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Battlefield Ethics in the Jewish Tradition
Published online by Cambridge University Press: 28 February 2017
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- Religious and Social Ethical Perspective on International Law: The Middle East Peace Process
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- Copyright © American Society of International Law 2001
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1 Jewish law, or halakhah, is used herein to denote the entire subject matter of the Jewish legal system. including public, private, and ritual law. A brief historical review will familiarize the new reader of Jewish law with its history and development. The Pentateuch (the five books of Moses, the Torah) is the historical touchstone document of Jewish law and, according to Jewish legal theory, was revealed to Moses at Mount Sinai. The Prophets and Writings, the other two parts of the Hebrew Bible, were written over the next seven hundred years, and the Jewish canon was closed around the year 200 before the common era (B.C.E.). From the close of the canon until 250 of the common era (C.E.) is referred to as the era of the Tannaim, the redactors of Jewish law, whose period closed with the editing of the Mishnah by Rabbi Judah the Patriarch. The next five centuries was the epoch in which the two Talmuds (Babylonian and Jerusalem) were written and edited by scholars called Amoraim (“those who recount”Jewish law) and Savoraim (“those who ponder”Jewish law). The Babylonian Talmud is of greater legal significance than the Jerusalem Talmud and is a more complete work.
The post-Talmudic era is conventionally divided into three periods: (1) the era of the Geonim, scholars who lived in Babylonia until the mid-eleventh century; (2) the era of the Rishonim (the early authorities), who lived in North Africa, Spain, Franco-Germany, and Egypt until the end of the fourteenth century; and (3) the period of the Aharonim (the latter authorities), which encompasses all scholars of Jewish law from the fifteenth century up to this era. From the period of the mid-fourteenth century until the early seventeenth century, Jewish law underwent a period of codification, which led to the acceptance of the law code format of Rabbi Joseph Karo, called the Shulhan Arukh, as the basis for modern Jewish law. The Shulhan Arukh (and the Arba ‘ah Turím of Rabbi Jacob ben Asher, which preceded it) divided Jewish law into four separate areas: Orah Hayyim is devoted to daily, Sabbath, and holiday laws; Even Ha-Ezer addresses family law, including financial aspects; Hoshen Mishpat codifies financial law; and Yoreh Deah contains dietary laws as well as other miscellaneous legal matter. Many significant scholars—themselves as important as Rabbi Karo in status and authority—wrote annotations to his code that made the work and its surrounding comments the modern touchstone of Jewish law. The most recent complete edition of the Shulhan Arukh (Vilna, 1896) contains no less than 113 separate commentaries on the text of Rabbi Karo. In addition, hundreds of other volumes of commentary have been published as self-standing works, a process that continues to this very day. Besides the law codes and commentaries, for the last 1,200 years, Jewish law authorities have addressed specific questions of Jewish law in written responsa (in question and answer form). Collections of such responsa have been published, providing guidance not only to later authorities but to the community at large. Finally, since the establishment of the State of Israel in 1948, the rabbinical courts of Israel have published their written opinions deciding cases on a variety of matters. For a brief review of the methodology, structure, and history of Jewish law, see Feldman, David, The Structure of Jewish Law, in Contemporaryjewish Ethics 21 pp. 21-38 (Kellner, Menachem Marc ed., 1978)Google Scholar.
2 Broyde, Michael, Fighting for Peace: Battlefield Ethics, Peace Talks, Treaties and Pacifism in the Jewish Tradition, in War and Its Discontents: Pacifism and Quietism in Abrahamic Traditions 1 (Bums, J. Patout ed., 1996)Google Scholar.
3 And prohibited wars. Perhaps the most pressing ethical dilemma is what to do in a situation where society is waging a prohibited war and severely penalizes (perhaps even executes) citizens who do not cooperate with the war effort. This question is beyond the scope of the paper, as the primary focus of such a paper would be the ethical liberalities one may take to protect ones own life, limb, or property in Times of great duress; See Leopold Winkler, She’Elot U-Teshuvot Levushe Mordekhai 2:174 (1978) (permitting Sabbath violation to avoid fighting in unjust wars). But see R. Meir Eisenstadt, Imraieish Y.D. 52 (1801).
