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Class Notes - Class #25

Mitzvot #525 – 529, 532 – 534, 562 and 566 - 567 are about war.  We raised important questions in our discussion of mitzvah #425 and we will return to those questions now. 

Most of the mitzvot in this series apply in Israel when the tribes of the Jews are settled there.  But some mitzvot have aspects that are applicable everywhere and at all times.  Our author says laws of war apply to men, who are responsible for military matters, to the king and to the community as a whole.  Some of these mitzvot have aspects that apply to women.  Our author does not comment on how the mitzvot apply when women find themselves fighting in war.  Although in theory these mitzvot still apply, the author says the Jews no longer have the power to make war.  That historical circumstance has changed.

            War is ubiquitous in human history, following a myriad of patterns in different cultures and at different times.  We are used to distinguishing between combatants and civilians; we think combatants should wear uniforms and distinguish themselves from civilians, leaving civilians in safety as much as is possible within military needs.  Even now, though, many military situations do not follow that pattern.  Combatants may be part time and may not be part of a formal army, leaving their status an open question. 

In earlier times the distinction was even less clear.  Standing armies are expensive, so civilians would be drafted to fight. 

When an army conquered an area, the population was fair game.  The combatants might not be well paid and the fighters might be compensated by allowing them to loot and rape. When slaves were valuable, taking the civilian population was an economic benefit.   High class survivors could be held for ransom.  The desire for revenge might lead the conquerors to slaughter the population.  But there were constraints as well.  If the conquering army wiped out civilians and their economic base, there would be no population or economy left to pay tribute to the conquerors in the future.  If the conquering army was too severe, they would turn the surviving population into bitter enemies.

Attacking a fortified, walled town was a risky move.  A frontal assault could be costly and might not work.  The town defenders could pick off attackers from protected positions.  Sieges were often the mode of attack.  If no one can get in or out of the town, the town will eventually run out of supplies.  As people suffer deprivation and starvation, they might turn on the defenders and force them out in order to surrender and possibly save their lives.  If the town is well supplied and has its own water source, though, the siege might be difficult.  The attacking army was still vulnerable to attacks from within the town, and supplies for the attacking army might be hard to get since the attacking army had to support itself in unfamiliar territory. 

A partial siege that allows people to leave but prevents supplies from coming in is another possibility.  It allows civilians to flee the fighting and go someplace that seems safer.  It also allows town defenders to desert the fight, weakening the defense. But if civilians leave, the defenders have more provisions per person than they would have had if there were still civilians to feed.  And loyal defending fighters could escape the siege and fight another day.

It is difficult to formulate good war policy and strategy.  Someone with knowledge of military history could add much to our speculation about how these mitzvot would impact military situations. 

In mitzvah #425 our author distinguishes between two types of war, a “milchemet mitzvah,” “mandated war,” and a “milchemet r’shut,” “permissible war.” In mitzvah/essay #527 the author provides more information about these two categories but the author does not explain what circumstances make a milchemet r’shut permissible.  Presumably there are wars that are entirely prohibited.

              The category of “milchemet mitzvah,” “mandated war,” includes wars of self-defense, wars to free Jews from oppression, and wars specifically mandated by mitzvot, viz. to eliminate the seven Canaanite nations and Amalek.  (We will see the mitzvot about Amalek later in our study.)  A “milchemet mitzvah,” may be waged by a king on his own authority. Anyone can be drafted to fight in a milchemet mitzvah: men, women, even brides and grooms straight from the wedding.

Our author says that in a siege during a milchemet mitzvah, before the attack begins the attacking Jewish army must allow the inhabitants to leave if they chose to.  And the attacking army must offer the city the opportunity to surrender.  The terms of surrender are severe: consent to pay tribute, agreement to monetary and labor taxes, and agreement to follow orders and live as an underclass. The surrender has one extra provision beyond the terms of the surrender in a milchemet r’shut; the inhabitants have to promise to abandon idol worship and to keep the mitzvot required of all people.  If the city surrenders, all the inhabitants survive.  Once the siege begins, though, the attacking Jewish army does not leave an escape corridor.  If the city does not surrender and the attack is successful, all the inhabitants are killed.

