Episode No. 135--War according to Torah law

We hear a great deal these days about whether Israel is violating international law in the way it’s conducting its war with Hamas in Gaza. The opposite, in fact, is more likely to be true. Given that Israel is the Jewish State, though, a fair question is whether Israel is also violating Jewish law in this war. This episode addresses that question.

Transcript

Episode No. 135: War According to Torah Law
Welcome to Keep the Faith, the bi-weekly podcast in which contemporary issues are explored through the prism of Jewish law and tradition.

Every generation has its unique issues, of course, but there’s one issue that, sadly, has been contemporary in practically every generation since the human race came into being: war.

Currently, there are at least 11 major conflicts underway in our world and a number of lesser ones that could become major ones.

All of these conflicts are matters of concern for us who live on this contentious planet. For those of us who are Jewish, of course, the war in Gaza currently tops the list of our concerns.

We hear a great deal these days about whether Israel is violating international law in the way it’s conducting its war with Hamas in Gaza. That it is violating international law is highly debatable; the opposite, in fact, is more likely true.

Given that Israel is the Jewish State, though, a fair question is whether Israel is also violating Jewish law in this war.

Judaism, after all, values life above almost everything else. The laws of pikuach nefesh and its companion shefichut damim, the saving of a life and the needless shedding of innocent blood, are black-letter Torah laws. Even the mere possibility of a life being in danger is a sufficiently valid reason for violating most of the Torah’s rules.

Yet, despite its overarching concern for the sanctity of life, the Torah also provides rules for how wars are to be fought and even commands that some wars must be fought.

So the topic for this week is how the Torah, which so values the preservation of life, can not only justify war but actually command us to fight certain wars.

The enormity of taking a life is a running theme throughout the Torah, almost from its very beginning.

When God challenged Cain after Cain killed Abel, God said to him, QUOTE Your brother’s bloods cry out to me from the ground! UNQUOTE

Twice, God used the plural word bloods rather than the singular word blood. God used the plural because not only was Abel dead, but a whole world of Abel’s descendants died with him in a figurative sense. All their bloods, not just Abel’s, ran on the ground.

As our Sages of Blessed Memory explained it, that was God’s way of telling us that to kill a single person also means killing an entire world. It follows, of course, as Maimonides, the Rambam, put it, that whoever saves someone’s life has saved an entire world.

We’re allowed, of course, to kill someone in self-defense, or to stop someone from killing someone else, or from committing a rape, which the Torah considers a form of murder—but only if there’s no other method that would work to prevent the crime. Yet, in doing so, we must be mindful that we’re also, in effect, killing all the generations that would have come from that person.

To understand how the Torah squares justifying and even commanding war with its concern for life requires us to look at how the Torah views war.

There are three types of war, as the Torah sees it. The first is the Milchemet Mitzvah, a commanded war; the second is a Milchmet Chovah, an obligatory war. Those are the two categories I’ll be discussing in this episode. There’s a third category, the Milchemet Reshut, which translates as a discretionary war. This usually refers to a war for territorial expansion, something the Tanach, our bible, doesn’t take kindly to unless it has divine sanction.

The war with Hamas is an obligatory war, a Milchmet Chovah. In attacking Israel on October 7th as it did, Hamas hoped that the unspeakable brutality it unleashed that day would spark a regional war that would bring an end to the Jewish State. The preamble to its charter calls for Israel to be “obliterated,” that’s the word it uses, and Article 7 of that charter calls on all Muslims to QUOTE fight Jews and kill them. UNQUOTE

Going to war against Hamas, therefore, is an obligatory war.

A commanded war is just that: It’s a war that the Torah insists must be fought. The War of the Conquest of Canaan against the seven nations living there was such a war, and the text seems to suggest, at least, that it was meant to be a genocidal one.

As we see in the bible, though, it was never considered to be either universal or genocidal. Israel won that war, yet several hundred years later, not only were Canaanites still living in Israel and still worshiping their pagan idols, but many of them even worked for King Solomon during his reign, as the Book of 2 Chronicles Chapter 8 relates it.

In any case, our tradition accepts that those seven nations no longer exist, and so the commandment to fight them is no longer operative.

The war against Amalek is the other commanded war, and it too is inoperative because normative Judaism takes it as a given that Amalek came to an end during the reign of King Hezekiah of Judah, 

as alluded to in Chapter 4 of the Book of 1 Chronicles.

Unlike the commanded war against the seven Canaanite nations, there’s no doubt that the eternal war against Amalek had a genocidal component to it, but only on the surface, not in actuality.

