MILITARY LAW

Morality and War in Judaism

The prophetic view of the end of days is expressed in the words: "and they shall beat their swords into plowshares, and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more" (Isa. 2:4). But until those days arrive, there may be times when war is required. In such circumstances, halakhah views war as a necessity, and participation therein as an obligation under certain circumstances.

A soldier acting in accordance with halakhah may not indulge in the naked exercise of force, brutality, or vandalism, but rather must be guided by the recognition of an obligation imposed by an exigency brought about by reality. The Torah establishes the boundaries of what is permitted and forbidden in war for both individual and for society, with the view of achieving the military objective while striking a balance between recognition of the nature of soldiers in war – who must, at times, be permitted to behave in ways that would be forbidden in peacetime – and the need to imbue those soldiers with the qualities of compassion and holiness, even during times of war. It is instructive that the laws of prayer and of the sanctity of the synagogue are derived from the laws governing a military camp (Ber. 25a). Although under certain circumstances the Torah views war as an obligation incumbent upon every man in Israel, King David was not allowed to build the Temple because he had fought many wars (I Chron. 22:7–10). This exemplifies the potentially problematic nature of war, and the need to strike an appropriate balance between single-minded combat against the enemy and preserving the moral standards of the combatants.

In this entry, we shall briefly consider the salient issues of military law in Jewish law. We shall examine the classic commandments related to war as they appear in the Bible, in Talmudic literature, and in halakhic decisions, and consider the contemporary ramifications of some of them and their expression in modern society.

The Sanctity of the Camp in Time of War

The Torah states (Deut. 23:10): "When you go forth against your enemies and are in camp, then you shall keep yourself from every evil thing." In the tannaitic Midrash, the Sages interpreted this verse as implying a special warning in time of war to be careful regarding matters of defilement and purity, tithes, incest, idolatry, bloodshed, and slander (Sif. Deut. 254, ed. Finkelstein). In his commentary to Deuteronomy 23:10, Nahmanides explains that human nature is such that moral restraints are loosened at time of war, and we shed the sense of shame felt in normal human society, with regard to such acts as licentiousness and theft. This is a by-product of the cruelty that envelops soldiers when they go to war. The Torah therefore saw need for reinforcement of these matters through a special proscription. In the ensuing verses, the Torah cautions about purity and physical cleanliness in the military camp. The section concludes with a general explanation that these commandments are required so that the Divine presence not abandon the Israelite camp: "Because the Lord your God walks in the midst of your camp, to save you and to give up your enemies before you; therefore your camp must be holy, that He may not see anything indecent among you, and turn away from you" (Deut. 23:15).

Discretionary War and Obligatory War

The Mishnah (Sot. 8:7) distinguishes between two types of war: discretionary war and obligatory war. According to Maimonides, an obligatory war is like that fought by Joshua to liberate the land of Israel from the Seven Nations, the war to eradicate Amalek, or a war "to defend Israel against an enemy that attacks them." A discretionary war is one undertaken to extend the borders of the state, such as the wars fought by King David (Yad, Melakhim 5:1; Sot. 44b; TJ, Sot. 8:10). Later rabbinical authorities differed on the interpretation of the term "to defend Israel against an enemy that attacks them." Some explained that this refers to a situation in which Israel is attacked by her enemies, constituting a defensive war (obligatory). This is as opposed to a preventive war in which a preemptive strike is made against an enemy before it is able to realize its intention to attack, which constitutes a discretionary war (Leḥem Mishnah ad loc.). Others extended the scope of the term "to defend Israel against an enemy" (and hence of an obligatory war) to include a preventive war, inasmuch as a defensive war – i.e., once Israel is actually under attack – is clearly obligatory, just as one is always obligated to rescue a victim from an assailant (Sheyarei Korban commentary to TJ, Sot. loc. cit.).

The decision to embark upon a discretionary war requires the approval of a court of 71 (Mish., Sanh. 1:5; Yad, Melakhim 5:2). However, the court cannot initiate the war. The initiative must come from the king, who must then seek the court's approval (Tosefot Yom Tov on Mish. Sanh. loc. cit.). According to Nahmanides (Hassagot Ramban, on Sefer ha-Mitzvot, gloss no. 17), the Urim and Thummim must also be consulted, as going to war must be done at the behest of the priest who wears them.

