November 12th, 2013
By Yitzy Hammer
Over the past few years, I have become familiar with two very different areas of law – International Humanitarian Law (IHL – i.e. the laws of war) and Jewish Law. I became acquainted with IHL last summer when I was chosen to represent the IDC in a moot-court competition focusing on the laws of war. In the months leading up to the competition, my teammates and I prepared ourselves to go up against other universities, ultimately acquiring an unofficial “degree” in the field of IHL. As to Jewish Law, for the past two years, I have had the distinct privilege of working as a research assistant for one of the most renowned scholars in the field of Jewish law, Prof. Aaron Kirschenbaum, giving me a first-class opportunity to familiarize myself with this fascinating field of law.
Consequently, I had both IHL and Jewish law in mind when I began looking over the weekly Torah portion of Vayishlach last year.
I have always found the story of Dinah to be a fascinating one and while I had read and reread the story tens of times over the years, it was with my new knowledge of IHL that I began to recognize various modern humanitarian law issues in the age-old biblical saga. And so, with these two legal disciplines in mind, I thought it may be interesting to conduct a legal analysis of Shimon and Levi’s actions towards the city of Shechem, from a modern humanitarian law perspective.
For those of you who are unfamiliar with the subject, it is important to point out that humanitarian law is not human rights. While humanitarian law applies only during war time, in conflict-ridden territories – human rights apply everywhere, all the time, to everyone.
“Shimon and Levi are brothers, stolen tools are their weapons. Into their design may my soul not enter! With their congregation, do not unite, O my honor! For in their rage they killed a man and in their wish they hamstrung an ox. Accursed is their rage for it is mighty, and their wrath for it is harsh; I will divide them in Yaakov, and I will disperse them in Israel.” (Gen. 49:5-7)
The story of Dinah (Gen. 34:1-31) stirs up a host of mixed emotions. Two of Yaakov’s sons, Shimon and Levi, acting out of their own initiative, engage in a brutal take-no-survivors attack, killing Shechem, the regional prince, and all the men of the city. But it isn’t only who they target which we find problematic. The brothers, exploiting Shechem’s trust in them (or perhaps his overpowering lust for Dinah), convince him that if all the males of the city undergo a circumcision, Yaakov’s sons will agree to unite with the people of Shechem and the prince may take Dinah as his wife. Having persuaded his entire city to cooperate, whilst the men of Shechem recover from their recent surgical procedure, Shimon and Levi attack, brutally killing Shechem, his father King Hamor and all male residents of the city.
Whose orders were they following? Certainly not Yaakov’s; his reaction makes that clear: “Yaakov said to Shimon and Levi, ‘you have discomposed me, making me odious among the inhabitants of the land…they shall gather together and attack me, I will be annihilated…” (Gen. 34:30) – Yaakov sounds angry, embarrassed and even scared. So, what really happened here? In retrospect, if an international criminal tribunal would be established today, its mandate being the laws of war drawn both from Jewish law and IHL, could Shimon and Levi be held accountable for war crimes? In this analysis, I will delve into the midrashic texts and attempt to understand Shimon and Levi’s motives and choice of action.
Another question which begs understanding is that of ‘chilul Hashem’ – can you imagine how neighboring nations and cities interpreted these acts? How cowardly of Yaakov’s sons to strike an entire city while they were ailing – ailing, because they had voluntarily circumcised themselves in a show of good faith to Yaakov’s family, and then Yaakov’s sons took advantage of that confidence to, “striking them while they were down” – how did this reflect on the Nations of the Worlds’ opinion of Yaakov and his sons? It is also important to remember, these aren’t just any two brothers; these brothers represent the foundation of the Jewish people.
In order to examine the conflict between Shimon, Levi and Shechem from a humanitarian law perspective I will conduct an anachronistic analysis, attributing the relatively modern laws of international humanitarian law (IHL) to events that occurred thousands of years ago. This analysis will draw on two separate aspects of the laws of war: that of Jewish law and that of IHL. The Jewish law applied throughout relates to the law as interpreted by the sages and commentators of the Talmud.
