“Is All Fair in Love & War?” Just & Unjust Wars through the prism of Jewish and Secular
Rabbi Kenneth Brander | May 2014
In honor of Yom Ha’atzmaut and the Reunification of Jerusalem I am sharing some ideas on
“Is All Fair in Love & War?” Just & Unjust Wars through the prism of Jewish and Secular Thought
These ideas are also relevant to the current conflict in the Ukraine with Russia’s intervention into the affairs of another state.
We begin with summarizing some of the contemporary thinking about warfare and compare and contrast it to a Jewish approach
Is all fair in love and war? Are all forms of law and morality silent in warfare? Michael Walzer in Just and Unjust Wars discusses this issue, the challenge of morality in its relationship to war. Walzer suggests that the language discussing war is filled with words that speak of moral meaning, a lexicon of language that could never have developed without the recognition that in war there must be some level of ethics (3). Walzer shows that throughout history, philosophers have written about war-time conduct and judgments of how people behave in war. He continues to suggest that the morality of war is not defined by the actual activities of soldiers but by the opinions of mankind found in the writings and conversations of philosophers, theologians, lawyers, and politicians (15). We learn what is appropriate in war by studying the actions of those who preceded us. Expanding on a system developed by St. Thomas Aquinas as seen in various places such as, The Summa Theologica Part II, Question 40, Walzer suggests that war is judged in two independent ways: First, there must be just reason to begin a conflict – war must be just — Jus Ad Bellum; and second, the means adopted to fight war must also be just – Jus In Bello. These two dimensions of war are independent of each other.
Reasons to Engage in Warfare: As Walzer suggests in Just and Unjust Wars reasons for a “just war” can include an aggression against the state, a violation of the state’s territorial integrity or political sovereignty (52, 62). The anticipation of such an act is also just cause to begin war. Just wars may also be initiated by a state to defend against a humanitarian crime, as well as the right of a state to help another state defend against acts of aggression (59). Humanitarian intervention belongs in the realm of moral choice, nations which have the capability to stop the slaughter, like individuals, must sometimes decide to engage (106). When human rights are being violated in a state, as in the case of enslavement or massacre, it makes talk of a community, the right of the state, or the self determination of the state seem cynical and irrelevant (90). Humanitarian intervention is justified when it is a response to acts that shock the moral conscience of mankind (107).
Intervention by a state in the affairs of another can only be done when it can be justified for just reasons. The burden of proof is on the foreign leader who tries to shape the domestic situation or alter the conditions of the life in a foreign country (86).
War may never achieve absolutes: complete territorial integrity, total invulnerability, or everlasting peace. The object of war is a better state of peace and “better” within the confines of the argument for justice means more secure than the status quo, less vulnerable to territorial expansion, safer for ordinary men and women and for their domestic self-determinations, recognizing that achievements are still subjective in nature (122).
War Must Have a Purpose: In order for a soldier or civilian not to have died in vain, war must be just, a purpose that is worth dying for. A purpose that is morally urgent may include political independence, communal liberty, or the protection of human life (Just and Unjust Wars, 110). While working to deter war is admirable, appeasement is not to be argued if by so doing injustice and aggression will triumph (i.e. Chamberlain & Germany). That is a greater evil (Just and Unjust Wars, 67).
A just war does not violate the rights of people against whom it is directed. However, without just cause, participating in war is a heinous crime against humanity due to the loss of life and the brutal way in which people are killed without discrimination of age, sex or moral condition. The aggressor is responsible for all these consequences. Walzer’s comment is well stated that unjust war is worse than hell – for in hell people are punished because they have done something sinful, however, people killed in war have often done nothing wrong (Just and Unjust Wars, 30).