One sub-group of mandatory war are wars that require the Jews who entered Israel with Joshua to eliminate the seven nations who were then living in Israel.  We saw that earlier in mitzvah #425.  These seven nations were the worst kind of idol worshippers, but as our author has it even they would survive if they surrender and give up idol worship.  According to our author, Ammon and Moab were the worst of the seven nations.  Mitzvah #562 forbids Jews besieging Ammonite and Moabite towns from allowing the towns to surrender.  Apparently, when the Jews attacked Ammonite and Moabite towns, there really was a requirement of annihilating all the inhabitants.

Those nations have since died out.  According to halachic sources, when the Assyrian king Sanncherib conquered the kingdom of Judah in approximately 700 B.C.E., he exiled some of the inhabitants and moved local populations around so that the bloodlines of the nations that existed earlier in Israel were mixed and the nations lost their distinct identities.  After that, it was impossible to attribute any given person to any specific nation.  So after Sanncherib the mitzvot that depend on identifying a person with a specific national identity no longer apply.

Mitzvah #528 is a corresponding negative mitzvah that requires Jews not let members of those seven nations remain alive.  But even now, our author says, should a Jew happen across a descendent of those nations and have the ability to kill that descendent without putting him or herself in danger, the mitzvah to kill still applies.  The author does not say how we might identify such a person. 

The author says that David annihilated most of the people of those nations during his reign as king.  It isn’t clear how that notion fits with the Biblical stories we have about David.  The books of the Early Prophets tell the story of that conquest.  There is no evidence in those books of the Jews annihilating the population as a whole.  There is lots of evidence that the Jews lived among the people who had lived there before the Jews arrived.

            All wars other than those directly mandated by mitzvot or wars of self-defense are in the category of “milchemet r’shut,” “permissible war,” and mitzvah #527 delineates the rules for a milchemet r’shut.  A milchemet r’shut, may be waged by a king only with the agreement of the Sanhedrin. (One wonders how effective the requirement would be.  It seems comparable to the American president needing the consent of the congress to declare war.)

When Jews surround a city in preparation for an attack in a milchemet r’shut the Jews must leave an escape corridor so that women and children can flee.  The Jews must offer the inhabitants a choice of surrender and subservience.    If the city agrees to subservience and tribute, the attack is abandoned and none of the inhabitants may be killed.  If the city refuses, the Jewish army may attack, killing all the adult men and taking women and children as booty.               

            As our author describes it, a Jewish army besieging a city must always offer the inhabitants the opportunity of surrender.  The terms of that surrender are harsh but the surrender is not unconditional.  In a milchemet mitzvah the attacking army must allow exit from the town before beginning the siege although it need not provide an escape corridor once the siege begins. In a milchemet r’shut the attacking Jewish army must provide an escape corridor. Our author understands this to be a merciful way of waging war.  Even while fighting idol worshippers, a Jewish army behaves with compassion. That has two advantages.  It helps Jews to remain moral even in battle.  When the Jews unnecessarily destroy people and property they allow themselves to be cruel.  And it helps keep the defeated population alive so they can provide tribute to the Jewish government.

            Soldiers need to be brave and dedicated. Mitzvah #525 prohibits fighters from fearfully dreading battle.  It prohibits soldiers going AWOL to avoid the battle and it prohibits the soldiers from breaking and fleeing in battle. Soldiers defending the Jewish people, whether in a milchemet mitzvah or a milchemet r’shut, should put their trust in God, and, having done that, ought not to fear the coming battle.  Rather the soldier should fight bravely to give honor to God and the Jewish people.

            Military training undoubtedly increases the possibility that a soldier will succeed in fulfilling this mitzvah.  Our author explains the kinds of things a soldier could tell himself to help him be a brave, effective fighter.  The soldier ought not to focus on the folks back home.  Rather, the soldier should focus on the goal of the battle, and on the Jewish people who are depending on the soldiers to defend them.  Our author says that a soldier who concentrates on bringing honor to God and the Jews is less likely to be harmed in battle.  As someone with no military training or background I have no basis to evaluate how effective this “pep talk” is likely to be.

            To help enhance the morale of the soldiers, mitzvah #526 requires that a special cohen be appointed to inspire the troops.  That cohen is called the “mashuah milchamah,” “the one anointed for war,” and he has the status of a cohen gadol.  His job is to help keep morale up among the fighters.  The higher the speaker’s status, the more likely the fighters are to be inspired by his words.  The Torah, Deut. 20:3-4, provides encouraging words for the mashuah milchamah to deliver to the troops. 

