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Combatants and human shields: some inchoate thoughts on the ethics of war

In Just War, Philosophy on July 14, 2014 at 5:17 PM

This is a cross post. It was originally published at Harry’s  Place on July 10th 2014, 2:25 pm

The ethics of war, as we tend to understand it in the West, is handed down to us through the Catholic tradition. Just War Theory is broken down into two important areas (using pretentious Latin names) – jus ad bellum(legitimate reasons to go to war) and jus in bello (legitimate actions in war). For this post I am considering the actions in war: jus in bello.

There is a rule that is widely accepted and built into the Geneva Convention: non-combatants have immunity from attack. The term “non-combatants” tends to be used as opposed to “civilians” as it encompasses, as examples away from civilians, prisoners of war, army chaplains and army doctors who also cannot be deliberately targeted.

The Catholic tradition has built into it something known as the Doctrine of Double Effect (DDE). This doctrine differentiates between what is intended and what is foreseen but unintended. Consider the following: a combatant from Ruritania fires a missile into a city of Boldavia with the deliberate intent of killing Boldavian non-combatants (civilians). This is clearly prohibited by the Just War Doctrine. It breaches the idea that non-combatants are not to be deliberately targeted. Now consider the Boldavians. Fed up with missiles being fired into their cities targeting civilians they fire a bigger missile back specifically at the Ruritanians’ missile factory. When doing so the Boldavians foresee that not only will they destroy the missile factory as intended, but they will also realistically kill some civilians who happen to be in the area. These civilian deaths are foreseen but unintended. Using a standard military euphemism, they are “collateral damage.”

A way to think of the differences between the two cases is that the Ruritanians will feel they have wasted a missile if they have not killed Boldavian civilians whereas the Boldavians would be delighted if there were no civilians killed when they destroyed the Ruritanians missile factory. The deaths of the civilians is a bad consequence of the Boldavian action not an intended one. The Doctrine of Double Effect sets out the conditions that allow these foreseen but unintended bad consequences. The key points being that the bad effects are not intended, the act itself was a good one (eg destroying the missile factory) and that the foreseen bad effect is proportional. What is and what is not proportional can be in practice a hotly disputed matter.

Now consider human shields. I will break them down into two types: non-voluntary human shields and voluntary human shields. A non-voluntary human shield is simple to comprehend. It could be, for example, a child who is kidnapped and tied to the front of a tank, or patients in a hospital from which missiles are being fired. It is in breach of the ethics of war to use such human shields. Doing so should be seen as a war crime. But does this mean that the use of such human shields prohibits the targeting of a building used in such a way? The answer, in standard war ethics, can be found by applying the Doctrine of Double Effect.

Imagine the Ruritanians are firing not very accurate or powerful missiles into Boldavia from the roof of a hospital that contains one hundred patients. The Boldavians could destroy that missile capability but to do so they would also destroy the hospital foreseeing the deaths of the patients. If, as said, the Ruritanians’ missiles are not very accurate or powerful and, in practice, strike terror into Boldavians as opposed to killing them, it seems disproportionate for the Boldavians to target the Ruritanians’ hospital missile base. However, if the Ruritanians’ missiles get more and more powerful and more and more accurate, then targeting the hospital missile base might well be justified as it could be proportional. Consider, in the extreme, that the hospital missile base contained a nuclear missile that could wipe out a city of millions. The hospital patients’ immunity from being killed by a legitimate military action by the Boldavians is greater the more ineffective the Ruritanians’ missiles are.

Voluntary human shields are a different case entirely. Imagine Ruritanian civilians who answer a plea from a Ruritanian military general to sit on the roof of a building that contains military weapons. The purpose of them sitting on the roof – they understand. They are to be human shields whose mere presence is to deter the Boldavians destroying the building. I wish to argue that because they voluntarily respond to a military call they cease being non-combatants and become combatants. To explain further. Imagine Ruritania has a population of one million with 50,000 combatant members of its army. They have 1,000 missile bases. In advance of any military actions the head of the army puts out a call and asks for volunteers to sit in or near these military installations. Imagine 20,000 volunteer to do so. These 20,000 people, I would argue, become crucial to the military strategy of the Ruritanians. Because of the nature of their role I take the view that it should ethically fail: the human shields become combatants and not non-combatants and are thus they lose their immunity from attack. The proportionality requirement is relaxed. Boldavians do not need to be as concerned if voluntary human shields seated on the roof of the missile store lose their lives in an attack on the missile store if the missile store is a legitimate target.