The Obligation to Serve, Fear, and Conscientious Objection

According to the Torah, the minimum age for military service is 20 (Num. 1:3, and Rashi and Naḥmanides ad loc.). The Torah does not expressly establish a maximum age. Some hold that the maximum age for military service is 60 (Sforno, Num. 1:45), while others suggest that it was 40 (according to certain versions of Sif. Deut., ed. Finkelstein, 197).

The book of Deuteronomy provides guidelines for exemption from military service. The Torah (Deut. 20) provides that, before venturing into battle, the priest–referred to in the Mishnah as the "Anointed for Battle" (Sot. 8:1) – must speak to the people and encourage them so that they not fear the enemy and to place their trust in God, as the Torah expressly forbids fear of the enemy in war (Maim., Sefer ha-Mitzvot, negative precept 58; Sefer ha-Ḥinnukh, 525). Following the priest's speech, the officers address the people and exempt the following four categories of people: (a) one who has built a home and not dedicated it; (b) one who has planted a vineyard but not yet enjoyed its fruit (the fruit can only be used after the fourth year); (c) one who has betrothed a woman but not yet married her (see *Marriage); (d) one who is afraid and fainthearted, "lest he cause his comrades to be afraid." Later sources explain the application of these exemptions in practice. Thus, prior to the battle with the Midianites, God commands Gideon to tell the fearful to return home; more than one third of the force leaves (Judges 7:3). The Book of Maccabees (I Maccabees 3:55) relates that soldiers were exempted for the same reasons. There is some disagreement among the tannaim regarding the nature of the fear that exempts a person from going to war (Mish. Sot. 8:5; Sot. 44a). In Rabbi Akiva's view, this alludes to fear of war. According to the mishnaic citation of R. Akiva, his concern was fear of the dangers of war, whereas according to the Tosefta (Sot. 7:24), R. Akiva's concern was not the fear of war per se, but rather the fear that his sense of mercy would affect his ability to fight, and even a stony and mighty warrior was commanded to return home in the event of his feelings of mercy being likely to impair his ability to fight. According to R. Yose the Galilean, this exemption also refers to a person who is fearful because he knows himself to be a sinner, his feelings of guilt leading him to fear that he will be punished for his sins by death in battle. Although these four categories of people are exempted from battle, they are commanded to contribute to the war effort by providing food and water for the troops, and by repairing the roads (Mish., Sot. 8; Yad, Melakhim 7:9).

In addition to the above, a man is exempt from going to war during the first year of his marriage, in order to make his wife happy (Deut. 24:5). The Sages extended this one-year exemption to building a house and harvesting a vineyard, as well (TJ, Sot. 8:8; Yad, Melakhim 7:9). Unlike the other exemptions, a person exempt for these reasons is not required to contribute to the war effort, but simply stays home (Deut. 24:5; Sot. 44a).

All these exemptions apply exclusively to a discretionary war; in the case of an obligatory war, "all go forth, even the bridegroom out of his chamber and the bride from her bridal pavilion" (Mish., Sot. 8:8).

The Israel Supreme Court discussed these issues at length in its decision in the Schein case (HC 734/83 Shein v. Minister of Defense, 38 (III) PD 393, per M. Elon). The petitioner in that case was a reserve soldier who refused a call-up order to serve in southern Lebanon, on grounds of conscience. He argued that he opposed the Israeli army's presence in Lebanon, and believed that presence to be illegal. The petitioner had already been tried for a previous refusal, and the petition related to a new call-up order and to the sentence that he had served. In denying the petition, Justice Elon surveyed philosophical and legal positions accepted by various states in regard to conscientious objection, and addressed the distinction between general conscientious objection and selective conscientious objection, that only relates to a specific type of military service. Justice Elon went on to examine the view of Jewish law. "In principle, the issue before us was addressed by Jewish law in its earliest days, as a matter related to the subject of exemption from the obligation of military service" (p. 403). After reviewing the above-mentioned sources and the opinions expressed by the tannaim, he concluded: "The foregoing quotations reflect the various opinions in Jewish law concerning an issue essentially comparable to the question of exemption from military service for reasons of conscience. The reasons for exemption are general and inclusive, and they concern the character of the person and his attitude to violence. They are not selective. They do not pertain to a particular time and place, and they are not based on ideological-social outlooks. Finally, even the general and inclusive reasons are applicable only to a "discretionary" war, but not to an obligatory war in a time of emergency (p. 405).

