Captives, Cruelty, & Compassion
Jewish law on the proper treatment of prisoners of war
By Rabbi Jill Jacobs
Classical Jewish law offers a decidedly ambivalent view of
both war and punishment. Both of these categories are presented as necessary
evils that must be approached with caution. Virtually every mention of war in
the Bible and later sources is accompanied by warnings against certain types of
behavior, and the laws of punishment include numerous checks against unfair or
excessive punishment.
Biblically Mandated Wars
Jewish
law does not specifically recognize the category of "prisoner of war"
and therefore does not establish conditions governing the treatment of such
prisoners. This omission may be attributed largely to the fact that, in the
absence for most of history of a Jewish sovereign state, the laws of warfare--like
most areas of Jewish civil law--never developed to the extent that ritual laws
did. Furthermore, the wars mandated by the Bible, against specific groups of
enemies at specific times, require the killing of all of the men and, in some
cases, the women. While disturbing to many people today, this requirement
probably reflects a fear that the Jews will be negatively influenced by the
customs of the conquered.
At
least one contemporary Jewish legal scholar has argued that the biblical
mandate to kill all combatants is no longer applicable. According to Rabbi
Shlomo Goren, the Ashkenazic chief rabbi of Israel from 1973-1983 and the chief
rabbi of the Israel Defense Forces in the 1950s and 1960s:
"[Regarding] those obligatory wars that we were
explicitly commanded by the Torah to wage in antiquity, in which 'you shall not
let a soul remain alive'--one must not learn from them, heaven forbid, about
other wars and our own time… We are commanded by the Torah to follow in God's
ways and to have compassion for God's creatures, as it is written: 'God's mercy
is upon all God's works' (Psalms 145:9)" (Meshiv Milhama vol. 1, p. 14).
Treatment of Captives
Even without a specific discussion of the treatment of POWs,
we can extrapolate from other statements about battlefield ethics and
appropriate punishments some general principles about the treatment of
opponents during a war and, in particular, about opponents judged to be
criminals deserving of legal punishment.
A few statements within the Bible itself prohibit excessive
cruelty during times of war. In particular, while permitting soldiers to take
women as captives, the Bible tempers this permission, saying:
"When you take the field against your enemies and
Adonai your God delivers them into your power and you take some of them
captive, and you see among the captives a beautiful woman and you desire her
and would take her to wife, you shall bring her into your house, and she shall
trim her hair, pare her nails, and discard her captive's garb. She shall spend
a month's time in your house lamenting her father and mother; after that you
may come to her and possess her, and she shall be your wife. Then, should you
no longer want her, you must release her outright. You must not sell her for
money: since you had your will of her, you must not enslave her"
(Deuteronomy 21:10-15).
While taking civilian women captive during war may be
inconsistent with our contemporary sense of morality, the biblical injunction
presumably attempts to counter the wanton rape of women common during times of
war. Furthermore, by granting the captured women time to mourn for their
families, forcing men to marry female captives before having sexual relations
with them, and forbidding these women then to be sold into slavery, the Bible
attempts to protect the women's dignity, even within an inherently degrading
situation.
Guarding Against Evil
A more general biblical commandment warns, "When you go
out as a troop against your enemies, be on your guard against any evil
thing" (Deuteronomy 23:10). Commenting on this verse, the medieval sage
Nahmanides says, "The verse acts as a caution during a time when sin is
widespread. It is well known from the customs of troops that go out to war that…
the most naturally upright person becomes cruel and wrathful when the troop
goes out against the enemy. Accordingly, Scripture warns him, 'be on your guard
against anything evil."
Another biblical statement--"When you approach a city
to make war on it" (Deuteronomy 20:10)--is understood by one early midrash
to prohibit the unnecessarily harsh treatment of a besieged city. According to
this text, the specification that one approaches the city "to make war on
it," rather than for any other reason, precludes "starving it,
depriving it of water, or killing by means of a deadly disease" (Midrash
Tanaim to Deuteronomy, 20:10).
