WARFARE AND ITS RESTRICTIONS IN JUDAISM
Reuven Kimelman, Brandeis University
1. TYPES OF WARS
The Jewish ethics of war focuses on two issues: its legitimation and its conduct. The Talmud classifies wars according to their source of legitimation. Biblically mandated wars are termed mandatory. Wars undertaken at the discretion of the Sanhedrin are termed discretionary.
There are three types of mandatory wars: Joshua's war of conquest against the seven Canaanite nations, the war against Amaleq, and defensive wars against an already launched attack. Discretionary wars are usually expansionary efforts undertaken to enhance the political prestige of the government or to secure economic gain.
The first type of mandatory war is only of historical interest as the Canaanite nations lost their national identity already in ancient times. This ruling, which appears repeatedly in rabbinic literature, is part of a tendency to blunt the impact of the seven-nations policy. The Bible points out that these policies were not implemented even during the zenith of ancient Israel's power. Indeed, an ancient Midrash explicitly excludes the possibility of transferring the seven-nations ruling to other non-Jewish residents of the Land of Israel. Maimonides is just as explicit in emphasizing that all trace of them has vanished. By limiting the jurisdiction of the seven-nations ruling to the conditions of ancient Canaan it was effectively removed from the postbiblical ethical agenda and vitiated as a precedent for contemporary practice.
The second category of mandatory war, against Amaleq, has also been rendered operationally defunct by comparing them with the Canaanites, or by postponing the battle to the immediate premessianic struggle, or by viewing them as a metaphor for genocidal evil.
The two remaining categories, reactive defensive wars (which are classified as mandatory) and expansionary wars (which are classified as discretionary) remain intact. So, for example, King David's response to the Philistine attack are designated mandatory, whereas his wars "to expand the border of Israel" are designated discretionary. Intermediate wars such as preventive, anticipatory, or preemptive defy so neat a classification. Not only are the classifications debated in the Talmud, but commentators disagree on the categorization of the differing positions in the Talmud.
The major clash occurs between the eleventh century Franco-German scholar Rashi and the thirteenth century Franco-Provencal scholar Meiri. According to Rashi, the majority position considers preemptive action to be discretionary whereas the minority position expounded by Rabbi Judah considers it to be mandatory.
According to Meiri, a preemptive strike, against an enemy who it is feared might attack or who is already known to be preparing for war is deemed mandatory by the majority of the rabbis, but discretionary by Rabbi Judah. Accordingly, Rabbi Judah defines a counterattack as mandatory only in response to an already launched attack A similar reading of Maimonides also limits the mandatory classification to a defensive war launched in response to an attack.
With these distinctions between mandatory and discretionary wars in mind, we should be able to investigate the Jewish concerns with the problematics of war by focusing on preemptive strikes, declarations of war, ethics of warfare, and draftability.
2. PREEMPTIVE STRIKES AS SELF-DEFENSE
Not only Machiavellians view the security and survival of the state as nonnegotiable. National self-defense is as much a moral right as is personal self-preservation. Whereas it is clear that offensive war cannot be subsumed under the inalienable right of self-defense, the moral status of pre-emptive attacks is not as clear. Is the moral category of self-defense limited to an already launched attack? The majority talmudic position, according to Rashi, and that of Rabbi Judah, according to Meiri, would answer in the affirmative. Their position is seconded by Article 51 of the United Nations Charter, which states: "Nothing in the present Charter shall impair the inherent right of individual of collective self-defense if an armed attack occurs against a member."
The minority position of Rabbi Judah, according to Rashi, and the majority position, according to Meiri, however, hold that a preemptive strike against an enemy amassing for attach is close enough to a defensive counterattack to be categorized as mandatory. This position holds that to wait for an actual attack might so jeopardize national security as to make resistance impossible. Such an argument was championed by Lord Chancellor Kilmuir before the British House of Lords when he remarked with reference to Article 51: "It would be a travesty of the purpose of the Charter to compel a defending state to allow its opponents to deliver the first fatal blow."This judgment lies behind the endorsement by The United States House Appropriations Committee of the concept of a preemptive attack. Its conclusions were formulated as follows:
"In the final analysis, to effectively deter a would-be aggressor, we should maintain our armed forces in such a way and with such an understanding that should it ever become obvious that an attack upon us or our allies is imminent, we can launch an attack before the aggressor has hit either us or our allies. This is an element of deterrence which the United States should not deny itself. No other form of deterrence can be relied upon.*
This understanding of anticipatory defense allows for a counterattack before the initial blow falls. Under the terms of modern warfare, for example, if an enemy were to launch a missile attack, the target country could legitimately retaliate even if the enemy's missiles were still inside their borders. The doctrine of anticipatory defense allows for a preemptive strike even if the missiles are still on their launching pads as long as the order has been issued for their launching.
