Voluntary war

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Voluntary war (Hebrew: מלחמת הרשות‎; milḥemet ha-reshūt), sometimes called a discretionary war, optional war, a non-obligatory war, or a war of free choice, is a technical term found in Hebrew classical literature and denoting a war that is waged of free choice by Israel, only at such a time when the people of Israel are settled in their ancestral homeland.[1][2][3] Such a war is to be distinguished from a mandatory war, in that 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 expand the territorial domain of the country.[4] Such a war cannot be waged without either the command of a king,[a] or the approbation of the Great Sanhedrin, consisting of no less than seventy-one judges.[5] A voluntary war is also to be distinguished from a religious war, insofar that a religious war concerns the conquest of the land of Canaan by Joshua.[6]

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.[7][8][9]

History[edit]

Traditional laws of armed conflict are the norms and practices that were in force amongst nations long before the adoption of the UN Charter and the four Geneva Conventions of 1949, where, in the case of the former, the victor subjugated the enemy (enslaved them), expelled them, took their cities and land, etc., and what some have also termed "precedents of permissibility,"[10] although universally agreed that wherever the traditional laws of conflict are found, "the structure of the UN and the structure of international criminal law have been significantly weakened."[10]

The Hebrew Bible, as a case study, has often been cited and used as the constitutional basis for traditional laws of conquest, where the defeated are either killed or enslaved.[11] 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."[12]

In 164 BCE, Mattathias, the progenitor of the Hasmonean dynasty, made it a law that it was permissible for Jews to defend themselves on the Sabbath day, even if it meant desecrating the Sabbath, when attacked by their enemies.[13] His son, Judas Maccabeus, when trying to curtail the advances of the enemy Syrian troops who had invaded the country, put into practice the teachings of Moses, as prescribed in the 'ancient order of battle' (Deut. 20:1–ff.), and dismissed from his army those men who had recently been married to a wife.[14]

Rules of conduct[edit]

A voluntary war is bound by certain legal restraints and restrictions (jus in bello), inasmuch as it is prohibited by halakha to wage a voluntary war on the Sabbath day, unless it be to save life.[15] Moreover, 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,[16][17][18] 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,[19][20][9] and on condition that they agree to observe the seven basic commandments given to the sons of Noah.[21] 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.[22] 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).[9][23][24]

In a voluntary war, not all able-bodied men are conscripted to fight, as there are certain exemptions outlined explicitly in the Torah, namely:

  1. 'the one who built a house and did not dwell in it a year's time'[25][22][b] (This rule also applies to the man who built a new warehouse, cowshed, woodshed or hayshed. It is the same whether he had obtained the house through legal means, but had not dwelt in it, or he had inherited the house, but had not dwelt in it.[26])
  2. he that 'planted a vineyard and did not partake of its fruit'[27] [note: a vineyard being no less than five vines. It is all one whether he had sunk a vine shoot into the ground and cut it off from its mother to produce a new tree, or had grafted vine trees together].[28] (The same rule would apply to the man who planted five fruit-trees, whether they were all of the same kind, or different kinds).[28]
  3. the one who has 'betrothed a wife and has yet to perform his marital duty' on her.[25][29] 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).[9]
  4. the one who is 'fearful and faint-hearted'.[30][31] (His removal from the battlefield is so that he will not cast fear in the minds and hearts of his fellow soldiers).
  5. 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 arm phylactery and head phylactery, which is forbidden to do since he causes a blessing to be recited in vain, he returns from the war.[32])

Formerly, in Jewish halachic law, it was incumbent upon a priest descended from Aaron's lineage and who had been specifically tasked with the vetting process to officiate over the conscription of new recruits (משוח מלחמה‎; 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 to fight valiantly.[33][34][35] This priest was to be anointed with the holy anointing oil.[1] He was assigned Levite officers to assist him in conveying these messages in an audible voice to the people, immediately prior to engaging in battle.[36][28]

Afterwards, captains 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.[37][9]

Soldiers are prohibited from defecating 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.[9]

If, in the course of the voluntary war, soldiers were recalled from active duty (although they did not fall under the category of those who had newly wedded a wife, neither those who had built a new house, nor planted a vineyard), they would be commissioned by the acting officers to fix the public roads, to provide food and water on the war behalf, in addition to being assessed for the town tax.[38][c] Such duties and responsibilities do not apply to the man who is newly wedded, or who has built a new house or planted a vineyard, as he is exempt from all these.[39][d]