Participation of Women in War

From the Mishnah's statement that "all go forth, even the bridegroom out of his chamber and the bride from her bridal pavilion," one may conclude that both men and women are required to serve in an obligatory war. Certain later rabbinical authorities sought to limit this rule by saying that women are only required to help provision the troops (Rashash on Sot. 44b), while others opined that only the bridegroom goes to war, whereas the bride merely cancels her wedding (Radbaz on Maimonides, Melakhim 7:4).

The verse that forbids a woman from wearing a man's garments (Deut. 22:5) has been interpreted as prohibiting a woman from carrying arms, and thus prohibiting her going to war (Ibn Ezra). Others saw the verse as limited to matters of modesty, and therefore not to be taken as forbidding the participation of women in war (Rabbenu Perez, in Shitat Kadmonim le-Nazir, 1972). The subject assumed practical significance in the State of Israel with regard to the question of the conscription of women. Some authorities, relying upon some of the above-mentioned sources, argued that it is prohibited, while others expressed the view that it is not, so long as modesty is preserved. Under Section 39(c) of the Defense Service Law [Consolidated Version], 5746 – 1986, a woman may be exempted from service if she shows that it would be incompatible with "her family's religious way of life."

The Commandment to Sue for Peace

"When you draw near to a city to fight against it, offer terms of peace to it" (Deut. 20:10). Before launching war against a city or placing it under siege, the Torah requires an offer of peace. There is dispute as to whether this duty also applies to an obligatory war, as held by Maimonides (Melakhim 6:1), or only applies to a discretionary war, as is the view of Rashi (Deut. 20:10, based upon Sif. Deut., ed. Finkelstein, 199, and Rabad, on Maimonides ad loc.). Maimonides interprets the offer of peace as the granting of an opportunity to surrender and to accept subjugation to Israel and the obligation to pay tribute. Some commentators suggest that, practically speaking, this approach sees the purpose of the offer of peace as a means for achieving the objectives of war in an easier, more efficient manner, while avoiding the loss of life. Under this approach, the call for peace applies to an obligatory war as well, inasmuch as it is clearly preferable to achieve the objectives of an obligatory war without resort to combat. Another approach sees the call for peace as an end in itself, which prevents war and teaches compassion (Sefer ha-Ḥinnukh, Mitzvah 527). Therefore, it is not required in an obligatory war.

This mitzvah led the Sages to the midrashic statement regarding the importance of peace in Judaism: "Great is peace, for Israel requires it even in war" (Sif. Deut., loc. cit.).

The Laws of Siege

THE DUTY TO LEAVE ONE DIRECTION OPEN FOR ESCAPE

The Midrash (Sif. Num., ed. Horowitz, 157) cites the opinion of the tanna Rabbi Nathan, that when Israel laid siege in its war with Midian (Num. 31), one side was left open so that the Midianites could flee. Naḥmanides (Hassagot al Sefer ha-Mitzvot la-Rambam, 5), suggests two reasons for this. The first is educational, namely, to encourage compassion even for an enemy in time of war. The second reason is tactical: to avoid emboldening the enemy by putting it in a position from which there can be no escape, and in which it has nothing to lose. In his opinion, this rule only applies to a discretionary war. As opposed to this, Maimonides sees it as a duty in every war. Rabbi Meir Simhah ha-Kohen of Dvinsk (Meshekh Ḥokhmah, at Num. 31:6) explains that the source of the disagreement between Nahmanides and Maimonides is that Maimonides views this primarily as a matter of military tactics. Therefore it is not an obligation, but rather a recommendation applying even to an obligatory war. Naḥmanides sees the underlying reason as that of compassion, which applies only to a discretionary war.