3. THE DECISION TO WAGE WAR: WHO IS AUTHORIZED TO DECLARE WAR?
Discretionary war, as opposed to mandatory war, requires the involvement of the Sanhedrin. Among the reasons for involving the Sanhedrin in the decision-making process is its role as the legal embodiment of popular sovereignty, the edah in biblical terms. Understanding this to imply that the high court was the legal equivalent of "the community of Israel as a whole," Maimonides uses interchangeably the expressions "according to the majority of Israel" and "according to the high court." Similarly, former Chief Rabbi of Israel, Shlomo Goren, explained that the requirement to secure the Sanhedrin's approval in a discretionary war derives from its representative authority. The involvement of the Sanhedrin in a discretionary war safeguards the citizenry from being endangered without the approval of their representative body.
The Sanhedrin is also involved because of its role as the authoritative interpreter of the Torah-constitution. Since the judicial interpretation for the law is structurally separate from its executive enforcement, the Sanhedrin serves as a check on executive power.
The involvement of the Sanhedrin in discretionary wars helps explain the obligation of citizens to participate. Military obligation is anchored in the biblical perspective that considers the people and the monarch to be bound by a covenant, each with its own obligations. Presumably, statehood involves a pact of mutuality. On the one hand, the people commit themselves to the support of the state and its ruler. On the other hand, the ruler is forsworn to uphold the constitution and not to unnecessarily risk their lives. Allocating some war-making authority to the Sanhedrin guarantees the presence of a countervailing force to the ruler thereby safeguarding the inviolability of the social contract.
Before granting authorization to wage war, the Sanhedrin must weigh the probable losses, consider the chances of success, and assess the will of the people. As David Bleich writes, "The Sanhedrin is charged with assessing the military, political and economic reality and determining whether a proposed war is indeed necessary and whether it will be successful in achieving its objectives." Since wars are always costly in lives, the losses have to be measured against the chance of success. Preventive warfare is unwarranted if the number of lives saved does not significantly exceed the number of lives jeopardized. Calculations of victory alone are not determinative; the price of victory must be considered. The great third century Babylonian talmudic authority Mar Samuel deemed a government liable to charges of misconduct if its losses exceeded one-sixth of the fighting forces. Thus in addition to projecting future losses a government is required to take precautions to limit them.
Nonetheless, as is well known, precision in military projections is well-nigh impossible. The gap between plan and execution characterizes the best of military calculations. Linear plans almost always fail to deal with the nonlinear world that rules strategy and war. Rabbi Eleazar in talmudic times noted, "Any war that involves more than sixty thousand is necessarily chaotic." Modern warfare has not significantly changed the equation. In the words of Prussian Field Marshal Helmuth von Moltke, "No plan can survive contact with the battle."
The Talmud and Midrash provide several considerations for the exclusion of the ruler from making these judgments alone. They can be divided into two categories. One, a ruler may be too prone to go to war; two, he may be too hesitant to go to war. With regard to the first, a ruler, may be insufficiently disinterested, predisposed to perceive war as an opportunity for enhancing personal prestige, for stimulating the economy, or for consolidating his political base. As the Talmud notes, nothing diverts public attention and deflects the opposition while simultaneously creating the need for a strong leader as war. Reflecting a similar insight, Josephus, well aware of the machinations of opportunistic rulers, pointed out that the biblical laws of warfare are meant to deter conquest by preventing war "waged for self-aggrandizement."
With regard to the second, a ruler may be too reluctant to commit his army for fear of incurring excessive financial burdens. The Talmud justifies excluding the ruler from some of the deliberations out of this fear that the expense of maintaining a standing army could unduly influence his judgment. In a government where the executive is responsible for balancing the budget similar considerations would obtain. There is also the concern that executive dilly-dallying might become a ruse to extend one's tenure in office.
In sum, before the populace may be endangered, the ruler's reasons for waging war have to be checked by the Sanhedrin's assessment of the people's interest. The Sanhedrin's participation is imperative. Being the more disinterested party, it is better positioned to assess the people's interest. Such a system of countervailing powers allows the interest of the state and the interest of the people to achieve a modicum of equilibrium.
