The Gentle Heart in Israel Today
Extending a biblical exemption from military service to Israeli refuseniks.
The Tosefta Sotah 7:22 quotes Rabbi Akiva as saying, "Why does the verse then say 'and the disheartened'? To teach that even to the mightiest and strongest of men, if he is compassionate (rahaman) he should turn back."
Notice that the gentle-hearted must be exempted; if that is how they feel, there is no discretion, not the army's and not theirs, to conscript them. And notice that the Torah's concern is both for conscience and for practicality: if they stay in the army, their example may bring other soldiers to become unwilling to kill, or to die.
This provision operates also as a rough public check-and-balance, to measure whether the people really believe a specific war is worth dying for and worth killing for. If many soldiers begin to take the position that a specific war is not worth their dying or killing, the war may become impossible for the nation to fight.
If on the other hand, most eligible fighters rally vigorously to the cause, the war can probably be fought.
On Different Types of War
In the Talmud (see especially Sanhedrin 2a [the mishnah], 16a, and 20b, and Sotah 44a-b), the rabbis limited the exemptions by distinguishing different types of wars -- an "obligatory war" from a "voluntary war" (milhemet chovah [or mitzvah] vs. milhemet reshut)--and said that the exemptions named by the Torah applied in the second case but not in the first.
But what is an obligatory war? Not so easy:
Raba said (Sotah 44b): The wars waged by Joshua to conquer Canaan were obligatory in the opinion of all; the wars waged by the House of David for territorial expansion were voluntary in the opinion of all; where they differ is with regard to wars against heathens, so that these [heathens] should not march against them.
Note that there was a real difference of opinion about whether a preventive/defensive war was voluntary or obligatory.
Characterizing the Wars of Modern Israel
So one could argue that only a war to establish a Jewish place in the Land of Israel, like Joshua's wars and the war of 1948, was obligatory; once that place for sustainable self-government was carved out, all other wars were (thought by some to be) voluntary. So in our own day, the occupation of the West Bank and Gaza could be argued to be an expansion of territory beyond what is necessary for a sustainably self-governing Jewish community, and therefore a voluntary war in which the exemptions would apply.
It is certainly not an open-and-shut case that the Occupation is a milhemet reshut; but it seems a reasonable extrapolation.
The fact that the electorate and Knesset may have authorized the present level of war to control the West Bank/Gaza does not settle the matter.
To declare a voluntary war, according to the Talmud, required the approval of a Sanhedrin of 71. So even if the Sanhedrin (or an elected analogue today) voted for such an expansionist war, the exemptions would still apply.
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