War and Peace

From the moment of the declaration of the State of Israel in 1948, the country got used to war as the default situation. All had to come to terms with this, including rabbis and poskim of all persuasions in their halachic rulings. In those times it was clear to all that war and peace cannot be treated equally, according to both the Torah and secular law.

In the last twenty-five years or so, after peace treaties with some of our neighbours and the pre-occupation of most of the others with their own internal conflicts, how to treat various issues has become less obvious. The first question that we have to deal with is which situations justify the declaration of war. War clearly endangers human life, and is a serious problem if there is no justification.

Milchemes Mitzva and Milchemes Reshus

The Mishna tells us that various exemptions for individuals from going to war apply only to milchemes hareshus (optional war), not to milchemes mitzva. The tana’im disagree over these classifications, and the gemara explains by giving examples. The wars of Yehoshua to conquer Eretz Yisrael were certainly mandatory, and the wars that David HaMelech fought for the purpose of financial gain were not.

The dispute is when the purpose of the war is to deplete the population of enemy nations, to prevent them from initiating conflict (pre-emptive strikes). R’ Yehuda says that this type of war is also a mitzvah, while the other tana’im count this as optional.[1]

The rishonim seem to disagree over what was special about the war of Yehoshua. The Ramban writes that we are commanded to take possession of Eretz Yisrael, irrespective of who lives there at the time.[2]

The Rambam differs. He understands that the mitzvah of wiping out the Canaanite nations applies even outside of Eretz Yisrael, and writes that milchemes mitzvah includes the ‘war of the seven nations’.[3] It sounds like he understands that the wars of Yehoshua were singled out because of the enemy involved, and not because of the land.[4]

Concerning pre-emptive strikes, all agree that the halacha is not in accordance with R’ Yehuda’s view, and they do not count as milchemes mitzvah. However, the Rambam clarifies that when the enemy has already initiated war, defending is considered a mitzvah according to both views.[5]

Practical application

Based on the above, one might conclude that the Six-Day War, started by the bombing of the Egyptian air fields, was not a mitzvah. However, it is not hard to see that this is a mistake, even if we ignore the fact that the Arab armies were preparing to strike any moment. War is not over when the sides take a break from direct combat in order to re-arm, and what happened in 1967 was merely a continuation of the war initiated by the enemy almost twenty years earlier.[6]

As mentioned, this point was clear to the vast majority at the time of the Six-Day War. What people sometimes forget is that this same war continues today, albeit with an enemy that is less clearly defined. But the truth is that as long as there is an organised force that actively seeks to fight the Jewish People, the war is not over. We need to clarify the practical halachic/moral ramifications of this.

Laws of warfare

The special rules that apply to war are numerous, and the Rambam codifies them in chapters 6-8 of Hilchos Melachim. I would like to deal specifically with the way we look at human life during war.

As mentioned already any war endangers human life, and we must ask how this can be justified even for mitzvah purposes.[7] We know that only three cardinal sins must be avoided even at expense of life, and seemingly none of the mitzvos involved in war are related to these sins.

One might answer that wars can also ultimately save human life, especially when we are merely defending enemy attacks. We could even justify the wars of Yehoshua along these lines, as it was not naturally viable to sustain a nation of millions of people without a homeland. However, this argument fails when it comes to the war against Amalek and the seven nations.

The simple explanation for all this is that national issues cannot be viewed in individual terms. For a nation to exist and function, it is inevitable that life will be lost. This is true regarding many aspects of running a country, even outside the context of war. For example, although even a single human life is priceless, there is a limit to the amount of public money that can be spent on individual medical costs.[8]

The enemy

If the above is true even when it comes to the lives of our own people, it is true all the more so when it comes to the enemy. During peacetime, if someone tries to kill we have the right to kill him first, but only if there is no other option.[9] Obviously, a war cannot be fought on the same terms.

The Torah relates this idea unequivocally:

ואם לא תשלים עמך ועשתה עמך מלחמה וצרת עלֽיה. ונתנה ה' אלקיך בידך והכית את כל זכורה לפי חרב.