Fair Conduct in War: The second component to the notion of Just War Theory is fair conduct in war. A Just War can be fought in an unjust way as General Sherman committed in the burning of Atlanta (Just and Unjust Wars, 32), and unjust wars can be fought in strict accordance with rules of engagement. There is a need to hold soldiers to certain standards even if they fight unwillingly. Soldiers may not be responsible for the war itself but are responsible for their conduct during war which includes disobeying immoral orders (35-38). Part of fighting a war is insuring that the force used is proportional and the force has limited, if any, permanent damage to society (128-129). Soldiers need to be concerned about two sorts of rules: first, when and how they can kill and second, whom they can kill – the definition of a combatant as well as what defines a non-combatant (42). When a soldier fights another soldier, one is engaging in acts of war. However those same actions may be considered acts of murder when soldiers take aim at wounded or disarmed soldiers as well as non-combatants. When soldiers do not rape or deliberately kill civilians, this is not an act of magnanimity but of appropriate behavior (135). Walzer asserts that there must be a plausible distinction between combatant and non-combatant. He recognizes that there are certain challenges in warfare in creating these differences (137). This includes determining the difference between civilians who are part of the war effort (e.g. munitions workers) and those who are not engaged in the fighting or in support of, those who are. Walzer reminds us that saving civilians may incur risk to the lives of soldiers. That is a cost of war. However, the challenge to this rule is what degree of protection does the civilian deserve and what cost is there to the individual soldier in order to protect the civilians? While laws say nothing about such matters, they leave such decisions to be made by the men on the spot with reference only to their own moral notions or the military in which they serve (152 – 156).
Does the Jewish Tradition have an Ethical Norm in Warfare?
Michael Walzer suggests that Jewish tradition does not comprehensively differentiate between just and unjust wars, a third category of war, namely, banned or forbidden wars are missing from the Jewish weltanschauung; and while secular Jews assume that Jewish tradition allows only for defensive wars, the evidence of that limitation is scant (War and Peace in the Jewish Tradition, p.98, 101). He uses the war of the Maccabees as his demonstrative example.
Modern Zionist writers have sought to reverse this order of interests, celebrating the Maccabean revolt, for example, as a legitimate and heroic military struggle against a foreign ruler. The rabbis are surprisingly reluctant to offer a similar endorsement, even in their own terms: they would presumably describe the struggle as a commanded war (to defend the land and oppose idolatry within it).But they are more concerned to stress God’s miraculous intervention (see, for example, the prayer of al ha’nisim) than to describe the fight itself, more ready to celebrate Hannah and her seven martyred sons than the military heroes of the revolt.
(A look at the prayer of al ha’nisim indicates that the holiday of Chanukah is a celebration that does focus on the successful revolt against tyranny. for the miracles, and the salvation, and the mighty deeds, and the victories, and the wonders, and the consolations, and the battles which You performed for our forefathers in those days at this season. In the days of Matithyahu, the son of Yochanan the High Priest, the Hasmonean, and his sons, when the wicked Greek kingdom rose up against Your people Israel to make them forget Your Torah and compel them to stray from the statutes of Your will. You in Your great mercy rose up for them in the time of their travail. You took up their grievance, judged their claim, and avenged their wrong. You delivered the strong into the hands of the weak , the many into the hands of the few , the impure into the hands of the pure , the wicked into the hands of the righteous , and the wanton into the hands of the diligent students of Your Torah . For Yourself You made a great and holy Name in Your world, and for Your people Israel You worked a great victory and salvation on this very day. Thereafter, Your children came to the Holy of Holies of Your abode, cleansed Your Temple, purified Your Sanctuary and kindled lights in the courtyard of Your holiness. And they established these eight days of Chanukah to express thanks and praise to Your great Name. (al ha’nisim from the Grace after Meals). The prayer of al ha’nisim, which is inserted in Jewish liturgy during the holiday of Chanukah, the prayer used as a proof text by Walzer to accentuate his point makes no reference to the incident of Hannah and her seven martyred sons but in fact celebrates the Maccabean revolt by the Hasmoneans. This prayer is consistent with rabbinic literature which puts great emphasis on the success of the Maccabean campaign.)
Had the revolt been a “commanded” war … everyone would have been obliged to fight: in commanded wars, the Talmud declares, “all go forth, even a bridegroom from his chamber and a bride from her canopy” (Sotah 44b). But none of the rabbis seem to have questioned the formal announcement of the biblical exemptions reported in 1 Maccabees 3:56 (did they know this text or have access to other historical accounts of the revolt?), even though rabbinic doctrine holds that individuals are to be sent home only in permitted (optional) wars. (War and Peace in the Jewish Tradition, 103)
Walzer also suggests that there is no moral investigation in Jewish wars, that there is no discussion if an individual should participate in an unjust war like there is in Christian theology. He suggests that the notion of Tohar Haneshek – the purity of the weapon namely the weapon is only to be used if it is directed against an armed enemy, an ideal stressed in the Israeli army, is a concept not found in Jewish rabbinic tradition, but in the writings of Philo (War and Peace in the Jewish Tradition,107).
