This is a cross post. It was originally posted on Harry’s Place on November 22nd 2012, 5:30 pm
In the last few days, in the light of Israel’s Operation Pillar of Defense, a question has arisen as to whether the members of the population are responsible for its government. This question is tied in with the idea of collective punishment.
In the first instance we had Gilad Sharon, son of former Israeli Prime Minister Ariel Sharon, in an op-ed for the Jerusalem Post, saying:
The residents of Gaza are not innocent, they elected Hamas. The Gazans aren’t hostages; they chose this freely, and must live with the consequences.
The consequences, as far as he would like them, are rather dramatic:
We need to flatten entire neighborhoods in Gaza. Flatten all of Gaza. The Americans didn’t stop with Hiroshima – the Japanese weren’t surrendering fast enough, so they hit Nagasaki, too.
Against this, from the opposite side, writing in the Huffington Post, we have British Member of Parliament and former Shadow Foreign Secretary Gerald Kaufman:
Israel is a democracy, undeniably. But a democracy that commits war crimes is still a war criminal. It has an exceptionally right wing government, with an overtly racist foreign minister. That government has taken office on the basis of an election. This means that the Israeli electorate is complicit in its government’s war crimes. [Emphasis added]
The question of whether the population can be held responsible for the actions of its government was hotly debated on Twitter between the Huffington Post UK’s political director, Mehdi Hasan, and Guardian contributor and blogger, Sunny Hundal. Hasan argued that people “have to be held somehow responsible” for the governments they elect. Despite being an outspoken opponent of the war in Iraq, under questioning, he agreed “indirectly…as part of UK public in a democracy” that “to an extent” he was “complicit in the deaths of Iraqi babies.” Hundal, on the other hand, was of the opinion: “This ‘all citizens complicit’ argument is a very slippery slope, because extremists will then act on it.”
The question is indeed an interesting one. In this post I aim to look at an analogous biblical episode and commentary to which rabbis might look to in order to answer the question from a Jewish religious perspective. That episode is the one detailed in Genesis 34. The relevant facts are that Dinah, daughter of Jacob, was kidnapped and raped by Shechem, the son of Hamor and the Prince of the land. In response, two of Dinah’s brothers went and killed all the males of the city where Shechem lived and took the women and animals as spoils of war. While they were rebuked by Jacob for their actions, it does not appear that Jacob’s criticism at the time was from a moral standpoint: his concern was that it could lead to reprisals.
Maimonides (the Rambam), Nachmanides, (the Ramban) and Rabbi Judah Loew ben Bezalel (the Maharal) were influential medieval biblical commentators who came to different conclusions on this episode. I will take each of these in turn.
Maimonides’s view was that the inhabitants of the city where Shechem lived could all be killed. They were all guilty of not setting up a court of law to render judgement on Shechem despite being aware of his deeds. This responsibility to prevent crime and punish criminals is the responsibility both of each the individual member of society and society as a whole. It is important to note that Maimonides assumes that the people are in a position to be able to put their leaders on trial. The populace could not be held responsible for not judging their leaders if attempting to do so would mean that that they would be killed.
Nachmanides has a very different approach. His opinion was that Dinah’s brothers had gone beyond the original plan which was just to deter Shechem from marrying Dinah. According to this view, even if they deserved to die for other reasons, Dinah’s brothers killed the populace “with no reason, for they did not do evil to [Dinah’s brothers] at all.”  Nachmanides is explicit: “it was not the responsibility of Jacob and his sons to bring them to justice.” 
The Maharal’s view is different again. He sees the kidnapping and rape of Dinah as a casus belli. When a nation is attacked, it is permitted to go to war. In war there is no distinction, as the Maharal interprets Jewish law, between the innocent and the guilty in a nation. Hence when Jacob’s sons responded to the taking of Dinah, they were permitted to kill all citizens in the town irrespective of any guilt: “even though there are many who did not do [anything], this makes no difference. As they belong to the same nation which did them harm, they are allowed to wage war against them.” 
The late Mordechai Eliyahu is the former Sephardi chief rabbi of Israel. In 2007, he cited Maimonides commentary on the Shechem incident in a published letter directed at the then Israeli Prime Minister. In this letter he argued that all citizens in Gaza are collectively responsible for the rockets fired from there into the Israeli town of Sderot. An entire city, he said, could be held collectively responsible in Jewish law for the immoral behaviour of individuals. According to Mordechai Eliyahu’s son, this meant, in practice, he advocated carpet bombing of areas from where missiles were fired.
