Judaism: Ohr Torah on the Parsha: Innocent Civilians
"When you lay siege to a city for a long time, fighting against it to capture it, do not destroy its trees by putting an ax to them, because you can eat their fruit. Do not cut them down. Are the trees people, that you should besiege them?" (Deuteronomy 20:19)
Despite the bad press we constantly receive at the hands of the media, I do not believe there is an army in the history of warfare which operates with the degree of ethical sensitivity that is followed by the Israel Defense Forces. We never target civilians despite the fact that our enemy targets only Jewish civilians. We have always subscribed to a policy knows as “purity of arms,” the foundation for which harks back to the Bible, and particularly to this week’s portion of Shoftim.
Both Maimonides and Nahmanides maintain that this principle of initially requesting peace before waging war – and for Maimonides that includes the enemies’ willingness to accept the seven Noahide laws of morality (most notably “Thou shalt not murder”)– applies even when waging a battle in self-defense, even when warring against Amalek or the seven indigenous inhabitants of the Land of Canaan. (Maimonides, Laws of Kings 6:1; Nahmanides ad loc.)
But the verses before the one quoted above render the picture a bit complex, even murky. The Bible prescribes that if the enemy refuses to make peace, then “from those of the cities which the Lord your God has given you as an inheritance, you shall not leave any living being alive; you must utterly destroy them”.(Deuteronomy 20:16, 17).
This would seem to include innocent women and children. How are we to understand our compassionate Bible, which teaches that every human being is created in the Divine image and is therefore inviolate, sanctioning the destruction of innocent residents?
To compound our question, only two verses after the command to “utterly destroy” appears the curious and exquisitely sensitive Divine charge quoted above(Deuteronomy20:19): “When you lay siege to a city... to wage war against it and capture it, you may not destroy a fruit tree to lift an axe against it; after all, it is from it that you eat; so you may not destroy it because the human being [derives his sustenance from] the tree of the field” (or alternatively rendered – “is the tree of the field a human being who is capable of escaping a siege?”).
Can it be that our Torah cares more about a fruit tree than about innocent human beings? Furthermore, the very next chapter and the conclusion of our Torah portion records the law of a broken-necked heifer (egla arufa). If a murdered corpse is found in the field between two Israelite cities with the assailant unknown, the elders of the nearest city must break the neck of a heifer for an atonement sacrifice, declaring: “Our hands have not shed this blood and our eyes have not witnessed [the crime]; forgive Your nation Israel”. (Deuteronomy 21:1-9).
Clearly as a postscript to the laws of obligatory and voluntary war found in our portion, the Bible is attempting to caution the Israelites not to become callous at the loss of life, even the loss of one innocent human being. Indeed, the elders of the city must take responsibility and make atonement for an unsolved murder, proclaiming their innocence, but at the same time admitting their moral complicity in a crime which might have been prevented had they taken proper precautions and exhibited greater vigilance in providing protection and adequate welfare services.
Once again, if the Torah is so sensitive to the loss of an individual life, how can our Sacred Law command that we destroy women and children?
One might argue that a fruit tree, which gives human beings nutrition, the wherewithal to live, is of greater benefit than an individual born into an environment that preaches death to all who reject jihadist fundamentalism or who do not pass the test of Aryan elitism. Such individuals are sub-apples, because they are out to destroy free society.
Rabbi Naftali Zvi Yehuda Berlin – dean of Yeshivat Volozhin at the end of the 19th century – in his masterful commentary on the Bible, provides the beginning of a second answer. He insists that when the Bible ordains that we “utterly destroy” even the women and children, this is limited “to those who gather against us in battle; those who remain at home are not to be destroyed by us” (Ha’emek Davar, Deut. 7: 1-2).
It is almost as though he took into account our war against the Palestinian Arabs, who send young women and children into the thick of the battle as decoys, cover-ups and suicidal homicide bombers. We are trained to be compassionate, even in the midst of warfare; nevertheless, “those who rise up to murder innocents, even if they themselves are children, must be killed” if humanity is to survive and good is to triumph over evil.
Indeed, war stinks, but for the sake of a free humanity, we sometimes have no choice but to destroy evil in order for good to prevail. Michael Walzer, in his classic "Just and Unjust Wars", maintains that a soldier’s life is not worth more than an innocent victim’s life.
But if the “innocent victim” has “bought into” the evil of the enemy, or if the enemy is a terrorist purposely waging war from the thick of residential areas because he knows our ethical standards, we dare not allow him to gain the edge and enable evil to triumph.
Ismail Haniyeh, the head of Hamas, walks the streets of Gaza not with powerful bodyguards but with five small children, knowing that Israel would not risk harming them. Yes, we must try as much as possible to wage a moral war; but never to the point of allowing immorality to triumph. Our Sages correctly teach: “Those who are compassionate to the cruel will end up being cruel to the compassionate!” (Midrash Tanchuma, Metzora 1, and Yalkut Shimoni 15:247)