Laws relating to the siege of cities[edit]

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.[40][2][41] Moreover, it is prohibited under Jewish law to cut down the fruit trees of a besieged city while maintaining the siege, in order to punish the people of the besieged city.[42][43][44][45] 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.[9]

In those cites 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.[46][47]

Special privileges[edit]

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:

  1. If, in the course of the war, a Jewish man sees a beautiful gentile woman among the captives, even one who is 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,[48] since the Torah has condoned his actions during the time of warfare.[49][50][51][52] Even so, when she is brought to his house, he must shave her head and allow her fingernails to grow out[e] without cropping them and separate himself from her for one-month during her time of mourning, in order to be dissuaded from consummating a marriage with her.[53] If, after all has been done, he still desires to take the woman as his wife, he may do so, on condition that she agrees to adopt the Jewish religion and is immersed in a ritual bath.[54][55] The Law, moreover, enjoins that female captives who were forced to cohabit with their victors and who do not wish to convert to Judaism should not be sold as slaves.
  2. Soldiers taking part in the war effort are permitted to purloin any dry wood for their personal use.[9][56][57][f]
  3. Soldiers taking part in the war effort, in the event of food scarcity, are permitted to eat of animals that have been improperly butchered, and even to feast on the 'necks of swine' (Hagigah 17a).[58][59] This, however, is only on the condition that they could not find kosher foods to eat.[9]
  4. Soldiers taking part in the war effort are permitted to return to their places with their weapons in hand, even on a Sabbath day.[9][60] This was an enactment made by the Sages 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).[9][60]
  5. 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.[9][56]
  6. Soldiers taking part in the war effort are permitted to eat of fruits and vegetables that have the status of Demai-produce.[9][56]
  7. 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).[9] Meaning, they may shift goods from tent to tent without making Eruv to combine them into a single domain for the Sabbath.[61][56]
  8. 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).

Jews who are conscripted in non-Jewish armies[edit]

According to the Bayit 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 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.[62] 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 saving of Jewish life takes precedence over the Sabbath-day, and is withal tantamount to a Religious war.[62]

See also[edit]

References[edit]