Walzer than challenges specific commandments found in Jewish tradition that limit physical destruction in war and casualties caused by siege.
In the Torah (Old Testament), a warning against unnecessary destruction in war is found in the following verses:
When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy its tress by forcing an axe against them: for thou mayst eat of them, and thou shalt not cut them down; for is the tree of the field a man, that it should be besieged by thee? Only the trees which thou knowst that they be not trees for food, thou shalt destroy and cut them down; and shalt build bulwarks against the city that makes war with thee, until it be subdued. (Deut. chap. 20:19-20)
Additionally, based on a verse in Numbers (chap. 31:7) the rabbis codify into Jewish Law that a siege of a city may only take place on three sides to allow those who wish to avoid the war to flee from the city.
Walzer challenges these laws suggesting that they are not truly reflective of Jewish tradition.
And yet the rabbis did deal fairly extensively with the law of sieges, in which this issue arises in paradigmatic form, and they seem to have written, if not with an explicit recognition of “a halakhic or moral problem,” at least with the fate of the besieged civilians very much in mind. They may have won their reputation here, for their argument, picked up be Grotius, survived as the radical alternative to the standard version of international siege law. . .
Of course, a city surrounded on only three sides is not in fact surrounded. If people can leave, then the food supply inside the city can be stretched out, perhaps indefinitely; or other people can enter, bringing supplies and reinforcements. It is hard to see how the city could ever be taken given this rule, which seems clearly designed for the sake of the inhabitants, not the army outside, though this is ostensibly a Jewish army. Nachmanides, writing a century after Maimonides, strengthened the rule and added a reason: “We are to learn to deal kindly with our enemy.” It is enemy civilians who are treated kindly here, for the ordinary or four-sided siege is a war against civilians. The radicalism of the Jewish law is that it pretty much abolishes siege warfare. But there is no acknowledgment of this, and other legal discussions (see Nachmanides on Deut. chap. 20:19-20) assume the legitimacy of the siege and evince little concern with its impact on the civilian population.
Maimonides also proposes a general rule against the sorts of violence that commonly follow upon a successful siege: anyone “who smashes household goods, tears clothes, demolishes a building, stops up a spring, or destroys articles of food…transgresses the command Thou shalt not destroy.”This sort of thing the tradition is fairly clear about, and the clarity may help, again, to account for its reputation. What is missing is any analysis of underlying principles (like Philo’s distinction between individuals whose life is one of hostility and all others) and any casuistic applications. These discussions have no cases—even the biblical cases are largely unmentioned. (War and Peace in the Jewish Tradition, 108-109)
He further challenges the Jewish tradition on the ethics of war by suggesting that commanded wars suspend the various Biblical prohibitions limiting causalities and destruction including those mentioned above, such as the law prohibiting a full siege as well as the prohibition of cutting down fruit trees and wanton destruction of property.
All other prohibitions are probably subject to suspension in wartime emergencies: the rules against surrounding a city on four sides, for example, or cutting down fruit trees, or destroying property, can be overridden for the sake of “saving lives” (the Jewish version, perhaps, of military necessity). These prohibitions apply to both commanded and permitted wars, but they apply differently. Commanded wars must be fought even if it is known in advance that the prohibitions will have to be violated in their course, whereas permitted wars are permitted only if it is reasonable to assume that violations will not be necessary. (War and Peace in the Jewish Tradition, 110-111)
Professor Avi Ravitsky in “‘Prohibited Wars’ In Jewish Religious Law” is critical of many of Walzer’s comments regarding the notion of Jewish war. He shows how Walzer did not fully articulate the Jewish notion of permitted wars. Ravitsky proves that Judaism emphasizes the horror of war, making permitted war subject to many ethical restraints and considerations.
It is widely recognized that modern reentry of the Jews into political and military history reactivated dormant notions of holy war, of inheritance and of conquest. At the same time, that very return to history generated ideas of forbidden war, emphasized the horror of battle, and made permitted war subject to ethical considerations. …over the ages, many rabbis forbade conquest of Land of Israel in the current (as distinct from the messianic) age…. (2-3)
Additionally, quoting Rabbi Dr. Simon Federbush, Ravitsky shows that many times in Jewish history, war was forbidden and that there is a checks and balances system between the king and the Jewish court, to guarantee that war is not freely declared.
