War is Assur

Commonly, the laws of war in Judaism are understood through the categories of milchemet mitzvah (commanded or holy war) and milchemet r'shut (optional war). These two categories-supplemented at times by the category of milchemet hovah (obligatory war), are helpful in outlining the acceptable and/or unacceptable practices of deploying violence on a massive scale. This is usually the first place that people turn to when trying to think about Jewish notions of just and unjust war.

I want to argue that this specific body of halachah or Jewish law is irrelevant to the contemporary discussion. To find moral insight about the justice of war in the Jewish tradition, one must turn to a less well trod part of the halachic field. A more technical and, in certain ways, legally more sophisticated halachic discussions reveals that these parts of halachah are embedded in a (by definition) particularistic and, at times, chauvinistic tradition. Yet, it is possible to extract a halachic claim from its particularist context by embracing rather than ignoring the specifics of that context.[2]

It is the particularistic nature of halachah around the morality of war that leads me to the conclusion that all war is forbidden.

In halachah, there were commanded and permitted wars, but the tradition has segregated them into the Israel's mythic past, by confining them to the era of Joshua's conquering of the Land or David's wars of expansion and by requiring the existence of the Great Sanhedrin in the Jerusalem Temple to declare war. This latter requirement, in addition to relegating permissible wars to the mythic period of Jewish history, also makes the threshold of permissibility impossible to meet in contemporary times[3]. Once the mythic period is over, it is no longer permissible to deploy mass violence, that is to wage war, for both halachic and theological reasons.

I am not making a pacifist argument. I am not opposed to an individual's right to defend themselves by the deployment of violence. I do think, and will argue, that there is an unbridgeable chasm between an individual's right of self-defense and a nation's deployment of violence through its military organizations. The latter part of this essay will be devoted to clarifying that distinction.

This essay is part of an attempt to create a predisposition against war, against having the massive deployment of violence as an option on the table. At this moment, when even Senator Obama is arguing that Afghanistan is a "good war," as opposed to Iraq, and Senator McCain is still arguing that Iraq is a good war, it is important to think clearly about war in general.[4]

Stopping the current wars is a short-term urgent necessity. The justification for the ongoing occupation of Iraq is a series of fluid and moving goals which are ultimately self-contradictory. Once the original pretext for the war was shown to be false (and according to the latest revelations by Ron Suskind was falsified with a B-Movie forgery), the administration has gone through a progression of changing goals for the war (elections, training the Iraqi army, incorporating the Sunnis, isolating the Sunnis, empowering the Shiites, isolating the Shiites, political independence, ratifying the constitution, allowing John McCain to walk through the Baghdad market safely when only surrounded by a massive security detail...). Even Defense Secretary Robert Gates has finally begun to admit that military success will not be sufficient to win this war.[5]

The so-called "War on Terror" is a similarly futile and disastrous affair. A recent Rand Corporation study has suggested that the term "War on Terror" not be used anymore. According to the study, of the 648 cases of terrorist groups that existed between 1968 and 2006 and "ended," only seven percent were terminated by military force.[6] On the other hand, forty percent of the groups stopped functioning as terrorist groups because they were incorporated into the political process.

The war in Afghanistan is once again in the headlines as it continues to go downhill.[7] It is important to reorient our thinking away from the tried and truculent truisms of the Pentagon and Capitol Hill. While the US armed forces are pushing for billions for new weapons, diplomatic and foreign service positions remain unfilled.[8] We must stop our participation in the armed conflicts in Iraq and Afghanistan, and begin to think anew about the role of war in global affairs.

While stopping these wars is an urgent necessity, stopping the next war (and all subsequent wars) is the vital goal.

The laws of war are grounded in Torah. Deuteronomy 20 outlines the prescribed practices of war-making. There are no distinctions drawn in this chapter between different types of wars. The introduction reads simply: "When you take the field against your enemy...". It is, of course, in Rabbinic tradition that the distinctions are drawn. According to the sages a commanded or, perhaps, an obligatory or holy war-milchemet mitzvah-is a war to conquer the land of Israel, to destroy the seven nations that resided there (and that no longer exist) or to wipe out Amalek, Israel's nemesis from the Exodus story. It is also perhaps any war in which the Jewish People is attacked. On the other hand, war in its historically more quotidian form-empire, pre-emption, colonization-is an optional war, a milchemet r'shut, but does not constitute a commanded war.

