Halakhah do Rodzaju 9:5

Under Noachide law, as recorded by Rambam, Hilkhot Melakhim 9:14, the testimony of a single eyewitness is sufficient for conviction and execution of the death penalty. This provision of the Noachide Code is derived by the Gemara, Sanhedrin 57b, from the phraseology employed in Genesis 9:5 which establishes the culpability of Noachides for violations of the Seven Commandments. However, even before Noachide courts, just as in proceedings before Jewish courts, only uncontradicted testimony is acceptable as a basis for punishment, as is demonstrated by the nineteenth-century scholar R. Joseph Babad, Minḥat Hinnukh, no. 26.

A confession of guilt is not admissible as evidence before a Jewish court. Whether or not a confession is admissible and constitutes sufficient grounds for conviction in Noachide courts is a matter of considerable dispute. The thirteenth-century authority, R. Aaron ha-Levi of Barcelona, Sefer ha-Hinnukh, no. 26, rules that a confession of guilt is sufficient for conviction under Noachide law. There is, however, no reference whatsoever to acceptance of a confession of guilt by a Noachide court either in the Talmud or in Rambam's Mishneh Torah.⁶Cf., the interesting comments of R. Yechiel Ya‘akov Weinberg, Seridei Esh, II, no. 104, regarding the possible positions of Rambam and Radbaz. Rashi, in his commentary to II Samuel 1:16, explains that the Amalekite lad who reported that he had killed King Saul was summarily executed because he stood convicted "by his own mouth." Assuming that the term "ger" used in describing the Amalekite lad is, in this instance, to be translated as "stranger" rather than as "proselyte,"⁷See the commentaries of Ralbag and Malbim on II Samuel 1:16; see also Torah Temimah, Genesis 9:5. Cf., Rambam, Hilkhot Sanhedrin 18:6 who expressly refers to the lad as a proselyte. See also the interesting comments of R. Shimon Moshe Diskin, Mas’et ha-Melekh al ha-Rambam (Jerusalem, 5736), no. 273 and idem, Ohel Yehoshu‘a al ha-Torah (Jerusalem, 5738), p. 61, who suggests that the term ger denotes a ger toshav. Citing R. Yitzchak Ze’ev Soloveitchik, Ḥiddushei ha-Riz al ha-Rambam, p. 164, who maintains that a ger toshav who subsequently renounces his acceptance of the Seven Commandments reverts to his former status, Rabbi Diskin asserts that the Amalekite’s declaration that he had slain Saul constituted such a renunciation and hence he reverted to the status of an Amalekite and was put to death on that account. Rashi's comment is in agreement with the position of Sefer ha-Hinnukh. Torah Temimah, Genesis 9:5, finds a source for this position in the Palestinian Talmud, Kiddushin 1:1, but indicates that the meaning of the text is not entirely clear. In his opinion, it is this textual ambiguity which accounts for the conflicting views with regard to the acceptance of a confession by Noachide courts.

In order properly to understand the consideration underlying the requirement of the urim ve-tumim as a necessary condition of halakhically sanctioned warfare, a somewhat extraneous matter which is nevertheless germane to this topic must be examined. The categories of milḥemet mizvah and milḥemet reshut pertain only to wars fought by Jews. Other than in the context of war, self-defense or execution of transgressors convicted of capital offenses, the taking of human life is forbidden to both Jew and gentile alike. Since, insofar as non-Jews are concerned, there are no biblically sanctioned modes of war analogous to war for the conquest of the land of Canaan or the war against Amalek, it might well be presumed that non-Jews may not legitimately engage in warfare other than for the strictly limited purpose of self-defense. Indeed, a number of eminent authorities, including R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 19, R. Abraham Dov Kahana-Shapiro, Dvar Avraham, I, no. 11, and R. Menachem Ziemba, Zera Avraham, no. 24, adduce explicit talmudic authority in ruling that non-Jews are prohibited from engaging in war.⁵³See Contemporary Halakhic Problems, II, 165. Nevertheless, an opposing view is found in the writings of one noted authority.⁵⁴A similar view, albeit not based on the same line of reasoning, is espoused by Maharal of Prague in his supercommentary on Rashi, Gur Aryeh, Parshat Va-Yishlah, s.v. she-ha-umot. In explaining the action taken by the sons of Jacob against the inhabitants of Shechem, Maharal states that the family of Jacob constituted a sovereign people and were permitted to do battle against another nation since war is not forbidden under the Noachide Code. R. Naphtali Zevi Yehudah Berlin, in his commentary on the Bible, Ha'amek Davar, Genesis 9:5, finds justification for the view that the taking of human life in the course of war does not constitute culpable homicide.⁵⁵This view is also expressed in Ha’amek Davar, Deuteronomy 20:8. See also Amud ha-Yemini, no. 16, chap. 5, secs. 8-24. The verse "But your blood of your lives will I require; from the hand of every beast will I require it; and from the hand of man, from the hand of a person's brother, will I require the life of man" (Genesis 9:5) contains one phrase that is an apparent redundancy. The phrase, "from the hand of man … will I require the life of man" pronounces man culpable for the murder of his fellow. To what point, then, is it necessary for Scripture to reiterate "from the hand of a person's brother will I require the life of man?" Fratricide is certainly no less heinous a crime than ordinary homicide. Ha'amek Davar understands this phrase as placing a limitation upon the nature of culpable homicide. The taking of human life constitutes homicide only when the relationship between the parties is analogous to that which exists between a man and his brother, i.e., during periods in which harmony and brotherly love may be anticipated to reign between them. War, however, is the antithesis of brotherhood. Under such conditions, maintains Ha'amek Davar, there is no punishment for taking human life. Since this verse occurs in the context of the prohibition against homicide as it pertains to Noachides, Ha'amek Davar concludes that gentiles are not culpable for the taking of human life within the context of warfare.