Halachic Perspectives on Civilian Casualties

by Rabbi Chaim (Howard) Jachter '81, Dayan (Rabbinic Judge), Beth Din of Elizabeth, and Rabbi, Congregation Shaarei Orah, the Sephardic Congregation of Teaneck

This article appeared in Gray Matter vol 3. Available online here: https://www.sefaria.org.il/Gray_Matter_III%2C_Israel%2C_Halachic_Perspectives_on_Civilian_Casualties?lang=he

A critical halachic/ethical issue facing the Jewish State and, indeed, the entire civilized world is the question of avoiding civilian casualties when battling terrorists. Terrorist groups such as Al Qaeda and Hezbollah take advantage of Western sensibilities by deliberately embedding themselves within civilian populations, cynically using them as human shields. The civilized world struggles to strike a balance between combating such evil groups on one hand and trying to limit civilian casualties on the other.

Israel in particular must confront this terrible challenge. In recent years, Israel has risked and lost many of its precious soldiers in order to reduce Arab civilian casualties. For example, after a series of horrific terrorist attacks in the first half of 2002, which included the bombing of the Park Hotel in Netanya where 29 people participating in a Pesach Seder were murdered by a homicide bomber, the Israel Defense Forces (IDF) launched Operation Defensive Shield to cripple terrorist groups. A hotbed of terrorists was the Jenin refugee camp in the Northern Shomron. The IDF could have bombed this refugee camp from the air but instead chose to send foot soldiers house to house to locate and eliminate the terrorists located in the camp, hoping thereby to reduce civilian losses. Civilian casualties were certainly kept to a minimum in this effort. However, thirteen Israeli soldiers were killed in the Jenin operation, men who likely would have been spared had Israel attacked only from the air.

Similarly, in the summer of 2006, Hezbollah mercilessly pounded Northern Israel with hundreds of rockets. Israel could have responded by “carpet bombing” Southern Lebanon but instead chose to attack with a combination of aerial attacks and ground forces, in part as an attempt to reduce civilian deaths. While Israel undoubtedly reduced non-combatant losses, more than one hundred Israeli soldiers were killed, and the stated goal of eliminating Hezbollah’s presence in Southern Lebanon was not achieved.

The question we must ask is whether the Israeli government made an appropriate moral decision regarding both Jenin and Lebanon. In other words, does Halachah require sacrificing our own soldiers in order to reduce enemy civilian losses?

Rav Yuval Sherlow visited the Torah Academy of Bergen County in March 2007 and told the students of a similar issue that he was asked to resolve. The Israeli Air Force had located a very dangerous terrorist leader and had the opportunity to eliminate him. The terrorist noticed the plane and slipped into a taxi cab that had a civilian passenger in it. The question was whether to bomb the cab despite the presence of non-combatants in the car.

In this chapter, we shall outline the halachic and hashkafic issues involved in resolving such critical issues. We will not address the political and military questions involved in making these decisions, leaving those considerations for experts in these areas. There has been extensive halachic discussion of this issue, including a teshuvah written by Rav Shaul Yisraeli (Teshuvot Ammud Hayemini 16 and B’tzomet Hatorah V’hamedinah 3:253-289) and a lengthy essay written by Rav Dr. Neriah Gutel that appears in Techumin (23:18-42). We will seek to discover a consensus approach that has emerged from the prominent poskim, including Rav Yisraeli, Rav Yaakov Ariel, Rav J. David Bleich, Rav Aharon Lichtenstein, Rav Hershel Schachter, and Rav Asher Weiss, all of whom have addressed this issue.

Shimon and Levi at Shechem

The point of departure for the discussion of this issue is Shimon and Levi’s action at Shechem, recorded in the thirty fourth chapter of Sefer Bereishit. 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.[1] We shall survey the three primary views: the respective approaches of the Rambam, the Ramban and the Maharal.

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 abide by is “dinim” – to eliminate evil from its midst. The failure of the males in Shechem to protest and/or prevent the rape and continued abduction of Dinah constituted a violation of the obligation of dinim, a crime punishable by death (see Sanhedrin 57a).

