The Morality of War
Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion
Shiur #13: THe Morality of war
Rav Chaim Navon
INJURY TO INNOCENT CITIZENS
The earliest question relating to the morality of war was raised in connection to the massacre perpetrated by Shim'on and Levi in the incident involving Shekhem. Ya'akov Avinu opposed his sons' actions. His comment at the time, "You have brought trouble on me to make me odious among the inhabitants of the land" (Bereishit 34:30), suggests that his opposition was motivated by practical, security considerations. However, the curse that he pronounced upon his sons prior to his death, "Shim'on and Levi are brothers; instruments of cruelty are their swords. Let my soul not come into their council; to their assembly let my honor not be united; for in their anger they slew a man, and in their selfwill they lamed an ox" (Bereishit 49:5-6), suggests severe moral condemnation. Who was right? Ya'akov or his sons? A classic discussion of this question is found in the commentary of the Ramban. The Ramban brings the Rambam's perspective on this issue, rejects it, and proposes his own understanding:
Now many people ask: "How did the righteous sons of Ya'akov commit this deed, spilling innocent blood?" The Rabbi (= Rambam) answered in Sefer Shofetim (Hilkhot Melakhim 14:9), saying that sons of Noach are commanded concerning laws, and thus they are required to appoint judges in each and every district to give judgment concerning their six commandments which are obligatory upon all mankind. "And a Noachide who transgresses one of them is subject to the death penalty by the sword. If he sees a person transgressing one of these seven laws and does not bring him to trial for a capital crime, he who saw him is subject to the same death penalty. It was on account of this that the people of Shekhem had incurred the death penalty because Shekhem committed an act of robbery and they saw and knew of it, but they did not bring him to trial."
But these words do not appear to me to be correct for if so, Ya'akov Avinu should have been the first to obtain the merit of causing their death, and if he was afraid of them, why was he angry at his sons and why did he curse their wrath a long time after that and punish them by dividing them and scattering them in Israel? Were they not meritorious, fulfilling a commandment and trusting in God who saved them?
From this it would appear that a non-Jewish judge may say to the litigants, "I am not beholden to you" and surely he is not to be slain for failing to make himself chief, overseer or ruler, in order to judge superiors. Moreover, why does the Rabbi have to seek to establish their guilt? Were not the people of Shekhem and all seven nations idol worshippers, perpetrators of unchaste acts, and practitioners of all things that are abominable to God? In many places Scripture loudly proclaims concerning them However it was not the responsibility of Ya'akov and his sons to bring them to justice.
But the matter of Shekhem was that the people of Shekhem were wicked and had thereby forfeited their lives. Therefore, Ya'akov's sons wanted to take vengeance of them with a vengeful sword, and so they killed the king and all the men of his city who were his subjects, obeying his commands. The covenant represented by the circumcision of the inhabitants of Shekhem had no validity in the eyes of Ya'akov's sons for it was done to curry favor with their master. But Ya'akov told them here that they had placed him in danger, as it is said, "You have brought trouble on me to make me odious," and there, he cursed the wrath of Shim'on and Levi for they had done violence to the men of the city whom they had told in his presence, "And we will dwell with you, and we will become one people." (Ramban, Bereishit 34:13)
The Ramban argues that while the people of Shekhem were idolaters subject to the death penalty, it did not fall upon Ya'akov and his sons to administer their punishment. Moreover, Ya'akov's sons did not kill the people of Shekhem on account of their idolatrous practices, but because of their anger towards Shekhem. And furthermore, the sin of Shim'on and Levi lies in the fact that they violated the pact that they had made with the people of Shekhem. It was for these reason that Ya'akov cursed them.
For the sake of fairness, mention must be made of the unique position of the Maharal, who justifies the action taken by Shim'on and Levi, explaining what they had done in light of the rules of war between nations:
Two nations, like the people of Israel and the Canaanites, who constitute two nations, are not the same They were, therefore, permitted to fight as one nation that comes to fight another nation, which the Torah permits. Even though the Torah states, "When you come near to a city to fight against it, then proclaim peace to it" (Devarim 20:10), this applies when they did nothing to Israel. But where they did something to Israel, as in this case where they did this villainy, even though if was only a single individual who did it since he was part of the nation, and they started, they [= the sons of Ya'akov] were permitted to take revenge against them Even though there were many who did nothing, it makes no difference, since there were those of the nation who wronged them, they were permitted to wage war against them, and so is the case in all wars. (Maharal, Gur Arye, ad loc.)
