The following article is excerpted and reprinted with permission from “War and Peace in the Jewish Tradition,” in The Ethics of War and Peace, edited by Terry Nardin and published by Princeton University Press.
But when they argued that the use of force was only “pure” if it was directed specifically and exclusively against armed enemies, it was Philo [the first century philosopher], too Hellenistic and too philosophical to play much of a part in the tradition, whose work they were echoing.
Few Jewish Armies, Few Ethical Dilemmas
The rabbis themselves have no such (explicit) doctrine. Why is it that we think them committed to humanitarian restraint? Why were the modern theorists of “purity of arms” so sure that theirs was the natural, with‑the‑grain reading of the tradition?
In fact, the tradition is rather thin, for the usual reason: there were no Jewish soldiers who needed to know what they could and could not do in battle. The law against murder would no doubt rule out direct attacks upon civilians, but the issue does not seem to have arisen (after the biblical period) until very recent times. Indirect attacks and unintended or incidental civilian deaths figure even less in the tradition. The only extended discussion by a major figure comes from the hand of Judah Loew of Prague, writing in the sixteenth century about the biblical encounter of Jacob and Esau (Gur Aryeh on Genesis 32:18).
The argument begins from rabbinic interpretation of a biblical doubling [of similar terms]: “‘Then Jacob was greatly afraid and distressed.’ Rabbi Judah ben Rabbi Ilai said: Are not fear and distress identical? The meaning, however, is that [Jacob] was afraid lest he should be slain and distressed lest he should slay [others].”
Loew takes Jacob’s concern to be with the men accompanying Esau, since Esau himself was assumed to be an enemy whose obvious intention was to kill Jacob (so it would be lawful to “kill him first”). But perhaps Esau’s men had been coerced to join his forces, perhaps they had no intention of participating in the attack. Loew concludes that Jacob would not be acting unlawfully to kill them in either case since, by accompanying Esau, they had taken on the guilt of his enterprise. Nonetheless, he is respectful of Jacob’s scruples, and the whole passage suggests that it would indeed be a sin to kill innocent people, even in the course of a legitimate military engagement.
The suggestion remains only that, however; it is not yet a developed argument, and it stands in the literature more as the resolution of a biblical difficulty than as a firm declaration of military policy. I am inclined, then, to accept with only minor reservations [J. David] Bleich’s claim that “there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem.”
Abolishing Siege Warfare
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 by [17th-century Dutch jurist Hugo] Grotius, survived as the radical alternative to the standard version of international siege law.
This is Maimonides’ summary (based on a second‑century teaching recorded in the [midrash] Sifre to Numbers): “On besieging a city in order to seize it, we must not surround it on all four sides but only on three sides, thus leaving a path of escape for whomever wishes to flee to save his life.”
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 of 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 Deuteronomy 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. What, for example, would Maimonides have said about the prophet Elishah’s call for an all‑out war against Moab (2 Kings 3:19), “And ye shall smite every fenced city…and shall fell every good tree, and stop all wells of water, and mar every good piece of land with stones”? This sounds like an easy case, except that Elishah’s advice could not easily be denounced. And how would besieged civilians fare when really hard choices had to be made, when the capture of the city was held to be militarily urgent or necessary?
Maybe It’s Okay to Fight Noncombatants
Debate about such questions in contemporary Israel has not yet produced a major theoretical statement. A number of rabbis have criticized the official “purity of arms” doctrine, writing as if it were an alien ideology (secular, Kantian, absolutist) and demanding a relaxation of its ban on the killing of enemy civilians.
The critics do not argue that enemy lives are worth less than Jewish lives, for at least with regard to protection against murder, the tradition is basically egalitarian. Their argument seems to follow instead from a deep suspicion, learned in the centuries of exile and probably better remembered among religious than secular Jews, about the extent of the enmity of the others. Nor is the enmity‑‑this is the concrete fear that goes with the generalized suspicion‑-reliably confined to soldiers. Civilians, too, wait and plan to do us harm.
But if this argument has traditionalist roots, it is also very close to all the (secular, anti‑Kantian, permissive) arguments that have been worked out in every contemporary nation whose soldiers have fought anti-guerrilla or counterinsurgency wars. The guerrilla is hidden among the people, who thus become complicitous in his struggle, or he hides himself and is thus responsible for the civilian deaths we cause when we try to find and attack him.
Anyway, war is hell, “for that is the nature of war,” wrote Rabbi Shaul Yisraeli after the Kibiyeh incident in 1954 [in which 69 Jordanian civilians were killed by Israeli forces], “that in it the innocent are destroyed with the wicked.” There exist both secular and religious responses to these arguments, but none of them seems to me specifically or in any strong sense Jewish. The resources of the tradition have not yet been fully mobilized and brought to bear in this (highly politicized) debate.
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