Halachic Perspectives on Civilian Casualties in Gaza – Part One by Rabbi Chaim Jachter


During this past summer’s war against Hamas, much of the news media, even those not known as hostile to Israel, focused on the suffering of civilian residents of Gaza, thereby casting Israel as the aggressor.  These reports, designed to shock the sensibilities of viewers worldwide, rarely offer context to the Israeli attacks on Gaza.  They hardly ever explain the reasons for the bombings, the Hamas Charter calling for the destruction of the State of Israel and the diverting of international aid money by Hamas leaders for weapons to destroy Israel, rather than to build their own society, in addition to the relentless Hamas bombing of Israeli civilian targets. 

Such reporting is fundamentally and morally flawed.  It is morally repugnant and destructive to cast blame on Israel for civilian casualties caused by its defending itself from a ruthless terrorist organization determined to eliminate every Jew in Israel.  Imagine if reporters during World War II reported from Japanese and German hospitals on the effects of the bombing on young children but made no mention of Auschwitz and the unprovoked deadly attack on Pearl Harbor.  Such emotionally evocative reporting, done simply to stimulate the interest of viewers and listeners, must be repudiated. 

However, one must ask what is the moral justification for engaging in military operations that might or even will likely result in the loss of innocent life?  Killing Hamas members who engage in or facilitate anti-Israel violence is undoubtedly justified.  But what justifies the Arab babies and toddlers that are not targeted but almost unavoidably hurt or killed?  In this essay we shall present three Halachic justifications for nations engaged in a legitimate war to conduct military operations that place civilians at great risk. 

The Rambam’s Defense of Shimon and Levi at Shechem

Our first justification is the Rambam’s approach to Shimon and Levi’s action at Shechem, a story recorded in BeReishit 34.  Subsequent to the kidnap and rape of Dinah, Shimon and Levi attacked Shechem and killed not only the rapist, Shechem, and the town leader, Chamor, but also all of the males of Shechem who had a Brit Milah.  

The Rambam (Hilchot Melachim 9:14) believes that Shimon and Levi’s action at Shechem was appropriate.  He notes that one of the seven Noahide laws that Halachah demands all of humanity to follow is Dinim—to eliminate evil and promote a just society.  The failure of the populace of Shechem to protest and prevent the rape and continued abduction of Dinah constituted a violation of the obligation of Dinim, a crime punishable by death (Sanhedrin 57a).  The Rambam writes, “Shechem kidnapped [Dinah] and the people of Shechem witnessed and knew about this and did not bring Shechem to justice,” and therefore were deserving of Shimon and Levi’s accountability.

The Rambam holds members of society Halachically responsible for the evil actions of their leaders.  They are obligated to rid their society of evil leadership even at the risk of life.  Failure to do so is punishable by death.  The Rambam would defend the Allied bombings of German civilians during World War II since they deserved the death penalty for not removing Adolf Hitler, Yemach Shemo, from power.  To paraphrase the Rambam, the German people witnessed and knew about Kristallnacht and did not protest—therefore they are deserving of the death penalty for failure to topple the Nazi regime.  All of the suffering the German people endured during World War II was well deserved according to the Rambam. 

The Rambam would say the same for residents of Gaza.  They witness and know about Hamas’ unprovoked firing of missiles at Israel motivated by pure hatred of Jews as openly espoused by Hamas leaders in their broadcasts.  The Rambam would even approve of targeting civilians in Gaza to motivate them to rid themselves of their evil Hamas leaders as the Japanese removed Hirohito from leadership after World War II.  

Larry King, in a CNN broadcast, challenged Harvard Law Professor Alan Dershowitz, who was defending Israeli attacks of Hamas in December 2008 and January 2009, asking what the residents of Gaza are supposed to do.  They are the innocent victims of the Hamas leadership, King argued.  Professor Dershowitz responded that their responsibility is to overthrow the Hamas government. The Rambam would wholeheartedly agree.

Criticism of the Rambam’s Approach to Shimon and Levi’s Actions at Shechem

The Ramban (BeReishit 34:13 and 49:5-6) strongly disagrees with the Rambam’s opinion.  While he believes that Shimon and Levi were justified in killing Shechem and Chamor for the kidnap and rape of their sister Dinah, he argues that the killing of the other males of Shechem was entirely unjustified.  The Ramban presents three arguments for his position.  Firstly, the residents of Shechem did nothing wrong to Ya’akov’s family.  The Ramban asserts that the residents of an area do not deserve death for failure to control the evil actions of their leader.  He adds that even if the people did in fact deserved to die due to other violations of the Noahide laws, Shimon and Levi were not authorized to execute such punishment.

Proofs to the Rambam and Ramban

The Ramban derives support for his opinion from the fact that Ya’akov strongly criticized Shimon and Levi’s actions (BeReishit 34:30).  The Rambam could counter that the Torah (34:31) records the retort of Shimon and Levi to this criticism, to which Ya’akov does not respond.  On the other hand, the Ramban could reply that Ya’akov further criticized Shimon and Levi on his deathbed (BeReishit 49:5-7).  Thus, the Torah gives the last word to Ya’akov. 

