In Judaism tradition, voluntary war (; milḥemet ha-reshūt), sometimes called a discretionary war, optional war, a non-obligatory war, or a war of free choice, refers to a war that is waged of free choice by Israeli Jews, only at such a time when the people of Israel are settled in their ancestral homeland. It is contrasted with the mandatory war.
History
The
Hebrew Bible assumes war as inevitable when it says, "When you go out to war against your enemies" (Deut. 20:1).
It has often been cited and used as the constitutional basis for traditional laws of conquest, where the defeated are either killed or enslaved.
Traditional Jewish law recognizes as a category of permissible war, wars undertaken in order "to diminish the heathens so that they shall not march against them."
The earliest age given in the Hebrew Bible for military conscript is age twenty.
[, Rashi's commentary, s.v. ][, s.v. , quote: "At to pursue, meaning, to after the enemy, since he is compelled to go into military service (Mahzor Vitri), just as it is written (Numbers 1:3), 'From twenty years old and upward, all in Israel who go forth to war'.] Old men (aged 60), as well as the lame and the blind, are exempt from military service.
King David waged a voluntary war against the Moabites and the Ammonites (2 Samuel 8 and 1 Chronicles 19),[Commentary Pnei Moshe on Jerusalem Talmud, Soṭah, chapter 8 (end)]
In 164 BCE, Mattathias, the progenitor of the Hasmonean dynasty, made it a law that it was permissible for Jews to defend themselves on Shabbat, even if it meant desecrating the Sabbath, when attacked by their enemies.
Characteristics
The great rabbis and sages of Israel distinguish between a voluntary war and a
mandatory war. A voluntary war is not fought for national survival, but rather for personal ambitions of the country's ruler. This might include personal enmity with another state, or a desire to show the country's military prowess as a means to deter potential aggressors, or to
Expansionism of the country.
A voluntary war may only be waged by authorization of the greater Sanhedrin, composed of seventy-one judges,
[Mishnah, Sanhedrin 1:5] presumably in order to impose a religious and moral check on reckless warfare.
Other authorities also permit a king to initiate a war, since a king is the supreme commander of the army.
[; Babylonian Talmud, Sanhedrin 20b][Rabbi Shlomo Goren, Religious War and Voluntary War (in Hebrew)] In other respects, a voluntary war is to be distinguished from a religious war, insofar that a religious war concerns the conquest of the land of
Canaan by
Joshua.
For all practical purposes, a voluntary war can be described as an offensive war, but in the absence of either a monarchy or the Sanhedrin such a war is lacking in its powers and in its authority to be waged, and there is no man who can forcibly be taken to join the war effort.[; ][Babylonian Talmud, Sanhedrin 2a; 20b (corresponding to Mishnah, Sanhedrin 1:5)] Moreover, a voluntary war can only be waged by Israel when the people are settled in the Land of Israel.[, P. Shofṭīm; , P. Shofṭīm; , quote: "Let all sort of warlike operations, whether they befall you now in your own time, or hereafter in the times of your posterity, be done out of your own borders."] Such laws do not apply to Jews serving in foreign armies.
Rules of engagement
The early Sages of Israel mitigated the laws of armed conflict. In the case of a voluntary war, it was bound by certain legal constraints and restrictions (
jus in bello), inasmuch as it was prohibited by
halakha to wage a voluntary war on the
Shabbat, unless it were to save life.
Moreover, according to the Babylonian Talmud,
Shabbat 19a, in a war waged of free choice, whenever Israel lays
siege to a city belonging to the enemy, the siege must be initiated at least three days before the start of the Sabbath,
[; ] and it is incumbent upon Israel to offer the besieged conditions of capitulation (peace), such as the guarantee of their lives being spared if they agree to be put under tribute and servitude to the Jewish nation,
[, Deuteronomy 20:10, s.v. ; , P. Shofṭīm; ] and on condition that they agree to observe the seven basic commandments given to the sons of Noah.
For this, embassages and heralds are sent to representatives of those persons who make themselves voluntary enemies to the nation of Israel in order to extend conditions of peace.
[Josephus 1981, p. 101 ( Antiquities 4.8.41.)] Once the siege has begun, war is made against the besieged city and continues thereafter, day after day, even on the Sabbath day itself, as it says: "
until it be subdued"
(Deut. 20:20).
[; ][Babylonian Talmud, Shabbat 19a]
In a voluntary war, not all able-bodied men are conscripted to fight, as there are certain exemptions outlined explicitly in the Torah, namely:
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'the one who built a house and did not dwell in it a year's time'
[; ]
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he that 'planted a vineyard and did not partake of its fruit'
[. note: (see: .]
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the one who has 'betrothed a wife and has yet to perform his marital duty' on her.
[; . Even after performing his marital duty, a bridegroom remains exempt from military duty, so as to be free at home for one full-year and to allow him to be happy with his wife whom he has taken (Deut. 24:5) (see: ).]
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the one who is 'fearful and faint-hearted'.
