"Inter arma enim silent leges"
"During war the law is silent."
Latin proverb, used by Cicero and Jerome with minor changes
Michael Walzer:“War and Peace in the Jewish Tradition”
This is one of the meanings of exile: Jews are the victims, not the agents of war. And without a state or an army, they are also not the theorists of war.
Michael Wyschogrod, z"l:
“Shall the domain of the state be written off as the domain of the Devil, beyond the hope of sanctification, or shall it be seen as the most difficult challenge of all, which must be won for the holy precisely because of its remoteness from it?” (in The Body of Faith).
"As Jews, we cannot be hawks. But neither can we be doves – we must be men" (in Peace: The Real Imperative).
~ When you think of war, what is your gut feeling about it?
~ Complete the sentences:
War is _____________________________________________________
Peace is ____________________________________________________
The Jewish attitude towards war is _______________________________
Engaging in war is ________________________________________
Civilian casualties in war are _______________________________
Using humans as shields in war is __________________________
Using drones for war is _____________________________________
Torture in a war context is __________________________________
Terrorism is ________________________________________________
The relationship of personal ethics and war ethics is _________________________
The relationship of Jewish Law and International law is _______________________
This session and the next session we will focus in two questions:
1. Jus ad bellum - are there contexts in which war is right, justified or obligatory?
2. Jus in bellum - once one is engaged in war, what are the limits of ones actions, if any?
After that we will try to study specific cases and the application of Jewish Law.
There are three kinds of war in Jewish Law.
1. A "required war" (milchemet chova) is a war explicitly commanded in the Torah. It applied to the seven nations of the Canaanite region and to them alone. It is not only war but genocide. Most thinkers affirm that this category may not be applied to anyone else. Several commentators will put certain limitations to this, as we will see.
2. An "optional war" (milchemet reshut) is a war that a king wants to wage without a self-defense motive. It needs to be approved by a judicial body, the Sanhedrin.
3. An "obligatory war" (milchemet mitzvah) is a war of self-defense.
~ What is the case?
~ Which type of war are we talking about? Why?
Are your brethren going to war while you remain here? - this goes against Israel, since they have a land already conquered through the efforts of everyone, and everyone put themselves in danger for that war.
~ What are the basic questions that the Sforno (15th c, Italy) and the Haamek Davar (Netziv, 19th c. Russia) raise regarding the question of war and the Reubenites and Gadites?
~ What type of war are we talking about?
~ What are the consequences to the people attacked?
~ What are the rationales given for this type of war in the text?
~ Do you believe these laws were completely followed, always? What stories do you know of non-compliance? What were the motives?
~ What is the story?
~ Why did the Gibeonites (Hivites) do what they did?
~ Why didn't they get killed? Who wanted to kill them, and who didn't?
~ What is the end of the story?
~ OPTIONAL: look up parashat Nitzavim (Deut. 29:9-11) and try to explain what's going there.
~ What is one of the functions of the shofar? Are you surprised by this?
~ What war are we talking about here?
~ Who is exempt? Why?
~ What are the limits to war actions here in terms of people? Why?
~ What are the limits to war in terms of environment? Why?
~ How does this source and Joshua 9 are connected?