The Rambam might respond by noting that Ya’akov on his deathbed (BeReishit 49:7) criticized Shimon and Levi for their leading roles in the sale of Yosef, but not for killing the residents of Shechem.   Indeed, the words “Ish” and “Shor” used in Ya’akov’s rebuke fit Yosef, as he is referred to as a Shor in Moshe Rabbeinu’s final blessing (Devarim 34:17) and is called as an Ish no fewer than fourteen times in Sefer BeReishit. 

The Rambam and Ramban argue as to whether Halachah considers an entire population responsible for the evil perpetrated by its leaders.  As noted, it is difficult to discern whose opinion is endorsed by the Tanach.  Indeed, Rav Shaul Yisraeli (Teshuvot Amud HaYemini 16 and BeTzomet HaTorah VeHaMedinah 3:253-289) concludes his discussion of the Rambam-Ramban debate by noting that, “In practice, there is insufficient basis to permit action against an entire community that has failed to execute its duty and remove murderers from its midst, so long as it is reasonable to excuse them with the claim of fear, pressure, and the like.” 

In addition, the Rambam’s approach does not sanction killing babies and very young children who are incapable of overthrowing the Hamas government.  Thus, the Rambam does not constitute sufficient basis to justify Israeli actions in Gaza.

The Maharal’s Approach to Shimon and Levi at Shechem

The Maharal (Gur Aryeh to Bereishit 34:13) adopts a compromise approach between the Rambam and the Ramban.  On the one hand, he agrees with the Ramban that the people of Shechem cannot be held accountable for the actions of their leader, arguing that their failure to execute Dinim was due to coercion by their leaders. 

On the other hand, the Maharal justifies the actions of Shimon and Levi, asserting that the Torah sanctions waging war when a nation attacks us.  In such circumstances, we are permitted and perhaps obligated to respond to the other nation’s provocation.  In responding, we attack the other nation and do not distinguish between the guilty members and the innocent members of that nation.  Thus, Shimon and Levi appropriately responded to Shechem’s aggression.  Once they responded, they were permitted to attack the entire nation, because this is the manner in which war is waged.

Shimon and Levi likely feared retributive violence  from Shechem, who agreed to circumcision in order to plunder Ya’akov and his family.   The attack on the adult males of Shechem very soon after their circumcision may have been conducted by Shimon and Levi as a preemptive strike by a tiny nation that was victimized by a much larger people.  Shimon and Levi feared that if they did not take this step, the people of Shechem would attack us after they recovered from the circumcision and would be at a severe disadvantage due to the huge disparity in the numbers of fighters.  Maharal understands Shimon and Levi prudently  engaging in an effective response to an unprovoked and severe act of violence against their family, in a way that insures the long term protection of the family in a very dangerous neighborhood. 

Although both the Rambam and Maharal justify Shimon and Levi’s actions, the two approaches differ fundamentally.  While the Rambam focus on the guilt of the nation led by evil leadership, the Maharal focuses on the victimized nation’s effective response. 

 Rav Asher Weiss (Minchat Asher, Devarim p. 222) notes that the Maharal does not sanction frivolous attacks on civilian members of an enemy nation.  Rather, he permits them only when the proper execution of battle plans necessitates killing non-combatants and there is no other way to accomplish the military goal.  For example, it appears that the Maharal would approve the dropping of atomic bombs on Hiroshima and Nagasaki in 1945 despite the Japanese babies who were killed in this attack since there was no alternative means to convince the intransigent Japanese leadership to surrender.  He would similarly sanction the unrelenting Allied bombing of Germany towards the end of World War II despite the killing of German babies in towns such as Dresden. 

I should stress that many people probably would not be alive today if not for these attacks.  My father, for example, served as a combat soldier in the Pacific during World War II and might not have survived an American invasion of Japan.  Many Holocaust survivors owe their survival to the Allied bombing of Germany, which brought that evil nation to its knees. 

Applying the Maharal to Gaza

Rav Ya’akov Ariel (Arachim BeMivchan HaMilchamah p. 83), Rav Dov Lior (Techumin 4:186), Rav Hershel Schachter (BeIkvei HaTzon p. 207), and Rav Asher Weiss (Minchat Asher, Devarim pp. 217-222) all rely upon the Maharal’s interpretation of the Shechem episode to allow harming anyone who belongs to an enemy nation during wartime when there is no viable alternative to achieve a military victory.  Rav Yitzchak Blau argues, though, that the, “Maharal is a decidedly minority viewpoint with regard to that story and thus is a shaky leg upon which to build a far reaching position” (Tradition 39:4-11).  Rav Neriah Gutel (Techumin 23:32) expresses similar reservations about applying the Maharal’s principle in practice.

We will further discuss applying the Maharal to Israel’s defensive actions in Gaza in our next issue IY”H and B”N.

Halachic Perspectives on Civilian Casualties in Gaza—Part Two by Rabbi Chaim Jachter

Reciting Nacheim on Tish’ah BeAv in 2014 by Rabbi Chaim Jachter