4 The question of who is “innocent” in this context is difficult to quantify precisely. One can be a pursuer in situations where the law does not label one a “murderer” in Jewish law; thus a minor (Sanhedren 74b) and, according to most authorities, an unintentional murderer both may be killed to prevent the loss of life of another. So too it would appear reasonable to derive from Maimonides’ rule that one who directs the murder, even though he does not directly participate in it, is a murderer and may be killed. So too it appears that one who assists in the murder, even if he is not actually participating in it direcdy, is not “innocent”; see comments of Maharal M’Prague, 1857; Judah Loew Ben Bezalal on Genesis 32. From this Maharal, one could derive that any who encourage this activity fall within the rubric of one who is a combatant. Thus, typically all soldiers would be defined as combatants. It would appear difficult, however, to define “combatant” as opposed to “innocent” in all combat situations with a general rule; each military activity requires its own assessment of what is needed to wage this war and what is not. (For example, sometimes the role of medical personnel is to repair injured troops so that they can return to the front as soon as possible, and sometimes the role of medical personnel is to heal soldiers who are returning home so as to allow these soldiers a normal civilian life.)
5 These rules are generic rules of Jewish law derived from different Talmudic sources and methodologically unrelated to “war” as an institution. For a discussion of these rules generally, and various applications, see Joseph Karo, Choshen Mishpat, Shulchan Aruch §425 (1896).
6 Two of the primary categories of Jewish war, as explained in Fighting for Peace, Broyde, supra note 3.
7 See e.g. Numbers 21:21-24. Where the Jewish people clearly promised to limit their goals in return fora peaceful passage through the lands belonging to Sichon.
8 Leviticus Rabba, Tzav §9 Mldrash Rabbah (1980).
9 Commenting on Levitucus Rabba Tzav §9. One could distinguish in this context between obligatory wars and commanded wars in this regard, and limit the license only to wars that are obligatory rather than merely commanded. It would appear that such a position is also accepted by Ravad; see Ravad (Abrahan ben David), Commentary on Laws of Kings 6:1, in Commentary on Mlshneh Torah (1809); Rabbenu Meir Leibush Ben Yechiel Michel Malbim, Commentary on the Torah (1892).
10 Maimonides, Laws of Kings 6:1, in Mishneh Torah: The Laws of Kings and Their Wars (1809) [hereinafter Laws of Kings].
11 I would, however, note that such is clearly permissible as a function of prudent planing. Thus, the Jewish nation offered to avoid an authorized war with Emor if that nation would agree to a lesser violation of its sovereignty; Numbers 21:21.
12 Of course, there is no obligation to do so with specificity as to detailed battle plans; however, a clear assertion of the goals of the war are needed.
13 Laws of Kings 6:1. These seven commandments instruct people to acknowledge God; prohibit idol worship; prohibit murder; prohibit theft; prohibit incest and adultery; prohibit eating the flesh of still living animals; and command the enforcement of these (and perhaps others) laws. For a discussion of these laws in context, see Epstein, Yechiel Michel, Haatid, Aruch Hashulchan, Laws of Kings 78–80 (Jerusalem, 1970)Google Scholar.
14 (Ramban) Nachmanides, Commentary on the Torah (1976), Deuteronomy 20:1. Of course, if after the surrender, a Jewish government were to rule that society, such a government would enforce these seven laws; however, it is not a condition of surrender according to Nachmanides.
15 Laws of Kings 6:4.
16 Laws of Kings 8:1-5.
17 See also Laws of Kings 14:14 for a similar sentiment by Maimonides.
18 For a general discussion of this, see Yehudah Gershuni (Grodner), Mlshpat Ha-Melucha 165-67 (1983). It is worth noting that a strong claim can be made that Tosaphot agrees with Nachmanides in this area; see “velo moredim” in Tosaphot, Avoda Zara 26b.
19 Or naval blockade.
20 Laws of Kings 6:5. Maimonides understands the Jerusalem Talmud’s discussion of this topic to require three different letters. If one examines Shevit 6:1 closely one could conclude that one can send only one letter with all three texts; see Aruch HaShulchan Laws of Kings 75:6-7.
