by Rabbi Adam Zagoria-Moffet
NB: this essay is an exploration of military ethics from the point of view of our own side. It does not consider the specifics of enemy tactics, military context, or the often separate but overlapping complexity of war. It is not about the ethics of pidyon shevuim (redemption of hostages). That is such a big topic it requires far more depth than could be afforded here. May this learning serve in the merit of our hostages and may they be returned home safe and sound, as soon as possible.
In April 1948, in the midst of Israel’s fight for survival and independence, the two Chief Rabbis joined together in penning an unusually political letter. In part, it said: “…the general deterioration of moral values throughout humanity is no excuse for Jews to forsake the basic principles of the moral heritage of mankind which stems in so large a measure from Hebrew teaching.” The incident to which this letter was responding was the massacre in Deir Yassin by Irgun and Leḥi troops, and the two sages, Rabbi Yitsḥak Herzog and Rabbi Ben-Tsiyyon Uziel, did not hide their true thoughts on the paramilitaries’ behaviour:
“The Chief Rabbinate calls upon those responsible to realise the depths of the shame which they have inflicted on the Yishuv to whom such acts are utter abomination. The Chief Rabbinate prays that a Spirit from on High may cleanse the hearts of those Jews who have become frenzied by the Jewish tragedy into behaviour which casts a slur upon the Jewish struggle for survival.”
The tension at the heart of this letter is one that has persisted in the halakhic debates around war. How do we preserve our moral values while immersed in such extreme and violent situations? Is there such a thing as a halakhic ‘holy war’? As the war in Gaza approaches 600 days and over 400 soldiers have fallen in the ground offensive, is there any wisdom that halakhic sources can offer us? I think there is – but the wisdom is both an affirmation and a caution. This war, it would seem, runs the risk of being both a command and a crime.
I. War, Three Ways
Halakhah does not sanctify war, nor does Judaism celebrate war as a means in itself. There are no glorious songs of valkyries and Valhalla here, nor are there glowing affirmations of martyrdom. War is not desirable nor honourable. Indeed, war itself is rarely voluntary – a fact acknowledged by the way we discuss it. The primary source which lays out the halakhic approach to war is Rambam (Maimonides), who devotes the last part of his Mishnéh Torah to the laws and ethics of warfare. There, he suggests a binary taxonomy of conflict: milḥemet mitsvah (obligatory/commanded war) and milḥemet reshut (discretionary war). When it comes to the latter, a voluntary war of expansion and conquest, there is both great scepticism and also legal limitations on tactical action – but for the first, the conflict which we are commanded to fight, there is considerably more latitude for total war.
There are three qualifications for a milḥemet mitzvah: either it is 1) a war of conquest against the seven nations who inhabited the Land of Israel in the time of Joshua, 2) a war against Amalek, or 3) a defensive war prompted by an attack on Israel [5.1]. For the sake of a milḥemet mitzvah, the king can draft any soldiers needed, act with total authority (not needing the permission of the Sanhedrin), and make a road wherever necessary. However, in both types, milḥemet mitzvah and milḥemet reshut alike, the king is obligated to offer a peace deal first to the enemy. The terms needn’t be convenient or comfortable for the enemy – the king is empowered to insist on their complete submission in exchange for ceasing the war – but if they refuse, then the war that ensues is correct, valid, and understood to be commanded.
In such a war, legitimate targets are any men past the age of majority [6.4]. While the civilian population can be held as plunder and do lose all rights to their land and freedom, they are not military targets – Rambam is explicit that one cannot kill women and children. These protocols for engagement are, according to Rambam, guidelines for that third example of milḥemet mitsvah: a commanded war that is a defensive conflict. Which set of ethics does such a war fall into? It seems to neither fit the unboundaried total war ethic of the other obligatory conflicts, but nor is it a purely optional discretionary war. Must we show restraint in such a defensive war, targeting only military forces, or are we permitted to aim, as we do in fighting Amalek, for the extinction of the enemy?
It is worth emphasising that the war which is currently being fought is this kind: a defensive war. Obligatory, but not necessarily with the permissions of other commanded conflicts. That is precisely why those who seek to justify tactics of total war and annihilation must attempt to categorise the current conflict not as a defensive war, but instead as a war against Amalek. This is at the root of how we respond – are we fighting an enemy who attacked us and acting in defence and retribution? Or are we confronting the arch-nemesis of Amalek, against whom the only acceptable tactic is extermination?
