Rules of War
Sermon, September 16, 2005
Rabbi Bruce Kadden

Most of the biblical injunctions regarding the waging of war are contained in last week’s and this week’s Torah portions.  Although written long ago, at a time when war was fought much differently than it is today, many of these rules offer important guides to how we should go about waging war today.  Indeed, in the weeks leading up to the war in Iraq, there was much healthy debate in the Jewish community regarding whether Judaism would support such a war.

Judaism distinguishes between two types of war:  milchemet mitzvah, a commanded or obligatory war, and a milchemet r’shut, a permissible or discretionary war.  In biblical times, a milchemet mitzvah included a war against any of the seven Canaanite nations, a war against Amalek, and a war of self defense.  Since neither the Canaanite nor Amalek exist any longer, the only contemporary application of a milchemet mitzvah is a war of self defense. 

Based on the principal of pikuach nefesh, the saving of life, we are required to defend ourselves when attacked, rather than be killed.  If we injure or kill our attacker, we are not libel for punishment.  However, we cannot do any more harm than is necessary to stop the attack.  For example, if we disarm an attacker, and he is no longer a threat to injure us, we cannot kill him.

The real debate about this issue is whether one can make a preemptive attack as a matter of self defense.  That was the argument used to support Israel’s decision, in June of 1967, to send its planes to destroy the Egyptian Air Force.  With troops amassed at the border, and diplomatic efforts to ease the tension at a standstill, Israel decided that its best opportunity to defend itself from imminent attack was to strike first.  Its success was the key reason that Israel was able to defeat not only Egypt, but Syria and Jordan as well, in less than a week.

Those who tried to use this argument to support the American invasion of Iraq had a much more difficult case.  For although many believed, falsely it turned out, that Iraq had at its disposal weapons of mass destruction, there was no indication that they were prepared to used them any time soon.  So most Jewish authorities did not believe that the invasion could be considered a milchemet mitzvah, an obligator war.

But what about a milchemet r’shut, a discretionary war?  Such a war, fought either to gain territory or to increase one’s power, could only be fought with the approval of the Sanhedrin.  Rabbi Reuven Kimelman explains the role of this scholarly body in the decision to wage war:  “Before the populace may be endangered, the ruler’s reasons for waging war have to be checked by the Sanhedrin’s assessment of the people’s interest.”

To a certain extent, the Sanhedrin is similar to Congress, in that it should better represent the people, than the King or President.  Although our constitution gives Congress the power to declare war, in recent times the President, as Commander-in-Chief, has been permitted to send our troops into combat, without congressional authority.  Judaism would question the right of a ruler to send troops to war without the approval of an independent body, representative of the people.

When a war is authorized, whether it is an obligatory or discretionary war, Judaism insists on certain rules of conduct.

The first, and perhaps most important rule of war, is that we are to avoid war whenever possible.  “When you approach a town to attack it, you shall offer it terms of peace.”  Judaism always prefers peace to war, and therefore insists that we allow a people to peaceably surrender to avoid the ravages of war. 

Of course, the conquered people are still subject to captivity, serving as forced labor according to the Torah.  But they have avoided the death and destruction that would have ensued had they gone to war.  This opportunity must be given to them.

Furthermore, when attacking a city, one is not to surround it completely, but is to leave an escape route. The Torah also teaches that we must not cut down fruit-bearing trees, which serves as the basis for forbidding indiscriminate destruction and the slaying of noncombatants. 

However, trees that might be used by the enemy can be cut down.  This issue has been the widely debated in Israel with regard to Israel’s decision to uproot some olive groves that had served as cover for terrorists.  Some have argued that the actions of a few terrorists justify uprooting the olive groves, while others claim that the Jewish teaching not to uproot fruit trees should apply, even under these circumstances.

The Torah excuses certain individuals from participating in a war.  These include anyone who has built a new house, but has not dedicated it; anyone who has planted a vineyard, but has not harvested its grapes; anyone who has contracted for a marriage, but has not yet married; and anyone who is afraid or disheartened.  The first three categories reflect a desire to allow those who have started something very important to finish the matter.  The last category, fear, is different, but seems to be based upon the concern that one’s fear might spread to other troops, thereby jeopardizing the effort.

This week’s Torah portion contains rules pertaining to the treatment of women captives.  We have to remember not to judge the passage by our standards, but by ancient standards, where it was not uncommon to allow troops free reign with female captives. 

The Torah, in contrast, insists that a woman be allowed to mourn for the loss of her family a full month, before she becomes the wife of her captor.  If he, at some point no longer wants her, he must release her outright, rather than sell her to another.

These are the most significant biblical rules that apply to warfare.  The later rabbinic tradition expanded on many of these to deal with other circumstances as they arose.  And although the Israeli army is not bound to follow Jewish law in its practice, it has developed a doctrine known as the “purity of arms” to guide its war efforts.  This doctrine reads:  “The IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the extent necessary, and will maintain their humanity even during combat.  IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.”  This ideal continues to guide the Israeli military today and has served Israel well throughout its history.

We, too, should keep in mind these Jewish teachings when it comes to examining the actions of the United States military.  Although not all of the rules apply --one cannot get an exemption of service for building a house, planting a vineyard or becoming engaged for example-- we can understand the principal that in certain situations there must be exceptions to the rules that guide military service.  Nevertheless, by being aware of Judaism’s teachings pertaining to war, we can better evaluate the courses of action which our country takes when it is faced with similar decisions.

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