- 1. Classifying the conflict and establishing the applicable law
In order to determine the applicable law from an IHL perspective, we must first classify the conflict. As the field of international law is relatively new, many of its areas are grey, leaving much room for interpretation. One can imagine that when dealing with laws and treaties of a global magnitude, it can be extremely difficult to draft a document agreed on by all sides – therefore, the term “customary law” is used to refer to laws and treaties that have been so widely accepted and have been around for such a long time that they are thought to apply to everyone. It is thus important to define which type of conflict we are dealing with in order to determine the applicable laws – Is it an international armed conflict (IAC), the applicable law being the four Geneva Conventions of 1949 (which are considered customary), their First Additional Protocol of 1977 (API – certain aspects of which are considered customary) and other relevant customary international law. Or, is it a non-international armed conflict (NIAC – non-international conflicts are an extremely controversial subject, as such there are very few laws applying to it that are considered customary), the applicable law being Common Article 3 of the four Geneva Conventions (one article, Art. 3, of the GC’s refers specifically to non-international conflicts and is largely accepted as the only real law which can be applied to conflicts of non-international character) and Additional Protocol II (APII) when relevant?
At first glance one may argue that as both Shechem and Yaakov’s families represent nations, the conflict is international in character, however, Yaakov purchased his land from Shechem (Gen. 33:19), implying that it may in fact have been an internal armed conflict, fought within the territory of Shechem. Furthermore, Yaakov is only to become a nation after the episode with Shechem (Gen. 35:10-13) and only receives international recognition of his new nation-status by Pharaoh when he is offered to settle in the land of Goshen, thus for our purposes we will address the conflict as non-international in its nature.
- 2. Legality of the conduct of hostilities
Thus, assuming that the conflict is non-international (NIAC), I will begin by addressing the legality of the conduct of hostilities and the means and methods applied. Looking at the jus ad bellum (before hostilities began), we see that immediately after Dinah was kidnapped, Yaakov first attempted to resolve the conflict through diplomatic means. According to Sefer HaYetsira, as soon as Yaakov heard what happened, he sent two servants to reclaim Dinah from Shechem’s house, but Shechem drove them away. Regretting his initial hostile approach, Shechem asked his father, Hamor, to contact Yaakov and request that Dinah be given to him as his rightful wife. Hamor then approached Yaakov with a proposal to amalgamate the two nations “…intermarry with us; give your daughters to us, and take our daughters for yourselves. And among us you should dwell; the land will be before you – settle and trade in it, and acquire property in it.” (Gen. 34:9-10) – sounds like a peace proposal to me.
However, Hamor’s proposal was not as genuine at it may have seemed. According to one source Hamor saw the wealth that Yaakov’s family possessed and saw this as an opportunity to monopolize Yaakov’s wealth without really offering him anything in return. In turn, Yaakov’s sons respond by giving Shechem an ultimatum: Sorry buddy, we can’t give our sister to an uncircumcised man like yourself – it’s insulting – if you really want her, you’re going to have to circumcise every male in town (Gen. 34:13).
- 3. Direct participation in hostilities
The most basic humanitarian law rule is that you may not kill civilians. A civilian is defined simply as any person who is not a combatant (‘combatant’ – a member of the states’ armed forces). However, civilians, while ultimately protected, may lose their protective status if they are seen as “taking direct participation in hostilities” (DPH). The notion of DPH is thought to be the most significant and at the same time the most controversial subject of IHL. As most armed conflicts today are fought asymmetrically and rarely on the conventional battlefield, it is easy to see the significance of assessing which civilians are legitimate targets and which are not. As to the controversy surrounding DPH – this stems mainly from the difficulty in determining who in fact is and who is not DPH. Professor Hersch Lauterpacht, a renowned international humanitarian law expert, has stated with regard to the field of IHL: “If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. At the very deep end of that vanishing point, lies the notion of DPH.
Although Shechem had only to follow the seven Noahide Laws, far less stringent than the laws Shimon, Levi and the rest of Yaakov’s family were bound by, nonetheless, the people of Shechem had disobeyed at least two out of those seven laws (see below), and thus can be seen as having taken direct participation in hostilities, causing them to lose their protected status as civilians and rendering them legitimate military targets, free to be targeted by the brothers. Thus, Shimon and Levy acted in accordance with the laws of IHL when they attacked Shechem.
According to the Talmud in tractate Sanhedrin, the seven Noahide Laws are the following: the prohibitions of idolatry, murder, theft, sexual immorality, blasphemy, eating flesh taken from an animal while it is still alive and the mitzvah of Dinim – a requirement to establish courts of law. According to Rambam, this last mitzvah is to be used as a tool to enforce the first six mitzvoth, while Ramban interprets the mitzvah of Dinim more broadly as a requirement to judge between people in general. Transgressors of the above mitzvoth are to receive capital punishment for their deeds. Therefore, assuming the people of Shechem were indeed guilty of transgressing one or more of the above, Shimon and Levi also acted in accordance with halakha when they planned to kill the inhabitants of Shechem, who were already due to receive the death penalty.