The Ramban (commentary to 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, he argues that the killing of the other males of Shechem was entirely unjustified. The Ramban presents two basic arguments for his position. Firstly, the residents of Shechem did nothing wrong to Yaakov’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 deserve 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 Yaakov strongly criticized Shimon and Levi’s actions (Bereishit 34:30). The Rambam could counter that the Torah (ibid. 31) records the retort of Shimon and Levi to this criticism, to which Yaakov does not respond. On the other hand, the Ramban could reply that Yaakov further criticized Shimon and Levi on his deathbed (Bereishit 49:5-7). Thus, the Torah gives the last word to Yaakov.

The Rambam might respond by noting that Yaakov 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.[2] Indeed, the words “ish” and “shor” used in Yaakov’s rebuke fit Yosef, as he is referred to as a shor in Moshe Rabbeinu’s final blessing (Devarim 34:17) and is called an ish no fewer than fourteen times in Sefer Bereishit.

The Maharal and Twentieth-Century Applications

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 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.

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. He also would sanction the unrelenting Allied bombing against Germany toward 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 Rambam, the Ramban, and the Maharal

The Rambam and the 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 (ad. loc.) 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.”

However, Rav Yaakov Ariel (Arachim B’mivchan Hamilchamah p. 83), Rav Dov Lior (Techumin 4:186), Rav Hershel Schachter (B’ikvei 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. Rav Yitzchak Blau argues, though, that “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 seek to demonstrate why the Maharal is a most solid source upon which to base a resolution to our question.

Support for the Maharal

The Maharal’s approach to the Shechem incident is endorsed by Rav Zalman Sorotzkin (Oznayim Latorah, Bereishit 34:25), and Rav Schachter (ad. loc.) argues that the Netziv advances a similar principle (Meromei Sadeh, Kiddushin 43a s.v. Mah and Eruvin 45a s.v. Peirush Rashi).

Even if the various commentators do not share the Maharal’s defense of Shimon and Levi, they do not necessarily imply a rejection of his principle. They could simply believe that killing Shechem and Chamor alone would have sufficed to rescue Dinah and that waging war against the entire town of Shechem was thus unjustified. In other words, the war against Shechem was uncalled for, but in a justified war one may attack without distinguishing between the innocent and guilty if it is impossible to effectively wage war in another manner.

Furthermore, Rav Asher Weiss points out that the Radak (Divrei Hayamim 1:22:8) also seems to subscribe to the Maharal’s principle. In his explanation of why David was disqualified from building the Beit Hamikdash due to the “blood that he had shed,” he writes that David had killed non-combatants in the course of battle but was not held accountable for their deaths “since his intention was to prevent evildoers from harming our nation.”[3]

In addition, Rav Schachter argues that a principle presented by the Minchat Chinuch (425:1) also accords with the Maharal’s approach. The Minchat Chinuch argues that the rules forbidding endangering oneself do not apply in a situation of war. If a war is mandated by the Torah, then by definition, explains the Minchat Chinuch, it demands that soldiers endanger their lives since, unfortunately, this is the normal course of war. Similarly, asserts Rav Schachter, the Torah expects that civilians will be killed during a war if this is necessary to achieve success. Rav Schachter notes that Rav Yitzchak Zev Soloveitchik (in his commentary to the haftarah of parashat beshalach) and the Teshuvot Devar Yehoshua (2:48)[4] concur with the assertion of the Minchat Chinuch.

Rav Shaul Yisraeli (ad. loc.) notes that “We do not find the obligation in war to distinguish between blood and blood (combatants and non-combatants). In the course of war, when laying siege to a city and the like, there is no obligation to make such distinctions.” Rav J. David Bleich (Contemporary Halakhic Problems III:277) echoes this observation:

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 halakhic or moral problem.

Indeed, the Gemara (Bava Kama 92a) seems to articulate this principle when it presents a basis in the Tanach for the folk saying, “The carob tree is struck together with its thorn.” Rashi (ibid. s.v. b’hadei hotza) explains that when one removes a thorn that grows by a carob tree, sometimes the carob tree is uprooted together with the thorn. The idea behind this folk saying, Rashi explains, is that “The neighbors of evildoers are punished along with the evildoers.”