The Amalek commandment is found in Deuteronomy 25.17-19. It requires us to QUOTE Remember UNQUOTE how Amalek attacked the Israelites on their journey from Egypt to Sinai. It then commands us to QUOTE blot out the remembrance of Amalek from under heaven, UNQUOTE and follows that with QUOTE do not forget. UNQUOTE

There’s no way this commandment can be fulfilled. If we blot out the memory of Amalek, then there’s nothing to remember. If we remember Amalek, then we haven’t blotted out any remembrance of him.

To add to this conundrum, this commandment is written in the Torah, and it’s publicly read three times each year, which guarantees that there’s no way we could ever fulfill it.

The Torah worded this commandment very deliberately.

It understands that there’s always going to be an enemy so vicious and so evil, that we’d want to completely destroy everyone and everything relating to him. The Torah wanted to buy time to allow for cooler heads to prevail before the battle was to begin. Having to study this commandment to reconcile its unreconcilable contradictions was the Torah’s way of doing that.

In any case, the Canaanite nations are gone, Amalek is gone, and there no longer is such a thing as a commanded war.

The rules for the obligatory war are primarily found in the first 18 verses of Chapter 20 of the Book of Deuteronomy.

It begins by telling us that when Israel goes into battle against its enemies, a priest addresses the troops and assures them that QUOTE the Lord your God…goes with you, to fight for you against your enemies, to save you. UNQUOTE

Next come the officers. They’re commanded to send home anyone who, for example, just built a new house but hasn’t yet lived in it, or who just planted a vineyard that hasn’t yet provided its fruit, or who just married, or who is just fearful and fainthearted.

It continues by commanding that QUOTE When you approach a city to lay siege to it, you must first offer peace to it. UNQUOTE

That’s not possible in a war with Hamas. Article 13 of its charter rejects QUOTE so-called peaceful solutions and international conferences UNQUOTE. It calls them QUOTE a waste of time, an exercise in futility. UNQUOTE Article 32 says that even attempting to make peace with Israel is an act of QUOTE high treason and cursed be he who perpetrates such an act. UNQUOTE

So offering Hamas peace before going to war against it isn’t even on the table.

Hamas clearly made war against Israel. Israel, thus, is obligated to carry that war back to Hamas.

There’s more, however.

The Torah insists that all wars must be fought ethically, as difficult as that may be.

Let’s return to Deuteronomy Chapter 20. Verses 19 and 20 are significant, even if they don’t sound like it at first:

QUOTE When you wage war against a city…, you must not destroy its [food-bearing] trees…; [for] are the trees of the field like people [who are] able to retreat from before you into a besieged city? Only trees that you know do not yield food may be destroyed; they may be cut down [by you, and then, only] for constructing siege machinery to use against the city…. UNQUOTE

You’ve heard me mention that text in podcasts regarding environmental issues. These verses created the category of law known as bal tashchit, “do not destroy,” often referred to as wanton destruction.

Reading between the lines, the real prohibition in those two verses is against destroying anything of use to humankind, to the other creatures on this planet, and even to anything else that depends on such things.

A 14th-century rabbi, Aharon Halevy of Barcelona, bluntly stated that QUOTE not even a grain of mustard UNQUOTE may be destroyed for no halachically lawful reason.

The Talmud tells us that bal tashchit prohibits burning fuels of any kind with abandon—neither non-replenishing fossil fuels nor naturally replenishing plant-based ones. It also requires us to protect against pollution of every kind, including odor pollution and noise pollution. 

These laws were created 2,000 and 3,000 years ago, and they evolved from the Torah’s rules of war.

That in itself puts “do not destroy,” “bal tashchit,” firmly in the forefront of how wars must be fought.

For one thing, it didn’t give the ancient Israelites the right to level the enemy’s cities to the ground, and it still doesn’t allow that today. And certainly, if you can’t even destroy a single mustard seed for no good reason, it follows that anything that has productive use—even if it’s just productive for the enemy—must be spared if at all possible.

Obviously, if an enemy uses civilian facilities such as hospitals and schools and such, those facilities are subject to attack under Torah law—and even under international law, no matter how many talking heads say otherwise—as long as there’s no other option and a serious effort is made to at least try to minimize damage to civilians and infrastructure.

And there certainly is no license to level buildings and other facilities that aren’t being used by the enemy in an offensive way.

That goes double when it comes to taking innocent lives. To kill an innocent person, someone who doesn’t pose a threat, is murder because that violates the laws of shefichut damim, the needless shedding of blood. In the case of innocent people being used as human shields, obviously, some innocent lives will be lost, but the guilt for their deaths falls on the enemy who used them as such.

In this war, the guilt for those deaths belongs to Hamas. But that’s where the killing of innocent people living in enemy territory must stop.