4. THE ETHICAL CONDUCT OF WAR
A. Who is subject to immunity; what is subject to destruction:
The estimation of one's own losses and one's own interest is insufficient for validating discretionary war. The total destruction ratio required for victory must be considered. This assessment involves a "double intention," that is, the "good" must appear achievable and the "evil" reducible. For example, before laying siege to a city, a determination must be made whether it can be captured without destroying it. There is no warrant for destroying a town for the purpose of "saving" it.
The other rules for sieges follow similar lines of thought: Indefensible villages may not be subjected to siege. Negotiations with the enemy must precede subjecting a city to hunger, thirst, or disease for the purpose of exacting a settlement. Emissaries of peace must be sent to a hostile city for three days. If the terms are accepted, no harm may befall any inhabitants of the city. If the terms are not accepted, the siege is still not to begin until the enemy has commenced hostilities. Even after the siege is laid, no direct cruelties against the inhabitants may be inflicted, and a side must be left open as an escape route.
Philo warns that national vendettas are not justifications for wars. If a city under siege sues for peace it is to be granted. Peace, albeit with sacrifices, he says, is preferable to the horrors of war. But peace means peace. "If," he continues, "the adversaries persist in their rashness to the point of madness, they [the besiegers] must proceed to the attack invigorated by enthusiasm and having in the justice of their cause an invincible ally." Although the purpose of an army at war is to win, both Philo and the ancient rabbis rejected the claim of military necessity as an excuse for military excess. Despite the goal of victory, indeed victory with all due haste, aimless violence or wanton destruction is to be eschewed. As the Spanish commentator Nahmanides makes clear, acts of destruction are warranted only insofar as they advance the goal of victory. Weapons calculated to produce suffering disproportionate to the military advantage are not countenanced.
Excessive concern with moral niceties, however, can be morally counterproductive. When moral compunction appears as timidity and moral fastidiousness as squeamishness, they invite aggression. To ensure that moral preparedness be perceived from a position of strength, it must be coupled with military preparedness.
Philo, reflecting this concern for the military ambiguity of moral scruples, sounds a note of caution in his summary of the biblical doctrine of defense:
"All this shows clearly that the Jewish nation is ready for agreement and friendship with all like-minded nations whose intentions are peaceful, yet is not of the contemptible kind which surrenders through cowardice to wrongful aggression."
Much of the moral discussion of the conduct of the war derives from the prohibition in Deuteronomy 20:19-20 against axing fruit-bearing trees in the environs of the besieged city. The principal points deal with the issues of wanton destruction and the immunity of the noncombatant.
So, for example, Philo extends the prohibition against axing fruit-bearing trees to include vandalizing the environs of the besieged city:
"Indeed, so great a love for justice does the law instill in those who live under its constitution that it does not even permit the fertile soil of a hostile city to be outraged by devastation or by cutting down trees to destroy the fruits."
In a similar vein, Josephus expands on the prohibition to include the incineration of the enemy's country and the killing of beasts employed in labor. Despoiling the countryside without direct military advantage comes under the proscription of profligate destruction.
Maimonides takes the next step in extending the prohibition to exclude categorically all wanton destruction:
"Also, one who smashes household goods, tears clothes, demolishes a building, stops up a spring, or destroys articles of food with destructive intent, transgresses the command *You shall not destroy.*
According to Sefer Ha-Hinukh, mitzvah #529, the prohibition was meant "to teach us to love the good and the purposeful and to cleave to it so that the good will cleave to us and we will distance ourselves from anything evil and destructive." If the destructive urges provoked by war against nonhuman objects can be controlled, there is a chance of controlling the destructive urge against humans. The link between these two forms the basis of two a fortiori arguments for the immunity of noncombatants.
The first argument for the immunity of noncombatants is grounded in the biblical prohibition against axing fruit trees during a siege. Since the prohibition against their destruction can be formulated in a rhetorical manner, to wit, "Are trees of the field human to withdraw before you under siege?" (Deuteronomy 20:19), it is deduced that just as a tree - had it fled - would not be chopped down, so a person - were he to flee - should not be cut down. The logic of the argument is spelled out by the sixteenth-century Safedean exegete, Moses Alshikh. After mentioning the prohibition against the wanton destruction of trees, he notes, "all the more so it is fitting that he have mercy on his children and on his creatures."