The Maharal distinguishes between a personal conflict and a national war. A national war may be fought on account of the crime of an individual, and in the course of that war, that individual's country-mates are legitimate targets. Both the Rambam and the Ramban adopt an entirely different approach; the Rambam maintains that all the casualties had sinned and were liable for the death penalty, and the Ramban argues that the killing of the people of Shekhem was not justified, as is implied by the plain sense of the Torah and the words of Ya'akov. Common to both of them is the assumption that Ya'akov's sons were forbidden to kill innocent people. This is also the resolute position of R. Samson Raphael Hirsch:
Now the blameworthy part begins, which we need in no wise excuse. Had they killed Shekhem and Chamor there would be scarcely anything to say against it. But they did not spare the unarmed men who were at their mercy, and went further and looted, altogether making the inhabitants pay for the crime of their lord. For that there was no justification. For that Ya'akov too reproached them. (R. S.R. Hisrch, Commentary to Bereishit 34:25)
There are also those who justify the actions of Shim'on and Levi from the opposite direction not by legitimizing the massacre of a civilian population, but by arguing that this is not at all what Shim'on and Levi did. Thus writes the author of the Or ha-Chayyim:
The sons of Ya'akov had intended only to kill the transgressors, but all the townspeople stood up against them to prevent them from killing their king, and so they killed them based on the law of rodef (assailant). (Or ha-Chayyim, Bereishit 34:25)
Tractate Soferim records a statement of Rabbi Shimon bar Yochai, which seems to indicate that one must not demonstrate compassion during wartime:
R. Shim'on ben Yochai said: [Even] the best among the idolaters, during wartime - kill him. (Soferim, 15:10)
This position is found also in the Mekhilta, where it relates to a specific situation the Egyptians versus the children of Israel:
"And he took six hundred chosen chariots" (Shemot 14:7). To whom belonged the animals who bore the chariots? If you say they belonged to the Egyptians, surely it was already stated: "And all the cattle of Egypt died" (Shemot 9:6). And if you say they belonged to Par'o, surely it was already stated: "Behold, the hand of the Lord is upon your cattle which is in the field" (Shemot 9:3). And if you say they belonged to Israel, surely it was already stated: "Our cattle shall also go with us; there shall not a hoof be left behind" (Shemot 10:26). So to whom did they belong? They belonged to those who feared the word of the Lord. We learn from this that the cattle rescued by those who feared the word of the Lord were a stumbling block for Israel. From here, R. Shim'on would say: The best among the heathens kill; the best among the snakes smash his brain. (Mekhilta Beshalach, masekhta de-vayehi)
According to the midrash, the cattle that Par'o conscripted to pursue Israel belonged to the Egyptians "who feared the word of the Lord" and therefore their cattle had been saved. From this we conclude: "The best among the heathans kill." Rabbenu Bachya, however, limits the scope of this allowance. The killing of heathens is generally permitted only in a case of self-defense. The killing of the Egyptians was an exceptional situation:
The explanation is that only at a time of war is it permissible to kill [a heathen]; since he is fighting you and has come to kill you, you too may go out first and kill him. But not at a time of war it is forbidden, for even during war we are commanded to call out to them in peace, even toward the seven [Cana'anite] nations about whom it is written: "You shall save alive nothing that breathes" (Devarim 20:16). But when he comes against the Holy One, blessed be He, intending to rebel against Him, as did the Egyptians, even not during wartime it is permitted, for it is a war on behalf of God. For the Egyptians, since they had already seen in the plague against the firstborns that it was the Holy One, blessed be He, Himself who inflicted the plague, and now they came back at the sea their only intention was to fight the Holy One, blessed be He. This is why Moshe said to them [=Israel]: "The Lord will fight for you" (Shemot 14:14). That is to say, since they are still pursuing you, from now on the war is on behalf of God, blessed be He, and so they became liable for drowning in the sea. (Rabbenu Bachya, commentary to Shemot 14:7)
R. Goren is also of the opinion (in light of tractate Soferim's emphasis of the fact that we are dealing with wartime) that R. Shim'on bar Yochai was referring to enemies who pose a direct threat. But he never meant to permit the killing of every non-Jew. This is also the way the midrash was understood by R. Yechiel of Paris in his disputation with the Christians. Thus also ruled the Rambam, that one may not kill a non-Jew outside the context of war:
But one may not procure the death of heathens against whom we are not at war. (Hilkhot Rotze'ach 4:11)
R. Yisraeli ruled that a military operation should not be suspended out of fear of peripheral civilian damage, for that is the way of war. But civilians should not be intentionally targeted:
The upshot of all this is that there is room for operations of reprisal and revenge against the enemies of Israel, and such operations fall into the category of obligatory war. Any injury or damage caused to the militants, their supporters, or their children - they are responsible for it, and they bear their sin. There is no obligation to refrain from reprisal operations out of fear that innocent people may be hurt, for we are not the cause, but rather they themselves, and we are free [of responsibility]. However, intentionally striking at children, we only find for the sin of idolatry. It is, therefore, proper to take precautions not to hit them. (R. Sh. Yisraeli, Amud ha-Yemini, no. 16, p. 205)