(דברים כ, יב-ג)

“If it (the city) doesn’t make peace with you, and wages war, you shall besiege it. Hashem your G-d will deliver it in to your hands, and you shall kill all its males by the sword.”

(Devarim 20:12-3)

This parsha clearly tells us that even after the battle has been won and the enemy city is under our control, we have the right to wipe out the adult male population (the next verse excludes women and children from this). No exceptions are made, even though there may be some who wanted to make peace. What is the justification for this?

The answer is again that on a national level, individual concerns must give way. If the enemy knows that the consequences of waging war and losing are minimal, this is a national disaster, potentially on an existential level.

Nevertheless, this detail of the annihilation of the enemy civilian population is not listed as a mitzvah. It seems that it is not an obligation, but a guideline.[10] Today, when international law clearly prohibits such actions, doing so would likely defeat the objective and would therefore not be advisable.

The mitzvah that does obligate is stated in more general terms, that we must not hesitate in front of the enemy.[11] The Rambam explains that this mitzvah obligates us to be strong and steadfast in war, and not to flee.[12]

In modern warfare the issue is far more subtle. Strict control and training means that the possibility of individual soldiers breaking down and fleeing is remote. The responsibility to be decisive in war rests mainly on the heads of those giving orders, whose lives are not even in danger. And often the challenge is not fear of the direct enemy, but of those who indirectly support them by applying pressure internationally.

Incapacitated terrorists

In light of all the above, we can understand what the attitude should be to a terrorist who no longer poses direct danger. If we mistakenly view him as a civilian criminal, there is no justification for an individual taking the law into his own hands. But if we understand that we are dealing with war against the enemy, there is no reason to have any mercy.

This does not mean that an individual soldier should act independently, against orders. An army cannot function if everyone makes his own decisions, and violators should receive the standard punishment for disobeying orders. But when the orders themselves are erroneous, action needs to be taken to prevent repetition. There is necessity for both a change of attitude, and legislation to differentiate between combat-related actions and domestic ones.

This message was once transmitted by the Kohen anointed for war:

ואמר אלהם שמע ישראל אתם קרבים היום למלחמה על איביכם אל ירך לבבכם אל תיראו ואל תחפזו ואל תערצו מפניהם.

(דברים כ, ג)

He shall say to them: “Hear Israel, today you are waging war on your enemies. Your hearts must not soften, do not fear, panic or hesitate facing them.”

(Devarim 20:3)

Chazal explain that the Kohen stresses that the war is against the enemy. He reminds the soldiers that unlike in civil war, if anyone falls captive no-one will take pity on him.[13] Until the prophecies of eternal world peace are fulfilled, we must act accordingly.

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[1] Sotah 44a-b

[2] Sefer Hamitzvos, Mitzvah 4 in his collection of positive mitzvos that the Rambam ‘forgot’.

[3] Hilchos Melachim 5:1. See also 5:4, that the remnant of the seven nations has already been destroyed.

[4] However, there is an apparent paradox within the words of the Rambam. He continues by defining Milchemes Reshus as as a war fought in order to extend territory or to increase the prowess and fame of the king. He also stipulates that the first war that a king fights must be a milchemes mitzva, seemingly precluding the possibility of the Redemption coming through war (as the seven nations no longer exist). But later on (11:4) he does say that the Mashiach will fight wars.

[5] Ibid.

[6] This point is made by R’ Shaul Yisraeli in Amud Hayemini, siman 16, from subsection 25 onwards.

[7] See Minchas Chinuch, Mitzva 425

[8] For further elaboration on this topic see B’Ikvei Hatzon (by R’ Herschel Shechter) siman 32.

[9] See Sanhedrin 57a

[10] Although the Rambam does state this guideline in Hilchos Melachim 6:4.

[11] Devarim 7:21

[12] Sefer Hamitzvos, negative mitzvah 58. Although the Ra’avad and Ramban argue that this pasuk is just an assurance that Hashem will give us the strength and not a mitzvah, they clearly agree that the ideal situation is one where we do not fear. See also Megilas Esther.

[13] Sotah 42a