There’s never an excuse for using rape as a weapon of war, something Hamas is clearly guilty of, and it’s not alone. According to a 2008 U.N. study, between 60 percent and 80 percent of women and girls are raped or sexually abused during any armed conflict.

As I said earlier, the Torah, and rightly so, considers rape to be a form of murder and the would-be rapist could be killed if that’s the only way to stop this horrible crime from being committed.

The Torah 3,500 years ago made clear that Israelite soldiers may not mistreat women, much less rape them, and it sets up an elaborate scheme designed to prevent this horror from being perpetrated by Israelite soldiers.

If a soldier sees a woman who sexually excites him, all he can do is take her captive until he returns home, no matter how many days, weeks, or months it’ll take for the war to end. That in itself puts a heavy burden on the soldier. He can’t come near her, he has take her with him wherever the war leads him, he has to provide her in each place with a secure place to live, food to eat, and clothes to wear. How is a soldier able to do that in the middle of a raging war?

When the two of them finally make it back home, he has to shave off her hair and cut her nails in order to make her far less attractive to him, and then he has to allow her 30 days in which to mourn being taken from her home and her family. Finally, before he can fulfill his desire for her, assuming he still has any, he has to marry her with all the responsibilities that entails. And all during this long and involved procedure back home, and once she becomes his wife, she has to be housed, fed, and dressed in the same manner as free Israelite women. If he no longer desires her, he has to set her free. She’s not property that he can sell to someone else.

As history shows, these rules tended to dissuade Israelite soldiers from even thinking about rape, especially since the Torah later on says that rapists can be killed on the spot for even trying to rape someone.

Rape, in wartime and generally, is a horrendous problem, but 3,500 years ago the Torah addressed it, and it did so in the strongest terms possible.

Rape was never a weapon of war in ancient Israel, and the evidence shows that it isn’t a weapon of war in the modern Israeli army.

Many, if not most, of the rules of conduct that the soldiers of the IDF must follow compare well to Torah law. They’re not to fire on anyone unless they’re fired upon. They’re not to take trophies of any kind. They must do their utmost to leave the civilian population to live in peace even as the fighting is all around them. Mosques, churches, and other sacred places, all must be protected, and so must cultural centers, educational centers, and health facilities.

I wish I could say that the State of Israel is fighting this war according to the Torah’s rules. It appears to be trying at times, but I’m not sure it’s trying hard enough most of the time from what we can see and hear on television.

I say that I’m not sure because, first, I don’t necessarily trust all the video footage we see. Second, I’m not a soldier in the Israeli Army fighting an enemy in Gaza who doesn’t play by any rules—moral ones or religious ones. Hamas cares nothing for human life. Their leaders even brag about it.

On October 24, Hamas political bureau member Ghazi Hamad said this on Lebanese TV: QUOTE We are proud to sacrifice martyrs. UNQUOTE

By the martyrs he said Hamas is prepared to sacrifice, though, he meant the civilians living in Gaza, not Hamas’ leaders or fighters.

Hamas’ leaders admit that openly, as well. They admit that they prefer to build tunnels to protect themselves, not the people of Gaza.

Another Hamas political bureau member, Mousa Abu Marzouk, made that clear during a Russian TV interview on October 27th. The nearly 311 miles of tunnels Hamas has built in Gaza, he said without even a trace of shame, are meant only to protect Hamas’ fighters and leadership. Protecting the civilians in Gaza, Abu Marzouk said, QUOTE is the responsibility of the United Nations. UNQUOTE

I doubt that it’s possible to fight a truly moral and ethical war with an immoral and unethical enemy like Hamas. But the IDF’s soldiers have to try as hard as they can to target the Hamas fighters, not the civilians behind whom those fighters are hiding.

Shame on them and shame on us if they don’t try to do so.

This is Rabbi Shammai Engelmayer.

I hope you come back for my next podcast, and I’d like to hear what you have to say about this or my other podcasts. Go to www.shammai.o-r-g—w-w-w-dot-s-h-a-m-m-a-i-dot-o-r-g—and email,  please.

If you don’t get the Jewish Standard but want to read my columns, go to the columns page of my website. My latest column focuses on how some important groups of Muslim clerics ruled months before October 7th that Hamas is a criminal enterprise, does not represent Islam, and Muslims are forbidden to support it.

I hope that the about-to-end Chanukah has been a joyous one so far this year and that the Shabbat that follows is no less joyous.

For the last time in 5784, Chag Urim Sameach, a happy Festival of Lights.

Shabbat Shalom, stay healthy, keep wearing N95 masks in public no matter who tells you otherwise, and, above all, stay safe.