If one accepts the Maharal’s formulation, then one would believe that in war, as innocence is irrelevant, it is perfectly acceptable to kill a baby in its mother’s arms. This would be the position of, for example, Yaakov Ariel, Chief Rabbi of the City of Ramat Gan and a leading rabbi in the religious Zionist movement. While Rabbi Yitzhak Blau argues that “Maharal represents a decidedly minority viewpoint with regard to [the Shechem indicent] and is thus a shaky leg upon which to build a far reaching position,” Rabbi Chaim Jachter is insistent: “Maharal is a most solid source and most definitely does not constitute a ‘shaky leg’ upon which to base a resolution to our question.” He is in no doubt: “the Israeli army may risk the lives of Palestinian civilians living near Palestinian terrorists. The same applies to Hezbollah terrorists embedded among the civilian population of Lebanon.”
Interpretations of the Shechem incident provided by Maimonides (they are all guilty) or the Maharal (there is no difference between the innocent and guilty in war) might seem unpalatable to those whose moral views on war are more in line with the Geneva Conventions than these authorities on Jewish law. There are alternative Jewish religious views.
In Rabbi Shlomo’s Goren opinion, what is important about the Shechem incident is that Jacob criticised his sons for their actions. Jacob rejected “collective responsibility . . . as a criterion in the ethic of waging war . . . [and] was opposed to killing . . . both from a security viewpoint and from an ethical one.” Goren was able to conclude:
We are commanded… even in times of war . . . not to harm the non-combatant population, and certainly one is not allowed to harm women and children who do not participate in war…
Ayre Edrei of the Faculty of Law, Tel Aviv University explains: “There are no traces of the Maharal’s position in Rabbi Goren’s writings, for he sought to advance an ethical model for the Israel Defense Forces anchored in Jewish tradition.” According to Ya’acov Blidstein, Professor Emeritus in the Department of Jewish Thought at Ben Gurion University, Rabbi Goren’s discussion “is not based upon Talmudic sources, nor does it confront the arguments of the opposing approaches. This naturally weakens its halakhic [Jewish legal] impact and authority.” This may well be true. Even if so, Shlomo Goren’s opinions did not stop him being appointed Chief Rabbi of the Israel Defence Forces and later Chief Rabbi of the State of Israel.
NB. All Internet links last accessed November 22, 2012.
 Gilad Sharon, “A decisive conclusion is necessary,” Jerusalem Post (Online Edition) November 18, 2012. Available at http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?ID=292466&R=R1&utm NB At the end of the article an editorial statement is made: “The views expressed in this op-ed do not reflect the editorial line of The Jerusalem Post.”
 Sir Gerald Kaufman, “Why I believe Israel is committing War Crimes,” Huffington Post UK, November 20, 2012. Available on line athttp://www.huffingtonpost.co.uk/sir-gerald-kaufman/gaza-israel-palestine_b_2164599.html
 Mehdi Hasan, “We can’t pin Iraq on Blair alone,” New Statesman, (Online edition) January 21, 2011. Available at http://www.newstatesman.com/uk-politics/2011/01/blair-war-iraq-secretary-prime
 Genesis 34. This can be seen online for example at http://www.mechon-mamre.org/p/pt/pt0134.htm
 Maimonides, The Laws of Kings and Their Wars, 9:14 Available on line at http://www.chabad.org/library/article_cdo/aid/1188354/jewish/Chapter-9.htm
 J. David Bleich, “Torture and the Ticking Bomb,” TRADITION, Vol. 39, No. 4, Winter 2006: pp.111-112.
 Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.16.
 Binyamin Singer, Ramban Classic Themes in Nachmanides’ Chumash Commentary: Volume 1: Bereishis & Shemos (Targum Press, 2005) pp.164-168.
 Nachmanides, Commentary on the Torah: Genesis, trans. Charles B. Chavel (Shilo, 1971), p.419 cited by Michael Walzer, “War and Peace in the Jewish Tradition,” In Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives, (Princeton University Press, 1996), p.98.
 The Maharal’s commentary Gur Aryeh to Genesis. 34:14, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.36.
 Matthew Wagner, “Eliyahu advocates carpet bombing Gaza: says there is no moral prohibition against killing civilians to save Jews,” Jerusalem Post (Online edition), May 30, 2007. Available at
 Michael J. Broyde, “Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!”, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, (Yeshiva University Press, 2007), p.27, p.40n96.
 Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.11.
 Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 2,” Kol Torah, Vol. 17, No. 17, January 5, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_2.html
 Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 3,” Kol Torah, Vol. 17, No. 18, January 12, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_3.html
 Rabbi S. Goren, Meshiv Milhamah 1(Jerusalem, 1983 ) 16, 26, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.
 Arye Edrei, “Divine Spirit and Physical Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces,” Theoretical Inquiries in Law Vol. 7, 2005, p.287.
 Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.