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The Laws of War : According to Torah Sources

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muman613:
Shalom,

While listening to the most recent askJTF show I was inspired to look more deeply into the Jewish view toward war. So I started to search for articles by various Rabbis on websites which I access and discovered a lot of excellent information, which I would like to share with anyone interested in the topic.

I have already posted a summary of the 23 Torah commandments which pertain to war. But that summary did not really explain that the Torah sees two kinds of wars, an obligatory war, and an optional war. We are commanded to defend our land, and the Torah clearly is against giving a single inch of the land to the enemies of the nation.

Many of the laws of war seem to attempt to humanize the entire enterprise, to make sure that those who are going to war are in the correct state of mind in order to win decisively against any enemy. Among these laws are the commandments to keep the camps clean (Making sure to carry a spade, digging latrines, etc.) the commandments to let soldiers who have new wives, new homes, vineyards, and those who are afraid to go to war be excused from going to war (though only in an optional war). There are commands to make sure that fruit-bearing trees will not be destroyed in the process of going to war and then the very difficult to understand commands concerning the captive woman.

What follows are some articles which explain some of these concepts:

muman613:
http://www.nishma.org/articles/insight/insight5762-06.html

5762 - #06

War And The Innocent Bystander

Even as the vast majority of Americans and Canadians fully support the war on terrorism, there is a vocal minority that protests against the war. One of the concerns voiced by some of these opponents is the possibility of innocent civilian bystanders being killed as a result of the offensive. The United States government itself constantly clarifies that its enemy is not the Afghan people but terrorists and those that harbour terrorism. Indeed, it could be argued that the Afghan people are themselves victims of the Taliban conquerors of their homeland. Nonetheless, the war against terrorism has resulted and will continue to result in the deaths of civilian Afghan citizens and others. Protesters point to this reality and thereby declare the war to be unjust: They ask: even if the goal is commendable, how can one justify the spilling of innocent blood in the attempt to stop the terrorists?1 This is a question that needs to be addressed.

Rabbi J. David Bleich2 writes: "Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians, but, to this writer's knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic or moral problem."3 Unfortunately, Rabbi Bleich does not give any explanation as to why the "likelihood of civilian casualties" does not pose "a halakhic or moral problem." It may be that this is an assumed cost of war and the allowance for war inherently allows the loss of civilians. Minchat Chinuch, Mitzvah 425 states that in regard to the commandments that obligate the Jewish nation to wage war, there is no argument for exemption because of pikuach nefesh, concern for life. While concern for life generally allows (even demands) one to transgress a commandment, this dispensation does not apply to war commandments. Minchat Chinuch's argument is simple: war by definition is dangerous. It may be that war has its own rules. When the Torah allows or demands the waging of war, it could be argued that the Torah is, by definition, declaring a recognition that different moral guidelines have to apply than those that exist in peace situations.4 Since as U.S. Secretary of Defence Rumsfeld stated, the loss of civilians is an inevitable consequence of war,5 the halachic permission to wage war may itself recognize and sanction this inevitable loss of civilian lives. An allowance for war by definition removes culpability for these deaths.

Essentially, the moral question changes in the context of war. There is still a moral question that needs to be addressed but, with war, it is transformed. Our question is not whether the loss of civilian life or how much loss of civilian life is acceptable in the pursuit of a terrorist. Our question is whether war is an appropriate response to this terrorist incursion. If it is, by definition, it means an acceptance of loss of civilian life. Rabbi Bleich clarifies this distinctive nature of war by comparing a moral call for arms - such as a defensive war - to the law of the rodef, the pursuer.6 According to Jewish Law, if one is threatening another's life, we are commanded to protect the one threatened even if it demands killing the pursuer. Rabbi Bleich, however, contends that under the law of rodef the possibility of harm to a bystander would limit the possible responses. A rodef may not be attacked if such action "is likely to result in casualties among noncombatants."7 The consequence of such a distinction is major. According to Rabbi Bleich, if the pursuit of a terrorist is defined as a police action - and thus carried out under the law of rodef - this action is significantly limited by the need to minimize potential harm to civilians. If this pursuit is defined as an act of justifiable war, however, this action is not thereby limited.8

