Fighting the War and the Peace: Battlefield Ethics, Peace Talks, Treaties, and Pacifism in the Jewish Tradition
Michael J. Broyde
II. Grounds for Starting War
A. Jewish Law's View of Secular Nations at War
Jews have historically been a people living in the diaspora and were (and still are) citizens of countries where Jewish law was not the ethical or legal touchstone of moral conduct by the government. As citizens of a host country, it is necessary to develop a method for determining whether the host country's military activity is permissible according to Jewish law.4
Two distinctly different rationales are extant to justify the use of military force. The first is the general rules of self-defense, which are as applicable to the defense of a group of people as they are to the defense of a single person. The Talmud5 rules that a person is permitted to kill a pursuer to save his own life regardless of whether the person being pursued is a Jew or a Gentile. While there is some dispute among modern Jewish law authorities as to whether Jewish law mandates or merely permits a Gentile or bystander to take the life of one who is trying to kill another, nearly all authorities posit that such conduct is at the least permissible.6
It is obvious that the laws of pursuit are equally applicable to a group of individuals or a nation as they are to a single person. Military action thus becomes permissible, or more likely obligatory, when it is defensive in nature, or undertaken to aid the victim of aggression. However, using the pursuer paradigm to analyze "war" leads one to conclude that all of the restrictions related to this rationale apply also.7 War, if it is to exist legally as a morally sanctioned event, must permit some forms of killing other than that which are allowed through the self-defense rationale; the modern institution of "war" cannot exist as derivative of the self-defense rules alone.
There are a number of recent authorities that explicitly state that the institution of "war" is legally recognized as a distinct moral license (independent of the laws of pursuer and self-defense) to terminate life according to Jewish law even for secular nations. Rabbi Naphtali Zevi Yehudah Berlin,8 argues that the very verse that prohibits murder, permits war. He claims that the words "from the hand of a man, your brother"9 prohibit killing only when it is proper to behave in a brotherly manner, but at times of war, killing that would otherwise be prohibited, is permitted. Indeed, such an opinion can also be found in the medieval Talmudic commentary of Tosaphot.10
Other authorities disagree. Rabbi Moshe Sofer (Chatam Sofer11) appears to adopt a middle position and accepts that wars of aggression are never permitted to secular nations; however, he does appear to recognize the institution of "war" distinct from the pursuer rationale in the context of defense wars. A number of other rabbinic authorities appear to accept this position also.12
B. A Jewish Nation Starting a War
The discussion in the commentaries concerning the issues involved in a Jewish nation starting a war is far more detailed and subject to much more extensive discussion than that of secular nations going to war.13
The Talmud14 understands that a special category of permitted killing called "war" exists which is analytically different from other permitted forms of killing, like the killing of a pursuer or a house robber. The Talmud delimits two categories of permissible war: 1) Obligatory; and 2) Authorized.15 It is crucial to determine which category of "war" any particular type of conflict is. As explained below, many of the restrictions placed by Jewish law on the type of conduct prohibited by war is frequently limited to Authorized rather than Obligatory wars.16 Logic would dictate, and Jewish law accepts, that a specifically divinely mandated conflict has certain ethical rules not found in any other type of military engagement.17
According to the Talmud,18 Obligatory wars are those wars started in direct fulfillment of a specific biblical commandment, such as the obligation to destroy the tribe of Amalek in biblical times. Authorized wars are wars undertaken to increase territory or "to diminish the heathens so that they shall not march" which is, as explained below, a category of military action given different parameters by different authorities.19 Maimonides, in his codification of the law, writes that:
The king must first wage only obligatory wars. What is an obligatory war? It is a war against the seven nations, the war against Amalek, and a war to deliver Israel from an enemy who has attacked them. Then he may wage authorized wars, which is a war against others in order to enlarge the borders of Israel and to increase his greatness and prestige.20
Surprisingly enough, the category of "to save Israel from an enemy..." is not found in the Talmud. In addition, the category of preemptive war21 is not mentioned in Maimonides formulation of the law even though it is found in the Talmud.22
What was Maimonides' understanding of the Talmud and how did he develop these categories? These questions are the key focus of a discussion on the laws of starting wars. The classical commentaries, both ancient and modern, grapple with the dividing line between "a war to deliver Israel from an enemy who has attacked them" and a war "to enlarge the borders of Israel and to increase his [the king's] greatness and prestige." Each of these approaches underlies different understandings of when a war is obligatory, authorized or prohibited and the ethical duties associated with each category.
Ibn Tibbon's translation of Maimonides' commentary on the Mishnah suggests that Maimonides' felt that an obligatory war does not start until one is actually attacked by an army: authorized wars include all defensive non-obligatory wars and all military actions commenced for any reason other than self-defense.23 According to this definition, the use of force prior to the initial use of force by one's opponents can only be justified through the "pursuer" or self-defense rationale. All other military activity is prohibited.
Rabbi Joseph Kapach in his translation of the same commentary of Maimonides understands Maimonides to permit war against nations that have previously fought with Israel and that are still technically at war with the Jewish nation - even though no fighting is now going one. An offensive war cannot be justified even as an authorized war unless a prior state of belligerency existed.24
Rabbi Abraham diBotem, in his commentary on Maimonides (Lechem Mishneh)25 posits that the phrase "to enhance the king's greatness and prestige" includes all of the categories of authorized war permitted in the Talmud. Once again, all wars other than purely defensive wars where military activity is solely initiated by one's opponents are classified as authorized wars or illegal wars. Obligatory wars are limited to purely defensive wars.
Rabbi Abraham Isaiah Karlitz (Chazon Ish) claims that Maimonides' definition of an Authorized war is referring to a use of force in a war of attrition situation.26 In any circumstance in which prior "battle" has occurred and that battle was initiated by the enemy, the war that is being fought is an obligatory one.27 According to this approach, the use of military force prior to the start of a war of attrition is prohibited (unless justified by the general rules of self-defense, in which case a "war" is not being fought according to Jewish law.)
Jewish law regarding wars by secular governments thus can be divided into three categories:
1) War to save the nation which is now, or soon to be, under attack. This is not technically war but is permitted because of the law of "pursuer" and is subject to all of the restrictions related to the law of pursuer and the rules of self-defense.
2) War to aid an innocent third party who is under attack. This too, is not technically war, but most commentators mandate this, also under the "pursuer" rationale, but some rule this is merely permitted. In either case, it is subject to all of the restrictions related to the "pursuer" rationale.
3) Wars (of self defense or perhaps territorial expansion). A number of commentators permit "war" as an institution even in situations where non-combatants might be killed; most commentaries limit this license to defensive wars.
So too, Jewish law regarding wars by the Jewish government can be divided into three (different) categories:
1) Defending the people of Israel from attack by an aggressive neighbor. This is an obligatory war.
2) Fighting offensive wars against belligerent neighbors (See pages 5 to 6 for the various opinions on what is belligerent).
3) The protecting of individuals through the use of the laws of "pursuer" and self defense from aggressive neighbors. This is not a "war" according to the Jewish tradition.28
Finally it is crucial to realize that there are situations where war is -- in the Jewish tradition -- simply illigal. The killings that take place in that war, if not directly based on immediated self-defense needs,29 is murder and participation is thoses wars is prohibited according to Jewish law.30
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