            Part of keeping morale up is to make sure that all of the troops are willing and able to fight.  The army will be a more effective fighting force without hesitant soldiers.  In a milchemet r’shut, part of the job of the mashuah milchamah is to facilitate reluctant soldiers leaving the army.  The source verses for this mitzvah outline three classes of soldiers who have concerns that are likely to trump their commitment to battle:  a soldier who built a house but has not yet moved in, a soldier who planted a vineyard but has not yet taken a harvest, and a soldier who has betrothed a wife but not yet married her.  In addition, says our author, any soldier who is fearful because of his sins may leave.  The soldier might feel that battle provides God a good opportunity to impose punishment.  And his companions might fear that they would suffer as collateral damage of God punishing the guilty soldier.  All of these exemptions apply in a milchemet r’shut; in a milchemet mitzvah everyone serves.

As a practical matter, it seems that any soldier who wants to leave in a milchemet r’shut may do so.  Once that happens, though, fighting units are drawn up, and officers are posted behind the troops to prevent desertions.  Our author vividly explains that “mighty officers are stationed with heavy axes of iron in their hands; and whoever seeks to turn back from the battle, they hold the right to hack at their thighs.”

Most other rules about warfare apply equally to a milchemet r’shut and a milchemet mitzvah.  If the army is living off the land, the soldiers may eat whatever is available and need not limit themselves to food that would be permitted under normal circumstances.

Mitzvot #566 and 567 require the encamped Jewish army to maintain basic sanitary procedures.  When encamped, the Jewish army must provide a place outside of camp for the soldiers to use as a bathroom.  And each soldier was required to carry a digging stick so the soldier who defecated outside of camp could bury the feces.   Our author explains that the army needed courage and physical strength, but also spiritual strength, and that cleanliness contributes to spiritual strength.  The military camp should be a place where God’s presence could be felt. Also, a clean, orderly camp will impress other nations. The author does not mention that proper sanitary practices would help prevent the spread of disease among the soldiers. 

In discussing these mitzvot the author quotes a midrash related to the source verse for this mitzvah, Deut. 23:14.  The midrash notes that human fingers are shaped like digging sticks.  Soldiers carry digging sticks to avoid unsanitary conditions.  Similarly, people can use their fingers to plug up their ears and avoid hearing things they ought not to hear.

Rape has been part of warfare for as long as there has been warfare.  Mitzvot #532 – 534 put limits on Jewish soldiers committing rape during war. These mitzvot respond to several policy concerns.

 Consider the situation of a woman taken prisoner and raped by an enemy army.  She might survive physically, recover emotionally and go on with her life.  But she might be killed by the rapist or his comrades.  She might be held or sold as a slave, perhaps subject to repeated rape.  She might be returned to a society that rejects her because she has been raped.  For social or psychological reasons she may be destined for long-term suffering and/or prostitution. 

Rape in war presents dangers for the rapist as well, although those dangers are more subtle.  Participating in such a crime cannot be good for the moral stature of the soldier.  If the soldier brings the woman home with him, she might be a bad influence on him and the family, and the soldier might continue a pattern of abusive behavior.

The source verses, Deut. 21:11–14, seem to describe a soldier being attracted to a woman prisoner from a conquered enemy.  He takes her home.  She spends a month in his house subject to grooming restrictions regarding her hair, nails and clothes.  During that month she mourns her parents. Then he may have sex with her, and/or marry her.  If he rejects her after that he may not sell her or treat her as a slave.  Rather, she is free to go as she pleases. 

This rubric leaves many unanswered questions.  Exactly when and under what conditions may the soldier have sex with the captive woman?  What is the point of the grooming restrictions?  What is the purpose of the month long delay?  Is he required to marry her, and if so, when?  Presumably she is not Jewish, but may he marry her anyway?  Does she need a divorce when she leaves?  Are there restrictions on where she can go and what she can do afterward?  Could he have sold her earlier in the process?  Does she have any choice in any of this?  What policy concerns do the various phases of this process effectuate?