Still, why is war unique? Why does war create a shift in moral axioms? Maharal, Gur Aryeh, Bereishit 34:13 sees war in the context of the nation. As an individual, one person may not be responsible for the actions of another and, therefore, ethically protected from suffering because of the other’s actions. However, Maharal contends that as part of a nation, in war this individual is subsumed under the group. He/she, thus, halachically shares the fate of the group, even if he/she is personally not responsible for the actions of the perpetrator. This is an example of the shift in moral axioms that is part of war. But this case may also serve to help elucidate the nature of this shift. In war, we see the nation, not the individual. Similarly, in war, it may be that we assert the value of the broad principle and not the specific morality of each detailed case. With a declaration of war against terrorism, a general goal to eradicate this evil becomes paramount notwithstanding the cost in lives.9


Notes

1 If the evil of terrorism is ultimately defined by the spilling of innocent blood, the question ironically is: how can one justify the spilling of innocent blood (in the military offensive) in order to prevent the spilling of innocent blood (by terrorists)?

2 See Contemporary Halakhic Problems, Volume 3, Preemptive War in Jewish Law, p. 277.

3 Rabbi Bleich, in this article, is discussing warfare within the context of Jewish Law, specifically certain issues involving the Jewish nation's right and/or obligation to wage war. Within this Insight, we are, for the purposes of moral investigation, extending aspects of this discussion to war in general as it may apply to all nations.The Noachide laws governing war as it applies to all nations, however, may be different than the laws governing a Jewish nation at war. Thus, this extension must be approached with some caution. Yet, it is my belief that this extension is generally applicable. Further on the status of warfare under the Noachide Code, see Rabbi J. David Bleich, Contemporary Halakhic Problems, Volume 2, Miscellaneous Questions: War and Non-Jews.

4 Another example of this shift in moral axioms is the case of the yefat to'ar, the beautiful woman captured in war. See Devarim 21:10-14. According to those Torah scholars that allow nations to initiate hostilities under the Noachide Code, the exclusion of war casualties from the prohibition of homicide may be another example of this shift. See, further, Ntziv, HaEmek Davar, Bereishit 9:5.

5 Even, in this case, with the U.S. intent to limit such losses.

6 See Sefer HaChinuch, Mitzvot 600 and 601.

7 Notwithstanding Rabbi Bleich's position, this issue in itself may be worthy of discussion. Yet, in that the law of rodef is different than the parameters of war, the point is still made.

8 Of course there must still be an evaluation of the projected extent of this cost in terms of the objectives of the war. This evaluation process, it should be recognized, is also an inherent part of the nature of war. For example, while danger is an acceptable consequence of war, great losses or even pyrrhic victories may not be justifiable. As such, while pikuach nefesh may not be a factor in evaluating a situation, the potential for great losses may override a command to fight if avoidance of this danger would be a normative battle decision.

9 In comparison, in a non-war situation, individual life would be the paramount concern.

muman613:
From Rabbi Avraham Yitzak Kook:


Ki Teitzei: Waging War
The Necessity to Fight

"When you wage a war against your enemies and God will give you victory over them ..." (Deut. 21:10)

War is perhaps the most tragic and horrific aspect of the human condition. Our most fervent wish is for peace. This is the final blessing of the kohanim. The last statement in the Talmud also extols the unsurpassed importance of peace: "The Holy One found no vessel more capable of holding blessing for Israel than peace" (Oktzin 3:12).

So why does Jewish law include such concepts as compulsory and optional wars — milchemet mitzvah and milchemet reshut? Why do we find that the greatest spiritual leaders of the Jewish people — Abraham, Moses, Joshua, Samuel, King David, Rabbi Akiva — all led their nation into battle?