Accordingly, we see that far from being a “decidedly minority viewpoint,” the Maharal’s principle constitutes a mainstream and normative concept that is appropriately applied by leading poskim such as Rav Ariel, Rav Schachter, and Rav Weiss. This is hardly surprising in light of King Shaul’s warning to the Keini to evacuate their homes lest they be harmed in the course of his war with Amaleik. We see that Shaul was prepared to endanger civilians in the course of war, and he is not censured for this willingness by either the Tanach or Chazal. Both Rav Ariel (Techumin 4:190) and Rav Bleich (ad. loc.) cite this as strong support for the principle articulated by the Maharal.[5]

The Maharal and the Geneva Convention

Rav Yisraeli and Rav Gutel note that Halachah seems to require conforming to the Fourth Geneva Convention and the norms of civilized countries regarding the ethical manner in which to treat non-combatants during war.[6] This appears to apply even if the Convention contradicts Halachah, just as we were required to honor the treaty we signed with the Givonim (Yehoshua chapter nine) despite the fact that it violated Halachah (see Rambam, Hilchot Melachim 6:5). Rav Yisraeli notes, however, that this applies not to the theory or rhetoric, but rather to the manner in which the Geneva Convention is practiced by civilized countries.[7]

Regarding warfare, Harvard Law School Professor Alan Dershowitz writes (The Case for Israel p. 167):

Although collective punishment is prohibited by international law, it is widely practiced throughout the world, including the most democratic and liberty-minded countries. Indeed, no system of international deterrence can be effective without some reliance on collective punishment. Every time one nation retaliates against another, it collectively punishes citizens of that country. The American and British bombings of German cities punished the residents of those cities. The atomic bombings of Hiroshima and Nagasaki killed thousands of innocent Japanese for the crimes of their leaders. The bombing of military targets inevitably kills civilians.

We may add the following examples to Professor Dershowitz’s list: the Allied blockade of the Central Powers during World War I to force them into submission via starvation; the doctrine of Mutually Assured Destruction, which prevented Soviet attack during the Cold War based on the threat of collective punishment on a massive scale; and the French fight against Algerian terrorists. The practice of Allied forces during the two World Wars established the norm for how civilized nations practice the Geneva Convention when fighting an evil and tenacious enemy that is bent on annihilating its opponents, a norm very much in harmony with the Maharal’s principle of conduct during warfare.

Rav Ariel, Rav Lior, Rav Schachter, and Rav Weiss are justified in following the principle articulated by the Maharal, which has a solid basis in the Tanach, Chazal, Rishonim, and Acharonim. Thus, Halachah permits waging war without excessive regard for civilian casualties if the war is justified and no viable alternative exists through which to wage a successful battle.

We should stress that the IDF does not deliberately target civilians in order to weaken the enemy, as the Allies did during World War II. Israel certainly is justified in attacking terrorists who use civilians as human shields, despite the risk of collateral damage.

Three critical issues must be addressed in order to apply the Maharal to Medinat Yisrael’s current struggle with Arab terrorism. Firstly, is the current struggle categorized as war? Second, is the struggle against a nation? Finally, must Israel risk the lives of its soldiers in an attempt to reduce civilian casualties?

Is the Current Struggle Defined as War?

It is important to stress that the Torah permits risking enemy civilians only during wartime. Rav Yisraeli notes that an individual may not save his life by killing another innocent human being. Thus, it is critical to determine if the current struggle against terrorism is defined as war. The intermittent battles against terrorists are fundamentally dissimilar to a “constant” war of the type Israel waged in the past, such as the Yom Kippur War.

Rav Yisraeli and Rav Hershel Schachter (B’ikvei Hatzon pp. 206-207) argue that the fight against terrorism is defined as a war. Rav Yisraeli addresses a specific situation that occurred in 1953 in which the Israeli forces raided an Arab village named Kibiyeh in response to a series of terrorist attacks that included the murder of a woman and her two small children in Yehud by Arab terrorists. Rav Yisraeli defends the legitimacy of such action as an act of war in which distinction is not drawn between guilty and innocent blood. We again stress that such permission applies only if the war is legitimate and the mission’s success hinges upon risking the lives of enemy civilians.