The moral strain in the law governing the declaration of war appears first and foremost in the rule denying the right of the king and the military to declare war, for they typically crave victorious combat, and assigning that right exclusively to the spokesman for religion and justice , so it may determine whether the war is justified from the moral point of view (9, ftnte 38)
Contrary to Walzer’s hypothesis, Judaism does not give the king free reign to declare permitted wars in order to insure that he fights those that are demanded. The balance of power between the king and the high court ensures that the king is on an appropriate religious and spiritual plane. Ravitsky cites a comment by the late Chief Rabbi of Tel Aviv, Rabbi Hayyim David Halevy which describes the role of the king and the supreme court in the declaring of war.
The court would examine in a fundamental way the king’s request to go to war, to determine if it were justified and what degree of risk it entailed, and in accordance with it would grant his request (9)
Moreover this may be the very reason for requiring that the king obtain the Sanhedrin’s (Jewish Supreme Court) consent before going to war, a requirement that makes waging war the joint endeavor of the political and judicial branches of government …given that view of things, it becomes especially pertinent to ask why the king (“whose power is great”) should be required to consult with the high court (“whose capacity is limited by the law of Torah”). Why should this unusual requirement be imposed specifically with respect to the issue of going to war? It has been suggested that in the particular context of warfare – which entails the risk of bloodshed- it is essential to make every effort to align realistic justice with ideal justice and to avoid severing political interest and “the need of the hour” from “righteous justice” (9)
According to most rabbinic legalists, the king is required to ask permission to wage war even for battles of self defense, wars which Walzer calls “mandated”; with the obvious exception being when the community is already under attack. This is clearly stated by one of the greatest Jewish jurists of the twentieth century, Rabbi Moshe Feinstein.
It is my opinion that warfare , since it entails a risk to life, requires a specific command, through urim ve-tummim (the stones of the high priest’s breastplate, through which God’s will might be divinely ascertained) and the Sanhedrin(Jewish Supreme Court), even in a case of obligatory war, ….Only when Israel is attacked by idolaters such as Antiochus the Greek king and needed to be rescued did they go to war during the time of the Second Temple. (Iggerot Moshe, Chosen Mishphat vol. 2:78)
This need for all wars to be sanctioned is predicated on a fundamental difference between Walzer’s understanding of soldiering and that found in Judaism. Walzer states that a soldier does not have similar rights to civilians. The death of a soldier is permitted in war by the nature of the fact that he/she has volunteered or has been conscripted to engage in warfare. The lives of non-combatants are protected for they are not actors in the theater of warfare. However, in Judaism the human being does not have autonomy over his/her body especially when one puts oneself in physical danger (Ravitsky, 12). From this Jewish paradigm, it follows that any permission to be an agent to take a life or put oneself at risk requires a license only given after moral reflection for the military engagement.
Maimonides (1135-1204 his major contribution to the Jewish society was the the Mishneh Torah, a summary of the Oral Tradition and a comprehensive code of Jewish law) codifies in his Mishneh Torah statesthat any war, even mandated wars, cannot be waged without prior attempt at a formal peace offering.
No war is declared against any nation before peace offers are made to it. This obtains both in an optional war and a war for a religious cause (obligated/commanded wars), as it is said: When thou drawest nigh unto a city to fight against it, then proclaim peace unto it (Deut. chap. 20:10). If the inhabitants make peace and accept the seven commandments enjoined upon the descendants of Noah*, none of them is slain, but they become tributary, as it is said: They shall become tributary unto thee, and shall serve thee (Deut. chap. 20:11). If they agree to pay the tribute levied on them but refuse to submit to servitude, (in this context means paid service to the king), or if they yield to servitude but refuse to pay tribute levied on them, their overtures are rejected-they must accept both terms of peace…
(*The Seven Noachide Laws, are laws that Judaism suggests should be observed by all of humanity to guarantee a basic ethical code of conduct. These laws are discussed in many locations in the Talmud and are clearly articulated in the Tractate Sanhedrin 56a. “ The Rabbis taught: Seven commandments were given to the Noachites : Civil Law (to establish courts and a system of civil law , such as laws regarding theft, fraud, wages, damages, bodily injuries, business, issues of a civil society, as well to monitor the observance of the noachide laws), Blessing the Divine name (not to curse using the name of God), prohibition against idolatry (normative Christianity and Islam are not forms of idolatry), prohibition against sexual transgressions (limited to an adulterous relationship with a married women), prohibition against murder, prohibition against theft, prohibition against eating a limb torn from a live animal.