The second argument is rooted in the ruling that a fourth side of a besieged city be left open. It is unclear whether the motive here is humanitarian or tactical. Whatever the case, the opportunity to escape saps the resolve of the besieged to continue fighting. Otherwise, as the fifteenth century Spanish-Italian exegete, Abarbanel, observes, they will out of desperation take heart "and seek to avenge themselves before they die... since one who despairs of life and well-being will risk his life to strike his enemy a great blow." Thus it is important to take measures to ensure that the chance to flee not be exploited for the sake of regrouping to mount rear attacks
Now, if (unarmed) soldiers have the chance of becoming refugees, then surely noncombatants and other neutrals do. The principle may be stated as no harm to those who intend no harm. Thus Abarbanel says with regard to the immunity of women and children, "Since they are not making war they do not deserve to die in it." Similarly, the Midrash explains that the fear of Abraham noted in Genesis 15:1 was due to him saying, "Perhaps it is the case that among those troops whom I killed there was a righteous man or a God-fearer." As noted, the principle of the immunity of noncombatants discriminates in favor of those who have done no harm. Even this principle that those who intend no harm should not be harmed is derived, according to Philo, from the case of the fruit tree: "Does a tree, I ask you, show ill will to the human enemy that it should be pulled up roots and all, to punish it for ill which it has done or is ready to do to you?" Obviously, the immunity of noncombatants cannot be sacrificed on the altar of military necessity.
In sum, as Philo notes:
The Jewish nation when it takes up arms, distinguishes between those whose life is one of hostility, and the reverse. For to breathe slaughter against all, even those who have done very little or nothing amiss, shows what I should call a savage and brutal soul.
From the limitations of sieges it can be extrapolated that weapons directed primarily at civilian targets would be proscribed. As such the military option of counter-people warfare in conventional war as well as mutually assured destruction (MAD) in nuclear warfare would be precluded. Multi megaton weapons whose primary goal is civilian slaughter and only secondarily military targets would be totally proscribed. As there are unacceptable weapons, so are there unacceptable targets.
B. The human dimension in war: the image of the soldier and the humanity of the enemy.
These ethical intrusions in the waging of war have two major foci: safeguarding the moral character of the soldier and preserving the human image of the enemy.
Any system that appreciates the realities of both the moral life and the military faces a dilemma in promoting the moral perfection of the individual while allowing for military involvement. Some systems forswear war as the price of moral excellence. Others apportion the moral life and the military life to different segments of the population. If the two are mutually exclusive, then a division of labor is a possible solution.
Neither alternative is totally acceptable in Jewish ethical theory. Regarding forswearing war, Maimonides pointed out that it was "the neglect of the art of warfare that brought about conquest, destruction, and exile" at the time of the Second Jewish Commonwealth. Clearly Maimonides would find it, in the words of Abba Eban, "hard to see why the advocates of unilateral renunciation are more `moral' than those who seek to prevent war by a reciprocal balance of deterrents and incentives." Solutions to conflict have to be judged by their effectiveness as well as by their virtue. Indeed, there is no reason to concede, as Eban continues, "that prevention of conflict by effective deterrence [is] less moral than the invitation to conflict by avoidable imbalance." For deterrence to be credible, the capacity to make war must be credible. Paradoxically, as Raymond Aron notes, "the possibility of unlimited violence restrains the use of violence without any threats even being proffered."
As noted, unilateral disarmament cannot be judged morally superior if it invites attack. A policy of abdication of power that results in condemning others to subjugation has a questionable moral basis. Since political naïveté can result in moral sin, Maimonides concludes his critique of the political sagacity of ancient Israel's leaders lamenting, "Our fathers have sinned, but they are no more."
While a division of labor on ethical lines is always a possibility, those who reject solutions predicated on the exemption of the ethical elites from the maintenance work of society have struggled with the challenge of sustaining the moral stature of the soldier.
These ethicists have focused on the brutalization of character that inevitably results from the shedding of blood in wartime. Indeed, as mentioned, Philo explained the prohibition against slaying the defenseless out of concern with the savagery of the soul of the soldier; whereas the Midrash even condemned a king for the ruthless slaying of an enemyIn the thirteenth century, Nahmanides, who elsewhere expressed his apprehension that "the most refined of people become possessed with ferocity and cruelty when advancing upon the enemy," opined that the Torah wants the soldier to "learn to act compassionately with our enemies even during wartime." In the fourteenth century, Sefer Ha-Hinukh (mitzvah #527) explained the requirement to leave open a fourth side of a besieged city saying, "the quality of compassion is a good attribute and it is appropriate for us, the holy seed, to behave accordingly in all our matters even with our idolatrous enemies." Isaac Arama noted, in the next century, that since "War is impossible without murder and hatred of humanity . . . and there is nothing like it to undermine all sense of right and wrong," that the Torah requires "the fighter be a man of peaceful intentions." In the eighteenth century, ²ayyim Attar underscored how killing, however justified, "gives birth to a brutalization of sensibilities," requiring special divine grace to be palliated.
