his commentary any commentary on
Tanakh though. The Rambam didn't
directly write a commentary on Tanakh.
He wrote the Guide to the Perplexed
which is effectively a commentary on
Tanakh but not for now. Um
zeh nitkayev
and this is why all the civilians in
Shechem
were liable to be killed.
Shechem, their leader, kidnapped and
abused a woman,
and they all and they saw this and they
all knew
and they all knew and they didn't do
anything about it. And they didn't do
anything about it.
And they can't use as an excuse, well,
we didn't do it.
You It was your leaders that did it. You
could have done something about it. So,
which is a very interesting question.
So, the Rambam clearly holds that the
people were liable because they could
have done something about it. So,
presumably, and this is a analysis that
many of the post game bring, if the
people have genuinely been taken over by
a despot and never had any choice in the
matter and couldn't possibly do anything
about it, maybe the Rambam would hold
that the people were not liable. He
obviously understood that they could
have done something about Shechem if
they'd have wanted to. What if the
people originally supported a ruler
and elected them, but then it all went
sour. Are the people responsible then?
I don't know, but it sounds from the
Rambam that they have a pretty high
level responsibility. Think about the
the the Germans in the Second World War.
Um the the the the Nazi party was
elected
to to lead Germany in 1933, and by 1945,
I'm sure that many, many Germans
regretted having done that, but it's too
late then. They were responsible for the
leadership that they elected, even
though there came a point when they
couldn't unelect them anymore. So, the
Rambam has it says you have quite a high
level of responsibility as a civilian
that unless you can really claim that
there's nothing I could do to avoid
this, then you're responsible
collectively for what the acts of the
leadership are.
However, many disagree.
The Ramban jumps in here and disagrees.
And he says a few things. We're going to
read a few of these, but we can't say
them all in sight. He says here in
number 18, "It's not so straightforward.
According to the Tanakh, did Shimon and
Levi do the right thing or the wrong
thing?"
So, in the story itself, it's not clear.
Because Yaakov says to them,
"How could you do this? How could you
act like this?" And they reply, "What do
you want? They should treat our sister
like a zomah?"
And that's the end of the the perek, and
then we move on to something else. So,
who's right?
You could argue, and the Ramban argues,
that ultimately the last word does go to
Yaakov. Cuz in the brachot that he gives
to the sons at the end of parshat
Bereishit, the sefer Bereishit, he
criticizes, to say the least, Shimon and
Levi. And that is the last word that the
Tanakh gives to that. If you look in
number 18, "The
Yaakov
she
was angry at them."
Yaakov was angry at them. And he cursed
that anger their their own killing of
the
cuz they
the people hadn't done anything to him.
Shechem, yes, fine. Hamor, fine. But the
civilians, they hadn't done anything.
But how royal a ham she argued Shechem
alone.
Only Shechem was liable to be killed.
And then he says very interesting, "For
Rabbi Mishael, many people asked to say
the Ramban,
How
could they do this? How could they kill
the civilians?"
And
he brings the Rambam and he quotes the
Rambam that they killed the civilians
cuz the civilians were responsible for
the acts of their leadership.
But then he says, "I'm not I'm not sure
about this.
First of all, why were the civilians
responsible?
Because they they their leader stole?"
He said, "These people were responsible
for far more reasons than that." And he
brings down here in the middle in the
middle paragraph that we see in Devarim
that these people in Canaan had broken
every one of the Sheva Mitzvot Bnei
Noach.
They were
sexually immoral, and they killed
people, and they stole things. You don't
need to come to the story of Shem to
find a reason why these people are
liable. Says the problem was, however,
that the sons of Yaakov are not the
judge and jury of these people.
He says they're for sure liable.
For sure, but who are you to take it on
your hands to go and kill them all
because Okay, Shechem and Chamor, no
one's arguing with. These people
kidnapped and raped Dinah. But the
people, even if they are liable, they
have to be put through due process, and
therefore he says they did the wrong
thing. Yes. Didn't Yaakov tell
Right.
Right, you're correct. It sounds from
Yaakov that the reason he was unhappy
with them is practical. Meaning you did
the right thing, and that's how the
Rambam's going to read it. You did the
right thing, but I just think it was
the, you know, not clever to have done
it without having thought of the
consequences. The Ramban clearly
understands that his problem with them
is deeper than that because when it
comes to the brochos to the sons at the
end, he doesn't just say they did the
wrong thing. He curses what they did.
Yes, which clearly goes deeper than
that. But the Torah shows, like they
didn't You can't The other
communities didn't come against Yaakov.
That's true. And so maybe the people
then maybe he was wrong, and they were
politically right. But Yaakov's reaction
says the Ramban clearly indicates that
there was something that the the sons
did wrong, and he says what they did
wrong is that they they were judge and
jury even though the people were indeed
guilty. Um if you're looking at Hirsch,
he takes a third approach. He says, "You
know something? The people were
innocent, and the sons of Yaakov should
not have done that." And the Rav Hirsch
says here number 19, "Here begins the
part deserving of censure, and we do not
need to cover it up. Had they killed
only Shimon and Levi, the brothers would
suddenly have been in the right, but
they did not spare the unarmed
defenseless men who were at their mercy.
