Fighting the War and the Peace: Battlefield Ethics, Peace Talks, Treaties, and Pacifism in the Jewish Tradition
Michael J. Broyde
III. Battlefield Ethics
A. Type of war
The initial question that needs to be addressed when discussing battlefield ethics, is whether the rules for these situations differ from all other applications of Jewish ethics or is "battlefield ethics" merely a general application of the rules of Jewish ethics to the battlefield situation. This question is essentially a rephrasing of the question "what is the moral license according to the Jewish tradition that permits war to be waged." As explained above, Jewish tradition categories "armed conflict" into three different categories; obligatory war, permissible war and societal applications of the "pursuer" rationale.31 Each of these situations comes with different licenses. The easiest one to address is the final one: the pursuer rationale: Battlefield ethics based on the pursuer model are simply a generic application of the general field of Jewish ethics relating to stopping one who is an evildoer from killing an innocent person. While it is beyond the scope of this article to completely explain that detailed field of Jewish ethics, the touchstone rules of self-defense according to Jewish law are fourfold: Even when self defense is mandatory or permissible and one may kill a person or group of people who are seeking to kill one who is innocent, one may not:
1] Kill an innocent32 third party to save a life;
2] Compel a person to risk his life to save the life of another;
3] Kill the pursuer after his evil act is over as a form of punishment.
4] Use more force than minimally needed.33
Thus, the rules of this type of "armed conflict" would resemble an activity by a police force rather than an activity by an army. Only the most genteel of modern armies can function in accordance with these rules.
On the other hand, both the situation of obligatory war and authorized war are not merely global extrapolation of the principles of "self-defense" or "pursuer." There are ethical liberalities (and strictures) associated with the battlefield situation which have unique ethical and legal rules unrelated to other fields of Jewish law or ethics.34 They permit the killing of fellow human being in situations where that action -- but for the permissibility of war -- would be murder. In order to understand what precisely is the "license to kill", it is necessary to explain the preliminary steps needed according to Jewish law to actually fight a battle after war has been properly declared. It is through an understanding of these requirements that one grasps the limits on the license to kill one's opponents in military action according to Jewish law. Indeed, nearly all of the preliminary requirements to a permissible war are designed to remove non-combatants, civilians and others who do not wish to fight from the battlefield.
B. Seeking Peace Prior to Starting War
Two basic texts form Jewish law's understanding of the duties society must undertake before a battle may be fought. The Bible (Deuternomy 20:10) states:
When you approach a city to do battle with it you should call to it in peace. And if they respond in peace and they open the city to you, and all the people in the city shall pay taxes to you and be subservient. And if they do not make peace with you, you shall wage war with them and you may besiege them.
Thus the Bible clearly sets out the obligation to seek peace as a prelude to any military activity; absent the seeking of peace, the use of force in a war violates Jewish law. Although unstated in the text, it is apparent that while one need not engage in negotiations over the legitimacy of one's goals, one must explain what one is seeking through this military action and what military goals are (and are not) sought.35 Before this seeking of peace, battle is prohibited. Rabbi Jesse Hagalili is quoted as stating "How meritorious is peace? Even in a time of war one must initiate all activities with a request for peace"36 This procedural requirement is quite significant: it prevents the escalation of hostilities and allows both sides to rationally plan the cost of war and the virtues of peace.
Rabbi Shlomo Yitzchaki (Rashi), in his commentary on the Bible, indicates that the obligation to seek peace prior to firing the first shot is limited to Authorized wars. However, in Obligatory or Compulsory wars there is no obligation to seek a peaceful solution. Indeed, such a position can be found in the Sifri, one of oldest of the midrashic source books of Jewish law.37 Maimonides, in his classic code of Jewish law disagrees. He states:
One does not wage war with anyone in the world until one seeks peace with him. Thus is true both of authorized and obligatory wars, as it says [in the Bible] "when you approach a city to wage war, you must first call out for peace." If they respond positively and accept the seven Noachide commandments, one may not kill any of them and they shall pay tribute ...