UPDATE

It has been brought to my attention on Twitter by Mugwump that my views on the differing treatment of voluntary versus non voluntary human shields are not original. They are in line with Yoram Dinstein’s interpretation of international law. These views were published in his book, The Conduct of Hostilities Under the Law of International Armed Conflict, (Cambridge University Press, 2004) pp.130-131. The relevant pages can be accessed freely via Google Books, here.

Publish the Blair/Bush Letters

In Iraq, Just War on June 5, 2014 at 11:06 AM

This is a cross-post. It was originally published on Harry’s Place, June 5th 2014, 10:22 am

It appears the Cabinet Office has blocked publication of the George Bush/Tony Blair  correspondence that was written in the run up to the Iraq War.  All that can be published is the “gist” of what Blair said and nothing to indicate Bush’s views. The reason for blocking the publication is either for the Cabinet Office’s independent reasons or because they do not wish to antagonise the Americans.

Writing in The Times (subscription required), Melanie Phillips has said:

Publishing this correspondence would breach the understanding that dialogue between world leaders is necessarily private. It would undermine trust that any such future conversations would remain undisclosed, causing lasting damage to Britain’s relations with the US and thus to British interests.

I wish to dispute this premise. The world leaders in question are the then Prime Minister of the United Kingdom and the then President of the United States of America. Both were elected as leaders in democracies. As such they serve the population that they represent. They made decisions that ultimately led to British and American citizens, who had signed up to the army in their respective countries, going to war and risking their lives. Some died.

Any correspondence between Bush and Blair surrounding a decision to go to war should not remain private for ever. Such conversations are not like those asking each other what they had for breakfast. I do not believe that it is in the interests of the British and American populations that such conversations remain private. They should be official public records. In recent memory we have had a “thirty year rule” before public records come into the public domain. This is gradually being reduced to twenty years. There was a considered proposal to reduce it to fifteen years. In my personal opinion, for a lot of material, I do not see why it cannot be released within ten years or even earlier. It has been over eleven years since the commencement of the Iraq War and I can see no reason why it should be necessary to keep such correspondence away from the eyes of the public.

Melanie Phillips’ concern that publication of the correspondence “would undermine trust that any such future conversations would remain undisclosed,” is misplaced. We should not want our leaders to be able to act with impunity. It would be damaging to a liberal democracy if it were so.  Leaders should be held responsible and accountable for their actions. That would not be possible if those actions were kept secret. It is true that it would be bad mannered for the British government to publish private correspondence from an American President without permission if that correspondence has not yet been made public in America, but I think it is reasonable to suggest that if the British and American governments can cooperate on going to war, they should be able to cooperate on publishing correspondence about that decision.

Hat Tip: The Steeple Times.

The Bombing of Dresden and the Anti-Imperialist Left

In Just War, World War Two on February 16, 2014 at 6:51 PM

This week is the anniversary of the 1945 bombing of Dresden. Best estimates are that approximately 25,000 people died in that bombing raid.[1] Many of them would have been civilians. In my opinion, the death of any innocent civilian in a war is a tragedy and that is irrespective of nation in which that civilian lived. That does not mean to say that I have no consideration of the context of a bombing raid or lose my moral compass as to which side in a war was fighting a just war and which side was not.

The anti-imperialist left do not have the same morals as the rest of us. For them, criticising the actions of Britain, America and their allies takes precedence over criticising Nazi Germany, Saddam Hussein’s Iraq and other enemies of liberal democracies.

