Parshat Shoftim: “You shall not leave a living soul”
Are we halakhically obligated to target civilians in war?
Reconciling morality and halakha
In Parshat Devarim we discussed the halakhic possibility of making peace before starting a war. We still need to address what happens during the war and how it ends. In this week’s parsha the Torah lays out step-by-step instructions on how to go out to war, and clearly commands us what to do, depending on the location of the city. “You shall kill all males with the sword,” excluding women and children, “in all the cities that are very far from you… but you shall not leave a living soul from all the cities of these nations that the Lord your God gives you as a portion. You shall utterly eliminate the Hittites, Amorites, Canaanites, Perizzites, Hivites, and Jebusites as the Lord your God has commanded you. So they do not teach you to do all the abominations they do for their gods or their sins to the Lord your God.”[1]
As we saw, the mitzvah to utterly wipe out the inhabitants of the land was limited to the seven Canaanite nations, and even then, the halakhic consensus was that it was possible to make peace if the people pledged to abandon their pagan ways, serve one God and obey the Seven Noahide Commandments, and live as a vassal state under Israelite sovereignty.[2]
But if they don’t make peace the Torah commands us to kill everyone in the city. In wars with other nations outside of the land of Israel the Torah commands us to kill all adult men. Adult women and all children are spared.[3] Many sages throughout the generations struggled to reconcile their understanding of morality with these commandments. How could the just and righteous God who created these people “in the image of God” command such extreme destruction? Or, put differently, what did these people do that God deemed so heinous as to command us to kill them?
Contemporary halakha
The mitzvah to eliminate the seven Canaanite nations has been irrelevant for thousands of years, as these are no longer national identities.[4] When the autonomous Jewish State ceased to exist at the end of the Second Temple Period all these questions became theoretical. From that point on these areas of halakha were seldom discussed in detail.
When our prayers for a Jewish State began to be realized these questions progressed from the theoretical to practical halakha. In the interim the world and the ways of war changed tremendously; modern halakhic authorities consider the Torah commandments, Biblical and midrashic accounts, halakhic statements, modern ethical understandings, and the laws and norms of modern warfare to offer relevant halakhic positions on the matter.
For example, Rav Goren understood that the Torah commands us to have mercy on the enemy, killing is only permitted necessary for self-defense – to definitively secure the territory and win the war. Killing civilians, especially women and children, is prohibited. Obligatory wars against the seven Canaanite nations were the exception, not the rule. “Heaven forbid, that someone should learn from them to other wars and to our time.” The extreme measures were solely due to the extreme cruelty of those enemies.[5]
Rav Shaul Yisraeli offers a slightly different approach. He explains that the Israelites weren’t reacting to the cruelty of their enemies, but rather abiding by the contemporary rules of engagement as they knew them. Just as humanity somehow agreed that wars are a valid way to solve disputes between peoples, there are agreed upon ways those wars may be fought. In recent history there have been concerted efforts to solve disputes without violence or make war illegal, without much success. Yet there are certain norms and laws “civilized” nations adhere to such as declaring war before attacking, refraining from using certain types of weapons, etc. Some of these laws were decided at the Geneva Convention, others are unspoken norms. We are bound to adhere to these norms, they function as a type of “dina dmalkhuta dina” – law of the local authorities we are obligated to follow. Therefore, the modern State of Israel is obligated to follow both the international law and the norms of the time.[6]
Both these authorities agree that we are not allowed to target civilians, albeit for slightly different reasons. As rules of war continue to change and those that seek to destroy us refuse to abide by them, people once again question if the current halakhic understandings are still relevant to our reality. Some might say they’re too violent, others not enough.
Some may not know that in the early days of the state halakhic authorities questioned if the current leadership structure had the halakhically necessary authority to fight a war at all.
Do we have the authority to fight an offensive war?
The Talmud teaches that Israel may only wage a voluntary war (one that is not defensive and not against the seven Canaanite nations and in the land of Israel) with the king and Sanhedrin’s permission.[7] Rambam maintains that it’s necessary to consult with the urim ve-tumim (a form of Divine communication performed by the Kohen) before going out to war, even an obligatory war.
Nevertheless, Rav Kook argued that government authorities could call for war when there is no monarchy, as they are the agents of the nation.[8] Rabbi Shlomoh Yosef Zevin explains that the wars that Israel has fought were all defensive, and therefore milkhamot mitzvah – obligatory wars – that may be fought even without the backing of such authorities.[9] Indeed, there’s little halakhic reason to oppose Israel’s defensive wars and overwhelming reasons to support them – as the halakhic imperatives of pikuakh nefesh (saving lives) and ha’ba l’horgekha hashkem l’horgo supercede most other mitzvot.[10]
Civilians versus soldiers
We saw opinions that strictly prohibited targeting civilians in war; the immorality of such actions is seldom debated in civilized circles. Yet while the vast majority agree we may not go out of our way to target civilians, many debate whether we should go out of our way to save them. One of the more difficult questions for some is whether we should endanger our soldiers to save the civilians on the other side.
Without attempting to offer a clear answer, as I have not found one and I am not sure there is one that fits every situation, it’s important to note that most midrashic and halakhic explanations of these laws sound significantly more moderate than the extreme language of the Torah. Even in the war with Midian when God commanded the Israelites to kill all males and adult females, and spare only the maiden girls, the midrash teaches that they were also commanded to leave an escape route for those who did not wish to fight.
Based on the midrash Rambam rules that when Israel lays siege to a city, they must leave one direction open so people could escape.[11] This is not only an immediate military liability, it also allows for the possibility that these refugees will return to fight us one day. Yet this opinion could not envision that God would doom people who did not wish to fight just because others in their nation decided to fight with the Jewish people.
May these halakhot soon be completely irrelevant as the words of the prophet are finally fulfilled, “One nation will not raise a sword against another, they will learn war no more.”[12]
[1] Devarim 20:13-17
[2] There was some debate regarding who had to instigate peace, if all the Noahide laws were necessary, etc. But as we saw under these conditions the people were no longer considered one of the Canaanite nations we’re commanded to eliminate as they have abandoned their religious and cultural identity.
[3] Mishneh Torah Hilkhot Melakhim u’Milkhamot 6:4.
[4] Either we have no way to identify who belongs to these nations or they no longer exist. Sefer HaChinuch 425 explains that King David wiped out most of these nations, and further wars and exiles eliminated them. Others explain that these identities were obliterated when Sanheriv and the Assyrian army conquered the area and “mixed up all the nations” through forcible population transfer a.k.a. exiles. (Mishneh Torah Hilkhot Melakhim u’Milkhamot 5:4; Yayin HaTov II YD 5:31).
[5] Rav Shlomo Goren Meishiv Milkhama I pg. 14
[6] Rav Shaul Yisraeli, Amud haYemani, pg. 194-202.
[7] Mishna Sanhedrin Chapter 1; TB Sanhedrin 20b;
There’s some debate if wars to conquer land from other nations within the boundaries of Israel are obligatory at this time. Ramban thought that this was a mitzvah in every generation. (Bamidbar 33:53) But there are also several opinions that disagree, and others that would find exceptions in our time.
[8] Mishpat Kohen 144:5
[9] Torah She-Be’al Peh 5731. The article was written in the early 70s but the wars fought by the modern State of Israel still qualify as such according to his definitions.
[10] TB Sanhedrin 72b. Arguing about what qualifies as a defensive war is best left to security experts.
[11] Sifrei Bamidbar 157:5; Bamidbar 31:7; Hilkhot Melakhim u’Milkhamot 6:7
[12] Yishayahu Chapter 2