  1. ^ a b HaLevi 1958, p. 318 (section no. 526), P. Shofṭīm
  2. ^ a b HaLevi 1958, p. 319 (section no. 527), P. Shofṭīm
  3. ^ Josephus 1981, p. 101 (Antiquities 4.8.41.)
  4. ^ Meiri 2006, p. 24 (Sanhedrin 16a)
  5. ^ Babylonian Talmud, Sanhedrin 2a (corresponding to Mishnah, Sanhedrin 1:5)
  6. ^ Kuzmarov 2012, p. 54
  7. ^ Meiri 2006, p. 24 (Sanhedrin 16a)
  8. ^ Babylonian Talmud, Sanhedrin 2a; 20b (corresponding to Mishnah, Sanhedrin 1:5)
  9. ^ a b c d e f g h i j k l m n Eisenstein 1970, p. 228
  10. ^ a b Professor of international law, Alfred de Zayas, on the UN Charter laws of conflict. How legitimate is Russia on Ukraine? on YouTube. CGTN. 27 February 2022. Minutes 5:17–ff.
  11. ^ Kuzmarov 2012, pp. 52–53
  12. ^ Bleich 1983, p. 3
  13. ^ Josephus 1981, p. 258 (Antiquities 12.6.2.)
  14. ^ a b Josephus 1981, p. 259 (Antiquities 12.7.3.)
  15. ^ Soloveichik 1982, pp. 179–180
  16. ^ Soloveichik 1982, p. 181
  17. ^ Babylonian Talmud, Shabbat 19a
  18. ^ Tosephta 1970, p. 142 (Eruvin 4:7)
  19. ^ Nahmanides 1993, p. 80, Deuteronomy 20:10, s.v. כי תקרב אל עיר להלחם עליה‎
  20. ^ HaLevi 1958, p. 318 (section no. 527), P. Shofṭīm
  21. ^ Maimonides 1989, pp. 258–260 (Hil. Melekhim 6:1–ff.)
  22. ^ a b Josephus 1981, p. 101 (Antiquities 4.8.41.)
  23. ^ Babylonian Talmud, Shabbat 19a
  24. ^ Maimonides, Mishneh Torah (Hil. Shabbat 2:25)
  25. ^ a b Tosephta 1970, p. 309 (Soṭah 7:20)
  26. ^ Zechariah ha-Rofé 1992, p. 414 (Deut. 20:5)
  27. ^ Zechariah ha-Rofé 1992, p. 414 (Deut. 20:6)
  28. ^ a b c Danby 1977, p. 302 (Soṭah 8:2)
  29. ^ Zechariah ha-Rofé 1992, p. 414 (Deut. 20:7)
  30. ^ Zechariah ha-Rofé 1992, p. 414 (Deut. 20:8)
  31. ^ Danby 1977, p. 303 (Soṭah 8:5)
  32. ^ Zechariah ha-Rofé 1992, p. 413 (Deut. 20:8)
  33. ^ Deuteronomy 20:2–9
  34. ^ Maimonides, Sefer ha-Mitzvot (no. 191 - assertive command)
  35. ^ Maimonides 1989, p. 265 (Hil. Melekhim 7:1)
  36. ^ Zechariah ha-Rofé 1992, p. 413 (Deut. 20:5)
  37. ^ Danby 1977, p. 303 (Soṭah 8:6)
  38. ^ Tosephta 1970, p. 309 (Soṭah 7:23)
  39. ^ Tosephta 1970, p. 309 (Soṭah 7:24)
  40. ^ Maimonides 1989, p. 263 (Hil. Melekhim 6:7)
  41. ^ Zechariah ha-Rofé 1992, p. 415 (Deut. 20:12)
  42. ^ Maimonides 1989, p. 263 (Hil. Melekhim 6:8)
  43. ^ Deuteronomy 20:19–20
  44. ^ HaLevi 1958, p. 319 (section no. 529), P. Shofṭīm
  45. ^ Zechariah ha-Rofé 1992, p. 415 (Deut. 20:19)
  46. ^ Deuteronomy 20:11–14
  47. ^ Ginsburger 1903, p. 335 (Deut. 20:14)
  48. ^ Meiri 2006a, pp. 57–58 (Kiddushin 21b), s.v. כבר ידעת‎
  49. ^ Eisenstein 1970, p. 229
  50. ^ Babylonian Talmud, Kiddushin 21b–22a
  51. ^ Deuteronomy 21:10–14
  52. ^ Maimonides 1989, p. 269 (Hil. Melekhim 8:2)
  53. ^ Lehman 1988, pp. 313–316
  54. ^ Eisenstein 1970, pp. 169–170
  55. ^ Maimonides 1989, p. 270 (Hil. Melekhim 8:5)
  56. ^ a b c d Maimonides 1963, p. 65 (Eruvin 1:10)
  57. ^ Tosephta 1970, p. 140 (Eruvin 3:6)
  58. ^ Eisenstein 1970, pp. 228–229
  59. ^ Maimonides 1989, p. 269 (Hil. Melekhim 8:1)
  60. ^ a b Tosephta 1970, p. 142 (Eruvin 4:6)
  61. ^ Danby 1977, p. 122 (Erubin 1:10 - note 10)
  62. ^ a b Sirkis 2005, p. 34 (Orach Chayim 249:1)

Notes[edit]

  1. ^ A story is relayed in the Babylonian Talmud (Sanhedrin 16a; Berakhot 3b) about King David who was accosted by the Sages of Israel who said to him, "Your people, Israel, are in need of making a living." He replied to them that they should make a living from one another, by means of trade. They then replied to him, "A trifling amount hardly satisfies the lion, neither does a cistern fill-up by its ḥūliyya" (i.e. the oozing of rain water into the small hole that is drilled in the slab of stone laid over the mouth of a cistern. – Maim.). Meaning, the water in a cistern must be channeled into the cistern from canals and sluices brought from afar, or from rain water that drains from the rooftop. To this answer, the king replied that they should go forth and make war against their enemies in the surrounding districts and to take from them the things that they stand in need of. They then sought sage advice and counsel from Ahitophel, including from the Sanhedrin, and enquired of the Urim and Thummim, as to how and when this was to be accomplished.
  2. ^ One of the reasons stated for this exemption is that, with newly gained possessions, they would fight in a cowardly manner, out of an inordinate love of life, in order to enjoy those blessings.[14]
  3. ^ Cf. Mishnah Sotah 8:2. An example of such person is a man who, although initially not qualified for war exemption, was asked to leave the battle due to the fact that, in the course of the war, his brother had died childless and who then became eligible to marry his deceased brother's widow through the act of levirate marriage.
  4. ^ Cf. Mishnah Sotah 8:4
  5. ^ "must allow her fingernails to grow out," this interpretation follows the Aramaic Targum on Deuteronomy 21:12, Maimonides (Hil. Melekhim 8:1–3), Rashi's commentary on Deuteronomy 21:12, as well as the author of Sefer ha-Chinuch (no. 532), unlike the popular English translations for the same verse.
  6. ^ The authority of a Jewish Court to permit soldiers during battle to purloin another person's woodpile is derived from the laws of Hefker beth-din hefker.