In a letter penned in 5664 (1904), Rav Kook explained:

"It would have been totally impossible, at a time when all of the surrounding nations were truly wolves of the night, that only the Jewish people would refrain from waging war. The nations would have joined together and destroyed the remnant of the people, God forbid. On the contrary, it was absolutely crucial to act without mercy in order to evoke fear in the wild savages."

We look forward to the day when the human race will develop to its proper state. The Torah, however, does not attempt to proceed too quickly, before the world is ready.

"Nothing ruins the groundwork for perfecting human society as much as the influence of elevated ideas on masses who are not ready to accept them. Those who sought to advance humanity by imposing the Torah's ethical teachings before the world was ready for them — completely misunderstood God's intention. The proof [that this approach is faulty] is aparent in the phenomenon of those who burnt their victims alive in auto-da-fe [during the Inquisition] under the banner of 'Love your neighbor as yourself.' This is because the Torah's refined ideals require preparation. As the Sages cautioned, 'It is an elixir of life for those who follow it diligently... but the derelict will stumble in it' (Shabbat 88b, based on Hosea 14:10).

The cruel conflicts that we witness are in fact a result of ethical constraints that were artificially imposed on the nations of the world. This created an unhealthy culture suffering severe distress; it produced negative traits, mental imbalance, and deep-rooted anger. A profound resentment erupted into vast displays of destruction and cruelty, with a brutal violence that revealed their as-yet unrefined character.

Even within the Jewish people, regarding matters pertaining to the public and national arena, the Torah did not attempt to coerce the spirit of the people towards unrealistic saintliness. This would have lead to an unnatural, forced piety. The Torah's objective is to establish an ethical awareness in the hearts of the people based on their own free will. That is why we find that the Torah is lenient regarding certain war-related issues, such as the law of female captives.

The Divine Purpose in War

Yet, one may still ask: what is the purpose of war in general?

In his book Orot, Rav Kook sought to uncover the Divine purpose even in war. Great wars, he wrote, have a important function in the world: they awaken the yearnings for the Messianic Era. Solomon described the hour of redemption as "the time of the songbird ('zamir')" (Song of Songs 2:12). It is a time to prune (zamir) and cut down the wicked.

But what about the many innocent lives lost in the destructive surge of violence? This phenomenon contains a measure of "mitat tzaddikim mechaperet," atonement of the world that comes from the death of the righteous. These souls elevate to the source of life, and their lives bring universal good and blessing for the overall advance of the world in all of its aspects.

With the conclusion of the war, the world is renewed with a new spirit, and the footsteps of the Messianic Era are revealed. Thus we find in the daily prayers a connection between war and the messianic light of redemption:

"Master of wars, Who sows kindness and brings forth salvations ... You will shine a new light on Zion."
(Adapted from Igrot HaRe'iyah vol. I, letter 89, p. 100; Orot pp. 13,15)

muman613:
http://www.chabad.org/parshah/article_cdo/aid/413826/jewish/Dying-for-Life.htm
Inner Stream - Dying for Life
By Lazer Gurkow


When our ancestors would mobilize their forces for war, they were addressed by a high ranking priest. First he would offer brave words of encouragement and confident predictions of victory. “Let your heart not be faint; do not fear the enemy nor enter into panic and do not be terrified for G-d will vanquish your enemy for you.”

The military officers would then announce: “Any man who has built a home, but has yet lived in it... planted a vineyard, but has yet to render it fit for use... betrothed a woman, but has not yet married her... should return home, lest he die in war....” (Deuteronomy 20)

This is an astounding time for such announcements. The priest has just bolstered the morale of the troops and the officers; yet now, it seems, he proceeds to demoralize them by thinning their ranks!