There is an entire movement of non-Jews called the Bnei Noah which preach the responsibility for all humankind to embrace these laws. See www.asknoah.org, www.7for70.net. Several times, joint resolutions of Congress have recognized the role of the seven noachide laws in creating an ethical society. For a listing of the various resolutions search on the following website: http://thomas.loc.gov.)
The king may lay down as a condition of peace that he take half their money or land and leave in their possession all chattel, or that he take all their chattel and leave the land in their possession.
Once they make peace and take upon themselves the seven commandments, it is forbidden to deceive them and prove false to covenant made with them.
If they refuse to accept the offer of peace, or if they accept the offer of peace but not the seven commandments, war is made with them. . .
Three proclamations Joshua sent (to the inhabitants of Israel) before he entered the land. The first read: “Whoever wishes to emigrate, let him emigrate”; this was followed by a second which read: “Whoever wishes to make peace, let him do so”; the third proclamation read: “Whoever wants war may have war.” (Book of Judges, Chap. 6)
While the “peace” offered by the Jewish army the foreign nation of certain rights and creates a form of occupation, it does not destroy their capacity for self-determination and in some ways, demands it with the establishment of a court and legal system.
What seems to be obvious from the Jewish legal references pointed out by Ravitsky as well as those seen in Maimonides is the fact that the default category in Jewish law regarding the making of war is that it is prohibited. Judaism seems to be in concert with Walzer’s description of Jus Ad Bellum, namely permitting war only in recognition of the prevalence of destructive consequences if there is no engagement in conflict.
Walzer’s comments above about the siege in Jewish tradition seem to be in conflict with comments made on the same topic in Just and Unjust Wars in which he writes that the Jewish approach to siege
. . .seems hopelessly naïve. How is it possible to “surround” a city on three sides? Such a sentence, it might be said, could only appear in the literature of a people who had neither a state nor an army of their own. It is an argument offered not from any military perspective, but from a refugee perspective. (Just and Unjust Wars, 168).
Contrary to previous comments, here Walzer’s seems to play down the Jewish concept of siege not based on its inconsistency of practice but that the entire enterprise is flawed due to the lack of potential to achieve military goals. While Walzer’s writings on this topic seem to be inconsistent, codification of this siege paradigm is found in the legal works of Maimonides without suspension of any type.
When siege is laid to a city for the purpose of capture, it may not be surrounded on all four sides but only on three in order to give an opportunity for escape to those who would flee to save their lives, as it is said: And they warred against Midian, as the Lord commanded Moses (Num. chap. 31:7). It has been learned by tradition that that was the instruction given to Moses. (Maimonides, Book of Judges, chap. 6:7)
What is obvious from the formulation of Maimonides, “by tradition that was the instruction given to Moses”; a formulation also found in an earlier description of the law of siege, the Sifre (Numbers:157), (a collection, from the fourth century of Jewish laws derived from exegesis of biblical verses),is that this law predates the Jewish Diaspora experience. It is part of the Jewish perspective on war dating from the time Jews had an independent state as well as an army. This was the Jewish way of insuring that even at the cost of soldiers’ lives and more rigorous battle, non-combatants had the chance to escape and the injustice created by siege warfare was obviated.
Destruction in warfare – are there any limits?
It is forbidden to cut down fruit-bearing trees outside a (besieged) city, nor may a water channel be deflected from them so that they wither, as it is said: Thou shalt not destroy the trees thereof (Deut. chap. 20:19). Whoever cuts down a fruit-bearing tree is flogged. This penalty is imposed not only for cutting it down during a siege; whenever a fruit-yielding tree is cut down with destructive intent, flogging is incurred. It may be cut down, however, if it causes damage to other trees or to a field belonging to another man or if its value for other purposes is greater (than that of the fruit it produces). The Law forbids only wanton destruction….