In the nineteenth century, Samuel David Luzzato argued that since the Torah's purpose is to strengthen the forces of compassion and to counter the natural drive for only self-serving acts, it is concerned that we not become ingrates by casting stones into the well from which we drink. Such would be the case if, after eating the fruit of a tree, we were to chop down that very tree. Such agonizing over the moral stature of the soldier is summed up in the twentieth century in the words of former Justice Haim Cohen of the Israeli Supreme Court, "It seems that constant violence, even in self-defense, is not easily compatible with moral sensitivity." All the more reason to promulgate an ethic of soldiery in order to limit any skewing of the balance between military and moral competence.
The concern with the humanity of the enemy is also a significant issue. Referring to Deuteronomy 21:10ff., Josephus says the legislator of the Jews commands "showing consideration even to declared enemies. He . . . forbids even the spoiling of fallen combatants; he has taken measures to prevent outrage to prisoners of war, especially women." Apparently reflecting a similar sensibility, R. Joshua claimed that his biblical namesake took pains to prevent the disfigurement of fallen Amaleqites, whereas David brought glory to Israel by giving burial to his enemies. It is this consideration for the humanity of the enemy that forms the basis of Philo's explanation for the biblical requirement in Numbers 31:19 of expiation for those who fought against Midian. He writes:
"For though the slaughter of enemies is lawful, yet one who kills a man, even if he does so justly and in self-defense and under compulsion, has something to answer for, in view of the primal common kinship of mankind. And therefore, purification was needed for the slayers, to absolve them from what was held to have been a pollution."
Since, alas, there are times when evil has to be used to hold evil in check, the problem, as Rabbi Abraham Kook noted, is how to engage in evil without becoming so. His solution requires even the righteous to be constantly involved in repentance. In a similar vein, Philo, as noted above, requires rites of expiation even after necessary evils. Since there is no war without evil -- either because killing can never be deemed a good, or because war inevitably entails unnecessary killing -- there is no war that does not require penance. This explains, according to some, why the slaying that ensued after the Golden Calf episode required acts of expiation.
The ongoing dialectic between the demands of conscience and the exigencies of the hour was caught by Martin Buber in the following words:
"It is true that we are not able to live in perfect justice, and in order to preserve the community of man, we are often compelled to accept wrongs in decisions concerning the community. But what matters is that in every hour of decision we are aware of our responsibility and summon our conscience to weigh exactly how much is necessary to preserve the community, and accept just so much and no more; that we not interpret the demands of a will-to-power as a demand made by life itself; that we do not make a practice of setting aside a certain sphere in which God's command does not hold, but regard those actions as against his command, forced on us by the exigencies of the hour as painful sacrifices; that we do not salve, or let others salve our conscience when we make decisions concerning public life."
Buber stands in the tradition that brooks no compromise with the idea that, whatever the pretext, necessary evils remain evils.
C. The principle of purity of arms:
Those concerns for the moral quotient of the soldier and the life of the enemy inform the "purity of arms" doctrine of the Israel Defense Forces. The doctrine of purity of arms limits killing to necessary and unavoidable situations. Although the expression was apparently coined by the Labor-Zionist idealogue Berl Katznelson, it was former Prime Minister David Ben Gurion who made it a dogma of the Israel Defense Forces. How successfully it has been maintained under wartime conditions is illustrated by the following account of an Israeli unit entering Nablus during the Six-Day War:
"I entered first into Nablus after the tanks... There were many people with guns... I said to the battalion CO: `There are many people here with guns, to shoot or not to shoot? Then he said to me, `Don't shoot' It could have been that they several casualties could have been avoided afterwards if they would have gone straight into the city firing... The battalion CO, furthermore, got on the field telephone to my company and said, `Don't touch the civilians . . . don't fire until you're fired at and don't touch the civilians. Look, you've been warned. Their blood be on your heads.' . . . The boys in the company kept talking about it afterwards . . . . They kept repeating the words . . . .`Their blood be on your heads.'"
According to Israeli colonel Meir Pa'il, the purity of arms doctrine maintains the moral stature of the soldier without seriously compromising his fighting capacity:
"There can be no doubt that the turning toward extreme and consummate humanism can endanger the I.D.F.'s [Israel Defense Forces] ability to function, but experience has proved that the proportions of this danger are extremely small and that it does not constitute a phenomenon that really endangers the operative capacity and the efficiency of the defense forces."