It therefore does not surprise me that a Facebook friend, who was long associated with the anti-imperialist left, has used his Facebook status to highlight the bombing of Dresden and to perpetuate what the historian Frederick Taylor has accurately described as a “pervasive postwar myth” that Dresden had no strategic value. [2] The 1942 Dresdner Jahrbuch (Dresden Yearbook) itself declared that Dresden was “one of the foremost industrial locations of the Reich.”[3] In fact, as Taylor demonstrates, factories in Dresden were responsible for making torpedo parts, shells, machine guns, directional guidance equipment, and much more to aid the Nazi war effort. Moreover, the city was a key junction for both North-South and East-West railways in Germany.[4]

The friend also used an out of context quote from a contemporaneous Bomber Command briefing note to express surprise that Bomber Command admitted that the bombing of Dresden was a sign to the Russians as well as an act on German’s industrial base. Had he explained the context then he would have mentioned that it was the Red Army that was advancing on Dresden and that the bombing of the city was to assist this advance.[5]

When challenged as to why he has highlighted the bombing of Dresden in his Facebook status but has not used his status to highlight the German bombing of London in the Blitz, the response, as expected, was that of course he viewed such bombing was a “bad thing.” I have no doubt that this is the case, but it does not change the fact that he has used his Facebook status to highlight the British bombing of Germany but never, as an example, used it to denounce the earlier Luftwaffe’s systematic bombing of Stalingrad which killed substantially more people than the bombing of Dresden.

Highlighting the crimes of Nazi Germany is not really of interest to the anti-imperialist left. The opportunity to attack Britain and America is of far more importance and the distortion of the historical record to do so is not something that seems to bother them.

References

[1] Richard J. Evans, Lying About Hitler: History, Holocaust and the David Irving Trial, (New York, Basic Books, 2002), p.177.
[2] Frederick Taylor, Dresden: Tuesday, 13 February 1945, (London: Bloomsbury, 2005), p.149.
[3] Ibid., p.148.
[4] Ibid., pp.149-165.
[5] Tami Davis Biddle, “Dresden 1945: Reality, History, and Memory,” The Journal of Military History, Volume 72, Number 2, (April 2008), P.427.

Philosophers and bizarre thought experiments, No. 3

In Just War, Philosophy, Thought Experiments on July 4, 2013 at 11:41 AM

Jeff McMahan wrote a book, published in 2009, that sought to turn on its head what we understand about morality in war which is based on the centuries old tradition of Just War Theory. In the traditional theory, the morality of war is broken down into two major areas: just reasons for going to war (jus ad bellum) and just actions in the conduct of war (jus in bello). It is accepted that there is a moral equality of combatants. Hence, even if one side was unjustified in going to war, it does not mean that the combatants on that side are war criminals unless they commit unjust actions such as deliberately killing civilians.

This can be illustrated by a good example. It is not particularly controversial to say that the Allies were the just side in the war against Nazi Germany in World War II and the Nazi side were the unjust side. According to standard theory, Nazi soldiers who were involved in permitted actions of a soldier, such as fighting other armies and not killing civilians, are not doing anything morally wrong. This means that while SS officers who were involved in killing Jews were war criminals, Rommel’s Nazi troops who stormed around North Africa but obeying the rules of war such as proportionality and not deliberately killing civilians are not morally blameworthy.

McMahan thinks this is wrong. He thinks that an unjust war should not be participated in and that soldiers are morally blameworthy if they fight for an unjust side. He would view, contrary to the standard theory, Rommel’s Nazi troops as war criminals.

A conflict can occur when a just side would kill innocent civilian without intent but as a side effect of a just action. McMahan argues that while soldiers on an unjust side should not engage in combat with a just side, innocent civilians on the unjust side are permitted to defend themselves from harm resulting from actions of the soldiers on the just side. McMahan’s case is illustrated with a very bizarre thought experiment:

Suppose that just combatants are justified in destroying a storage facility for chemical weapons, but that the destruction of the facility foreseeably creates a cloud of toxic gas that will soon engulf an area inhabited by innocent civilians. If the civilians could somehow blow the cloud of gas away, they would be permitted to do that, even if their only option was to blow it over the just combatants, who would then be killed by it.

Source:

Jeff McMahan, Killing in War, (Oxford University Press, 2009), p.47.

Collective Responsibility, a Biblical Episode, and Rabbinical Thought

In Israel, Jewish Matters, Just War on November 23, 2012 at 10:10 AM

This is a cross post. It was originally posted on Harry’s Place on November 22nd 2012, 5:30 pm

In the last few days, in the light of Israel’s Operation Pillar of Defense, a question has arisen as to whether the members of the population are responsible for its government.  This question is tied in with the idea of collective punishment.