Our author describes his understanding of the source verses.  The soldier may not rape the woman before bringing her home or at least taking her indoors. When the soldier brings the woman home, the woman shaves her head, lets her nails grow, removes the attractive clothing she arrived in, and sits for a month mourning her parents and her situation.  When the soldier sees her upset and unkempt day after day he may change his mind about her.  The author cites a dispute about when the soldier may have sex with the woman. Some say the soldier may have sex with her as soon as they arrive home, but our author agrees with others who say the soldier may not have sex with her until the month ends.    But once the soldier has had sex with her he may not treat her as a slave or sell her, although she may be called on to do the kind of household work a wife would do.  The author assumes that if the soldier is to marry the woman the woman will have to convert.  She has up to twelve months to decide.  If she converts, he marries her and she has the status of a full wife.  If she chooses not to convert he lets her go as she pleases. 

The author’s approach primarily reflects concern for the soldier. Overall the author sees this rubric as a concession to lust. Ideally the soldier should not have sex with the woman at all.  But if he is to have sex with her he may not do so on the battlefield.  When he brings her home and she sits unkempt and unhappy, he might decide he does not want her.  That avoids his acting on his lust, and keeps the non-Jewish woman out of his household over the long term, a good result for the soldier since it avoids the bad influence she might exert.  Having taken her into his home and had sex with her, only a scoundrel would sell her or treat her as a slave. 

Our author does not seem particularly interested in how all of this would impact on the woman.  The first several steps seem horrific, although if she cannot avoid the rape horror is inherent in the situation.    Under this rubric, though, the woman spends time in the soldier’s house, which gives her a chance to assess her situation.  Then she has a choice to convert and stay or to leave and take whatever path seems available to her.  Neither choice may seem appealing, but at least she has some choice.

 Our author explains that even the Torah cannot realistically expect to stop the rape involved in warfare.  Our author thinks that the soldier would probably be willing to take the woman home rather than raping her on the spot.   It is not clear why the author thinks that is the most likely next step. 

When the woman arrives at the soldier’s home, she spends a month mourning her situation and her deceased relatives. She has several grooming restrictions which our author understands as things the captor would find unattractive.  Among the grooming restrictions during this month, Deut. 21:13 says she takes off her “garment of captivity.”  The author understands the garment as fancy clothing she put on to attract the sexual attention of the soldiers who capture her.  Our author thinks that behavior shows the depravity of the conquered people.  I don’t know what to make of that reading.  Presumably she would want to avoid rape by trying to stay anonymous and unnoticed.  Perhaps our author thinks that by making herself attractive to a soldier she will also earn his protection. 

If the woman consents to conversion and marriage, the marriage is delayed at least three months to find out whether the original rape resulted in a pregnancy.  If it did, the child is not Jewish and halachah does not recognize any relationship between the soldier and the child.  This notion explains a surprising aspect of the story of Tamar and Amnon that appears in II Samuel 13 – 14.  Amnon, son of David, lusted after Tamar.  The text identifies Tamar as his sister.  Amnon connives to get Tamar alone.  When she realizes she is about to be raped, Tamar tries to talk Amnon out of raping her by suggesting that he go to their father, King David, and ask for permission to marry her.  She assures Amnon that David will agree.  Amnon rapes her and then kicks her out.  Tamar’s argument that Amnon could marry her is puzzling, since Amnon and Tamar are siblings, both children of David.  To solve this problem, the Talmud, Sanhedrin 21a, explains that Tamar is the daughter of the King of Ashur and that she was conceived when David took Tamar’s mother as an eishet toar.  If that sexual relationship took place while Tamar’s mother was a non-Jew, then halachah would not recognize any parent/child relationship between David and Tamar.  Hence, technically, Tamar and Amnon could marry.

There are several ambiguities about these mitzvot, and other rabbinic authorities understand these mitzvot differently from the way our author explains them.  It is not clear whether the rules about the woman’s grooming are intended to make her unattractive to her captor, as our author understands them, or to allow her to physically recover her dignity after being taken captive.  It is not clear if the captor can rape her, or whether in theory the captor ought to wait until she converts and they marry.  Apparently this rubric is intended to discourage Jewish soldiers from raping a captive woman by obligating a soldier to create a longer term relationship with the woman and forcing his family to come to terms with his relationship with the woman.  Our author suggests that the ritual is intended to protect the captor from the bad influence of the captive woman’s idolatry. The author does not discuss how this impacts on the woman herself.  It is hard to imagine how the captor’s family would react to all this, especially if the captor already has a wife.  Nor is it clear how much of this rubric would have been followed in practice.

