Not All's Fair in War Part II

Q. What are some concrete guidelines from Jewish tradition for conducting a just war?

A. Last week we established the overall approach to war: war is not glorious or desirable, and Judaism is founded on a vision of brotherhood among all peoples. Yet in an imperfect world, war is sometimes a necessary means to realize this vision. The challenge is to carry out the means without losing sight of the ends.

In order to obtain more detailed insights, we need to go back to a principle we have mentioned a number of times: Our law often provides both a minimal, "lowest common denominator" ethical standard which we can never fall below, and also an ambitious ethical ideal which we strive to attain.

One prominent example is capital punishment. Jewish law legitimates capital punishment in a secular state, accepting that this drastic punishment may be necessary to establish law and order. But in an ideal Torah state, capital punishment is virtually non-existent. When Rav Moshe Feinstein was asked by the governor of New York for the Torah's approach to capital punishment, he began by describing the innumerable strictures which apply in the ideal situation, and only at the end added that if circumstances dictate then we may introduce a regime which is stricter, though still civilized. (1)

In war, as in capital punishment, the minimal standard is carefully elaborated in Maimonides code in the Laws of Kings. Some rules of just war are universal: presenting terms of peace before attacking, avoiding total war by creating a partially protected status for non-combatants, and so on. (2) Indeed, the very idea that there are laws of warfare, limitations on the freedom of military commanders and conquerors, bears a very important ethical message.

The ideal situation is obviously to avoid war altogether, but a more realistic objective for a war conducted with humane norms is the civil war between Judah (the southern kingdom) and Israel (the northern kingdom) recounted in II Chronicles chapter 28. We find that abominations committed by Ahaz, the king of Judah, led to an attack by the kingdom of Israel. The justification for the attack was to restore Judah to a civilized way of life, yet the victorious northern army treated the captives in a less-than-civilized way. For this they were rebuked by a prophet, and repaired their ways: "And the designated men rose up and took the captives. They clothed all the naked from the spoil, giving them clothes and shoes, and they fed them and gave them to drink and anointed them, and they led the weak on asses, and brought them to Jericho the city of palms, to their brethren, and they returned to Samaria."

This is civil behavior in a civil war. Should we then act this way to our enemies? It depends. The mishnah tells us that prior to going to war, the Jewish army is lectured by a specially appointed priest. He quotes the Biblical verse, "Hear, oh Israel, you go out today to war against your enemies." He then explains: "They are your enemies, and not your brothers ... who, if you fall into their hands, will have mercy on you" as we find in the above quote from the book of Chronicles. (3)

When we are facing a ruthless enemy who will have no mercy on us, we must do whatever is necessary to overcome them - exactly in order to bring about an end to ruthlessness and cruelty. But if we are facing an enemy who also adheres to basic rules of humane conduct in war, such as the Geneva convention, then the priest's admonition would have to be modified; since we are facing an enemy who will have a degree of mercy towards us if we are captured or defeated, we also should adopt accepted norms of conflict with them.

The idea that even something as inhumane as war can be conducted with some basic standards of humane consideration is well established in Jewish tradition. Modern agreements such as the Geneva convention mean both sides can refrain from unnecessary cruelty.

But to the extent that we face enemies who don't play by the rules, we must remember the priest's original admonition: to keep in mind that we are fighting enemies, and not brothers, and that these individuals will not display any mercy towards us. In this case we may have to adjust our norms in order to overcome the forces of cruelty and inhumanity. Yet even in this case, we have to keep in mind that the conflict of war is only a means to bringing about a peaceful future world where conflict is obsolete.

SOURCES: (1) Igrot Moshe, Choshen Mishpat II number 68 (2) Maimonides, Laws of Kings, chapter 6. (3) Mishnah Sotah 8:1.