21 Maimonides, Laws of Kings 6:7.
22 Supplement to Maimonides, Book of Commandments, Positive Commandment 4.
23 Id. See also R. Joseph Babad, Mlnchat Hinuch 527 (1987). Rabbi Gershuni indicates that the commandment is limited to compulsory wars rather than obligatory wars. His insight would seem correct; Mishpatai Melucha commenting on id. It is only in a situation where total victory is the aim that such conduct is not obligatory.
24 Charles C. Hyde, International Law Chieflyas Interpreted and Applied by the United States §656 (1922). For an additional article of this topic from the Jewish perspective, See Artson, Bradley, The Siege and the Civilian, in 36 Judaism 54–65 (1987)Google Scholar. A number of the points made by Rabbi Artson are incorporated into this article, although the theme of the purpose of the Jewish tradition in the two articles differ somewhat.
25 See Epstein, R. Yecheil, Aruch HaShulchan HeAtid, Laws of Kings 76:12 Google Scholar.
26 Although I have seen no modern Jewish law authorities who state this, I would apply this rule in modern combat situations to all civilians who remain voluntarily in the locale of the war in a way that facilitates combat. This author doubts if (for example) anyone who voluntarily remained in Berlin in World War II would be classified as an innocent civilian according to Jewish law.
27 See Rabbi Shaul Yisraeli, Amud Hayemini 16:5 (1998), and R. Joseph Babad, supra note 24, Minchat Hinuch Commandment 425 who discusses “death” in war in a way that perhaps indicates that this approach is correct. See also. Bleich, J. David, Preemptive War in Jewish Law, Contemporary Halakhic Problems 277 (1977) (Ktav, 1988) 3:251 at p. 277Google Scholar who states, “To this writer’s knowledge, there exists no discussion in classical rabbinical sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities. . . .
In many ways, this provides guidance into the ethical issues associated with a modern airplane (and long-range artillery) based war. Air warfare greatly expands the “kill zone” of combat and (at least in our current state of technology) tends to inevitably result in the death of civilians. The tactical aims of air warfare appear to be fourfold: to destroy specific enemy military targets; to destroy the economic base of the enemy’s war-making capacity; to randomly terrorize civilian populations; and to retaliate for other atrocities by the enemy to one’s own home base and thus deter such conduct in the future by the enemy.
The first of these goals is within the ambit of that which is permissible since civilian deaths are unintentional. The same would appear to be true about the second, providing that the targets are genuine economic targets related to the economic base needed to wage the war and the death of civilians are not directly desired. It would appear that the third goal is not legitimate absent the designation of “compulsory” or “obligatory” war. The final goal raises a whole series of issues beyond the scope of this article and could perhaps provide some sort of justification for certain types of conduct in combat that would otherwise be prohibited, although its detailed analysis in Jewish law is beyond the scope of this paper and relates to circumstances where retaliation or specific deterrence might permit that which is normally permitted; Rama, Yoreh Deah 334:6 in Glosses on Shulchan Aruch (1896) and Taz (ad locum) and Minchat Chinuch, Commandment 338.
28 Laws of Kings 6:8. See Shaviv, R. Yehuda, Betzer Eviezer, (Ztomet, 1990) at 120-21Google Scholar.
29 Negative Commandment 57.
30 In his supplement to Maimonides, Book of Commandments (Positive Commandment 6).
31 The rules related to sexuality in combat are unique in Jewish law because the Talmud (Kidushin 21b) explicitly states that even that which is permissible was only allowed because of the moral weakness of men in combat. While the details of these regulations are beyond the scope of this paper (see Shlomo Yosef Zevln, Leor Hahalacha, pp. 52-54 (2d ed. 1956) for a detailed description of these various laws), it is clear that the Bible chose to permit (but discourage) in very narrow situations rape in wartime so as to inject some realistic notion of morality into what could otherwise be a completely immoral situation. The rules explicitly prohibited multiple rapes, encouraged marrying such women, and limited the time period where such rape was permitted to the immediate battlefield.
A number of liberalities in ritual law were also allowed, reflecting the unique aspects of war. Why these particular laws did not apply in wartime, but others did, is a topic beyond the scope of this paper.