The Gentle Heart in Israel Today

Extending a biblical exemption from military service to Israeli refuseniks.

Reprinted with permission from “Torah, War, and the ‘Gentle Heart’ Today: Israeli Soldiers’ Refusal to Serve in the Occupation Army,” published by The Shalom Center.

The Torah teaches: “The officials shall go on addressing the troops and say, ‘Is there anyone afraid or gentle-hearted? Let him go back to his home, lest he melt the heart of his brothers, like his heart!'” (Deuteronomy 20:8)

More than 250 Israeli reserve soldiers and officers have publicly announced that they will serve in defense of Israel’s boundaries but refuse to serve in the army of occupation in the West Bank and Gaza. They have named themselves Omez Lesarev (Courage to Refuse).

Is there any connection between their decision and the passage of Torah in Deuteronomy?

This essay will examine the Torah-related and ethical questions involved.

First, the Biblical Exemptions

First, it is noteworthy that the biblical tradition has a place for individual exemption from national military service (Deut. 20:5-8):

“Then the officials shall address the troops: Is there anyone who has built a new home but not yet dedicated it? Let him go back to his home, lest he die in battle and another dedicate it.”

“Is there anyone who has planted a vineyard but has never harvested it? Let him go back to his home, lest he die in battle and another initiate it.”

“Is there anyone who has paid the bride-price for a wife, but who has not yet married her? Let him return to his home, lest he die in battle and another marry her.”

“The officials shall go on addressing the troops and say, Is there anyone afraid or gentle-hearted [= rakh halevav; also “disheartened,” or “softhearted”]? Let him go back to his home, lest he melt the heart of his brothers, like his heart!”

I Maccabees 3:56 reports that even in the moment of resistance to the Syrio-Hellenistic empire ruled by Antiochus, Judah Maccabee applied this passage of Torah and ordered back to their homes the newly married, the new homebuilders, etc., and those who were gentle-hearted.

Notice that this war was being fought against an imperial occupation of the Land of Israel, against an enemy that had desecrated the Temple and commanded idolatry.

What the Rabbis Said

About three centuries after the Maccabean wars, when the Rabbis took up the question of interpreting this Torah passage, some of them asked why the last verse specified both “afraid” and “gentle-hearted” as reasons to exempt a man from military service.

According to one interpretation, those who must be exempted from army service are not only those who are afraid to be killed but also those who are gentle of heart, lest they become killers.

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.

In assessing the situation we face today, there is a second dimension to apply:

There are many aspects of our lives, and this is one, that are profoundly different from the context in which the Talmud evolved.

Learning from the Maccabees

Indeed, the Maccabees, far more nearly than most later rabbinic communities, lived in the situation of a state or state-in-the-making in the Land of Israel that would have to decide whether and how to make war.

One would think that if ever there was a war the rabbis might have defined as “obligatory,” in which the Deuteronomic exemptions would have been suspended, it would have been the kind of war the Maccabees were fighting against Antiochus. Yet the Maccabees understood the Deuteronomy text to apply even in their extreme situation. They applied the Torah, and evidently because many of the people did support that war, they fought and won.

Of course the Book of Maccabees does not control the halakhah [Jewish law], and was not even canonized by the Rabbis as a sacred text. But it does make clear what Jews who lived in this situation thought and did. So today we might take their responses into account.

Considerations for Our Time

Another of the most important differences between our lives and those of the Rabbis is, that today we are intertwined with an effort by the human race to develop an international law of war, which includes the UN Charter, the Geneva Conventions, etc., and includes not only an Israeli state but a law of that state, itself requiring a soldier to disobey an unlawful order, including one unlawful under international law.

This does not end our questioning, but does enrich and complicate it a great deal. We might even, borrowing from but not necessarily standing inside the rabbinic mindset, think of this whole weave of international law as the effort of the Children of Noah to develop the shevah mitzvot–the seven commandments–by which, according to the rabbinic mind, the whole human race is bound. So the Talmudic law of milhemet chovah and reshut may not for us exhaust the question.

Finally, what weight and value do we give the life-experience of our own generation/s? Some of us would say that our lives continue to distill Torah, if we open our experience to God.

In that case for sure, and probably even if we would not go so far, it behooves us to listen to the direct reports of those involved.

The reservist refuseniks who have signed the recent statement do not think that the State of Israel is under occupation or in any danger of being occupied. Just the reverse. They do not believe that the occupation army is acting in a way that protects Israel.

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