Rambam himself aids us here, as he follows the rabbinic understanding of the first two categories (wars of conquest against the seven Canaanite nations and wars against Amalek) as historical phenomena. The very beginning of his Laws of Kings and Wars [1.1] stipulates that those two mitsvot were commanded to the Israelites when they entered the Land of Israel (along with appointing a king). This is part of a long-standing tradition of accepting that the memory of Amalek and the population of the original seven nations of Canaan have already been erased. Those wars are historical, and do not drift into the present tense. This follows the reading in Mishnah Yadayim 4.4 that all of the peoples of the land were already intermixed (having lost their identity, and thus their memory) by the time of Assyrian conqueror Sennaḥeriv (7th century BCE). If we read the definition of Amalek similarly narrowly, as we should and must, as an historical footnote and not a present reality, then there is no question that the current war falls into the third category of milḥemet mitzvah: a defensive war. This leaves us with the same question and same uncertainty: how are we meant to conduct ourselves in such a conflict?
This ambiguity regarding a defensive war prompted a modern posek, a Religious Zionist rabbi who was a Dayan and who took over as Rosh Yeshivah at Merkaz haRav after Rav Kook’s son, Rabbi Shaul Yisraeli, to create a third category for precisely this type: milḥemet nakamah – a war of revenge. The precipitating event for Rabbi Yisraeli’s ruling wasn’t Deir Yassin, but Qibya. In 1953, after months and months of violence against Israeli communities culminating in the massacre of an entire family of civilians in their beds, Israeli forces infiltrated the village of Qibya in Jordan (West Bank) and conducted a violent reprisal: sixty-nine civilians were killed, and forty-five homes destroyed along with a mosque and a school. Rabbi Yisraeli condemned the reaction to Qibya in the international press as antisemitic and affirmed the merits of such an operation, but also offered an important caution:
“Operations of retaliation and revenge are permitted against those who assail Israel and should be classified in the category of mandatory war (milḥemet mitsvah). And whatever disaster and harm is inflicted on the [enemy] perpetrators [of violence], their associates, and their children, it is their very own responsibility, and they will bear their crime. And there is no obligation to avoid [military] operations of retaliation because of the concern that the innocent will be harmed, for it is not we who are the cause [of this harm], but they themselves [i.e., the enemy] have caused this; we are guiltless. However, regarding the intention to harm children from the outset, this is something we have not found [in the Jewish tradition]. Therefore, one should take care not to harm them.”
Rabbi Shaul Yisraeli (1909–95) Amud HaYemini 3rd ed. Eretz Hemdah, 5760 p. 205
Rabbi Yisraeli attempts to resolve the lacuna in Rambam by suggesting that the third type of milḥemet mitzvah, a defensive war of revenge and reprisal, is indeed a medial case – we are neither permitted to annihilate the enemy without restraint (as we are for the other two types) nor are we obligated to be overly careful in targeting only military targets. The idea that whatever harm comes to enemy non-combatants is their fault, not ours, is rhetoric which affirms the very principle and goal of reprisal: creating a culture of deterrence. However, even here, where Rabbi Yisraeli suggests that the war is a command, we nonetheless are not permitted to target civilians lehatḥilah (from the outset). There is an acceptance of collateral damage, but not an uncomplicated affirmation of total war.
II. Ends and Means
Another Religious Zionist leader, writing in response to the same public debate around Qibya, affirmed a different approach. Ḥaim Moshe Shapira was a leading member of Knesset and one of the earliest and most vocal supporters of a religious approach to political Zionism. Speaking of Qibya and the policy of reprisals on civilian populations, Shapira said:
“Throughout the years we were always against this. Not just today. Even when there were murders of Jews in the Land of Israel, which was quite common before the founding of the State of Israel, we know how many were killed week after week, month after month. Yet we have never said, ‘Let the innocent be swept away with the guilty’ (Gen. 18:23).”
Ḥaim-Moshe Shapira, quoted in Bein Shalom LeShlemut HaAretz, 311–13.
The idea that even in the face of routine attacks a Jew could not abandon the distinction between enemy combatants and civilians may seem naive, but Shapira was not alone. To take an extreme example, the Chief Rabbi of Tel Aviv and another leading Religious Zionist teacher and posek, Rabbi Moshe Avigdor Amiel said:
“Even if we knew for certain that we could bring about the Final Redemption [by indiscriminate killing], we should reject such a ‘Redemption’ with both hands, rather than be redeemed, but through [innocent] bloodshed.”
Rabbi Moshe Avigdor Amiel (1883-1946) Published in Teḥumin, vol. 10, 148.