What is more, they looted the city. They
made all the inhabitants of the place
pay for a crime committed by their
master. There was no justification for
this. Interesting, here he's writing of
course in a context in Germany, but he's
writing this on the the Chumash. Their
one reply Hachazina, you meaning should
our sister be treated like she has no
value, reveals their whole motive. The
lord of the manor would never have taken
such liberties if the maiden in question
had not been a foreign friendless Jewish
girl. Meaning, I understand why they did
it.
They were being attacked because they
were Jewish.
This though makes Shimon and Levi
realize that there are times when even
the family of Yaakov will have to know
how to wield a sword in defense of
purity and honor. They wanted to make
others fear them so that no one would
ever dare to such a thing to them again.
Nevertheless, by killing innocent people
for a crime committed by the high and
mighty, Yaakov's sons went too far.
Right.
Right, but good, except that we see not
only what they said to Shimon and Levi,
but we see the way that Shimon and Levi
puts it to their own people, which is
that they themselves just wanted to take
advantage of this. They didn't have any
pure motive. I think that's one of the
reasons why the Torah lets us in on the
conversation between the inside
conversation in Shechem, that these were
not just like, you know, you know,
good-natured people who were bonafides,
they were people who also wanted to
abuse and take advantage. So, Rav Hirsch
is unhappy. And one has to understand
Rav Hirsch's position. Again, does that
have anything to say to our present
situation? Not necessarily. I'm not
telling you it necessarily does, but
these are the sources that are maybe
brought in by some suggestions. However,
Rav Yisraeli disagrees. He says in
practice, there is insufficient
sufficient basis to permit action
against an entire community that has
failed to execute its duty and remove
murders from its midst so long as it's
reasonable to excuse them with the claim
of fear, pressure, and the like.
Meaning, you can't use these sources in
the Rambam or the Ramban, whatever, to
justify that. Where are you going to
bring a source? And one of the main
sources I want to introduce you to, and
there's time to do this, we have 10
minutes, is the Maharal.
Look at the Maharal. This Maharal is
much discussed and possibly is the most
important source on the sheet. Look at
number 21. Says the Maharal on in the
Gura area on Shchem and Levi, on uh Levi
Shchem and Levi Shchem. The near the
Lord Hashmiya, I don't think it's a
problem at all. I don't have a question
as to how you can justify their actions.
This is not talking about individuals
acting. This is one nation
against another nation.
This is not individuals anymore. It says
Am Yisrael against Am Shchem. Or if you
cut who turn on them little home,
they're allowed to go to war.
Kidin Umasha Balil Amaluma Acheret, like
any country is allowed to go if they
have a cause as Belam, they have a
legitimate cause, and this was a
legitimate cause, says the Maharal, they
can go to war. She hit her at her, the
Torah allows war. The Torah is not
pacifist.
Even though the Torah says yeah, you
have to try to make peace.
I know how come the Lord also Israel
died? That's when they didn't already do
anything.
You only have to ask them for peace if
they didn't attack you. If they attacked
you,
he says, "Well, they've already told you
what they want.
They don't want peace. That's why they
attacked you."
When when they were already attacked,
could go and say she preached about him
last week to him the Bala, here where
they where they raped and abused Dina,
I forgot the light as Iraq a comma him
even though was only done by one person,
the leader. Cave in the mix
and who since he was from this people
came into parts of our hands to clear
that they started this war by kidnapping
Jews. More time to come and then it's
legitimate for them to fight them. It's
a war.
This
is the case with every war that exists
in the world that ever has. He says this
is the case with the other wars as well.
Even
though there are many people who weren't
personally responsible for having
started the war.
He said it doesn't make any difference.
Once two nations are at war, there are
rules of war and it's different from
what happens in general life.
Since there was in this nation that did
evil to them, more time to love
them and they're allowed to make war.
The same color that's how every war
works. Once you establish that there's a
just cause, you cannot say that there
are innocent civilians. That's just not
how it works.
As long as you're not maybe attacking
directly only the civilians, but he
doesn't say that. I just said that and
we'll see that comes up in a minute, but
he says there is an idea of
responsibility of the whole country in a
war against another. I brought you an
interesting source in 22 and 23 which
brings. He thinks it's a support for
this principle of the moral. He brings a
remember David is told that he cannot
build a
because he spilled much blood. So the
says well what is this blood that he
spilled? So he says maybe it's blood
that he spilled inappropriately like
a kitty.