- 4. Torture
There is also the issue of torture. In Genesis 34:2, it states that Shechem took Dinah, lay with her and ‘וַיַעַנֶהַ’. The word vaya’aneha is commonly mistranslated as “he violated her”. However, the word stems from the root “עִינוּי – inui“, which means torture. Torture is prohibited under all bodies of IHL even in non-international conflicts. Although the Torah doesn’t forbid torture outright, it is evident by the way the Torah chose to carry out its punishments that all measures were taken to avoid unnecessary human suffering even for convicted felons. For example, one of the four types of capital punishment, serefah (burning), was done by pouring molten lead down the throat of the condemned person. The hot liquefied lead causes direct thermal injury to the lungs, leading to instantaneous death, as a result of acute pulmonary dysfunction and shock, minimizing as much as possible the suffering of the individual (Journal of Clinical Pathology). However, when the Talmud in Tractate Avoda Zara tells us how the Romans killed the Ten Martyrs (Aseret Harugey Malchut), an entirely different method is used. Here too, the punishment was ‘death by fire’, however, contrary to the method adopted by Bet Din wherein the suffering is minimized, the romans chose to wrap Rabbi Hanina Ben Tardayun in a Torah scroll and placed wet sponges on his heart so he remain alive and be forced to endure as much suffering as possible. Furthermore, the Talmud, in tractate Avoda Zara, sets down a list of business transactions which are to be avoided. For example, it is forbidden to enter into a business contract with idolatrors engaged in building a bima – a stage. What is the nature of this prohibition? The Talmud tells us that these stages were built rather high and were used to throw people off them to their demise – the Talmud wanted to ensure that Jewish businessmen kept their hands clean and avoided taking a part in torturous acts at all costs, further alluding to their illegal nature.
Art. 1 of the UN Convention against Torture, defines torture as “any act by which severe pain or suffering…is intentionally inflicted on a person for such purposes as obtaining from him…information or a confession, punishing him for an act he…has committed or is suspected of having committed…” – Even though the Torah uses the word inui, it is arguable whether the acts Shechem performed on Dinah could be classified as such given their nature – Shechem’s acts, while brutal, are not likely to have been inflicted on her “for such purposes as obtaining from her…information or a confession, punishing her for an act she…has committed”.
- 5. Pillage
Another issue to be discussed is that of ‘pillage’ or ‘plunder’. Pillage is prohibited under all circumstances under the Hague Regulations and under the Fourth Geneva Convention. It has also been recognized as a war crime under the ICC’s Rome Statute, and is prohibited in non-international conflicts. In Gen. 34:27, it states: “The sons of Yaakov came upon the slain, and they plundered the city which had defiled their sister”. Although the Torah warns against the taking of plunder without instruction from Hashem in certain cases, the taking and dividing of plunder can be seen as a recurring theme throughout the Nation of Israel’s wars to the point that King David finally sets down rules guiding the division of plunder (1 Sam. 30:23-25). Thus, this action, at the time it was carried out, may not have been seen with the same severity by the Torah as it is by IHL. Judge Moshe Drori has written that today we adopt the approach taken by Yehoshua when conquering the Land, that is, that pillage is prohibited. Drori adopts the rule taught in tractate Bava Metsia whereby the applicable law is the one which has most recently been applied. According to Drori, since the Jews of Shushan refrained from taking from the spoils offered to them by Ahasuerus, thus, that is the applicable rule today. As to Shimon and Levi, it is possible that this was a common and widely accepted method of warfare at the time and therefore cannot be seen as forming a part of customary IHL.
- 6. Age
Another issue to be addressed is the legal age for participating in hostilities. According to the Midrash, Shimon and Levi were only 14 and 13 years old, respectively, at the time of Dinah’s rape. APII clearly states that children under the age of fifteen are prohibited from participating in hostilities, however, even when they do – they continue to maintain their protective status. While the Torah doesn’t expressly warrant a minimum recruitment age, nonetheless, all the censuses conducted of the Children of Israel in the desert, from the very first census pertaining to Trumat Shekalim (Exodus 30:14), as well as in the census conducted in the Children of Israel’s second year after leaving Egypt pertaining to military conscription and finally in the Plains of Moab at the end of the forty years in the wilderness; in each census all those who were “from twenty years and upward, all those who had served in Israel’s military” took part. Rashi, on that passage (Numbers 1:3) understands this to mean that twenty was the minimum age for conscription.
