Just War in Jewish Thought

Emek Beracha, Palo Alto, 23 May 2014

Josef Joffe

Stanford University

I would like to talk about a small part of Sotah: its take on just war. And I would like to start with an admission: As a scholar of war and peace, I never thought about the Talmud as a go-to source. For me, the theory of the just war, like international law in general, was always located in 16^th and 17^th century Europe and tied to the great theorists Francisco Suarez, Hugo Grotius and Samuel Pufendorf. In the 20^th century, I went to thinkers like Reinhold Niebuhr and Michael Walzer.

So I was happy to see that the sages had a leg up on these great jurists – by almost 1500 years.

Modern just war theory rests on four pillars:

· The cause of war must be just

· War has to be the last resort, after all other means have been exhausted

· Force has to be proportional to the purpose and the provocation. It must not be sheer mayhem, with no limits.

· The probability of success has to be high

Sotah does not say very much about the last three items. The prospect of success, the ideas of last resort and proportionality are thoroughly modern concepts, and yet I was fascinated to learn that they show up elsewhere in the Jewish corpus.

For instance, In Deuteronomy 20, the Torah states that the attacking army of Israel must first give the enemy a chance to opt for peace and accept Israel’s sovereignty. So here you have in nuce the idea of war as last resort.

The Rambam say that a siege must leave an escape route for non-combatants. At the core here is the idea of proportionality: make war, but do not commit senseless slaughter, and spare the non-combatants. This idea was codified in the Geneva Conventions of the early 20^th century.

Elsewhere, in Shavuot 35b, the Talmud prohibits the waging of war in a situation where the casualty rate exceeds a sixth of the population. This is not quite the idea of proportional, but of limited war – that war must not degenerate into total war.

Let me dwell on proportionality for a moment. It is a concept the IDF confronts every time it bombs Gaza or moves into the Westbank. Such operations are routinely deemed “disproportionate” or “excessive.” For instance, during the incursion into Jenin 2002, the UN blamed Israel with a “massacre” that had allegedly claimed 500 Palestinian lives. In fact it was 52, half of them combatants. On the Israeli side, 23 fell.

I should mention that the IDF’s code of conduct is probably the world’s most restrictive. It is unique in endowing every life with holiness, one’s or the enemy’s. whence strict rules about protecting the civilian population follow.

One more word about proportionality before we delve into Sotah proper. This modern concept plays a large role in the contemporary debate, ever since the area bombardments of World War II and the prospect of mega-death meted out by nuclear weapons.. It is the idea that your response has to fit the crime, and no more – Proportionality was probably invented first by the Jews, with the injunction “a life for life, an eye for eye, a tooth for tooth.”

This line is often used to show how vengeful the Jewish God is. In fact, this rule marked an enormous moral progress in the Middle East. Instead of taking a life for an eye, retribution had to be proportional – and eye for an eye.

Now, let me throw a spanner into these conceptual works. From a Realist perspective, proportionality is not totally persuasive.

Coldhearted realism actually bids you to act disproportionately in war, the rule being not a tooth for a tooth, but three for one in order to establish what modern-day strategists call “deterrence.” For a country like Israel, for any country with a narrow, vulnerable geography, the ability to deter an attack by promising swift and disproportionate punishment obviously is better than to fight the enemy on your own territory. To deter a war is better than having to fight one.

Interestingly, American law now applies the principle of “punitive damages” on top of the actual compensation due to plaintiff. The purpose is to deter future malfeasance. In other words, it is about “disproportionality.”

Now, after some perambulations on the modernity of ancient Jewish thinking, to Sotah proper.

Sotah, written in the second century CE, makes an interesting distinction the secular law on war no longer makes, It is the distinction between milchemet reshut and milchemet mitzvah.

The first, reshut, is by human authorization. The second, mitzvah, is by divine command. Today, we folks in the West no longer ask God to bless our cannon. We leave that to Jihadists who firmly believe that Allah is on their side.

But here again, we have a very modern distinction, on which we draw all the time in our debates. Milchemet reshut, if you stretch it a little, is what we call “war of choice.” Milchemet mitzvah is what we call “war of necessity.” The best example of such a war is a defensive war.

Why dwell on this distinction between reshut and mitzvah, between choice and necessity, between voluntary war and obligatory war fought under a hovah , and obligation.

Sotah deals with this distinction for a very practical reason. The nature of the war makes a huge difference to those called upon to fight it because for those on the frontline war is literally a matter of life and death. Participation in wars of choice, according to Sotah, was optional, whereas it was compulsory in wars of necessity.

In modern terms: In WW II, a war of necessity if ever there was one, the draft was perfectly legitimate. Yet not so in a war of choice like Vietnam. Why die in a war that was not perceived as necessary or obligatory? No wonder that the Nixon administration abolished the draft in 1973.

Let’s listen more closely to what the sages had to say. In a war of hovah, all must go. Here is an almost poetic passage from Sotah: “In the wars commanded by the Torah, all go forth, even a bridegroom from his chamber and a bride from her canopy.”⁵

But what exactly is hovah? TheTalmud wouldn’t be the Talmud if it made the answer so easy. So let me now quote this passage, Sotah 44b

“R. Johanan said: “A war designated voluntary according to the Rabbis is commanded according to R. Judah, and [a war designated] commanded according to the Rabbis is obligatory according to R. Judah. This triggers a very fine-spun debate, but I will translate it very simply: In one case, R. Judah disagrees with the rabbis, in the other he agrees.

But then we get to Raba who makes a more easily understood distinction: “The wars waged by Joshua to conquer [Canaan] were obligatory in the opinion of all; the wars waged by the House of David for territorial expansion were voluntary in the opinion of all; where they differ is with regard to [wars] against heathens so that these should not march against them. One  calls them commanded and the other voluntary,”

Why read you these complicated passages? To show that the rabbis were stuck in the same difficult debate between choice and necessity we keep facing today. So R. Judah stresses rabbinical authority in making the distinction between obligatory and voluntary. But then Raba counters: not so fast, Reb Judah. Here, he says, is an example of a good war (Joshua), and here is an example of a not-so-good war, namely a war of expansion.

And, finally, Rabah counsels: don’t overreach by attacking the heathens. They may get the better of you. This injunction foreshadows another element of modern just war theory I noted at the very beginning: the probability of success as a condition for making war.

The rule here is quite apropos of America in the 21^st century: Don’t start something you can’t sustain, let alone win. This is good advice for any great power in the 21st. century.

Let me in conclusion stress what I mentioned in the beginning: that Jewish thinking on war foreshadows so much of modern thought. And let me close on another point, though it is not taken from Sotah.

Jewish thinking on war is not pacifist. To the contrary. Ignoring evil is not merely irresponsible, but also reprehensible, as expressed in Leviticus 19:16: “Thou shalt not stand idly by the blood of thy neighbor. “ Pacifism, I argue, is a corrupt morality. If you say, as unconditional pacifists do, that peace is the highest value, you are also saying, wittingly or not, that you are willing to betray any other value for the sake of peace: friendship, family, country, obligation, freedom, justice and the responsibility to protect.

The “responsibility to protect” has entered the international law discourse in the last 20 years – very late in the game. But the basic idea is already contained in Leviticus.

So what did I learn in Sotah? How amazingly modern Jewish thought is though it was laid down almost 2000 years ago. Thank you for listening to me and to all of us.