The Lord spoke to Moses, saying: When you take a census of the Israelite people according to their enrollment, each shall pay the Lord a ransom for himself on being enrolled, that no plague may come upon them through their being enrolled. This is what everyone who is entered in the records shall pay: a half-shekel by the sanctuary weight – twenty gerahs to the shekel – a half-shekel as an offering to the Lord. Everyone who is entered in the records, from the age of twenty years up, shall give the Lord’s offering: the rich shall not pay more and the poor shall not pay less than half a shekel when giving the Lord’s offering as expiation for your persons. You shall take the expiation money from the Israelites and assign it to the service of the Tent of Meeting; it shall serve the Israelites as a reminder before the Lord, as expiation for your persons. (Exodus 30:11-16)God orders Moses to take a census of all males at least 20 years old. These are the people eligible to serve as soldiers and defend the Israelites should they be attacked in the Wilderness (which, indeed, happens when they encounter Amalek). Each person entered into the rolls is to pay a half-shekel – a token amount – as “ransom for himself.”
Here we find the beginning of the Jewish ethic of warfare.
The word kofer (“ransom”; the same root as the term for “atonement”) is found in the Torah only a few times. A form of it is found in Genesis 32:21, where Jacob, preparing for his reunion with Esau, sends his servants ahead with flocks and herds to propitiate his brother. Here the sense of ransom or atonement is clear: Jacob is ransoming his life from a brother who has every reason, as well as the ability, to kill him. The classic example is Exodus 21:30, where the owner of a goring ox (shor mu’ad), an animal known to be a danger because it has killed a person previously, has killed again. The owner pays a ransom to atone for the life taken and redeem his own life. The owner did not himself kill the victim of the ox, but he bears responsibility for having failed to restrain the animal. Number 35: 31-32 tells us that a kofer (“ransom”) may not be paid in the case of murder, because one who takes the life of another must pay with his own, and no ransom can substitute.
It appears that those Israelites who may have to go to war are paying a ransom up front for the lives they may be compelled to take in battle. Even before being called up as soldiers, the Israelites are reminded of the supreme value of human life and prepared for the trauma of having to take another’s life in battle. Killing is not glorified; quite to the contrary.
War is horrific. Lives disrupted, lives lost, dislocation of peoples, separations within families. For all this, there was a time when it was clear who was a combatant and who was a civilian, and while that distinction was not always honored – legion are the accounts of civilians brutalized by invading armies – there was at least tacit lipservice paid to the notion that non-combatants should not be targets. With the advent of modern warfare, we see the use of indiscriminate terrorism, a blurring of the the line between civilian and soldier is blurred, and civilians used as human shields. “Collateral damage” is a pressing moral issue in the modern arena. What does Jewish tradition offer us?
Returning to Jacob’s reunion with Esau, midrash Beraishit Rabbah 76:2 explains:
Then Jacob was greatly afraid and was distressed [on hearing that Esau was coming to meet him] (Genesis 32:7). R. Yehudah ben R. Illai said: "Are not fear and distress identical? The meaning, however, is that [Jacob] was greatly afraid lest he should be slain, and he was distressed lest he should [be compelled to] slay. For Jacob thought: 'If he prevails against me, will he not slay me? Yet if I am stronger than he, will I not slay him?' That is the meaning of he was greatly afraid (lest he should be slain) and he was distressed (lest he should slay.)This midrash served to set the tone for rabbinic repulsion for war. However, Rabbi Judah Loew of Prague (16th century) goes further and interprets the midrash to issue a stern caution concerning civilian casualties during war. In the Gur Aryeh he explains that Jacob’s concern, as midrash Beraishit Rabbah explains it, is for Esau’s entourage. Jacob knows that Esau is his enemy, and he might well kill, or be killed by, Esau. However, the status of the retinue accompanying Esau is unknown to Jacob. Are they soldiers who are willingly entering combat? Or are they merely laborers accompanying Esau without the intension to fight Jacob? Rabbi Loew concludes that Jacob’s fear and distress in Genesis 32:7 come to teach us that it is impermissible to kill civilians even in the midst of a legitimate military battle. “Collateral damage” is to be avoided at all costs.
The State of Israel, from its beginning, committed itself to following a strict code of ethics called Tohar ha-Neshek ("Purity of Arms") to insure morality in combat. It reads, in part: “The soldier shall make use of his weaponry and power only for the fulfillment of the mission and solely to the extent required; he will maintain his humanity even in combat. The soldier shall not employ his weaponry and power in order to harm non-combatants or prisoners of war, and shall do all he can to avoid harming their lives, body, honor and property.”
Yet as we all know, in the modern arena discotheques, hotels, and buses have become battlefields, and enemy combatants store their explosives in hospitals, schools, and garages. What once seems a clear ethical standard must be revisited because the context is so murky. One can no longer say with clarity and certainty in all situations who is a combatant and who is a civilian.
Dr. Marc Gopin is the director of the Center for World Religions, Diplomacy and Conflict Resolution at George Mason University, and professor of Religion, Diplomacy and Conflict Resolution. In a paper delivered at Princeton University in 2001 Gopin addressed “the problematic nature of targeting anything near civilian populations with explosive weapons.” He writes, “In general, I would argue, explosive weapons, from rocket launched grenades to F-16’s, and certainly weapons of mass destruction, make it extremely difficult to comply, in any contemporary warfare, with the halakhic rule that requires giving even combatants, let alone unarmed civilians, a way out of conflict, a path of retreat.” Theory is one thing, reality quite another.
Dr. Michael Walzer, professor emeritus at the School of Social Science at the Institute for Advanced Study at Princeton University, when asked about the civilian casualties in Gaza and Lebanon during the 2006 war, said, “The argument about proportionality is a hornet’s nest. It is not a very precise measure. No one knows what it means, and it can be used to justify massive injuries to civilians or used to condemn exactly the same injuries. I think there are other questions that need to be asked first: What kind of war is the army fighting? How precise is their intelligence? What kinds of risks are they accepting in order to reduce the risks they impose on civilians? Those are the key questions.” Walzer expressed concern for how the war in Gaza was conducted during the last week of the operation, but said that, overall, “I think it was a justifiable operation.”
Tohar haNeshek is a difficult standard to live up to during war, and especially in the modern arena, yet it remains a central tenet of The Spirit of the IDF, the Israeli Army’s doctrine of ethics.
My purpose is not to answer the question of how Israel or any other country should address the complex moral conundrum of “collateral damage” in the modern warfare arena, but rather to open the issue up for your consideration. Should Israel amend its standards in response to the reality it faces? Should Israel retain the high standards of Tohar haNeshek even if that means sustaining greater casualties among its own troops? How should other countries respond in the face of a changing landscape of war?
© Rabbi Amy Scheinerman