R. Goren issued an unequivocal ruling that striking at civilian populations that are not participating in the war effort is forbidden:
Despite the explicit Torah obligation to wage war, we are also commanded to have mercy on the enemy, and even during wartime, only to kill when it is necessary for self-defense for the purpose of conquest and victory; and not to attack non-combatants, and certainly not to strike at women and children who are not participating in the war effort. With the exception of obligatory wars about which we were explicitly commanded by the Torah in ancient times, "You shall save alive nothing that breathes" (Devarim 20:16), since the enemies of that time also practiced cruelty, and so the Torah was stringent about them. Nothing may be learned from them, God forbid, about other wars or about our time. (R. Goren, Meshiv Milchama I, p. 14)
SHOWING MERCY TO THE ENEMY
Torah law requires us, when laying siege to an enemy city, to leave one side open and unguarded, in order to allow the enemy to run away. The Ramban explains this mitzva in the following manner:
We are commanded that when we lay siege to a city to leave one side without a siege, so that if [the inhabitants] wish to run away they should have an escape route. For in that way we will learn to conduct ourselves with compassion even towards our enemy during wartime. There is also another advantage, in that we allow them an escape route, and so they will not come out in force against us. (Ramban, Addenda to Sefer ha-Mitzvot, positive precept, no. 5)
While the Ramban also sees in this mitzva wise military strategy, not to press one's enemy when his back is against the wall, he primarily views it as a moral commandment, teaching us to show compassion even to our enemy in a time of war. Here we are dealing not only with civilians, but even with combatants who have decided to run away.
CHANGES IN WARTIME PRACTICES OVER THE GENERATIONS
It should be noted that the morality of war has changed over the course of the generations. This applies even with respect to Torah morality, from various angles. R. Kook emphasized one aspect, when he explained that it had been impossible in the past to expect the Jewish people to raise themselves very much over the level of the rest of the world:
As for matters of war, it would have been absolutely impossible, at a time when our neighbors were all quite literally wolves that only Israel should not fight. For then they would all have assembled together and destroyed their remnant, God forbid. On the contrary, it was exceedingly necessary to cast dread on the savages even by way of cruel practices, though with the hope of bringing humanity to where it must be, but not to press the hour. (R. Kook, Iggerot ha-Ra'aya, I, no. 89, p. 100)
According to this approach, the wars of the past cannot teach us very much about the desired morality of war, for in the past it had been necessary to lower the wartime conduct of the Jewish people to the level observed by the nations of the world. R. Yisraeli adds another point in this context. He argues that the very allowance to fight stems from the practices of the nations of the world. Thus, it follows that even on the halakhic level, international standards for the waging of war have binding force:
The practices of the various kings and governments are regarded as the general consensus of mankind Surely there is general agreement in the world that war is one way of resolving conflicts between one nation and another. Only in recent generations have people been working on having war recognized as illegal. But the generation is not yet fit, and [countries] are not yet ready to enter into mutual agreements of this sort. Therefore, it may be seen as the consensus of the nations that war is one of the legal means [of resolving conflict], as long as the fighting nations observe the internationally accepted rules of warfare. (In our generation, for example, the rule that the beginning of operations must be preceded by a [formal] declaration of war. Similarly, from time to time, agreements are signed limiting the use of certain weapons, and the like.)
Now, we can say that dina demalkhuta between nations is also based on the agreement of the inhabitants of those countries, and even though it touches upon matters of life and death, their agreement has binding force. This is the foundation of the legality of war. And indeed, if all the nations would agree to ban war, in a manner that it would cease being the commonly practice among the nations, neither war nor conquest would be legal, and the nation that went out to war would be judged as murderers. However, as long as the waging of war is accepted among the nations, war is also not forbidden by Torah law. For this reason Israel is permitted to engage in optional war Therefore, one must examine with respect to the matter at hand (regarding Kibiya and the like) whether a response of this sort is accepted among the nations. (R. Sh. Yisraeli, Amud ha-Yemini, pp. 194-202)
According to R. Yisraeli, the halakhic allowance to wage war depends upon the accepted practices among the nations of the world at the time. The means of wars are also dependent upon the practices and agreements of the nations. International treaties that nobody observes have no halakhic force, but the actual practices of the nations on the battlefield do.
