The Ethics of Jewish War
Few traditional sources discuss the ethics of fighting noncombatants, but some Jewish laws of war do display a moral genesis.
Loew takes Jacob's concern to be with the men accompanying Esau, since Esau himself was assumed to be an enemy whose obvious intention was to kill Jacob (so it would be lawful to "kill him first"). But perhaps Esau's men had been coerced to join his forces, perhaps they had no intention of participating in the attack. Loew concludes that Jacob would not be acting unlawfully to kill them in either case since, by accompanying Esau, they had taken on the guilt of his enterprise. Nonetheless, he is respectful of Jacob's scruples, and the whole passage suggests that it would indeed be a sin to kill innocent people, even in the course of a legitimate military engagement.
The suggestion remains only that, however; it is not yet a developed argument, and it stands in the literature more as the resolution of a biblical difficulty than as a firm declaration of military policy. I am inclined, then, to accept with only minor reservations [J. David] Bleich's claim that "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 or moral problem."
Abolishing Siege Warfare
And yet the rabbis did deal fairly extensively with the law of sieges, in which this issue arises in paradigmatic form, and they seem to have written, if not with an explicit recognition of "a halakhic or moral problem," at least with the fate of the besieged civilians very much in mind. They may have won their reputation here, for their argument, picked up by [17th-century Dutch jurist Hugo] Grotius, survived as the radical alternative to the standard version of international siege law.
This is Maimonides' summary (based on a second‑century teaching recorded in the [midrash] Sifre to Numbers): "On besieging a city in order to seize it, we must not surround it on all four sides but only on three sides, thus leaving a path of escape for whomever wishes to flee to save his life."
Of course, a city surrounded on only three sides is not in fact surrounded. If people can leave, then the food supply inside the city can be stretched out, perhaps indefinitely, or other people can enter, bringing supplies and reinforcements. It is hard to see how the city could ever be taken given this rule, which seems clearly designed for the sake of the inhabitants, not of the army outside, though this is ostensibly a Jewish army.
Nachmanides, writing a century after Maimonides, strengthened the rule and added a reason: "We are to learn to deal kindly with our enemy." It is enemy civilians who are treated kindly here, for the ordinary or four‑sided siege is a war against civilians.
The radicalism of the Jewish law is that it pretty much abolishes siege warfare. But there is no acknowledgment of this, and other legal discussions (see Nachmanides on Deuteronomy 20:19‑20) assume the legitimacy of the siege and evince little concern with its impact on the civilian population.
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