(י) כִּֽי־תֵצֵ֥א לַמִּלְחָמָ֖ה עַל־אֹיְבֶ֑יךָ וּנְתָנ֞וֹ ה' אֱלֹקֶ֛יךָ בְּיָדֶ֖ךָ וְשָׁבִ֥יתָ שִׁבְיֽוֹ׃ (יא) וְרָאִיתָ֙ בַּשִּׁבְיָ֔ה אֵ֖שֶׁת יְפַת־תֹּ֑אַר וְחָשַׁקְתָּ֣ בָ֔הּ וְלָקַחְתָּ֥ לְךָ֖ לְאִשָּֽׁה׃ (יב) וַהֲבֵאתָ֖הּ אֶל־תּ֣וֹךְ בֵּיתֶ֑ךָ וְגִלְּחָה֙ אֶת־רֹאשָׁ֔הּ וְעָשְׂתָ֖ה אֶת־צִפָּרְנֶֽיהָ׃ (יג) וְהֵסִ֩ירָה֩ אֶת־שִׂמְלַ֨ת שִׁבְיָ֜הּ מֵעָלֶ֗יהָ וְיָֽשְׁבָה֙ בְּבֵיתֶ֔ךָ וּבָֽכְתָ֛ה אֶת־אָבִ֥יהָ וְאֶת־אִמָּ֖הּ יֶ֣רַח יָמִ֑ים וְאַ֨חַר כֵּ֜ן תָּב֤וֹא אֵלֶ֙יהָ֙ וּבְעַלְתָּ֔הּ וְהָיְתָ֥ה לְךָ֖ לְאִשָּֽׁה׃ (יד) וְהָיָ֞ה אִם־לֹ֧א חָפַ֣צְתָּ בָּ֗הּ וְשִׁלַּחְתָּהּ֙ לְנַפְשָׁ֔הּ וּמָכֹ֥ר לֹא־תִמְכְּרֶ֖נָּה בַּכָּ֑סֶף לֹא־תִתְעַמֵּ֣ר בָּ֔הּ תַּ֖חַת אֲשֶׁ֥ר עִנִּיתָֽהּ׃ (ס)
(10) When you take the field against your enemies, and the LORD your God delivers them into your power and you take some of them captive, (11) and you see among the captives a beautiful woman and you desire her and would take her to wife, (12) you shall bring her into your house, and she shall shave her hair, pare her nails, (13) 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. (14) 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.
~ What is the war talked about here?
~ What are the limits to the soldiers' actions? Why? What could happen that is outlawed?
~ What do the shaving of the hair, cutting the nails and changing clothes are supposed to do?
~ What is the time limit that is imposed on the soldier supposed to do to the relationship between captive/captor?
(1) כי תצא למלחמה WHEN YOU GO OUT TO WAR — Scripture is speaking here of a war that is not obligatory upon the Israelites (Sifrei Devarim 211:1), for in regard to a war that was waged against the inhabitants of Erez Israel, Scripture could not possibly say, “and you captured captives”, since it has already been stated regarding them, (Deuteronomy 20:16) “[But of the cities of those people ...] you shall not allow any soul to live”. (2) ושבית שביו AND YOU CAPTURED CAPTIVES — These apparently redundant words are intended to include Canaanite people living in it (in a city outside Canaan), that it is allowed to capture them although they belong to the seven nations (Sifrei Devarim 211:4; Sotah 35b).
~ How does Rashi understand this source?
~ How does this modify the idea of genocide regarding the war of conquest? Is it genocide, as we understand in modern terms, particularly after Hitler?
(א) כי תצא למלחמה. במלחמת הרשות הכתוב מדבר.
(ב) על אויביך. כנגד אויביך.
(ג) ונתנו ה' א-להיך. אם עשית כל האמור בענין, סוף שה' א-להיך נותנו בידך.
(ד) ושבית שביו. לרבות כנענים שבה.
(ה) וראית בשביה. בשעת שביה.
(ו) אשת. אף על פי שהיא אשת איש.
(ז) יפת תואר. אין לי אלא בזמן שהיא יפת תואר. מנין אף על פי שהיא כעורה? ת"ל וחשקת, אף על פי שאינה יפת תואר.
(ח) ולקחת לך לאשה. שלא תאמר, "הרי זו לאבא" "הרי זו לאחי".
(1) (Devarim 21:10) "If you go out to war": Scripture speaks of an optional war (as opposed to a war of mitzvah).
(2) "al your foes": against your foes.
(3) "and the L-rd your G-d delivers him into your hand": If you do as stated herein, in the end, the L-rd your G-d will deliver him into your hand.
(4) "and you capture its captivity": including Canaanites in their midst (even if they be of the seven nations).
(5) (Ibid. 11) "and you see in the captivity": at the time of the captivity.
(6) "a woman": even a married woman.
(7) "of beautiful form": This tells me only of a woman of beautiful form. Whence do I derive that the same applies to an ugly woman? From "and you desire her": even if she is not beautiful. If so, why is it written of beautiful form"? Scripture speaks of the common instance.
(8) "then you may take her for yourself as a wife": and not for his father and not for his son.