In other terms, we see a consistent theme here that the evaluation of military ethics does not operate from the ends and then conclude the means – there are ends which, while extremely desirable (the final redemption!), nonetheless cannot validate the spilling of innocent blood.
Another specific halakhic challenge is presented by the situation of siege warfare. Thankfully, Rambam is specific in giving us particular guidance on this issue (following Deuteronomy, which also speaks to it). In his Laws of War, Rambam stipulates two conditions of conducting a siege [6.7-8]:
Both of these provide important context to the military ethics – and both apply to any sort of war, whether commanded or voluntary, defensive or vengeful. Lest we misinterpret this or incline ourselves to not take it seriously, Naḥmanides writes in his gloss upon the Mishnéh Torah:
God commanded us that when we lay siege to a city that we leave one of the sides open so as to give the population a place to flee to. It is from this commandment that we learn to deal with compassion, even with our enemies, and even at time of war. In addition by giving our enemies a place to flee to, they will not charge at us with as much force.
Naḥmanides’ tactical advice here is both moral and practical. A siege which does not allow for civilians to flee and which prevents or destroys the food supply is prohibited both militarily and morally. To adopt the rhetorical flourish of Rabbi Amiel: even if conducting a siege in such a way would bring about redemption immediately, we are still not permitted to do so. It is prohibited, regardless of the causes or contingencies of any given war.
Nor does a compassionate approach to siege warfare need to compromise the just military aims of the besieging power. The Yad Peshutah (another modern Religious Zionist rabbi), commenting on this passage in the Mishneh Torah, explains that the corridor Rambam means is one that is designed to facilitate civilians escaping the siege. It is not meant to be ‘big enough’ to allow the besieged army to resupply or retreat — it is an entirely humanitarian gesture which Halakhah sees as compatible with the military tactics of siege warfare.
The basis for the reasoning of Naḥmanides’ and Yad Peshutah here is, at least in part, one of the teachings of Mishlé (Proverbs):
“If your enemy is hungry, give them bread to eat.
If they are thirsty, provide them with water.
For if you do, you shall rake coals over their head,
and God will reward you accordingly” [25.21-22]
This pithy bit of advice seems to suggest that there is a moral power in being ‘the bigger person’ which can have practical and tactical benefits. Rabbi Adin Steinsaltz, in his commentary on Proverbs writes of his verse:
“Your enemy’s knowledge that they have become dependent on their enemy, who is feeding them and has repaid their evil deeds with kindness, is humiliating for them. Furthermore, it is an inherently good deed, and therefore, God will reward you for performing this kind act. By showing your enemy kindness you will benefit twice; you will achieve the highest form of sweet and effective revenge, and you will also be rewarded.”
So where does this leave us? The war which has been fought tirelessly for almost two years is a mitzvah. It is obligatory. We must fight. We must defeat the enemy who attacked us. It is an example of Rabbi Yisraeli’s milḥemet nakamah – we seek vengeance and deterrence, and the ability to save future lives – it is just, and it is commanded, and yet that does not come without restrictions. We cannot intentionally target civilians. We cannot kill indiscriminately. We cannot lay siege to the enemy without providing a compassionate and humanitarian avenue of safe passage for the innocent. We cannot lay siege through starvation and deprivation. Even if we don’t buy the view of Mishlé and Naḥmanides that there is a tactical objective to compassion, it doesn’t matter. Even if starvation actually gets us to victory, it doesn’t matter – it is prohibited, it is assur.
In particular, the targeting of civilian non-combatants is assur. Like the dispute over the identity of Amalek, there seems to be a creeping confusion regarding whether it is permissible to target non-combatants. Dismissing the categories of the seven nations of Canaan and Amalek as historical questions and not contemporary challenges, we must also dismiss any idea that a total war of annihilation is encouraged, or God-forbid, required. One of the most pernicious ways in which criminality has been validated by poor halakhic reasoning is the work Torat haMelekh, a product of the Od Yosef Ḥai Yeshivah. In it, the authors disregard all distinctions of innocence, or even of age:
“In discussions on the killing of infants and children … it is reasonable to harm children if it is clear they will grow up to harm us. Under such circumstances they should be the ones targeted.”
The only possible basis for such twisted reasoning is if we are talking only about the seven nations of Canaan or Amalek and we somehow consider any enemies living today to be in those categories. Rambam is explicit that in every other war, we have an obligation to leave alive women and children. It is only in fighting the seven nations and Amalek that we can conduct a total war. Thus the only way to justify a policy of annihilation is to identify our enemy as Amalek, something which our tradition has, rightfully, always been very opposed to doing. If the enemy we fight is not one of those two special cases, if the war we wage is a normal defensive war in which we have been attacked and are responding with retribution, there is no permission to intentionally harm non-combatants. To do so is a crime.