In the first instance we had Gilad Sharon, son of former Israeli Prime Minister Ariel Sharon,  in an op-ed for the Jerusalem Post, saying:

The residents of Gaza are not innocent, they elected Hamas. The Gazans aren’t hostages; they chose this freely, and must live with the consequences.

The consequences, as far as he would like them, are rather dramatic:

We need to flatten entire neighborhoods in Gaza. Flatten all of Gaza. The Americans didn’t stop with Hiroshima – the Japanese weren’t surrendering fast enough, so they hit Nagasaki, too.[1]

Against this, from the opposite side, writing in the Huffington Post, we have British Member of Parliament and former Shadow Foreign Secretary Gerald Kaufman:

Israel is a democracy, undeniably. But a democracy that commits war crimes is still a war criminal. It has an exceptionally right wing government, with an overtly racist foreign minister. That government has taken office on the basis of an election. This means that the Israeli electorate is complicit in its government’s war crimes. [Emphasis added][2]

The question of whether the population can be held responsible for the actions of its government was hotly debated  on Twitter between the Huffington Post UK’s political director, Mehdi Hasan, and Guardian contributor and blogger, Sunny Hundal. Hasan argued that people “have to be held somehow responsible” for the governments they elect.[3] Despite being an outspoken opponent of the war in Iraq,[4] under questioning, he agreed “indirectly…as part of UK public in a democracy” that “to an extent” he was “complicit in the deaths of Iraqi babies.”[5] Hundal, on the other hand, was of the opinion: “This ‘all citizens complicit’ argument is a very slippery slope, because extremists will then act on it.”[6]

The question is indeed an interesting one. In this post I aim to look at an analogous biblical episode and commentary to which rabbis might look to in order to answer the question from a Jewish religious perspective. That episode is the one detailed in Genesis 34. The relevant facts are that Dinah, daughter of Jacob, was kidnapped and raped by Shechem, the son of Hamor and the Prince of the land. In response, two of Dinah’s brothers went and killed all the males of the city where Shechem lived and took the women and animals as spoils of war. While they were rebuked by Jacob for their actions, it does not appear that Jacob’s criticism at the time was from a moral standpoint: his concern was that it could lead to reprisals.[7]

Maimonides (the Rambam), Nachmanides, (the Ramban) and Rabbi Judah Loew ben Bezalel (the Maharal) were influential medieval biblical commentators who came to different conclusions on this episode. I will take each of these in turn.

Maimonides’s view was that the inhabitants of the city where Shechem lived could all be killed. They were all guilty of not setting up a court of law to render judgement on Shechem despite being aware of his deeds.[8] This responsibility to prevent crime and punish criminals is the responsibility both of each the individual member of society and society as a whole.[9] It is important to note that Maimonides assumes that the people are in a position to be able to put their leaders on trial. The populace could not be held responsible for not judging their leaders if attempting to do so would mean that that they would be killed.[10]

Nachmanides has a very different approach. His opinion was that  Dinah’s brothers had gone beyond the original plan which was just to deter Shechem from marrying Dinah. According to this view, even if they deserved to die for other reasons, Dinah’s brothers killed the populace “with no reason, for they did not do evil to [Dinah’s brothers] at all.” [11] Nachmanides is explicit: “it was not the responsibility of Jacob and his sons to bring them to justice.” [12]

The Maharal’s view is different again. He sees the kidnapping and rape of Dinah as a casus belli. When a nation is attacked, it is permitted to go to war. In war there is no distinction, as the Maharal interprets Jewish law, between the innocent and the guilty in a nation. Hence when Jacob’s sons responded to the taking of Dinah, they were permitted to kill all citizens in the town irrespective of any guilt: “even though there are many who did not do [anything], this makes no difference. As they belong to the same nation which did them harm, they are allowed to wage war against them.” [13]