Not only one who cuts down (fruit-producing) trees, but also one who smashes household goods, tears clothes, demolishes a building, stops up a spring, or destroys articles of food with destructive intent, transgresses the command Thou shalt not destroy. (Maimonides, The Book of Judges, chap. 6:8,10)
Many medieval commentators of Jewish legal thought remark on the moral purpose of these laws.
Nachmanides, (Rabbi Moshe ben Nachman 1194-1270), makes the following comment:
and thou shalt not cut them down; for is the tree of the field a man, Rabbi Abraham ibn Ezra has explained it well, that the purport of the verse is follows: “for thou mayest eat of it, for the man is the tree of the field , and thou shalt not cut it down that it be used by you in the siege. … But in the opinion of our Rabbis, it is permissible to cut down a fruit tree to build a bulwark and the statement of the Torah , Only trees which thou knowest that they are not trees for food etc. is to assign priority, meaning that a fruitless tree should be cut down prior to a fruit tree. If so, the meaning of the section, in their opinion, is that the Torah warned, Thou shalt not destroy the trees to cut them down destructively, not for the purpose of siege, as is the custom of armies . ..You are not to do so, to destroy it… you are permitted to cut them down to build bulwarks and also to destroy them until it be subdued, for sometimes the destruction is for the purpose of capturing the city ; for example, when the people of the city go out and fetch the wood thereof, or they hide there in the forest to fight against them…(Nachmanides, Commentary of the Torah, Deut.20:19)
Similar ideas are developed in the Sefer ha–Chinuch (Book of Education). Published anonymously, but attributed to Pinhas haLevi of Barcelona in the thirteenth century, it is a work that corresponds to the chapters of the Bible discussing the legal and moral perspective of each of the six hundred thirteen Biblical commandments.
Commandment 529 – that we are prohibited from cutting down the trees when we set siege to a city, in order to distress the people of the city and make their hearts grieve …It is likewise included under this negative precept not to cause any damage or loss: for instance, to set fire, tear clothing or break a vessel for no purpose…The root reason for the precept is known: for it is in order to train our spirits to love what is good and beneficial and to cling to it; and as a result, good fortune will cling to us, and we will move well away from every evil thing and from every matter of destructiveness. This is the way of the kindly men of piety and the conscientiously observant; …They will not destroy even a mustard seed in the world, and they are distressed at every ruination and spoilage that they see; and if they are able to do any rescuing, they will save anything from destruction, with all their power.
Not so, however, are the wicked…They rejoice at the destruction of the world, and they become destroyed. By the measure with which a man measures, by that he is measured; ….Among the laws of the precept the Torah did not forbid chopping down fruit trees except when they are cut down destructively; but it is certainly permitted to cut them down if any useful benefit will be found in the matter: for instance, if the monetary value of a certain tree is high, and this person wanted to sell it … or chopping them down – for instance, if this was harming other trees that were better than it or because it was causing damage in the fields of others. In all these circumstances …it is permissible.
This is coupled with the fact that in the Talmud (a record of rabbinic discussions pertaining to Jewish law, ethics, customs, and history. The Talmud containsthe Mishnah (c. 200 CE), the first written compendium of Judaism’s Oral Law; and the Gemara a rabbinic commentary expansion on the issues discussed in the Mishnah (c. 500 CE)), there is a conversation focused on the responsibility to control fatalities in war, even after the war has been approved.
A government that kills one-sixth of the population is not punished (Tractate Shavuot 35b)
Ravitsky notes that the ambiguity of the Talmudic prohibition leaves to an open discussion on whether this prohibition of quantity of fatalities is directed to the Jewish soldiers, namely that no more than one sixth of the Jewish army may be killed in any military activity or is the prohibition a warning to the Jewish army that no more than one sixth of the enemy may be destroyed in the course of battle. It would seem that most commentators are of the opinion that this prohibition applies to fatalities of the enemy.
God protect us from that opinion . . .all those who chatter about the ‘ level of losses’ are only spoilers in the vineyards . God save us from them and their followers. (“‘Prohibited Wars’ In Jewish Religious Law,” p. 10)
These laws highlight the concern for human life, the ideal that force should be proportional, as well as evaluating the long term destructive limits war should have on humankind and the environment.