This dispute has practical ramifications to this day. Is there a halakhic obligation to allow the enemy an avenue of escape? Contemporary halakhic authorities disagreed as to whether the halakhah required the Israeli army to allow PLO terrorists to escape during the 1982 siege of Beirut. Rabbi S. Goren rejected the distinction of the Meshekh Ḥokhmah, and ruled that according to Maimonides there was a duty to allow them to escape, even in an obligatory war. Rabbi S. Yisraeli accepted the distinction and ruled that according to Maimonides there was no such duty in an obligatory war, and the matter was subject to the discretion of the military commanders and the government (see Bibliography).

DESTRUCTION OF TREES DURING A SIEGE

A special provision of the rules of siege concerns the status of trees in and around the besieged city: "When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down. For is the tree of the field man that it should be besieged by you?" (Deut. 20:19). This rule applies only to a discretionary war (Sif. Deut., ed. Finkelstein, 203).

It should be noted that this verse constitutes the basis for the general prohibition upon destroying fruit trees, and of the destruction of property in general, independent of the rules of war (Maim., Sefer ha-Mitzvot, negative commandments, 57; Yad, Melakhim 6:8).

The prohibition only applies to unnecessary destruction. Felling trees for the purpose of constructing the siege, or to deprive the besieged enemy of wood for its own use, or to prevent the enemy from using the trees as cover, is permitted (Hassagot ha-Ramban al Sefer ha-Mitzvot la-Rambam, 6). Although the language of the Torah only prohibits the destruction of fruit trees, according to a baraita (BK 91b), the prohibition applies to all trees, and where there is need for wood, non-fruit bearing trees must be used first (BK 91b).

In his Torah commentary (Deut. 20:19–20), Naḥmanides explains that the reason for this special prohibition is that once the city is captured its property will fall into the hands of Israel, and the soldiers must have faith in God that they will be victorious and that they will inherit the spoils. Thus, the prohibition derives from the rule that a person may not destroy his own property. According to Naḥmanides, when the purpose of the war is not conquest but the destruction of the city, all the trees may be destroyed.

The closing expression, "Are the trees in the field man that it should be besieged by you?" has been variously interpreted by biblical commentators. Rashi understood it as a rhetorical question, expressing the idea that trees are not the enemy, and hence their destruction is not justified. Ibn Ezra explained: "For the tree is man's life"; therefore, in harming the trees we harm ourselves.

During Israel's war with Moab, the prophet Elisha expressly commanded that the army "fell every good tree, and stop up all springs of water, and ruin every good piece of land with stones" (II Kings 3:19). The explanation given for this deviation from the language of the Torah is that it was an emergency measure (Radak).

Spoils and Looting

From the Torah, it would appear that the taking of spoils was common, and was viewed as an integral part of war (Genesis 11:24; I Samuel 30:24). This conclusion can also be reached on the basis of the prohibition against destroying trees, discussed above. In Deuteronomy, following the command to sue for peace, we are told that Israel shall enjoy the spoils of a city that refuses the offer of peace (Deut. 20:14). In the Midrash, the Sages emphasized that it was not only permissible to plunder, but that the spoils could be taken for the personal use of the soldiers (Sif. Deut., ed. Finkelstein, 200). According to Maimonides, the spoils were intended solely for the soldiers, and might be described as their payment (Maimonides, Melakhim 4:9). In accordance with David's instruction that the spoils be divided equally between the front-line soldiers and those in the rear who stay "on the baggage" (I Samuel 30:24), Maimonides ruled that the spoils must be equally apportioned.

Although permitted, it would seem to be considered inappropriate to take more than the costs of war. This is concluded from Abraham's decision to take from the king of Sodom "nothing but what the young men have eaten, and the share of the men who went with me" (Gen. 14:24; Radak and Sforno, loc. cit.). In the Scroll of Esther we find that the Jews were permitted to plunder the property of their enemies, yet the text emphasizes "but they laid no hands on the plunder" (Esther 8:11; 9:15).

Taking spoils can bring about the undesirable result of lowered moral standards in war, such as occurred at the time of King Saul (I Samuel 14:31–32), when the people, in their excitement over the spoils, transgressed the prohibition of "eating with the blood." As earlier noted, the Torah considers maintaining the moral standards of the army to be an exalted goal and this is another argument against taking spoils. In view of this, some are of the opinion that taking spoils is permitted only for the army as a whole, in accordance with the instructions of the relevant authorities, but is not permitted to individual soldiers.