Bibliography[edit]

  • Bleich, J.D. (1983). "Preemptive War in Jewish Law". Tradition: A Journal of Orthodox Jewish Thought. 21 (1). Rabbinical Council of America (RCA): 3–41. JSTOR 23259450.
  • Danby, H., ed. (1977), The Mishnah, Oxford: Oxford University Press, ISBN 0-19-815402-X
  • Eisenstein, Judah D. (1970). A Digest of Jewish Laws and Customs - in Alphabetical Order (Ozar Dinim u-Minhagim) (in Hebrew). Tel-Aviv: Ḥ. mo. l. pp. 228–229 (s.v. מלחמה). OCLC 54817857. (reprinted from 1922 and 1938 editions of the Hebrew Publishing Co., New York)
  • Ginsburger, Moses, ed. (1903). Pseudo-Jonathan (Thargum Jonathan ben Usiël zum Pentateuch) (in Hebrew). Berlin: S. Calvary & Co. OCLC 123313256. (reprinted in Jerusalem 1974)
  • HaLevi, Aharon (1958). Sefer ha-Chinuch on the 613 biblical commandments (in Hebrew). Jerusalem: Eshkol. OCLC 762447043.
  • Josephus (1981). Josephus Complete Works. Translated by William Whiston. Grand Rapids, Michigan: Kregel Publications. ISBN 0-8254-2951-X.
  • Kimelman, Reuven (2023). "Judaism and the Ethics of War". The Cambridge Companion to Religion and War. ResearchGate. pp. 215–240. doi:10.1017/9781108884075.013.
  • Kuzmarov, Betina (2012). ""Recapturing" the "Other": Jewish Laws of War and International Law". Journal of Law and Religion. 28 (1). Cambridge University Press: 47–65. JSTOR 23645226.
  • Lehman, Menashe Raphael (1988). "A beautiful woman and other laws in the Temple scroll (אשת יפת-תואר והלכות אחרות במגילת המקדש)". Beit Mikra: Journal for the Study of the Bible and Its World (in Hebrew). 33 (3). Bialik Institute, Jerusalem: 313–316. JSTOR 23505022.
  • Maimonides (1963). Mishnah, with Maimonides' Commentary (in Hebrew). Vol. 1. Translated by Yosef Qafih. Jerusalem: Mossad Harav Kook. OCLC 233308346.
  • Maimonides (1989). Mishneh Torah by Moses Maimonides (Mishneh torah: hu ha-yad ha-ḥazaḳah) (in Hebrew). Vol. 7. Jerusalem; Bnei Brak: Shabse Frankel. OCLC 918205439.
  • Meiri (2006). Daniel Bitton (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). Vol. 7. Jerusalem: Hamaor Institute. OCLC 181631040.
  • Meiri (2006a). Daniel Bitton (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). Vol. 5. Jerusalem: Hamaor Institute. OCLC 181631040.
  • Nahmanides, Moses (1993). Nahmanides' Commentary on the Torah (in Hebrew). Vol. 2. Jerusalem: A. Blum. OCLC 233074002.
  • Sirkis, J. (2005). "Commentary of Bayit Chadash". Arbaa Turim Hashalem (Orach Chayim) (in Hebrew). Tel Aviv: Mekhon Yerushalayim. p. 34 (Orach Chayim §249:1). OCLC 1039272787.
  • Soloveichik, Aaron (1982). "Waging War on Shabbat". Tradition: A Journal of Orthodox Jewish Thought. 20 (3). Rabbinical Council of America (RCA): 179–187. JSTOR 23260746.
  • Tosephta (1970). M.S. Zuckermandel (ed.). Tosephta - Based on the Erfut and Vienna Codices (in Hebrew). Jerusalem: Wahrmann Books. OCLC 13717538. (first printed in Berlin 1899)
  • Zechariah ha-Rofé (1992). Havatselet, Me'ir (ed.). Midrash ha-Ḥefez (in Hebrew). Vol. 2. Jerusalem: Mossad Harav Kook. OCLC 23773577.
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