A consistent thread weaves its way from biblical ordinance through medieval reflection to modern practice, as noted by exponents throughout the ages. Just because an army is legitimately repelling an aggressor does not allow it to wreak havoc with civilian life. The warrior is the enemy, not the noncombatant civilian. A just war does not justify unjust acts. There must be a consonance between means and goal. If peace is the goal, the reality of war is to be conditioned by the vision of the reconciliation between the warring populations. In this sense, education for peace forms part of military engagement.
5. IMPOSING ON MANDATORY WARS THE LIMITATIONS OF DISCRETIONARY WAR:
Many of these considerations for maintaining the moral stature of the soldier and the humanity of the enemy received their initial stimulus from those biblical passages on war that have been categorized as discretionary. Nonetheless, many of them became applicable to mandatory wars. Although the better-known tendency distinguishes between the two types of war, the inclination to underscore the overlap between them figures significantly in the classical discussion.
This drive toward moral convergence between the two types of war finds its roots in the Bible. Thus, in 1 Samuel 15:6, provisions are made to evacuate neutrals from the battle area even in the biblically mandated war against Amaleq.
In addition to some moral considerations, the two types of war share strategic considerations. Since the statement by Rabbi Eleazar in the Midrash about the chaotic nature of warfare derives from the numbers involved in the conquest of the Land of Israel, it follows that even the mandatory war of the original conquest of Israel required a weighing of victory against losses not unlike those of discretionary wars.
The Midrash traces the blurring of the distinctions between the two types of war back to the Torah. It finds in the following dialogue a way of parrying the assumption that overtures of peace are limited to discretionary wars:
"God commanded Moses to make war on Sihon, as it is said, `Engage him in battle' (Deuteronomy 2:24), but he did not do so. Instead he sent messengers . . . to Sihon . . . with an offer of peace (Deuteronomy 2:26). God said to him: `I command you to make war with him, but instead you began with peace: by your life, I shall confirm your decision. Every war upon which Israel enters shall begin with an offer of peace."
Since Joshua is said to have extended such an offer to the Canaanites, and Numbers 27:21 points out Joshua's need for applying to the priestly Urim and Tumim to assess the chances of victory, it is evident that also divinely-commanded wars are predicated on overtures of peace as well as on positive assessments of the outcome. Even in the mandatory war against Amaleq, as mentioned, the fallen were not disfigured. Finally, as discretionary wars require the assent of the Sanhedrin, so mandatory wars require the concurrence of priestly appurtances. In any event, chief executives lack carte blanche to commit their people to war.
The move to impose upon mandatory warfare some of the procedural or moral restraints of discretionary warfare counters the sliding scale argument, namely, the belief that "the greater the justice of one's cause, the more rights one has in battle." The move from convictions of righteousness to feelings of self-righteousness is slight. The subsequent move of regarding the enemy population as beyond the pale of humanity is even slighter. Since this tendency is especially pronounced in ideologically and religiously motivated wars, any countermove is noteworthy.
The greater the blurring of distinctions between discretionary and mandatory war, the greater the chance of removing from the military agenda the option of total war. Strapping mandatory wars with some of the restrictions of discretionary wars precludes them from becoming holy wars. According to John Yoder's When War Is Unjust, holy wars differ from just wars in the following five respects:
1. holy wars are validated by a transcendent cause;
2. the cause is known by revelation
3. the adversary has no rights;
4. the criterion of last resort need not apply;
5. it need not be winnable.
The above discussion illustrates how the antidotes to 3-5 were woven into the ethical fabric of mandatory wars. To repeat, the fallen of Amaleq were not to be disfigured, the resort to war even against the Cannanites was only pursuant to overtures of peace, and even the chances of success against Midian were weighed by the Urim and Tumim. By replacing the category of holy war with that of mandatory war and subjecting it to many of the limitations of discretionary war, all war became subject to ethical restraint. Although a sliding scale of limited warfare is ethically feasible, an ethic of unlimited warfare is a contradiction in terms. It is therefore not surprising that the expression "holy war" is absent from the Jewish ethical or military lexicon.
6. EXEMPTIONS FROM MILITARY SERVICE
The obligation of the citizen to participate in a mandatory defensive war flows from three assumptions. The first is that national defense is based on an analogue of individual self-defense
The second is that the duty of national defense is derived from the verse, "Do not stand idly by the blood of your neighbor." The implication is that the duty to come to the rescue of compatriots under attack is comparable to the duty to intervene to rescue an individual from an assailant.