Or the
in love where David was responsible
indirectly for their slaughter. Maybe
it's that blood. He said or maybe it's
the blood of civilians
that he was allowed to kill
because he was part of a legitimate war
campaign, but nevertheless since you
were the person that did that even
legitimate killing, you can't be the one
to build the Bet HaMikdash. Because the
Bet HaMikdash has a higher standard
level, whatever. Just like the idea that
you cannot have a metal metal which is
touching or creating the stones of the
Mizbeach because the Mizbeach represents
kapara, shalom, etc., life. And you
cannot have There's nothing wrong with a
piece of metal,
but you it's not appropriate there. So
too, he says maybe David HaMelech was
not allowed to to build the Bet
HaMikdash cuz even though he was
legitimate in killing the civilians,
still that's he's not the man to do the
job anymore. So Rav Hershel Schachter
wants to claim that this Maharal is
supported by the Radak and I brought you
an interesting argument. In around 2014,
there was a lot of discussion whether
this Maharal is is an appropriate source
to rely on when it comes to civilian
casualties. And I brought you some
people who say yes, some people who say
no. Rav Yitzchak Blau wrote an article
about it in Tradition. Rav Schachter
responded. There are a number of
comments there. Just a few other things
before before we finish.
Um
I'm not going to go into detail in
number seven. We only have five minutes
left on page seven rather. The Netziv,
I'll mention outside, the Netziv points
out that in the laws of murder
when he brings the laws of murder in
number 24, he talks about miyata adam
miyad ish achiv
that if a man kills his brother, then
that's called murder. And of course,
remember the first murder in the Torah
is indeed one brother against another
brother. The Netziv comes in there in a
couple of places I brought in 24 567.
This means that when people are
brothers,
there is a concept of murder. But when
people are no longer brothers because
they are at war with each other,
the laws of murder are completely
different. Meaning this whole rubric of
murder is only applicable in a peacetime
situation. In a wartime situation, then
it's everyone who says there's a whole
different set of of categories of war.
Um, let me just bring you for a second
uh look at Rabbi Bleich, number 29.
Um, where war to be sanctioned solely on
the basis of the laws of pursuit,
meaning the civilian laws that normally
apply. Rodef. Military action will
perforce be restricted to situations in
which the loss of life is inflicted only
upon armed aggressors and upon active
participants in the war effort. Someone
who's a rodef, you're a rodef, we can
kill you. If you're not a rodef,
we can't kill you.
Military action resulting in casualties
amongst civilian population would
constitute homicide.
Pure and simple, it would be murder.
However, says Rabbi Bleich, 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 moral
problem.
Again, this is what the world as a whole
says. That the visual civilian
casualties are not considered to be uh
prohibited in all circumstances. There
are situations where they are considered
to be very tragic but legitimate. I
brought you number 30 where King Saul
warns the Kenite to get out of the way.
They're going to fight Amalek.
Now, why does he warn them? He warns
them because he wants to try and
minimize the visual civilian casualties,
but he warns them because he knows if
they don't leave, he will be legitimate
in killing them even though they are
civilian casualties. An interesting
analysis. Um, and if you want to read in
your own time
on the last page, I'll just make
reference on page eight,
I brought you a few um
a few conclusions. Maybe we should just
spend a minute on the conclusions,
finish at 11:20 as planned.
Look at Rav Yisraeli.
The outcome of this
is that there is room to permit missions
of revenge and reprisal against our
enemies. And this is considered a
milchemet considered a milchemet
mitzvah. Any tragedy that occurs to our
enemies, their partners, and their
children is their responsibility, and
they carry the weight of these
consequences. There is no reason to
refrain from action against the enemy
because of concern that innocents will
be harmed. For they are the reason of
these results.
Obviously, there is no room to permit
harming children intentionally, and one
should take care not to harm them. So,
that really and Rav Kook tells from
Neria Kook tells who has a whole article
on this comes to a effectively this
conclusion, which is that where there is
a legitimate military operative reason
to engage in this activity,
then in halachic terms, the loss of
civilians is not prohibited.
For all the reasons that we've talked
about, but it's not a straightforward
matter. And the whole examination of
Shchem and Chamor is part of that. I
brought you at the end of teshuvah of
Rav Shapiro,
who also ruled that it's legitimate to
carry out military operations even when
civilians may be killed if there's a
legitimate military reason. And he says,
"And you can't just look at the numbers
game. It's not about numbers."
And if you say, "Well, only three or
four soldiers will be lost if we try and
protect more civilians." He says,
"That's not a legitimate way of looking
at it because the loss of these three
soldiers is not just three individual
soldiers, but it affects the entire army
and the entire war and the entire
people." So, he says, "Yes, you there
has to be a cheshbon. You can't just do
things in a in a in an
un-thought-through way at all. But you
can't just play a simple numbers game.
That's not the way it works. There has
to be an attempt to achieve military
objectives. If civilians are killed,
that is tragic, but that is part of the
consequences of war. And again, this is
just
an overview of these issues, but you can
go and investigate these sources
yourself and look further. We have to
stop there. Next week we will look more
into the issue of Amalek as we move
towards Purim and we'll see why exactly
Amalek is a little bit different maybe
from what we've been dealing with today.
Okay, let's leave it there.