Harming Innocent Civilians

The language of the Torah leads to the conclusion that if, in a discretionary war, the enemy does not accept the terms of surrender offered by the Israelite army, then all the men are to be killed: "But if it makes no peace with you… you shall put all its males to the sword" (Deut. 20:12–13). This is the conclusion drawn by Maimonides (Melakhim 6:4), who emphasizes the corollary that women and children are not to be killed. Maimonides does not distinguish between combatants and non-combatants. This should perhaps be viewed in its historical and cultural context. In the ancient world, the enemy army comprised the entire male population, whether as direct participants in the fighting or as support. The correct translation of this rule to contemporary law might be that only combatants may be targeted, and that the innocent civilian population must not be harmed.

Over the last few generations, since the beginning of the Zionist enterprise, and particularly since the establishment of the State of Israel, contemporary halakhic authorities have addressed these issues. Rabbi S. Yisraeli (see Bibliography) was of the opinion that there is justification for harming a civilian population that supports the enemy forces and voluntarily assists them, even under the doctrine of the "pursuer" (rodef) (see *Penal Law). However, when the enemy forces compel that assistance from the civilian population, there is no justification for harming non-combatant civilians.

The biblical story of Simeon and Levi and the city of Shechem (Gen. 34) is germane to this discussion. After Shechem ben Hamor, son of the city's king, rapes Jacob's daughter Dinah, Simeon and Levi kill all of the males of the city. Some commentators (Naḥmanides, at Gen. 34:13) take a dim view of what they see as their immoral conduct, and argue that this is why Simeon and Levi were reprimanded by their father Jacob (Gen. 49:5–7). Others justify the act, arguing that it is of the nature of war that the acts of one obligate all (Maharal, Gur Aryeh al ha-Torah, Gen. 34:13), or that it was justifiable from a formal halakhic point of view (Yad, Melakhim 9:14). Some have responded that, even if it were halakhically permitted, it must nevertheless be morally condemned, as we should be strict in capital matters (Rabbi S. Goren, Bibliography, 1:28).

Rabbi S. Yisraeli addressed the question of the relationship between the international law of armed conflicts and Torah law (see Bibliography), expressing the view that the rule that the law of the country is binding (see entry *Dina de-Malkhuta Dina) may apply not only to the spheres of civil and criminal law, but to international law, as well. According to this approach, international conventions on what is permitted and forbidden in war are halakhically valid (except, of course, in regard to what constitutes an "obligatory war").

BIBLIOGRAPHY:

M. Elon, Ha-Mishpat ha-Ivri (1988), 1:454; idem, Jewish Law (1994), 2:554; idem, Jewish Law (Cases and Materials) (1999), 539–44; G. Garman, Melekh Yisrael, 297–313; S. Goren, Meshiv Milḥamah, 3 vols. (1983–86); I.Y. Herzog, S. Yisraeli, D. Lishinsky, S. Cohen, Y. Gershuni, S. Min-Ha-Har, Y. Shaviv, M. Ushpizai, in: Teḥumin, 4 (1983), 13–96; S. Rosenfeld, "Ḥalukat Shalal u-Bizzah be-Milḥamot Yamenu," in: Teḥumin, 23 (2003), 52–59; N.D. Shapira, "Ha-Kri'ah le-Shalom," in: Torah she-be-al Peh, 39 (1998), 82–90; A. Sharir, "Etika Ẓeva'it al pi ha-Halakhah," in: Teḥumin, 25 (2005), 426; E. Shochetman, "Sikkun Ḥayyalei Ẓahal le-shem Meni'at Pegi'ah be-Ezraḥei ha-Oyev," in: Netiv, 2 (2003), 25; 3 (2003), 28; Y. Unger and M. Finkelstein, Parashot Lekh Lekha, Va-Yishlah, in: Parshat ha-Shavu'a (2006); S. Yisraeli, Amud ha-Yemini (1992).

[Ariel Ehrlich (2nd ed.)]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.