The late Mordechai Eliyahu is the former Sephardi chief rabbi of Israel. In 2007, he cited Maimonides commentary on the Shechem incident in a published letter directed at the then Israeli Prime Minister. In this letter he argued that all citizens in Gaza are collectively responsible for the rockets fired from there into the Israeli town of Sderot. An entire city, he said, could be held collectively responsible in Jewish law for the immoral behaviour of individuals. According to Mordechai Eliyahu’s son, this meant, in practice, he advocated carpet bombing of areas from where missiles were fired.[14]

If one accepts the Maharal’s formulation, then one would believe that in war, as innocence is irrelevant, it is perfectly acceptable to kill a baby in its mother’s arms. This would be the position of, for example, Yaakov Ariel, Chief Rabbi of the City of Ramat Gan and a leading rabbi in the religious Zionist movement.[15] While Rabbi Yitzhak Blau argues that “Maharal represents a decidedly minority viewpoint with regard to [the Shechem indicent] and is thus a shaky leg upon which to build a far reaching position,”[16] Rabbi Chaim Jachter is insistent: “Maharal is a most solid source and most definitely does not constitute a ‘shaky leg’  upon which to base a resolution to our question.”[17] He is in no doubt: “the Israeli army may risk the lives of Palestinian civilians living near Palestinian terrorists. The same applies to Hezbollah terrorists embedded among the civilian population of Lebanon.”[18]

Interpretations of the Shechem incident provided by Maimonides (they are all guilty) or the Maharal (there is no difference between the innocent and guilty in war) might seem unpalatable to those whose moral views on war are more in line with the Geneva Conventions than these authorities on Jewish law. There are alternative Jewish religious views.

In Rabbi Shlomo’s Goren opinion, what is important about the Shechem incident is that Jacob criticised his sons for their actions. Jacob rejected “collective responsibility . . . as a criterion in the ethic of waging war . . . [and]  was opposed to killing . . . both from a security viewpoint and from an ethical one.” Goren was able to conclude:

We are commanded… even in times of war . . . not to harm the non-combatant population, and certainly one is not allowed to harm women and children who do not participate in war…[19]

Ayre Edrei of the Faculty of Law, Tel Aviv University explains: “There are no traces of the Maharal’s position in Rabbi Goren’s writings, for he sought to advance an ethical model for the Israel Defense Forces anchored in Jewish tradition.”[20] According to Ya’acov Blidstein, Professor Emeritus in the Department of Jewish Thought at Ben Gurion University, Rabbi Goren’s discussion “is not based upon Talmudic sources, nor does it confront the arguments of the opposing approaches. This naturally weakens its halakhic [Jewish legal] impact and authority.”[21] This may well be true. Even if so, Shlomo Goren’s opinions did not stop him being appointed Chief Rabbi of the Israel Defence Forces and later Chief Rabbi of the State of Israel.

References:

NB. All Internet links last accessed November 22, 2012.