Expanding the prohibition against excessive cruelty during
wartime, Maimonides, in his Sefer
haMitzvot (Book of Commandments), counts as a positive commandment the
requirement, during the siege of a city, to leave one side of the city open so
that civilians who wish to escape may do so (Mitzvot Aseh 5). In his
discussion of this passage, Nahmanides comments, "From this, we learn to
act compassionately with our enemies, even during a time of war" (Hasagot haRamban L'SeferHaMitzvot, Mitzvot Aseh 5).
Maimonides' requirement that civilians have a means of
escape is, according to Nahmanides, only one example of a greater principle
demanding compassion on enemies, even in the midst of combat.
Punishing the Guilty
Other commandments, though not specific to wartime, prohibit
excessive punishment of those found guilty of a crime. In defining the
punishment for a civil offence, the Bible stipulates, "He may be given up
to 40 lashes, but not more, lest being flogged further, to excess, your brother
be degraded before your eyes" (Deuteronomy 25:3). The term "your
brother," according to several citations in the Talmud and elsewhere,
serves as a reminder that even a person deserving of serious punishment does
not cease to be one's brother--a person akin to oneself (m. Makkot 3:15, etc.).
The medieval exegete Rashi, commenting on another section of
Talmud, uses this verse as proof that "all of Israel is warned against
embarrassing others" (comment to b. Sanhedrin 84b). While permissible,
punishment should be carried out in such a way as to preserve the dignity of
the one being punished. Rabbinic law also reduces the severity of the
punishment to 39 lashes, out of fear that 40 lashes may kill one who is frail.
Torture to Save Lives
The harsh treatment of POWs is often justified as a
necessary means of extracting information that may, in the end, save lives.
This argument would place POWs within the halakhic
(Jewish law) category of the "rodef,"
one who pursues another with intent to murder. In regard to this person, the
Talmud establishes a general principle that "If someone is coming to kill
you, rise up first and kill this person" (Talmud, Berakhot 62b). Failing
to kill the rodef is understood as a violation of the biblical command,
"Do not stand by the blood of your brother" (Leviticus 19:16).
Even as rabbinic law commands the killing of the rodef, this
mandate, like the laws of war and punishment, comes with restrictions. Before
killing a rodef, one must be certain that this person actually intends to
murder, and may even need to verify that the rodef understands the implications
of this crime (Talmud, Yoma 85b and Talmud, Sanhedrin 72b). Furthermore, one
must do the least harm necessary to stop the rodef from murdering. Thus, one
who kills a rodef when breaking a limb would have sufficed is liable for
capital punishment (Talmud, Sanhedrin 57a).
While permitting the preemptive killing of a soon-to-be
murderer, Jewish law restricts this permission to cases in which the murder is
imminent and in which killing the murderer is the only means of preventing the
death of an innocent person. Some halakhic authorities have argued that a POW
or suspected terrorist may be considered a rodef, and may therefore be harmed
as a means of extracting information that has the potential to save lives.
Israeli law once permitted the use of moderate physical pressure on suspects in
"ticking bomb" cases--where a terrorist attack is imminent--but the
country’s Supreme Court later ruled against this practice.
An additional caution against torture as a means of
extracting information arises from the extraordinary concern within Jewish law
that testimony accepted in criminal cases be accurate and not influenced by
external factors. Confessions are not accepted as testimony, out of fear that
the accused may be confused or suicidal (Maimonides, Mishneh Torah, Sanhedrin 18:13). This concern is corroborated by
the consensus among most human rights scholars that torture rarely produces
accurate information.
General Unease
While permitting and, at times, even mandating war and
punishment, Jewish law demonstrates a general unease with both of these
categories. Some of this discomfort presumably stems from an understanding of
life and death decisions as being the domain of God, and not of human beings.
Many of the specific restrictions on military behavior and on criminal
punishment also recognize the potential for these actions to lead to the
degradation of another.
Therefore, permission to declare war, to take captives, and
to execute punishment is always tempered by the more basic obligation to
preserve the inherent dignity of the human being who, even under the most
extreme circumstances, remains one's "brother."
Rabbi Jill Jacobs is the Rabbi-in-Residence for the Jewish FundS for
Justice.