(There are a number of explanations that are offered by the commentaries for these announcements. Ibn Ezra1 argues that this was strategically wise. Men with such concerns on their mind will worry about their affairs at home and will be unable to keep their mind on the battle. Filling their ranks with such unmotivated troops would weaken the military and undermine their prospects for victory. Abarbanel2 argues that since these men did not have opportunity to fulfill the respective mitzvot associated with their endeavor (the house builder has yet to build his parapet, the vineyard planter has yet to offer the priestly gifts and the betrothed has yet to sire children) they would not merit the miracles required for victory.)

Protecting a Way of Life

The Talmud remarks that the order of these announcement reflect the proper conduct of life: First we ought to build a home, then plant a vineyard, or establish alternative sources of income, and only then should we marry.3 This remark indicates that our sages viewed these three announcements as a reflection on the ordinary routine of life.4

Why does an army go to war? To protect its national interest. What is a nation's primary interest? It's citizens' unhindered pursuit of life's ordinary routine. When an enemy threatens the ordinary pursuit of day to day life, the nation's very fabric is undermined.

In this way, perhaps we can explain the priest's public announcement of these exemptions from battle immediately following his words of encouragement. The troops were reminded of their exalted purpose. Why are we going to war? To enable our comrades to pursue the normal routine of life. So they can build homes, plant vineyards, and establish families.

The troops that were sent home knew that they were entitled to recuse themselves from military draft, but they came anyway. How could they not come? They could not sit home while their brothers fought for their country. It was not easy for them to abandon their brothers and go home.

Yet they were told to do just that. These soldiers, with their departure, validated their comrades' efforts on the battlefields. If they went to war, their comrades would die in vain.

Modern Application

When the enemies of Israel threaten our cities with rockets, when they threaten our lives with suicide bombers, when they send our citizens to bomb shelters and destroy our way of life, the nation is justified in going to war.

No argument can justify a cease fire that does not achieve the goals for which the nation set out to war. If our soldiers are not safe, if our borders are still violated and if our cities are still under attack then our war is not over.

We mourn the loss of innocent lives on all sides, our Torah ethic demand it. We pursue the war with a vengeance, till peace can be restored, our Torah ethic demands that too. We do not seek a peace that will lead to another war. We seek a war that will lead to a lasting peace. This is the unfortunate reality fostered upon us by our enemy.

We must embrace life. But if victory is not achieved, then those who have sacrificed their life will have died in vain. We cannot allow that to happen.

Fear Nothing, but Sin

Just before the army embarked for war, one last announcement was made. “He who is fearful and fainthearted should return home, lest he melt his brothers' heart as well.” There are those who fear the consequences of war, but such fear is intolerable in war. The Torah instructs us to keep such fears silent, lest they melt the hearts of the brave.

According to one of our sages this announcement was directed to sinners. An enemy that G-d promised to vanquish need only be feared if we were made unworthy by sin.5

Israel's destiny is in G-d's hands. We have no reason to fear our enemy, but we do have reason to fear our own sins. If we fear the odds in this war it is because we are not worthy of G-d's miracle. The obvious antidote is repentance.

This time of year is conducive to repentance. So let us repent this year not only for ourselves, but for our entire nation.


FOOTNOTES
1.   Rabbi Abraham ben Meir ibn Ezra, Spain, 1092–1167.
2.   Don Yitzchak Abarbanel, Spain, 1437-1508.
3.   Talmud, Sotah, 44a. See Maharsha, ibid., that this standard only applied to a person of means. One, who cannot afford to build his own house and business may marry on the basis that the community will support him till he finds an independent source of income.
Maimonides places house building ahead of vineyard planting. Many commentators have attempted to explain the seeming contradiction with the Talmudic statement.
4.   It is interesting to note that when G-d reprimands the Jews and warns of their impending punishment should they abandon the Torah the loss of these three freedoms are specified. “You will betroth a woman, but another man will lie with her, you will build a house, but another mail will live in it, you will plant a vineyard, but will not render it fit for use (Deuteronomy 28:30).
5.   Talmud, Sotah, 44a. See also Rashi's and Nachmanides' commentaries on Deuteronomy 20:9.