What does seem clear is that when women are captured in war, bad results ensue to the women and to their captors.  Just prohibiting Jewish soldiers from raping captive women would probably be good, but only if the prohibition significantly impacted the soldiers’ behavior.  Even if we cannot figure out exactly how, these mitzvot seem aimed at partly mitigating those bad results.

Mitzvah #529 prohibits the besieging Jewish army from unnecessarily destroying fruit trees.  Fruit trees are a long term source of food.  Cutting down fruit trees might be an effective siege tactic because the inhabitants of a city are likely to be demoralized if they see the besieging army cut down the fruit trees they depend on for food.  The besieging army is allowed to cut down the fruit trees if they will get some concrete benefit from doing that, for example if the army needs the wood.  But mere tactical advantage does not justify the Jewish army cutting down fruit trees. 

The mitzvah also prohibits unnecessarily destroying fruit trees in other situations.  As in the military context, one may destroy a fruit tree to get some benefit other than the fruit, for example because the wood is valuable. A fruit tree may also be destroyed if the tree is damaging surrounding plants or property. And one may take down a live fruit tree that no longer bears fruit.  Even a fruit tree that only produces a little fruit may be destroyed since the work to maintain the tree is not worth the produce of the tree. 

Finally, our author says the rabbis extended this mitzvah to prohibit unnecessary destruction of any property, not just fruit trees.  Jews may destroy property for some purpose, but may not destroy property uselessly. That prohibition includes any method of destruction:  burning, breaking, tearing.

Our author says the shoresh for this mitzvah is obvious.  His explanation repeats themes we have seen before.  God wants to see the people He created living in peace and prosperity.  When we facilitate that, we ourselves deserve God’s blessing.  Pious and righteous people encourage peace and prosperity by valuing the material goods God has provided, whereas wicked people destroy wantonly.

People who destroy things often do so out of anger.  The Talmud compares angry, destructive behavior with idol worship.  Our author sees the common element as the influence of the “yetzer hara,” “evil inclination,” which our author understands here as someone acting without self-control.  Jews are required to act based on reason rather than impulse.  That explains Talmudic stories of rabbis throwing objects in anger.  Despite appearances, says our author, those rabbis were acting to deliver a carefully calibrated message to their students or family members.  And they certainly did not throw anything such that the apparently violent act would break anything.

The abhorrence of unnecessary destruction illuminates all the mitzvot about war in this series.  Wars will occur, and sometimes wars are necessary.  Optional wars should only occur after careful thought and consultation.  War will lead to murder and destruction.  But rather than relishing that destruction, a Jewish army gives the enemy a chance to surrender and civilians a chance to escape.  There are limits on how Jewish soldiers treat the women they conquer.

But for all that, there are still cases of total war, specifically against Moav and Ammon.  (We will have to add in the role of war against Amalek later in our study.) Cities that do not surrender may find their inhabitants annihilated.  Civilians do not always succeed in escaping.  Women captives are still subject to sexual abuse.

Perhaps the model here matches what we saw earlier, that Biblical mitzvot try to nudge destructive institutions in a better direction.  When a man suspects his wife of sexual misconduct, the Torah provides a ritual to try to limit honor killings.  When someone kills a member of another family, the Torah provides cities of refuge to try to limit blood feuds.  When a man is impoverished, the Torah provides for him to become an eved ivri, to have his basic needs taken care of for a limited time and then give him the opportunity to try again on his own.  When a girl is completely impoverished, the Torah provides a form of slavery that might provide her with an otherwise unavailable marriage prospect.  In these cases the halachah does not provide a way to solve all aspects of the problem involved, but it does take a step toward something better.

There is an element of realism in this approach.  Telling people to drastically change behavior usually doesn’t work.  But telling people to change their behavior in small steps has a chance of eliminating the worst behaviors.  This approach leaves an open question.  In each of these cases, is the Torah providing the ideal way to structure society, or is the Torah providing the first step toward a better future, counting on us to add steps as circumstances allow?