Thus according to Maimonides the obligation to seek peace applies to all circumstances where war is to be waged. Such an approach is also agreed to in principle by Nachmanides.38
It is clear, however, according to both schools of thought, that in Authorized wars one must initially seek a negotiated settlement of the cause of the war (although, it is crucial to add, Jewish law does not require that each side compromise its claim, so as to reach a peaceful solution).39 Ancillary to this obligation is the need that the goal of the war be communicated to one's opponents. One must detail to one enemies the basic goals of the war, and what one seeks as a victory in this conflict.40 This allows one's opponents to evaluate the costs of the war and to seek a rationale peace. Peace must be genuinely sought before war may begin.
There is a fundamental secondary dispute present in this obligation. Maimonides requires that the peaceful surrender terms offered must include an acknowledgement of and agreement to follow the seven laws of Noah, which (Jewish law asserts) govern all members of the world and form the basic groundwork for moral behavior;41 part and parcel of the peace must be the imposition of ethical values on the defeated society. Nachmanides does not list that requirement as being necessary for the "peaceful" cessation of hostilities.42 He indicates that it is the military goals alone which determine whether peace terms are acceptable. According to Nachmanides, Jewish law would compel the "victor" to accept peace terms which include all of the victors' demands except the imposition of ethical values in the defeated society; Maimonides would reject that rule and permit war in those circumstances purely to impose ethical value in a non-ethical society.43
C. The Civilian, the Siege44 and Standard of Conduct
The obligation to seek peace as explained above applies to battle between armies where no civilian population is involved. Jewish law requires an additional series of overtures for peace and surrender in situations where the military activity involves attacking cities populated by civilians. Maimonides states:
Joshua, before he entered the land of Israel sent three letters to its inhabitants. The first one said that those that wish to flee [the oncoming army] should flee. The second one said that those that wish to make peace should make peace. The third letter said that those that want to fight a war should prepare to fight a war.45
Nor was the general obligation to warn the civilian population enough to fulfill the obligation: Maimonides codifies a number of specific rules of military ethics, all based on Talmudic sources.
When one surrounds a city to lay siege to it, it is prohibited to surround it from four sides; only three sides are permissible. One must leave a place for inhabitants to flee for all those who wish to abscond to save their life.
Nachmanides elaborates on this obligation in a way which clearly explains the moral obligation by stating:
God commanded us that when we lay siege to a city that we leave one of the sides without a siege so as to give them a place to flee to. It is from this commandment that we learn to deal with compassion even with our enemies even at time of war; in addition by giving our enemies a place to flee to, they will not charge at us with as much force.46
Nachmanides believes that this obligation is so basic as to require that it be one of the 613 basic biblical commandments in Jewish law. However, Nachmanides clearly limits this ethical obligation to authorized and not obligatory wars and this is agreed to by most other authorities.47
Essentially Jewish law completely rejects the notion of a "siege" as that term is understood by military tacticians and modern articulators of international law. Modern international law generally assumes that in a situation where "the commander of a besieged place expel[s] the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure to drive them back so as to hasten the surrender".48 Secular law and morals allows the using of the civilians as pawns in the siege. The Jewish tradition prohibited that and mandated that non-combatants who wished to flee must be allowed to flee the scene of the battle. (I would add, however, that I do not understand Maimonides' words literally. It is not surrounding the city on all four sides that is prohibited -- rather, it is the preventing of the outflow of civilians or soldiers who are seeking to flee. Of course, Jewish law would allow one to stop the inflow of supplies to a besieged city through this fourth side.49)
This approach solves another difficult problem according to Jewish law: the role of the "innocent" civilian in combat. Since the Jewish tradition accepts that civilians (and soldiers who are surrendering) are always entitled to flee from the scene of the battle, it would logically follow that all who remain voluntarily are classified as combatants, since the opportunity to leave is continuously present. Particularly in combination with Joshua's practice of sending letters of warning in advance of combat, this legal approach limits greatly the role of the doctrine of "innocent civilian" in the Jewish tradition. Essentially, the Jewish tradition feels that innocent civilians should do their very best to remove themselves from the battlefield and those who remain are not so innocent. If one voluntarily stays in a city that is under siege, one has the status of a combatant.50