      
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muman613:
Here is a very good explanation of the 'captive woman' commandment.


http://www.shemayisrael.com/parsha/kahn/archives/kisetze69.htm

Torah Attitude: Parashas Ki Seitzei: Human strengths and weaknesses

Summary

"You see among the captives a beautiful woman and you desire her, and you may take her for yourself as a wife." The Jewish soldier sees the beauty of the woman's soul and desires to help bring it into the Jewish people. The laws concerning a captive woman in war are a special dispensation from the regular halacha. It is within our ability to fulfill every single Torah law. Only very righteous people who never sinned would be going into battle in this kind of warfare. The Torah here teaches us an important lesson about natural human weaknesses. "Better that you should be ashamed of Amram in this world, than be ashamed of him in the World to Come." Even the greatest and most pious have within them this evil inclination, and there are instances when it takes superhuman strength to control oneself. We are all being challenged in different ways with tests that are tailor-made to our nature and our capabilities. No one is tested beyond what he can handle. Every Torah commandment was given to us to supply us with opportunities to amass merits throughout our lives.

Captive woman in war

In the beginning of this week's Parasha, it says (Devarim 21:10-11): "When you go out to war against your enemies, and HASHEM your G'd will deliver them into your hand, and you will capture its captivity, and you see among the captives a beautiful woman and you desire her, and you may take her for yourself as a wife."

Souls come back to holiness

Under normal circumstances, it is well known that it is prohibited by Torah law for a Jewish man to marry a gentile woman. Even if the woman is ready to convert to Judaism, it is not permitted if her conversion is for the purpose of marriage. So why does the Torah allow this union? Every Torah law can be understood on different levels. On a deeper level, the Kabbalists explain that the sin of Adam caused certain souls to be pushed into the realm of impurity. In the cause of time, G'd will orchestrate situations that will allow these souls to come back to the realm of holiness and purity. This parasha deals with such a situation. According to this, the Torah is talking about a Jewish soldier who sees the beauty of this woman's soul and desires to help bring it into the Jewish people (see Or HaChaim 21:11).

Special dispensation

On a simple level, Rashi quotes the Talmud (Kiddushin 21b) that teaches that the laws concerning a captive woman in war are a special dispensation from the regular halacha. The Talmud explains that G'd knows that the temptation for the soldier at war would be too great, and if it would not be permitted, chances are that this soldier would not be able to control himself and would take this woman in any case.

Ability to fulfill every Torah law

The famous Rabbi of Slutzk, Rabbi Yechezkel Abramsky, who later headed the London Beis Din, comments that this teaches us that it is within our ability to fulfill every single Torah law. G'd, Who created us, knows our strengths and weaknesses, and gave us no commandment that is too difficult. Sometimes people would like to strengthen themselves in their observance as they recognize the truth of the Torah and its commandments. But they feel that at their age it is too difficult for them to change their lifestyle. They encourage others, as well as their children, to embrace the Torah but claim that it is too late for them, as they are too establish in their way of life. Says Rabbi Abramsky, such an excuse is nothing but the evil's inclinations way of dealing with this person. Every Jewish person has the ability to live according to the instructions of the Torah. The Torah only demands of us what is within our capabilities.

Only conscript righteous for war

Rashi further explains that this Parasha is dealing with the warfare that is described towards the end of last week's Parasha (Devarim 20:1-9) where the Torah exempts anyone who is scared to go into battle. Rashi quotes the Talmud (Sotah 44a) that explains that this includes anyone who has transgressed a Torah commandment and does not feel secure that he will survive the war due to his sins. Says Rabbi Eliahu Lopian, if so, only very righteous people, who never sinned, would be going into battle in this kind of warfare.