THE ATMOSPHERE OF A MILITARY CAMP
The Torah also forbids vandalism even if does not involve killing:
When you shall besiege a city a long time, in making war against it to take it, you shall not destroy its trees by forcing an axe against them: for you may eat of them, and you shall not cut them down; for is the tree of a field a man, that it should be besieged by you? (Devarim 20:19)
The Rambam codifies this mitzva as follows:
By this prohibition we are forbidden to destroy fruit-trees during a siege in order to cause distrss and suffering to the inhabitants of the beseiged city. It is contained in His words, "You shall not destroy the trees thereof" (Devarim 20:19) (Rambam, Sefer ha-Mitzvot, negative precept 57)
The Rambam explains that these verses forbid acts of vandalism that have no direct military benefit, but are intended to demoralize the enemy. The Ramban disagrees with the Rambam:
When we lay siege on a city to fight against and conquer it, we are commanded to have mercy upon it, as we would have mercy on our booty, for perhaps we shall conquer it. When, however, we go out to an enemy country, we may destroy every good tree, and during a siege, we may press the inhabitants of the city by destroying the trees, so that they not live from them. All this is permitted. The Torah only forbade pointless destruction The Rambam's formulation of this mitzva is imprecise. (Ramban, Addenda to Sefer ha-Mitzvot, positive precept no. 6)
The Ramban sees this prohibition as focused on the problem of wanton destruction, and not on concern for the enemy. It is possible that even the Rambam would agree that vandalism is permitted for the sake of military benefit, even if it is indirect. Thus, their disagreement relates not to the practical aspects, but to the rationale of the law. Is the law based on showing mercy to the enemy, or on the prohibition against destroying articles of value?
Rabbenu Bachya also follows in the direction of the Ramban:
The commentators of blessed memory have explained that a man's life and sustenance is from the tree of the field And therefore I command you not to destroy it, because it contains blessing. In my opinion, however, [the words,] "for a man" are governed by [the negative in the words] "You shall not destroy." And the verse means: "For a tree of the field is not a man, so that it should be besieged by you like a man. And the actions of a wise and understanding nation do not include destroying a useful object for no benefit. Therefore you are not to expend energy in cutting down the trees of the field. Rather, you are to spare them from destruction, and maintain them, and exploit their benefit. This is [the meaning of] "for you shall eat of it," and if you destroy them, you will damage and lose the benefit. (Rabbenu Bachya, Devarim 20:19)
Here we are not talking about killing people, and so fundamentally it is permissible to destroy property for the sake of the war effort. But caution must be taken not to engage in pointless destruction.
Rabbenu Bachye and others have emphasized the aspect of expedience not to engage in pointless destruction of property that could serve us as well. Even if the mitzva does not focus upon showing compassion to the enemy, it nevertheless has a moral aspect, regarding the atmosphere accompanying the war and the spirit of the soldiers serious judgment or barbarism and vandalism. The Rambam also noted this danger, and the Torah's struggle against it:
And it is a known practice in the camps of those going out to war, that they eat all abominations, steal and rob with no shame, even [practice] adultery and every villainy. [Even] one who is upright by nature will don cruelty and anger when the camp goes out to war against the enemy. Therefore Scripture admonishes: "You shall keep from every evil thing" (Devarim 23:10). (Ramban, Commentary to Devarim 23:10)
 The Ba'alei ha-Tosafot express a similar idea; see Moshav Zekenim, ad loc.
 Meshiv Milchama, I, p. 15.
 Torah Shelema, Va'era, addenda, letter 19. Rav Kasher notes there that Rabbi Shim'on bar Yochai adds in tractate Soferim that the fittest of women is a witch. Clearly, the two sayings are mere statements, rather than halakhic rulings. He further notes that that the original reading (appearing in the Mekhilta) relates specifically to the Egyptians; were we to understand the statement in its plain sense, it would contradict the Torah's admonishment, "You shall not abhor an Egyptian."
 R. Goren explains that his source is certainly the aforementioned words of Rabbi Shim'on bar Yochai.
 Following the reading found in the Frankel ed.
 R. Yisrael's position was expressed in the wake of the Israeli army's reprisal operation in Kibiye, where sixty people were killed, including women and children. This operation came in response to the murder of a woman and her two young children in Yahud.
 See also R. Amiel, Techumin 10, p. 148.
 It should be noted that this mitzva only applies to optional wars.
 As for those who do not flee, the Torah writes that it is permissible, or perhaps even obligatory, to kill all the males (Devarim 20:10). It would seem that we are not dealing there with a war waged against the seven Canaanite nations, for there even the women and children are put to death. R. Neria Gutel has already noted that the halakhic authorities of our time have altogether ignored this law, and he proposed several explanations for this, e.g. international treaties, and the like (Techumin 23, pp. 24-25)
 Moral philosophy distingues between jus ad bello justification to go out to war and jus in bello just conduct of war.
(Translated by David Strauss)