[. His removal from the battlefield is so that he will not cast fear in the minds and hearts of his fellow soldiers]
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the one whose conscience bothers him because of having committed certain sins.
[. The application of this law was so strict, that even a man who spoke between putting on his Tefillin and head phylactery, which is forbidden to do since he causes a blessing to be recited in vain, he returns from the war.]
Formerly, in Jewish Halakha law, it was incumbent upon a priest descended from Kohanim and who had been specifically tasked with the vetting process to officiate over the conscription of new recruits (; the anointed for battle), to announce unto the people the legal requirements and to screen those who were exempt from military service, while admonishing and encouraging all others, in the Hebrew language, to fight valiantly.[Maimonides, Sefer Hamitzvot (no. 191 - assertive command)][; ; ] Afterwards, Captain were appointed over the soldiers to conduct the war, and to take-up positions at the fore of the battle, as well as at the rearward of military operations.
Soldiers are prohibited from Open defecation in the open field, in such a way that their waste remains visible, but must carry with them a trowel-like implement needed to dig a hole in a pre-designated place and to cover-up their excreta after relieving themselves.
Laws relating to the siege of cities
In Jewish halachic law, it is forbidden to lay siege to a city by completely closing-off the city on all four sides. Rather, a besieged city must be encompassed only on its three sides, to enable those who wish to escape to escape.
[; ; ] Moreover, it is prohibited under Jewish law to cut down the
Fruit tree of a besieged city while maintaining the siege, in order to punish the people of the besieged city
(Deuteronomy 20:19-20), although it is permitted to cut-down trees that do not bear fruit, to be used in the siege.
[; , P. Shofṭīm; ] Neither is it permissible for the warring party that lays siege to a city to prevent from its inhabitants water that is being channeled into the city via an aqueduct.
In those cities where the besieged people refuse to capitulate and to make peace with Israel, the
Torah sanctions the killing of all males of warring age in that city, but the women, small children and livestock are to be taken as legal plunder.
Special privileges
Conscripted soldiers taking part in the voluntary war effort have been given special privileges to make fighting easier for them, or else to keep them blameless:
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If, in the course of the war, a Jewish man sees a beautiful gentile woman among the captives, whether she is a single woman or a woman married to another man, and his passions are aroused by her beauty and he desires to lay with her carnally (being unable to control his passions), he may conscionably do so, without guilt, when his intent is to marry her,
[, s.v. ] since the Torah has condoned his actions during the time of warfare.[; Babylonian Talmud, Kiddushin 21b–22a; Sifre on ; ; Babylonian Talmud, Sanhedrin 59a (Rashi, s.v. )]
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Soldiers taking part in the war effort are permitted to any dry wood for their personal use.
[; ; ]
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Soldiers taking part in the war effort, in the event of food scarcity, are permitted to eat of animals that have been Terefah, and even to feast on the 'necks of swine' ( Hagigah 17a).
[; . This, however, is only on the condition that they could not find kosher foods to eat (Eisenstein 1970, p. 228).]
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Soldiers taking part in the war effort are permitted to return to their places with their weapons in hand, even on a Shabbat.
[; ; . This was an enactment made by the Chazal because, originally, they would place their weapons on the Sabbath day in a house next to the wall of the city. It once happened that the enemies recognized them and chased them, etc. At that time, they ordered that they return to their places with their weapons ( Eruvin 45a).]
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Soldiers taking part in the war effort are exempt from hand washing immediately prior to eating bread, since this would be an encumbrance upon them.
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Soldiers taking part in the war effort are permitted to eat of fruits and vegetables that have the status of Demai-produce.
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Soldiers taking part in the war effort are exempt from observing the laws governing the extension of courtyards ( ʻerūvei ḥaṣerot) on the Sabbath day ( Eruvin 17a–b).
[; . Meaning, they may shift goods from tent to tent without making Eruv to combine them into a single domain for the Sabbath (see: ).]
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A soldier killed in battle may be buried in the place where he had fallen, even if his family members were known and they could retrieve the body and take it to their private family's burial plot ( Eruvin 17a–b).
[. This is because an army unit is entitled to set-up camp wherever they wish, gaining temporary ownership of the land whereon they are encamped.]
Jews who are conscripted in non-Jewish armies
According to the
Bayis Chadash, notwithstanding the lack of conditions which would otherwise make a voluntary war valid today, Jewish men may still find themselves serving as soldiers in non-Jewish armies among the nations of the world. In which case, Jewish soldiers who are called to lay siege to a city, unlike their regular non-Jewish unit or regiment, are still obligated to abide by the strictures outlined in rabbinic writings and must embark on the siege with at least three days in advance of the Sabbath-day.
Moreover, if there was a case whereby Jews and Gentiles had been taken captive by enemy forces, it is permissible for Jewish soldiers serving in foreign armies to set-out to rescue the captives, even on a Sabbath-day, since the
Pikuach nefesh takes precedence over the Sabbath-day, and is withal tantamount to a religious war.
See also
Notes
Further reading
Bibliography