Rav Yaakov Kaminetzsky (cited by Rav Schachter) maintains that Israel has been in a constant state of war (from a halachic perspective) since the establishment of the state. Rav Yaakov accordingly ruled in 1970 that it was forbidden to ransom the great Rav Yitzchak Hutner, who at that time was being held captive in Jordan by Arab terrorists who had hijacked the flight on which he was a passenger. There was a suggestion to offer a huge sum to ransom Rav Hutner since Tosafot (Gittin 58a s.v. Kol) permit paying an exorbitant sum to save a great Rav. Rav Yaakov argued that Tosafot’s ruling applies only during peacetime. Since Israel’s ongoing struggle with terrorism constitutes a war, Rav Yaakov ruled, it was forbidden to ransom even one as great as Rav Hutner.

Indeed, Rav Yuval Sherlow notes the shifting paradigms of the concept of war. Terrorists wage war in a fundamentally different manner than armies during a conventional war. The military response necessarily must differ as well, and we cannot gauge the morality of such responses using the paradigms of “conventional wars.” The bottom line, Rav Sherlow maintains, is that this struggle is defined as war even if it differs from wars waged in prior generations.[8]

Are We Waging War Against a Nation?

The question arises as to whether or not the State of Israel is considered to be waging a war against the Palestinian community, as it seems that the Maharal’s principle applies only when waging a war against a nation. Rav Yitzchak Blau argues that “Even after recognizing the evil done by terrorists, can it truly be said that modern Israel is in a state of war with the collective body of Palestinians when Israelis frequently hire Palestinian workers?” (Tradition 39:4:17). Nonetheless, Rav Yisraeli and Rav Schachter answer a resounding “Yes” to this question.

Rav Blau’s question emerges from his misapplication of the paradigm of the definition of war from a conventional war to the war against terrorism. The fact that, for example, Americans did not hire Japanese workers during World War II is entirely irrelevant to the current war on terrorism. Indeed, Israelis’ hire Arab workers with the intention, in part, of motivating them to prefer the stability of peace. Moreover, Rav Blau’s question seems to have become moot when the Palestinians elected Hamas to run the Palestinian Authority in 2006. How can one reasonably claim the innocence of the Palestinian people when they chose to elect a party that explicitly calls for Israel’s destruction? Furthermore, the Gaza Strip, which is governed entirely by Hamas, undoubtedly constitutes an enemy nation entirely analogous to the relationship between Japan and the United States during World War II.

Moreover, even if one asserts that Israel is engaged in a war against the army or community of terrorists and not the Palestinian people, the Maharal’s principle remains relevant. Shaul warned the Keini people to move away from Amaleik lest they be killed in the ensuing battle. We see that even though Shaul was waging war only against Amaleik, he was allowed to risk harming another people embedded within them.[9] Similarly, the Israeli army may risk the lives of Palestinian civilians who live among Palestinian terrorists. The same applies to Hezbollah terrorists embedded within the civilian population of Lebanon. As Rav Hershel Schachter commented to me, a war must be fought properly, not with one hand tied behind one’s back.[10] Rav Yuval Sherlow similarly stated that there is an ethical obligation for a nation to win a justified war.

Placing Soldiers at Risk to Reduce Civilian Casualties

The Israeli army is clearly entitled to risk the lives of civilians in their efforts to eradicate terrorists. The crucial question, though, is whether civilized countries must risk their soldiers’ lives in order to reduce civilian casualties. This question is debated by leading poskim of our generation. Rav Aharon Lichtenstein believes Israel must “absolutely consider the extent of the justification of killing a large group [of civilians mixed with enemy soldiers] in order to save the life of an individual [Israeli soldier]” (Techumin 4:185). He regards the amount of civilian casualties as a factor to consider when conceiving battle plans. Rav Avraham Shapira (Techumin 4:182) and Rav Dov Lior (Techumin 4:186) strongly disagree. Rav Lior writes, “In times of war, there surely exists firm halachic basis for any action taken in order to ensure that not even one soldier is God-forbid harmed.” Rav Schachter and Rav Bleich told me that they agree with Rav Shapira and Rav Lior. In fact, Rav Schachter argues that Israel acted immorally by risking its soldiers in Jenin and Lebanon in order to reduce Arab civilian casualties. Rav Bleich concurred with Rav Schachter that it is forbidden to risk Israeli lives in order to save Arab civilians. Avi Levinson reports that Rav Mordechai Willig told him that he also agrees with the approach of Rav Shapira and Rav Lior.