[1] Gilad Sharon, “A decisive conclusion is necessary,” Jerusalem Post (Online Edition) November 18, 2012. Available at http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?ID=292466&R=R1&utm NB At the end of the article an editorial statement is made: “The views expressed in this op-ed do not reflect the editorial line of The Jerusalem Post.”
[2] Sir Gerald Kaufman, “Why I believe Israel is committing War Crimes,” Huffington Post UK, November 20, 2012. Available on line athttp://www.huffingtonpost.co.uk/sir-gerald-kaufman/gaza-israel-palestine_b_2164599.html
[3] https://twitter.com/mehdirhasan/status/270921613057355776
[4] Mehdi Hasan, “We can’t pin Iraq on Blair alone,” New Statesman, (Online edition) January 21, 2011. Available at http://www.newstatesman.com/uk-politics/2011/01/blair-war-iraq-secretary-prime
[5] https://twitter.com/mehdirhasan/status/270942111547936768
[6] https://twitter.com/sunny_hundal/status/270944198881054720
[7] Genesis 34. This can be seen online for example at http://www.mechon-mamre.org/p/pt/pt0134.htm
[8] Maimonides, The Laws of Kings and Their Wars, 9:14 Available on line at http://www.chabad.org/library/article_cdo/aid/1188354/jewish/Chapter-9.htm
[9] J. David Bleich, “Torture and the Ticking Bomb,” TRADITION, Vol. 39, No. 4, Winter 2006: pp.111-112.
[10] Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.16.
[11] Binyamin Singer, Ramban Classic Themes in Nachmanides’ Chumash Commentary: Volume 1: Bereishis & Shemos (Targum Press, 2005) pp.164-168.
[12] Nachmanides, Commentary on the Torah: Genesis, trans. Charles B. Chavel (Shilo, 1971), p.419 cited by Michael Walzer, “War and Peace in the Jewish Tradition,” In Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives, (Princeton University Press, 1996), p.98.
[13] The Maharal’s commentary Gur Aryeh to Genesis. 34:14, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.36.
[14] Matthew Wagner, “Eliyahu advocates carpet bombing Gaza: says there is no moral prohibition against killing civilians to save Jews,” Jerusalem Post (Online edition), May 30, 2007. Available at
http://www.jpost.com/Israel//Article.aspx?id=63137
[15] Michael J.  Broyde, “Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!”, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, (Yeshiva University Press, 2007), p.27, p.40n96.
[16] Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.11.
[17] Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 2,” Kol Torah, Vol. 17, No. 17, January 5, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_2.html
[18] Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 3,” Kol Torah, Vol. 17, No. 18, January 12, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_3.html
[19] Rabbi S. Goren, Meshiv Milhamah 1(Jerusalem, 1983 ) 16, 26, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.
[20] Arye Edrei, “Divine Spirit and Physical Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces,” Theoretical Inquiries in Law Vol. 7, 2005, p.287.
[21] Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.

Jewish Law and Proportionality in War

In Israel, Jewish Matters, Just War on November 8, 2012 at 5:57 PM

This is a cross post. It was originally posted on Harry’s Place on November 8th 2012, 3:30 pm

Peter Jenkins, Britain’s former representative on the International Atomic Energy Agency, has caused some controversy in a speech he gave at Warwick University where he stated:

Israelis don’t practise an eye for an eye and a tooth for a tooth, they practise ten eyes for an eye and ten teeth for a tooth.

He added:

The idea that a just war requires the use of force to be proportionate seems to be a Christian notion and not a Jewish notion. [1]

The Jewish Chronicle reports that in response to Jenkins’ comments, Jonathan Sacerdoti, director of the Institute for Middle Eastern Democracy, informed the audience that Jenkins’ speech was ‘laced with its subtle attempts at antisemitism, masked behind polite diplomatic chatter.’ [2] The Community Security Trust, an organisation that represents British Jewry to Police, Government and media on antisemitism and security, accused Jenkins of ignorance.[3]

Like many statements that are often used to attack Israel, while devoid of any context, there is an element of truth in Jenkins’ remark. Michael Broyde of the Emory University School of Law explains that while it is ‘terribly disquieting’ and ‘deeply uncomfortable’ to him:

Jewish law has no ‘real’ restrictions on the conduct of the Jewish army during wartime, so long as the actions being performed are all authorized by the command structure of the military in order to fulfill a valid and authorized goal and do not violate international treaties.[4]

The conclusion is stark: it is international treaties, not Jewish law that leads to the proportionality requirement of the conduct in war. While conventions external to Jewish law, but mutually agreed by the combatants, would be binding on all Jewish adherents, ‘Jewish law has few, if any, rules of battle.’[5]

Elliot Dorff, Rabbi and professor of Jewish theology at the American Jewish University comments that ‘the principle of proportionality is not nearly as clear and authoritative a tenet in Judaism as it is in Catholicism.’[6] Even more firm in his statement is Yishai Kiel of the Department of Talmud at the Hebrew University of Jerusalem. He points out that there is a ‘total absence of moral issues relating to warfare in the classical rabbinic statement regarding the laws of war in the eighth chapter of tractate Sotah, including the Mishnah, and theTosefta, and both Talmuds.’[7] Dorff points out that it is not even entirely clear as to whether Jewish law ‘requires any distinction between combatants and noncombatants even in the conduct of war.’[8]

Moreover, in advance of war, Rabbi Bleich,  Professor of Jewish Law and Ethics at the Benjamin N. Cardozo School of Law, in a conclusion largely agreed with by the eminent Just War theorist, Michael Walzer,[9] said:

Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians  but, to this writer’s knowledge, 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 [Jewish legal] or moral problem.[10]

Numerous Jewish laws (the discussion of which is outside the scope of this article) exist as to which wars are optional, which are commanded, and which are obligatory to fight. There are laws as to what must occur before a war. Notably, according to Maimonides, a great authority on Jewish law, it is obligatory to seek peace before a war is commenced:

One does not wage war with anyone in the world until one seeks peace with him…. as it says [in the Torah], ‘When you approach a city to wage war, you shall [first] call to it in peace.’[11]

A traditional Jewish greeting is ‘Shalom.’ This translates as ‘peace,’ but as Michael Walzer explains, ‘Shalom has a more local and immediate meaning, “not war,” as in the biblical command to “proclaim peace.”’[12] Yishai Kiel is explicit: ‘the “Call for Peace”…[is] ultimately designed to avoid the bloodshed concomitant with the state of war.’[13]

Moreover, the important thirteenth century Jewish scholar Nahmanides tells Jews:

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.[14]

 Jewish law prohibits wanton destruction. For as it says in the scripture:

When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them: for thou mayest eat of them, and thou shalt not cut them down. (Deuteronomy 20:19)[15]

In his codification of this prohibition of cutting down fruit-bearing trees, Maimonides expanded it to include other items: tearing clothes or demolishing a building, as examples, would both transgress the command ‘You shall not destroy.’[16]

 Rabbi Bleich informs us that in Jewish law an assessment must be made as to ‘whether a proposed war is indeed necessary and whether it will be successful in achieving its objectives.’ It is ‘only when the lives preserved are greater in number than the lives whose loss may be anticipated as a result of armed conflict’ that ‘the need to eliminate a potential aggressor is an imperative causus belli that renders even preemptive war permissible.’ He notes, ‘The justification of war in such circumstances is the saving of lives, not the punishment of the enemy.’[17]

When it comes to nuclear war, the late Chief Rabbi, Lord Jakobovits discussed the matter some fifty years ago:

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 the 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.

What is clear from Jakobovits’s argument that leads to his conclusion is that in his opinion, the immorality of the use of nuclear weapons in Jewish law is largely because the survival of both sides are endangered, for as he earlier says:

So long as wars were limited and it was likely that the belligerents would survive and one would emerge victorious, the basic right to arm and to wage war was clearly asserted by the law of self-defense, whether what was to be defended were lives or moral values. But if both the lives and the values to be defended may, as now appears possible, themselves be destroyed together with the aggressor in the exercise of self-defense, the right to resort to it is questionable.[18]

It is true, as Peter Jenkins suggested, that the concept of proportionality in war in the way that we understand it in the modern day owes much to Christian thought, specifically to Aquinas in the thirteenth century, as opposed to Jewish thought.[19] The reason why Jews did not historically focus on this area is obvious – and it was pointed out by the late Rabbi Louis Jacobs: ‘For 2,000 years Jews had no state of their own, so that the whole question was academic.’[20] Michael Walzer elaborated on this point: ‘Jews are the victims, not the agents, of war. And without a state or an army, they are also not the theorists of war.’[21]

The ethics of war are considered both by the State of Israel and by scholars of Orthodox Jewish law. In a meeting of the Orthodox Forum held in March 2004, a conclusion was as follows:

The committee believed that discussions about how Judaism conceives the justification for war and the conduct of war should not be held in a vacuum; they should not take place exclusively on the plane of [Jewish legal and traditional non legal Jewish narrative] sources. Rather, religious explorations must engage secular ethical perspectives and secular legalities, as well as perspectives promulgated by Christianity in its quest for a definition of ‘Just War.’ We need to place Jewish tradition in conversation with general moral sensibilities and international regulations.[22]

When it comes to the value placed on human life, rather than Jenkins’ argument that Israelis ‘practise ten eyes for an eye and ten teeth for a tooth,’ one can consider what occurred in practice: last year the Israeli government agreed to free 1,027 prisoners, including some with blood on their hands, in exchange for Gilad Shalit, a single captured Israeli soldier.[23]