These two assumptions alone prove inadequate. With regard to the first, if escape is available, self-defense is optional not mandatory. Thus the domestic analogy on its own remains insufficient for extrapolating the right of national defense from the right of home defense. As for the second, while classical legal opinion is divided on the obligation of risking one's life for another all agree that there is no duty to save a life at the cost of life.
Justifying risk of life in the name of national defense requires the additional assumption that the duty to save the community mandates the risk of life, for if, as the Midrash states, "It is preferable that one life be in doubtful danger than all in certain danger" then, as Maimonides notes , "The public welfare takes precedence over one's personal safety." "Indeed," according to Judah Halevy, "It is proper for the individual to bear worse than death to save the community." The responsibility to defend the community increases when the community is the state whose mandate includes the protection of the total citizenry.
In a defensive war, the lives of the citizens are imperiled by the initial attack. Since the counterattack is undertaken to diminish the risk to life, it may be authorized by executive action. Such is not the case in discretionary wars, which, by seeking to extend the political or economic influence of the government, initially increase the peril to life. Even in a preemptive attack, according to one school of thought, the lack of imminent danger to the population precludes the executive from independently making the decision to endanger the lives of the citizenry. Thus the endorsement of a policy of war is left to the discretion of the Sanhedrin.
Since discretionary wars initially increase the peril to life, the deliberations of the Sanhedrin need to include the weighing of popular support in its endorsement. This does not imply a government by referendum. Even those who maintain that sovereignty ultimately rests with the community hold that during their tenure, representatives are authorized to express the collective will. Representative government is not government by the people, but government by their agents.
Nonetheless, concurrent with theories of majority rule are provisions for minority rights. As there is general agreement that the majority cannot impose unfair rules that discriminate against the minority, so there is a consensus that the majority has the right to impose on the minority in matters that are clearly for the benefit of the community. Legal opinion, however, is split on whether the minority can be imposed upon in those discretionary areas which though desired by the majority are not clearly for the benefit of the community as a whole.
Whether such provisions would apply in war is an open question. It would appear that once the government has complied with proper procedure, the individual would have no recourse but to fight. After all, if the duly constituted authorities have determined the necessity of war, who is the individual to review the government's decision? This surely holds in defensive wars where no one is exempt from self-defense, the duty to rescue others, and the obligation to defend the state that secures the well-being of all.
The question is whether these considerations apply equally in a discretionary war or whether majority rule is limited by the discretionary nature of the war and thus must meet the requirement of benefit to the community as a whole. Although these considerations are not made explicit, they may help us understand the peculiar biblical rules of warfare with regard to exemptions from military service.
According to the Torah, before commencing hostilities, the officials are to address the troops as follows:
"Is there anyone who has built a new house but has not dedicated it . . . or planted a vineyard but has never harvested it . . . or spoken for a woman in marriage but has not married her . . . let him go back home, lest he die in battle and another . . . [do] it.
The officials shall go on addressing the troops and say, is there anyone afraid and tender-hearted: Let him go back to his home, lest the courage of his comrades flag like his." (Deuteronomy 20:59)
Individuals in these categories are required to report for duty before being assigned alternative service.
Another category not only is exempt from reporting for duty but is excused from all alternative service such as provisions and weapon supply, road repair, special security expenditures, or even oversight of defensive installations. This category derives from the following verse: "When a man has taken a bride, he shall not go out with the army or be assigned to it for any purpose; he shall be exempt one year for the sake of his household, to give happiness to the woman he has married" (Deuteronomy 24:5).
According to the Mishnah, the absolute exemption of one year for one who has consummated his marriage applies also to "one who has built his house and dedicated it" as well as to "one who has planted a vineyard and harvested it."
All the exemptions are characterized by their universal access. There are no exemptions based on birth, on education, on professional class, or even on religious status. This fits the moral purpose of conscription, which is to universalize or randomize the risks of war across a generation of men. By not creating a special exclusion even for religion, the Torah underscores that when life is at stake there can be no respecting of persons.
The purpose of all of the exemptions is not made explicit, although the value of removing from the field those who cannot concentrate on the battle is noted. The presence of such people increases fatalities resulting from disarray and failure of nerve. Other explanations for the exemptions include the need to mitigate individual hardship, to give courage to those who remain, to maintain the sanctity of the camp, or to prevent depopulation of urban areas.
The talmudic rabbis understood each case as illustrative of a principle and extended the exemptions to cover four categories of handicaps: the economic, the familial, the psycho-moral and the physical. Claims for economic and familial exemptions are subject to substantiation. The other two are assumed to be self-evident.
