Civilian Casualties in Halacha (Am Yisrael at War Part 3) By Rabbi Anthony Manning

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.