Natural human weaknesses

Asks Rabbi Lopian, does the Torah need to be concerned about these righteous people that they cannot control themselves because they see a beautiful woman? He answers that the Torah here teaches us an important lesson about natural human weaknesses. No one is above an urge like this that every man is created with. He quotes the Jerusalem Talmud (Shabbos 1:3) where it is related about an elderly, pious sage who suggested a slight change in the words of the Mishnah (Pirkei Avos 2:5). The Mishnah says, "Don't trust yourself till the day that you die." This great sage felt that he had reached a level a purity that he would not need to worry about any temptations, and therefore he read this passage as "Don't trust yourself till the day of your old age." This did not go unnoticed in the Heavenly Court, where the Accuser requested and got permission to dress up as a most beautiful woman and entered the study of this sage. When the sage looked up and saw this beautiful woman in front of him, he addressed her in a somewhat inappropriate way. However, he caught himself immediately and was greatly pained over this incident. The Heavenly Court took mercy on him and instructed the Accuser to reveal the truth to the sage, and to tell him that he was sent from Heaven to teach him that he should not change any word in the oral Torah for it is accurate to the minutest detail.

Rabbi Amram the Pious

The Talmud (Kiddushin 81a) relates an amazing story that happened to Rabbi Amram the Pious. A group of women had been taken into captivity and were redeemed by the Jewish community of Naharda'a. They were brought to the home of Rabbi Amram the Pious who gave them accommodation on the upper floor of his house. With the assistance of ten men he removed the staircase that led up to where they stayed so that no one should be tempted to start up with them. A little while later, one of the women passed by upstairs, and her beauty was so special that it seemed like a light lit up downstairs. This was too much even for the pious Rabbi. His adrenaline surged so much that he single-handedly moved the staircase back to go to the upstairs. As he was halfway up the staircase, he got second thoughts and with all his might stopped in his tracks and started shouting at the top of his lungs, "There is a fire burning by Amram." All the neighbours heard his call and came running to extinguish the fire. As his colleagues, the other rabbis, entered his house, they said, "You are making us ashamed." The Rabbi responded, "Better that you should be ashamed of Amram in this world, than be ashamed of him in the World to Come."

Superhuman strength

This is human nature. Even the greatest and most pious have within them this evil inclination, and there are instances when it takes superhuman strength to control oneself. At the time of warfare, G'd does not expect such a self-control of every soldier, even if he is a righteous and pious person. The Talmud (Succah 52a) teaches an additional insight. The greater the person, the greater is his evil inclination. Every individual is challenged on a level suited to his personality and greatness. This is why the halacha requires segregation of men and women as far as possible and prohibits a man and a woman to be on their own in a place where the presence of other people is not anticipated. The halacha takes no chances and teaches that these laws apply even with a young girl or elderly woman (see Shulchan Aruch Even Haezer 21-22).

Tailor-made challenges

This is a classic example of the famous saying, "An ounce of prevention is greater than a pound of cure." Once the damage has been done the people involved are scarred for life and every measure must be taken to avoid such a pitfall. Our sages explain that G'd does not expect of us more than we can handle (see Talmud Avodah Zorah 3a and Midrash Rabbah Shemos 34:1). This applies both as a general rule in Torah law as well as in any situation that an individual finds himself. We are all being challenged in different ways with tests that are tailor-made to our nature and our capabilities. No one is tested beyond what he can handle.

Opportunities to amass merits

The Torah commandments were given to us to supply us with opportunities to amass merits throughout our lives. As the Mishnah (Makkos 23b) says: "The Holy One … wished to bring merit upon Israel. Therefore, He gave them Torah and commandments." In a similar way, every test and challenge we encounter throughout our life is for the purpose of elevating us to a higher level, and to help us to reach our personal purpose and goal in life. If we manage to internalize this message then nothing will be too difficult for us to handle, and rather than feel burdened and stressed we will accept whatever life brings us in appreciation to our Creator Who blessed us with these opportunities.

These words were based on a talk given by Rabbi Avraham Kahn, the Rosh Yeshiva and Founder of Yeshivas Keser Torah in Toronto.

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