The distinction between these types of war is drawn somewhat differently and starkly by R. Judah in the Palestinian Talmud (Sotah 8:10): "an optional war [is] one in which we attacked them; an obligatory war one in which they attacked us." The eleventh-century master of all Talmudic commentators, Rashi (to Bavli Sanhedrin 2a), draws the distinction in the following unambiguous way: "Every war is considered optional [and not obligatory] except Joshua's war which was to capture the Land of Israel." Maimonides, commenting on this same Mishnah (Sanhedrin 1:5) writes: "An optional war is the war against Amon or Moab or Ishmael[9] and the like. A commanded war is only the war against Amalek and the seven nations." However in his Mishneh Torah, Maimonides adds that a commanded or obligatory war can include a war to assist Israel from an enemy that has come upon them:

What is an Obligatory War? This is a war against the seven nations (see Deut. 7:1), war against Amalek, or to assist Israel from an enemy that has come upon them[10] (see Num. 10:9). Secondarily, one can fight an Optional War, which is a war fought against any other people in order to expand the borders of Israel or to increase [the king's] greatness and reputation.

This contradiction between Maimonides' (thirteenth century) commentary on the Mishnah and his legal code Mishneh Torah, actually reflects a dispute in (the third century) Mishnah Sotah as understood by the fourth century sage Raba in the Babylonian Talmud (Sotah 44b).

All agree that the wars of Joshua to capture [the Land of Israel] are obligatory wars. All agree that the wars of the House of David for territorial expansion are optional. They [Sages and Rabbi Yehudah in the Mishnah] dispute [in regards to a war fought] in order to diminish the idolaters that they should not invade. One says it is a commanded [war], one says it is optional.

It is this disputed case of fighting off the idolaters ["gentiles" in Manuscript Vatican Ebr. 110-111] which Maimonides codifies as a war to assist Israel from an enemy that has come upon them. While this particular notion of a war of self-defense-if it actually refers to a war of self-defense-will be of interest further on, we need not lay all this out right now, since my first point in this essay is that all this is irrelevant to our thinking about war today.

The practical halachic difference between a milchemet mitzvah and a milchemet r'shut is whether permission is needed to declare war from the Great Sanhedrin of seventy one judges: "They are only permitted to go to an optional war by authority of a court of seventy one judges." (Mishnah Sanhedrin 1:5) Given this threshold-requiring a Great Sanhedrin in the Jerusalem Temple-and the scope of military action under discussion-wars by the people Israel led by a king and a priest-there does not seem much here that would be helpful in deciding whether or not the United States should have invaded Iraq on the flimsiest of fraudulent pretexts.

Is there, then, any guidance in the Jewish textual tradition which might be drawn upon in this situation? I would suggest that there is, though it comes from another quarter.

There is a principle which is articulated in a number of places in the Talmud. The principle is that the nations of the world are not allowed to capture territory. [lav bnei kibush ninhu] In his comment on this principle, in Bavli Sanhedrin (59a), Rashi adds that land was only permitted to be captured by Israel. This refers to Israel's original conquest of the Land of Israel from the seven nations[11].

There is an implied (theological?) principle here. Every nation of the world has their place and therefore no nation has the right to capture the place of another nation--that would constitute theft. Once Israel captured its place, the Land of Israel, capturing was over since everyone was in their proper place. What this means is that with the conquest of the Land of Israel in the time of Joshua (a thousand years or so before the Common Era), there was no longer any need for nor license to capture land.

This principle that Jews have no need or license to capture land is brought into the legal discourse in a number of ways. There is a rather technical discussion at Bavli Gittin 38a about whether Jews and non-Jews can buy from and sell to each other. There too, the principle that gentiles are not legally able to capture land is deployed. In discussing this text, Rabbi Moshe Sofer (1762-1839) [often referred to as the Hatam Sofer] writes that "It is, in any event, obvious that gentiles are not legally able to capture land." In his responsa he adds that: "even though land cannot legally be captured by gentiles, if a gentile nation transgressed and captured land, it acquired it through capture as a thief who acquires ownership of a stolen object [because the rightful owners have given up hope of getting it back]-although there is definitely no permission to steal. In any event it is acquired by the owners giving up hope."

The Hatam Sofer recognizes that, empirically, nations capture territory from other nations. They act as if that land is their's-and they can do this because the rightful owners of the land have given up hope of reclaiming it. His claim, however, is that there is no halachic basis for the original land grab.