Although the psycho-moral exemption does not require independent confirmation, its meaning is far from self-evident. The Torah mentions two categories: "afraid" and "tender-hearted." According to Rabbi Yosi Hagalili, afraid means apprehensive about his sins; tender-hearted means fearful of war lest he be killed. According to Rabbi Akiva, afraid means fearful of war; tender- hearted means compassionate - apprehensive lest he kill. Taken together, there would be grounds for exempting the psychologically timid as well as the morally scrupulous.
Besides having to be substantiated, the economic and familial exemptions share another common denominator. Projects such as starting a house, planting the initial vineyard, or getting engaged mostly affect men in their prime, which is the age of maximum combat readiness. Since in defeat these people have the most to lose, they would be most willing to fight a necessary war and most reluctant to engage in an unnecessary one. A large number of exemptions for this age group could so hamper mobilization efforts as to impair the military effort, as Nahmanides implies when he notes, "Were it not for [the requirement of substantiation], a majority of the people would seek exemption on false pretenses." Nahmanides' fears were borne out by the experience of the biblical judge Gideon, who, upon making provisions for the psycho-moral exemption, lost two-thirds of his fighting force.
But this is precisely the point. There is a loophole in the war legislation, loophole so gaping that it allows those not convinced of the validity of the war to reassert their sovereignty through legal shenanigans. Doubts about the validity of the war will stir up their own social momentum and induce to seek wholesale exemptions. The result is a war declared by the executive and approved by the Sanhedrin which sputters because the populace has not been persuaded of its necessity.
Mobilization will fail without a high degree of popular support. Many will express their halfheartedness by dragging their feet in the hope of being, as the Talmud says, "the last to go to war and the first to return." When their lives are at stake the populace retains a semblance of sovereignty. By impairing the mobilization process, they end up passing judgment on the necessity of the military venture and on the legitimacy of the political ends. Without popular support, political ends which endanger large parts of the population are eo ipso illegitimate. In a similar vein, Abarbanel points out that those mobilized for war must go "willingly without coercion or duress." Arama also mandates "those who speak to the fighting forces to see whether they have accepted the risks of war." That this populace principle, as it were, is a factor in legitimating acts of state is evinced in the ruling that for conquered territory to enter the public domain the military venture must have commanded the approval of the majority. Notwithstanding the need to secure the approval of the Sanhedrin before incurring the risks of war, wars -- it appears -- still need to command popular legitimacy to be valid whether politically or morally.
One of the reasons it is so difficult to justify a non-defensive war is that Judaism makes it difficult to forgo one's sovereignty. Life and liberty are divine gifts not to be squandered. According to the Torah (Exodus 21:6) a person who chooses to remain a slave is to have his ear pierced with an awl. Rabbinic tradition saw in the piercing of the ear a symbolic punishment for forgoing one's divinely-given freedom:
"Because the ear heard on Mount Sinai: `For they are My servants, who I freed from the land of Egypt; they may not give themselves over into servitude' (Leviticus 25:42), and it divested itself of God's authority and accepted human authority - let it be pierced."
If such be the penalty for frittering away one's freedom, how much more so for frittering away one's life? The sense of being responsible for one's life works to prevent one from signing it over nonchalantly to a government. The demand to live by the Torah rather than die by it ensures that the decision to wage war be handled with the requisite gravity by both government and individual.
It follows that the resort to military force requires a moral as well as a political raison d'etre. Otherwise the war effort risks being undermined by the morale of the very community that constitutes the resource of power. As former Prime Minister David Ben-Gurion noted, "two-thirds of military prowess is popular morale."
Since military success is as much a function of "staying power" as it is of "striking power," striking power is subject to both quantitative and qualitative assessments of military resources. Staying power, however, is a correlative of the strength of motivation which itself derives from unity of purpose and popular consensus with regard to national aspirations. The result is that victory is not only a function of military might, and national resources, but also a product of the social fabric and the national will.
In sum, the issue is not just the proper use of force (jus in bello), but also the proper means of assessing whether to resort to force (jus ad bellum). Since such calculations exceed formal military considerations, official responsibilities for assessment lie with the Sanhedrin. Nonetheless, since large numbers of lives are at stake, there exists a legal technicality in the mobilization process that allows for discerning popular sentiment. As the justification for the war loses credibility, and the war itself loses popularity, so grows the likelihood of mass petitions for exemptions on dubious grounds. In the final analysis, the consent of those called upon to make the supreme sacrifice can weigh as heavily as the approval of the Sanhedrin.
Thus the greater the numbers of elements in the body politic needed to approve a war, the greater the check on unnecessary wars and their attendant abuses of power .