The unintentional and undesirable killing of involuntarily remaining innocent civilians seems to this author to be the one "killing" activity which is permissible in Jewish law in war situations which would not be permissible in the pursuer/self-defense situations. Just like Jewish law permits one to send one's own soldiers out to combat (without their consent) to be perhaps killed, Jewish law would allow the unintentional killing of innocent civilians as a necessary (but undesired byproduct) of the moral license of war.51
The Jewish tradition mandated a number of other rules so as to prevent certain types of tactics that violated the norms of ethical behavior even in war. Maimonides recounts that it is prohibited to remove fruit trees so as to induce suffering, famine, and unnecessary waste in the camp of the enemy and this is accepted as normative in Jewish law.52 Maimonides, in his book of commandments, (Negative Commandment #57) explicitly links this to the deliberate intention to expose the enemy to undue suffering. Nachmanides adds that the removal of all trees is permissible if needed for the building of fortification: it is only when done to deliberately induce suffering that it is prohibited. Nachmanides too, however, understands the Jewish tradition as requiring one to have mercy on one's enemy as one would have mercy on one's own and not to engage in unduly cruel activity.53 Even the greatest of scourges -- rape of the female civilian population of the enemy -- was regulated under Jewish law.54
D. A Note on Nuclear War and Jewish Law
The use of nuclear weapons as a weapon of mass destruction is very problematic in Jewish law. In a situation of Mutually Assured Destruction if weapons are used, it is clear that the Jewish tradition would prohibit the actual use of such weapons if such weapons where to cause the large scale destruction of human life on the earth as it currently exists. The Talmud55 explicitly prohibits the waging of war in a situation where the casualty rate exceeds a sixth of the population. Lord Jakobovits, in an article written more than thirty years ago, summarized the Jewish law on this topic in his eloquent manner:
In view of this vital limitation of the law of self-defense, it would appear that a defensive war likely to endanger the survival of the attacking and the defending nations alike, if not indeed the entire human race, can never be justified. On this assumption, then, that the choice posed by a threatened nuclear attack would be either complete destruction or surrender, only the second may be morally vindicated.56
However, one caveat is needed: It is permissible to threaten to adopt a military strategy that it is in fact prohibited to use, in order to deter a war. While one injustice cannot ever justify another injustice, sometimes threatening to do a wrong can prevent the initial wrong from occurring. Just because one cannot pull the nuclear trigger does not mean one cannot own a nuclear gun.57 It is important to understand the logical syllogism which permits this conduct. It is prohibited -- because of the prohibition to lie -- to threaten to use a weapon that is prohibited to actually use. However, it can be clearly demonstrated that lying to save the life of an innocent person is permissible.58 Thus, this lie becomes legally justifiable to save one's own life too. An example proves this point: If a person desired to kill an innocent person and one cannot prevent that act by killing the potential murderer, one could threaten this person by saying "if you kill this innocent person, I will kill your children." While, of course, one could not carry out the threat in response to the murder, the threat itself would be a permissible deterrence because lying to avoid a murder is permissible. Thus, this demonstrates that threatening to do that which one cannot actually do is permissible to save a life. The possession of nuclear weapons is simply an amplification of this logical analysis.
The overemphasis of the seriousness of the minor prohibition to tell an untruth at the expense of letting a person die is an example of an ethical valuation which is completely contrary to the Jewish ethical norm. In general, the under emphasis of the biblical ethical mandate of "not standing by while one's neighbor's blood is shed" is the hallmark of those who adopt a system of pacifistic ethics and explains why such a ethical direction is contrary to Jewish law. If, one could save a life by telling a lie, such a lie would be mandatory in Jewish ethics.
The use of tactical (battlefield) nuclear weapons designed solely to be used on the field of battle59 would, in circumstances where the complete destruction of the combatants be permissible, (such as after the proper warning and peace seeking) would be acceptable.
In sum, there clearly is a license to wage certain kinds of war and kill certain people in the Jewish tradition. However, in order to exercise this license, one must first seek peace; this peace must be sought prior to declaring war, prior to waging a battle, and prior to laying a siege. While war permits killing, it only permits the intentional killings of combatants. Innocent people must be given every opportunity to remove themselves from the field of combat.
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