A half century later, Rabbi Avraham Duber Kahane clarified the religious underpinnings of this statement of Rabbi Sofer's.

From the words of the Hatam Sofer I will explain that which is written: "There the reason is because Gentiles are not legally entitled to capture." The intention is not that they don't have the power of acquisition as a result of war. Rather, the principle means that the earth is not placed before them for waging war. For even for Israel only commanded wars and optional wars by the authority of the Great Sanhedrin in Jerusalem are allowed; and they are definitely not allowed to war with fellow Israelites. Therefore, Gentiles, too, are not allowed to wage war against other Gentiles. The land is not given to be captured by them.

This is the bottom line. "The earth is not placed before them for waging war." War itself is not permitted, since this was not the purpose for which the earth was given to people and nations. The Jewish People is only allowed to wage a commanded war, or an optional war with the authority of the Sanhedrin. Given, however, that there is no Great Sanhedrin, and that we are past the time of Joshua, the default state of affairs is that war, per se, is not permitted.

What about that great bugaboo, that other category of what seems to be a "rational" cause for war-the war of self defense? If someone attacks you, the argument goes, would you not have the right to defend yourself? Even the Torah-according to Rabbinic interpretation-says: "If one comes to kill you, rise up and kill him."[12] Is this not the third category of commanded war which Maimonides listed in his Mishneh Torah which I cited above?[13]

Here is the second, and perhaps more important argument, of this essay. It is a category error to identify a defensive war with personal self-defense. It is always misleading and wrong to use analogies from individuals to make a point about nations. One country defending itself against another is not the same as one person defending herself against another. In the former, that is, when a defensive war is unleashed, a level of violence is deployed which is no longer under the control of those who deployed it. The Sages understood it as a given that a significant percentage of people would be killed in any war. When an individual defends herself, she has almost total control over the level of violence and therefore physical and material destruction she will wreak[14]. When a country deploys even a "surgical" strike there is always "collateral damage"-the latter euphemism meaning, of course a penumbra of meaningless death and destruction.

Even the pre-emptive logic of the "pursuer"-the law that if Shimon is chasing Levi with murderous intent, Reuven may kill Shimon prior to Shimon's actually having done anything[15]-cannot survive the move to the arena of nation states. Even were we to accept the premises of the pursuer as accurate and binding, Reuven can again control the level of violence, and focus the violence to a target in a way that an army cannot, and does not. This in addition to the fact that the pursuer must be showing intent while many of those killed in a pre-emptive strike showed no intent at all.

One might object that this argument is hopelessly naive. What happens when the bombs are already falling? When the tanks are already crossing the border? Am I advocating that we just lay down and die in a Ghandian interruption of the cycle of violence?

As I said in the beginning, this is not a pacifist argument. I am not advocating a policy of turning the other cheek. However, I do stand with the strong distinction between individual self-defense and a defensive war. The latter is, ultimately, still a war. The violence that is unleashed will inevitably go beyond the control and intent of those who initially deploy it.

Moreover, whereas the time between attack and reaction in the case of individual self-defense is very short, sometimes immediate-the same is not true of war. There is almost always a period of time in which choices can and must be made. It is not the case that either a preliminary or retaliatory strike is always the only possibility. To choose a recent and provocative example. Following the murderous and unprovoked attack on the World Trade Center, there was time for reflection and choice prior to the invasion of Afghanistan. It is hard to argue that the invasion of Afghanistan, and the death and destruction that caused was analogous to my hitting you after you hit me so that you don't hit me again.

This is again different from self-defense. If an army crosses a border, and someone is shooting at me, literally, I obviously have the right to shoot back. I don't obviously have the same right to bomb his capital city back to the stone age.

It should be our expectation that our civilian and military leaders will invest their time, intelligence and vast resources in discovering and deploying alternatives to armed conflict. It is impossible to know what all those alternatives might be, since we have not spent either the time or resources to find out. As Nicholas Kristoff has recently pointed out, for the price of one F-22, (a fighter aircraft that uses stealth technology) the United States "could - for 25 years - operate American libraries in each Chinese province, pay for more Chinese-American exchanges, and hire more diplomats prepared to appear on Chinese television and explain in fluent Chinese what American policy is."[16] These are the options that we know about and neglect to pursue. It boggles the mind to think of the possibilities that could come about if the Government actually spent even a very small percentage of the defense budget on a war-prevention budget, let alone a peace budget. That money could fund both research and scholarship on practical peace-making strategies, and also actual diplomatic and people to people interactions, while discovering which of the latter work. While it is definitely harder to make peace than to deploy massive uncontrolled violence, it is also less expensive.