We should note that neither side in this debate cites an explicit source regarding this matter.[11] Rather, it appears to be a question of halachic-moral intuitions of great poskim. We should stress that we cannot say that one side is more stringent or maintains a higher moral standard, because each side believes the opposing position to be morally wrong. One could simply add that just as we cited from Rav Yisraeli and Rav Bleich that there is no halachic source “that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken,” so too there exists no classic halachic source requiring or even permitting risking Israeli soldiers to save Arab civilian lives. In the absence of explicit sources in either direction, it is fair to say that the consensus opinion of major rabbinic authorities does not accord with the approach of Rav Lichtenstein on this matter.

Rav Bleich cautions, though, that in certain situations it seems that Israel might be justified in risking soldiers’ lives in order to spare Arab civilians if it feels that causing Arab civilian casualties will later endanger Israeli lives as a result of (unjustified) international condemnations. One might add that if Israel fears that Arabs will be incited by civilian casualties and therefore endanger Israeli lives, risking Israeli soldiers to save (other) Israeli lives might be permitted.[12] We should stress, though, that in these cases, risking Israeli soldiers may be justified solely due to the consideration that it will save Israeli lives in the long run.[13]

Conclusion

The Torah wishes us to have a degree of compassion even for our enemies. For example, the Ramban (positive mitzvah 5 of those the Rambam omitted) cites the Sifri that requires that when besieging an enemy position, we should not completely encircle them. We should leave one side open in order to give the enemy a chance to escape. The Ramban explains that one reason for this rule is that we should have mercy on the enemy soldiers. He adds that it is our interest to do so, since it will encourage enemy soldiers to flee, thereby weakening the morale of our opponents.[14]

Nonetheless, as Rav Hershel Schachter and Rav Yuval Sherlow explain, we must win a war. The compassion we must have for our enemies cannot impede our ability to win a war. Indeed, Rav Sherlow suggests that the IDF’s code of ethics’ first clause should state that that it is a moral obligation for the Israeli army to win its justified battles. He believes that the failure to recognize victory as a fundamental moral principle significantly contributed to the lack of success in the Second Lebanon War of 2006.

The Jewish leadership in Eretz Yisrael has made extraordinarily generous offers for peace towards its Arab neighbors throughout the past decades. It accepted the Peel Partition Plan of 1937, the United Nations Partition Plan of 1947, offered to exchange land for peace immediately after the Six Day War in 1967 and, in 2000, Prime Minister Ehud Barak offered stunning concessions to Yasser Arafat at Camp David. The Arabs have rejected every one of these concessions and have responded with wars intended to destroy the State of Israel and exterminate its citizens. Israel clearly has the right to defend itself and enjoys the ethical right, nay, obligation to wage war successfully. Misplaced compassion for enemy soldiers and civilians cannot hamstring our efforts to effectively wage war. The failures of 2006 clearly demonstrate this point.[15]

Our patriarch Avraham experienced moral anguish over the enemy soldiers that he killed in the war that he successfully waged against the four Mesopotamian kings (see Bereishit Rabbah 44:5 and Rashi to Bereishit 15:1). However, this emotion did not prevent him from carrying out his moral obligation to wage war vigorously and properly against the four Mesopotamian aggressors.

Avraham teaches timeless lessons about misplaced compassion toward our enemies. Similarly, the consensus rabbinic opinion regards the risking of Israeli soldiers and restraint from waging war properly in order to reduce Arab civilian casualties as misguided. May Hashem bless His nation with peace and render this discussion an entirely theoretical concern.

[1] For a discussion of whether they actually killed all the males, as well as a full analysis of this event, see Binyamin Malleck’s essay that appears in Megadim (23:9-30).

[2] The Ramban would disagree since he believes that Yaakov never discovered that it was the brothers who sold Yosef; see his commentary to Bereishit 45:27.