The Israeli Defence Force (IDF) have a code of ethics. The Spirit of the IDF is drawn from a number of sources including ‘The tradition of the Jewish People throughout their history’ and ‘Universal moral values based on the value and dignity of human life.’ This code includes the idea of ‘Purity of Arms.’ The relevant clause I copy below:

The IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the necessary extent and will maintain their humanity even during combat. IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.[24]

I leave the last word to Michael Broyde:

We all pray for a time where the world will be different – but until that time, Jewish law directs the Jewish state and the American nation do what it takes (no more, but no less, either) to survive and prosper ethically in the crazy world in which we live.[25]

References:

Bleich, David J. 1983, ‘Preemptive War in Jewish Law’, TRADITION: A Journal of Orthodox Thought, Vol. 21, Number 1, Spring: 3-41.

Broyde, Michael J. 2007, ‘Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!’, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: 1-43.

Dorff, Elliot N. 1991, ‘Bishops, Rabbis, and Bombs’, in Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 164-195.

‘Ethics’, Israeli Defence Forces. Available on line athttp://dover.idf.il/IDF/English/about/doctrine/ethics.htm (Accessed November 8, 2012)

‘Israeli court rejects Shalit swap delay bid’, 2011, BBC, October 17. Available online at http://www.bbc.co.uk/news/world-middle-east-15338829 (Accessed November 8, 2012).

Jakobovits, Immanuel 1962, ‘Rejoinders’, TRADITION: A Journal of Orthodox Thought, Vol. 4, Number 2, Spring: 198-205.

Kiel, Yishai 2012, ‘The morality of war in rabbinic literature: The Call for Peace and the Limitation of the Siege’, in War and Peace in the Jewish Tradition: From the biblical world to the present, edited by Yigal Levin and Amnon Shapira, Abingdon, Oxon: Routledge: 116-138.

Kimelman, Reuven 1991, ‘A Jewish Understanding of War and Its Limits’, inConfronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 82-99.

Leventer, Herb 2007, ‘Philosophical Perspectives on Just War’, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: 45-92.

Peli, Pinchas H. 1991, ‘Torah and Weapons of Mass Destruction: A View from Israel’, in Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 69-81.

Scheinman, Anna 2012, ‘A just war? That’s just not Jewish, says ex-envoy’,  The Jewish Chronicle Online, October 25. Avilable online athttp://www.thejc.com/news/uk-news/88067/a-just-war-that%E2%80%99s-just-not-jewish-says-ex-envoy (Accessed November 8, 2012).

Shatz, David 2007, ‘Introduction,’ in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: xiii-xxxviiii.

Walzer, Michael 1996, ‘War and Peace in the Jewish Tradition’, in The Ethics of War and Peace: Religious and Secular Perspectives, edited by Terry Nardin, Princeton, New Jersey: Princeton University Press: 95-114.

Notes:

[1] Scheinman 2012.
[2] Scheinman 2012.
[3] Scheinman 2012.
[4] Broyde 2007, p. 7.
[5] Broyde 2007, p. 7.
[6] Dorff 1991, p. 180.
[7] Kiel 2012, p. 132.
[8] Dorff 1991, p. 176.
[9] Walzer 1996, p. 108.
[10] Bleich 1983, p. 19.
[11] Maimonides, Hilkhot Melakhim 6:1 cited in Broyde 2007,  p.19.
[12] Walzer 1996, p. 96.
[13] Kiel 2012,  p. 125.
[14] Broyde 2007, p. 21.
[15] Peli 1991, p. 73. (NB. In Peli’s article the reference is incorrectly provided as Deuteronomy 20:10. I have used the correct reference.)
[16] Maimonides, Hilkhot Melakhim 6:10 cited in Kimelman 1991, p. 90.
[17] Bleich 1983, p.25.
[18] Jakobovits 1962, pp. 201-2.
[19] Leventer 2007, p. 51.
[20] Jacobs, Louis 1973, What Does Judaism Say About…? New York: Quadrangle: p.228 cited in Dorff 1991, p. 171.
[21] Walzer 1996, p. 96.
[22] Shatz 2007, pp. xiii-xiv.
[23] ‘Israeli court rejects Shalit swap delay bid’, 2011.
[24] ‘Ethics.’
[25] Broyde 2007, p. 31.

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