What does Jewish law say about the war between Israel and Hamas? Depends where you look.
For both hawks and doves, there’s a lot that’s troubling about the Jewish law of war
An Israeli tank is deployed along the Gaza border. Photo by Getty Images
Contributing Columnist Jay Michaelson October 13, 2023
With the war between Israel and Hamas now raging, there has already been ample controversy regarding the severity of Israel’s military actions and debates over whether they comply with or violate the international laws of war.
In addition to that body of law, however, Jewish law also has a great deal to say about when war is permissible, what actions are permitted and forbidden in the context of war and what values one must uphold, even in the midst of a life-or-death struggle.
But Jewish law is also self-contradictory. And, as we will see, it will disappoint both hawks and doves. But in so doing, it reveals much about how Jews wrestle with problematic values within our tradition.
The shortest summary of the Jewish law of war is that biblical texts are, in general, extremely militaristic, and centuries of rabbinic interpretations have tried to make them less so.
The Torah — and Deuteronomy in particular — expects, and occasionally celebrates, war. God is described as an ish milchamah, a Man of War, and is said to fight on Israel’s side against its enemies.
In Deuteronomy 20, God’s main injunction to Israel is to not be afraid: “When you go out to war against your enemies, and see horses and chariots and a nation larger than you, do not be afraid of them, because I, YHVH your God, am with you, and I brought you out of the land of Egypt.”
And when it comes to the rules of war, the chapter is merciless. Upon besieging a city, the Israelites are to offer peace, but what that really means is that the city must pay tributary taxes and “serve you” (Deuteronomy 20:11). If the city refuses, the Israelites are to besiege it and “smite every male in it with the sword” (Deuteronomy 20:13). Women, children, domesticated animals and all the city’s possessions are to be taken as spoil.
But those cities, the chapter continues, are the lucky ones. The inhabitants of Canaan — the Hittites, Amorites, Canaanites, Perizites, Hivites and Jebusites — are to be utterly annihilated (Deuteronomy 20:17). Yes, the Torah commands genocide.
Finally, in what can seem like a strange afterthought, the chapter concludes with the famous prohibition on cutting down fruit trees during war. “Is the tree of the field like a person, who comes before you in siege?” asks Deuteronomy 20:19. In Jewish law, this verse is the source of the prohibition on waste, bal tachshit, which has become a cornerstone of Jewish environmentalism — but then, the next verse tells the Israelites that any non-fruit tree can indeed be cut down, and made into weapons.
As is also well-known, the Book of Joshua puts these troubling commandments into action, as indeed the Israelites besiege and pillage their way through the promised land, displacing its inhabitants to fulfill a divine command. For an extreme nationalist, hard-right-wing position on Israel, one need look no further than these biblical passages.
The Talmudic rabbis were clearly troubled by this material. Historically, they lived in a different time: Israel was now the conquered, not the conqueror, and the Talmudic sages, unlike the zealots of the time, sought to accommodate themselves to this reality.
So, as they did with other troubling biblical verses — an eye for an eye, the stubborn and rebellious son — they reinterpreted, redefined and significantly narrowed the biblical material.
First, building on the two types of war in Deuteronomy 20, the Talmud distinguishes between the first type, which it calls discretionary (milchemet reshut), and the second, which it regards as obligatory (milchemet hovah). (See BT Sotah 44b, Mishna Sotah 8:7.) God commands Israel to annihilate the idolatrous nations of Canaan; that is obligatory. But God merely permits, and restricts, laws against people “far from you.” Those wars of aggression are merely discretionary.
Already, as Rabbi Donniel Hartman writes, the seeds for a slightly more pacifist Jewish ethos are planted. For Hartman, the reason the milchemet hovah is mandatory is to eradicate idolatry and prevent it from spreading. Without that threat, any other war must be regarded as a milchemet reshut. They carry more restrictions, they do not exempt Jews from their other religious obligations, and they are not directly commanded by God.
Other Talmudic passages further limit the reach of Deuteronomy 20. For example, BT Sanhedrin 2a says a war of aggression requires the approval of the Sanhedrin court.
Most importantly, while Deutoronomy 20:8 exempts any man “fearful and gentle-hearted” from military service, out of concern that their fear might spread to others, some Talmudic sources greatly expand that exemption to include anyone concerned about his own sins. And on that basis, some Talmudic sages render a discretionary war completely impossible.
Since all Israelites have sinned, all are exempt from duty, so there simply can be no discretionary war, no religiously permissible war of aggression. The Torah’s rules about it are like those of the stubborn and rebellious son: lo hayah v’lo nivrah, something that never was and could never be. It is a null set.
Still, the law, its implicit values and its implementation during the reigns of Kings David and Solomon, remain on the books. And even if the technical definition of obligatory wars is limited to wars to eradicate idolatry, in modern parlance, wars of self-defense (in which the Israeli government would surely include the current operation) are not quite “discretionary” either.
During the nearly 2,000 years of Jewish exile, these laws had no functional meaning. And indeed, many sages expanded on the rules of law in ways that would be profound to contemplate today.
For example, Rabbi Moses Maimonides, the Rambam, ruled in the Mishneh Torah that when a city is besieged, “it should not be surrounded on all four sides, only on three. A place should be left for the inhabitants to flee.” That text has already been shared by Israeli progressives disturbed by civilian casualties in Gaza.
And of course, in the last 200 years, there have been numerous Jewish pacifists and peace-lovers who have drawn sustenance from the countless Jewish injunctions to pursue peace more broadly. (“Seek peace and pursue it,” says Psalm 34:15.) Whatever Deuteronomy 20 says, the word Shalom appears over 300 times in the Hebrew Bible. That must mean something.
While these textual contradictions will disappoint anyone looking for a single Jewish answer regarding the rules of war, they may also point to a deeper truth: that there is much in the Jewish tradition that is profoundly troubling, and those who work with that tradition must often struggle mightily with it.
The Torah, Bible and Talmud are not simple answer keys to life’s most complex moral questions. Nor is it intellectually or spiritually honest to cherry-pick the verses that align with one’s priorities, and claim that only they are the “real” Judaism. In fact, the “real” Judaism is the one that contains all these contradictory teachings, that does not easily resolve into contemporary political categories, and that is a reservoir for continued moral and spiritual contemplation. That is the spiritual work of ethical adults, as indeterminate and difficult as it often is. Beware of those who promise a shortcut.
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