[3] One might wonder, then, why David was disqualified from building the Beit Hamikdash. Rav Elchanan Samet’s Iyunim B’farshiot Hashavua (1:68-69) explains that even for an “aveirah lishmah” (a sin committed with a noble objective), there are consequences. Thus, although David acted properly, he still was disqualified from building the Beit Hamikdash. Rav Weiss cites this consequence as evidence that civilian casualties are tolerated only if there are no other alternatives.

[4] The Devar Yehoshua clarifies that this applies even to a discretionary war.

[5] Rav Weiss (ad. loc. p. 219) defends the use of the Tanach and its commentaries to decide this issue:

Since the time of the destruction of the Beit Hamikdash and the loss of Jewish sovereignty, these types of questions were not relevant in practice and little attention was devoted [in the Talmud and its commentaries] to the issue of wars and how to wage them. We have no choice other than to base our discussion on the wars waged by Jews as recorded in the Tanach and its commentaries throughout the generations when we come to render a decision in these matters.

[6] The Fourth Geneva Convention forbids harming non-combatants and engaging in collective punishment of non-combatants during war. It was ratified by the State of Israel in 1949.

[7] This is similar to the idea I heard Rav Mordechai Willig cite in the name of Rav Aharon Kotler and Rav Moshe Feinstein that the rule of dina d’malchuta dina (the obligation to honor the laws of land in which we reside) applies to the law as it is applied, not as it is written. For example, Rav Kotler permitted driving sixty-two miles-per-hour in a fifty-five mile-per-hour zone, since police did not issue a ticket for traveling at less than sixty-three miles-per-hour.

[8] Based on this, Rav Sherlow rules (in a teshuvah addressed to Rav David Eisen) that the IDF tactic of asking an Arab neighbor to knock on the door of a terrorist’s home, which risks the Arab’s life in an attempt to spare IDF soldiers, is completely in consonance with Halachah.

[9] The aforementioned Radak also does not limit the permission to risk non-combatants to members of the enemy nation; as long as the intention is to avoid harm to our nation, it is permissible.

[10] The idea of properly executing a battle plan even at the expense of civilian members of a nation distinct from the enemy need not necessarily be based on the Maharal. The precedent of Shaul and the Keini serves as a model for Rav Schachter’s assertion even if the Maharal’s principle is inapplicable to such a situation. See also Minchat Asher, Devarim p. 221.

[11] Professor Eliav Shochetman, though, notes that this issue appears analogous to a questioned posed to Radbaz (Teshuvot Radbaz 3:627). The Radbaz was asked whether it is permitted for a person to sacrifice one of his limbs in order to save his friend’s life. He responded that if there is a serious chance that the one sacrificing the limb will be endangered thereby, it is a “foolish piety” to do so, since “his chance [of death] is more significant than his friend’s definite [survival].” It thus appears that it is inappropriate for the IDF to risk its own soldiers in order to save enemies from certain death. The Radbaz’s position is accepted by most poskim. See, for example, Teshuvot Chelkat Yaakov 2:143 and Teshuvot Tzitz Eliezer 9:28:3 and 9:45. Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 3:84) thus concludes, “The majority of acharonim concurs that one is forbidden to place himself in great danger in order to save his friend from certain danger.”

[12] This is based on the Gemara (Shevuot 35b) that sanctions a king risking one sixth of the population during wartime. We see that leaders may risk a small segment of the population in the short term in order to preserve the population at large in the long term.

[13] Rav Weiss concludes his discussion by noting that there may be a distinction between Jews and non-Jews in this regard. See also Rav Shlomo Yosef Zevin’s L’or Hahalachah pp. 16-18 regarding the issue of non-Jews waging war.

[14] Professor Shochetman notes that there is a dispute regarding whether this mitzvah applies even to wars that we are required to wage (milchemet mitzvah), such as defending the Jewish people from attack. Rav Shaul Yisraeli (Techumin 4:35-36) believes it applies only to discretionary wars, whereas Rav Shlomo Goren (Teshuvot Meishiv Milchamah 3:5:245) feels that it applies even to an obligatory war.

[15] We must stress, however, that the Maharal authorizes only a government to harm civilians in war (if it determines that no viable alternative exists). Rav Yoezer Ariel (Techumin 5:356) cites Rav Avraham Shapira, who strictly forbids individuals to take the law into their own hands even if they feel the Israeli government does not adequately punish evildoers amongst our enemies.