The claim that I made in this essay, is that in a retrospective argument, there is a certain strand of tradition that segregated war to the mythic period of Jewish history. As the militaristic narratives of Judges, Samuel and Kings are followed by the prophetic rhetoric of Isaiah, Jeremiah and Ezekiel; as the Rabbis transformed David from the warrior king to David the Sage; so too is war represented as a vestige of that mythic past. The laws of war remain on the books, but in such a way as to make it clear that this is a body of law "for learning and not for action." I have shown how the halachic principle that gentiles cannot capture land actually incorporates a prohibition against war for both theological and halachic reasons.

There are, of course, many questions still left unanswered. The point of this beginning is to make the strong argument that there should always be a predisposition against war and that defensive wars are not wars of self-defense that are analogous to an individual's right of self-defense. In the contemporary age, in which our ability to deploy violence on a massive scale is frightening, it is a truism that any time violence is deployed by nation-states through military action, that violence is not controllable.

We need, now more than ever, to pay heed to the words of the Dvar Avraham that the earth was not placed in front of us for war. We need to keep this in mind in order to prevent the next war before it starts. We need to keep this in mind in the moment before the retaliatory strike. We need to keep this in mind before the preemptive "defensive" incursion.

War is assur.

I want to thank Shaul Magid, Danya Ruttenberg and Scott Perlo for important comments on earlier versions of this essay.

[2] This move shares something with Emmanuel Levinas' attempts to translate Talmud into Greek, (see the Introduction to Beyond the Verse) though Levinas famously does not deal with halachic texts per se.

[3] This is similar to certain ways that capital punishment has been understood in the halachic tradition-i.e., the threshold for incurring the death penalty is purposefully put so high that it is a de facto abolishment of the death penalty. See Rabbi Moshe Feinstein, Iggerot Moshe: Hoshen Mishpat:part 2:68; and cf. Beth Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (Oxford: Oxford University Press, 2006).

[4] And as I write this on Tisha b'Av, Russia has just started a war with Georgia as a response to Georgia's invasion of the separatist enclave of South Ossetia.

[5] http://www.washingtonpost.com/wp-dyn/content/article/2007/11/26/AR200711...

[6] How Terrorist Groups End: Lessons for Countering al Qa'ida, Seth G. Jones, Martin C. Libicki (Santa Monica, CA: Rand Corporation, 2008)

[7] http://www.nytimes.com/2008/08/08/world/asia/08military.html?ref=worldsp...

[8] Cf. Nicholas D. Kristof, "Make Diplomacy, Not War" (http://www.nytimes.com/2008/08/10/opinion/10kristof.html?em)

[9] That is, a war over territorial expansion.

[10] This last phrase is missing from at least one early fourteenth century Spanish manuscript of the Mishneh Torah, catalogued at the Jewish National and University Library as Heb 4° 1193.

[11] Set in mythic time as I noted above.

[12] e.g. Bavli Brachot 48a

[13] For one example of this see: "Our suggested strategy of fighting Islamic fundamentalism and Palestinian terrorism is based on the Biblical outlook: "Noah had built the ark before the Deluge". That is, it is necessary to prepare and get ready before the crisis begins. The second conception is the approach of Jewish Sages: "Think first before you act" ("סוף מעשה במחשבה תחילה"). This means planning and readiness as a basis for successfully coping with problems. The third conception is the Jewish approach in the Mishnah, which was adopted by all nations: "he who comes to kill you - kill him beforehand" ("הבא להורגך - השכם להורגו"), which means act to eliminate your enemies before they execute their targets." David Bukay, "Cultural Fallacies in Understanding Islamic Fundamentalism and Palestinian Radicalism," (http://www.jerusalemsummit.org/eng/full.php?id=23&speaker=72&summit=32)

[14] This is not completely true. Even an individual doesn't have complete control over the amount of violence they unleash. However, the law recognizes a distinction between inappropriate use of violence in a case of individual self-defense. Further, the level of "collateral damage" of an indvidual's deployment of violence is not in the same category as that of an army operating on behalf of a state. My thanks to Scott Perlo for pushing me to clarify this.

[15] e.g. Babylonian Talmud Tractate Sanhedrin 73a

[16] http://www.nytimes.com/2008/08/10/opinion/10kristof.html?em

Images by Pavel Wolberg.