There is a famous category in Halakhah of mitzvah sheba-ah be-avérah, ‘a command fulfilled via a crime’. The best example is perhaps the oft-discussed lulav gazul, the stolen Lulav. Your obligation to take the Lulav on Sukkot is binding and heavy upon you. But equally heavy is the prohibition on stealing. So what happens if you steal a Lulav? Can you fulfill the mitzvah by using a stolen Lulav? The answer, of course, is no – and the principle that you cannot honour a divine command by committing a crime is established and reinforced by it. This concept is one that feels strangely relevant to our current predicament, but the stakes are so much higher.
If the war against Hamas is commanded, valid and necessary, but some of the means by which it is conducted are prohibited, both morally and militarily, where does that leave us? We cannot fulfill a command through a crime. We cannot perform a mitsvah through committing an avérah. We cannot win without ensuring we act in accordance with the Divine Law. This is not a question of politics – we needn’t leave the arba amot shel Halakhah in exploring it.
III. The Two Warnings
One of the greatest halakhic decisors of the last hundred years, and one of the two signatories to that letter about Deir Yassin, Rabbi Ben-Tsiyyon Uziel, offers us some stark reminders of the stakes behind these issues. Never one to shy away from difficult topics, he devotes at least two of his many teshuvot to such questions regarding morality and warfare. Contrary to others, he affirmed in an early responsum that, “…it is actually a mitzvah to enlist and to go out to war with weapons and even violate Shabbat.” Recognising that there would be some objection to this, he explains:
“…Anyone who finds themselves in a situation of violence or battle is permitted to kill non-Jews on the basis of this law: if someone comes to kill you, rise and kill them first (Sanhedrin 72a). In a wartime situation, it can be assumed that the enemy would kill any Jew who came into their hands (Avodah Zarah 26b, Tosefot on veLo Moridin), even more so at a real serious time of war, that is to say as part of the procedure of a formal war. It is certainly permitted and a mitsvah to kill the enemy, for look – this is the main command of the war itself.”
Mishpeté Uziel, Volume VIII, Oraḥ Ḥayyim 21.41
He encourages us that we needn’t fear that by fighting we are violating the command of ‘do not kill’ cited in the Ten Commandments. Elsewhere he softens his affirmation of violence with an explanation that the real issue at stake is one of punishment:
“…anyone who kills another person, regardless of religion or race or nation, transgresses a negative commandment – but they aren’t always liable for execution by the court. Instead they are liable for divine punishment.”
Mishpeté Uziel, 2nd Ed., Volume III Oraḥ Ḥayyim 10.2
So there are times that someone is commanded to kill, but we cannot forget that all killing is also a transgression. Some things (especially such liminal and extreme situations as warfare) can be both a command and a crime simultaneously. What this means, Rabbi Uziel insists, is that we have to feel the seriousness of this task. In another passage, writing now in a philosophical mode rather than a halakhic one, Rabbi Uziel offers us two stirring warnings regarding bloodshed, whether commanded or criminal (or, as it might be, both):
Two strident warnings were spoken to Israel by the Divine regarding the matter of protecting human life:
Hegyoné Uziel, Quoted in Ya’akov Shavit, ed., Havlaga o Teguva, 153–56
These two warnings that Rabbi Uziel reminds us of – not to kill unnecessarily and not to cause the spilling of innocent blood – sit as part of the broader picture of military and moral ethics which we have seen. We can be fulfilling one mitsvah and violating another at the same time – but we have to remember that we cannot fulfill a mitzvah through the means of an avérah. If we’re not careful this dichotomy can lead to confusion – we risk mistaking the command for the crime and vice versa. That is precisely why we must be careful, we must remind ourselves what our tradition tells us about the correct way to wage war, we must not allow ‘the general deterioration of moral values throughout humanity’ to cause us to ‘forsake the basic principles of our moral heritage’.
Our tradition is careful and nuanced here and we should be too. War can be just and valid, and even, at times, mandatory. There are also tactics which are assur for us to utilise in war – even in the most extreme situations. If we live and fight according to the Halakhah as outlined here, then we have nothing to worry about, as Rambam reminds us and the valiant soldiers of Israel [7.15]:
“Anyone who fights with their whole heart, without any fear, and acts to sanctify the Divine Name, is promised not to find any suffering or ill. They will build a well-established house among Israel and will merit many children. They will live a life of merit and inherit the World that is Coming.”
Ken yehi ratson.