- 7. Perfidy
There is also the issue of “Perfidy” (API Art. 37). A perfidious act is defined as “inviting the confidence of an adversary…with intent to betray that confidence” – here, the brothers invited Shechem’s confidence by persuading him to undergo a circumcision, and then took advantage of his weakness to kill him. It would seem than that the brothers acted perfidiously.
When I first started pondering this issue, I tried to think of other perfidious acts in the Tanach and immediately the story of Yael and Sisra came to mind. Sisra, the enemy of Israel, is fleeing from the battlefield, when he is invited by Yael, a family friend, to come and hide in her tent. After wining and dining him with fresh milk and honey, Yael tells Sisra not to worry, whereupon she covers him with a sheet, lest he be discovered– at least that’s what yael leads him to beleive – immediately after covering him, Yael grabs a sharp tent-stake and drives it into his skull.
What does the Torah say regarding perfidy? Is there an analogous concept which exists in Jewish law?
In the Torah, we find two alternate terms resembling perfidy: begidah and meilah. What is the difference between the two? Could one of them be an appropriate match for perfidy? Malbim, expounding on the passage “nefesh ki tim’ol ma’al” (Leviticus 5:15) offers an explanation: ‘meila‘ and ‘begida‘ are synonymous verbs; both are used with regard to a man’s clothing. Just like a garment is used to cover oneself, so to a ‘boged’, or a traitor, hides his true intentions from his victim – on the outside, he appears to be a lover and a friend, but under his “garments”, so to speak, he is conniving, conspiring to lie and cheat. The difference between these two terms, Malbim continues, can be learned from the difference between a ‘meil’ (a jacket/an outer garment) and a ‘begged’ (an undergarment). Just like a meil is worn on the outside, over your clothes, and the begged is worn under your clothes, so to begida refers to when one lies to his friend in secrecy (‘under his garments’), and meila refers to one who commits an act of public treachery.
Nonetheless, all examples of begida and meila found in the Talmud generally apply to one who either cheats on his wife or turns his back to G-d, as such, it would be impossible to charge the brothers as having acted perfidiously towards Shechem from a Jewish law perspective, however they would likely be held accountable in an IHL court.
- 8. Conclusion
There are still other issues of humanitarian law to be addressed, such as the prohibition pertaining to “denial of quarter” (listed as a war crime under Art. 8(2)(e)(x) of the Rome Statute) - according to this principle, one may not declare “no prisoners will be taken alive” as in this case, however this no longer remains an issue assuming that the whole city was indeed taking direct participation in hostilities.
Shechem himself was certainly liable to capital punishment for having kidnapped Dinah as her kidnapping was an act of thievery. According to Rambam (Hilchot Melachim 9:14), the people of Shechem were also guilty since they were aware of Shechem’s theft and failed to bring him to justice – therefore they violated the seventh Noahide law, that of dinim, requiring them to establish courts and to bring transgressors to justice. Rav Eliezer of Worms (1176-1238), author of ‘Sefer haRokeach’ offers a different explanation as to why the people of Shechem were guilty: Part of Shechem’s agreement with Yaakov’s children was, in addition to the act of circumcision, an obligation to abandon idol-worship. Although they made it appear that they had done so, they continued to idol worship in secret – therefore they violated the mitzvah of no idol worshipping. Rokeach goes on to say that Yaakov’s sons even kept some of the idols they found in Shechem to serve as proof, should they be criticized by other nations of the world for killing Shechem without reason – the idols serve as proof of Shechem’s breach of their agreement with Yaakov’s family and testifies to their nature as idolaters. Ramban disagrees with Rambam’s reasoning. According to Ramban, if the people of Shechem were indeed DPH, Yaakov should have acted on his own. However, not only does Yaakov not act on his own, he reprimands his sons twice (Gen 29:5-7, 34:30) and ultimately punishes them by not giving them a portion of land inside Israel – Simeon’s tribe is forced to settle within Judah’s portion (Joshua 19:1) and Levi is given sporadic Cities of Refuge throughout the Land of Israel (Numbers 35:1-34) – Clearly Yaakov was not happy with his sons’ actions.
Yitzy Hammer lives with his wife and two children in Netanya. He made aliyah from the U.S. in 2000, studied in the yeshivat hesder in Otniel, and served in the IDF’s Combat Engineering Corps. Yitzy is currently studying towards an LL.B. in Law and a B.A. in Government at the Interdisciplinary Center (IDC), Herzliah, where he works as a research assistant in the subject of Jewish Law