Ki Tetze | The Laws of War and the Torah's Attitude Towards Warfare

a. A TIME FOR WAR AND A TIME FOR PEACE

"Inter arma silent leges," says the Latin proverb – "During war the law is silent." This proverb expresses the view that war is not part of civilized human life, subject to the rules of morality. Rather, war represents an outburst of primordial instincts of aggression and survival, and is therefore not subject to any legal system. War strips man of all garments of human civilization and returns him to his original primitive state.

As a description of the horrible reality of the wars conducted throughout human history, this view has – unfortunately - a firm factual basis. But if it is meant to express a world view which surrenders in advance any demand for lawful and moral behavior during war, then it is perverted and dangerous. The Torah certainly disagrees with the Latin proverb quoted above. Several laws are laid down pertaining to the conduct of war, and these are concentrated mainly in two parashot of Sefer Devarim: Shoftim and Ki-Tetze.

The fundamental aim of war is obviously to conquer the enemy, and the Torah's regulations pertaining to warfare are certainly meant to help realize this aim. But on the other hand, owing to the potentially corrupting nature of war, it requires boundaries and restraints in various spheres, and the laws of warfare are meant to achieve this, too. The question we shall address here is to what extent we may deduce from these laws the Torah's fundamental attitude towards the problematic human phenomenon of war.

Clearly, the ultimate vision of the Israelite prophets is one of peace – "And they shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, nor shall they learn war any more" (Mikha 4:3). However, it goes without saying that this vision cannot serve as an operative principle for Israel at a time when the nations of the world wage war with one another and when Israel too must defend itself. The same prophet quoted above – Mikha – also describes a different vision: "Arise and thresh, daughter of Tzion, for I will make your horn iron and I will make your hoofs brass, and you shall beat many nations into pieces..." (4:13). There is no contradiction between these two prophecies, for each is appropriate for its own time: "a time of war" – in the present reality, and "a time of peace" – at the end of days, when "the mountain of God's house is re-established at the head of all mountains and the nations stream to it," as Mikha himself describes in the same prophecy.

The laws of warfare in Sefer Devarim apply to a period that belongs to the category of the second prophecy above. Do they contain any hint at the first prophecy?

 

b. LEST HE DIE IN BATTLE...

The first parasha pertaining to warfare (Devarim 20:1-9) describes the various preparations that must be made prior to waging war, and the crux of them is contained in two speeches: that of the kohen (called by Chazal "kohen mashuach milchama" – the kohen anointed for war – since he was appointed specifically for this purpose), and that of the officers. The purpose of the kohen's speech is clear: he aims to lift the soldiers' spirit and to strengthen their faith in God, lest they show fear in the face of the enemy. This is in fact how the parasha opens: "[If] you shall see horses and chariots and a nation more numerous than you – do not fear them, for the Lord your God is with you..." The purpose of the officers' speech is more practical: it facilitates at this early stage the release of those exempt from fighting, and from then onward no desertion is permitted, lest fear infect the troops.

The Torah exempts four types of people from serving in battle: one who has built a house but not dedicated it, one who has planted a vineyard but not eaten of its fruit, one who has betrothed a wife but not taken her, and one who is fainthearted. The Torah provides a reason for the exemption only in the case of the fourth category:

(20:8) "Who is the man who is fearful and fainthearted? Let him go and return to his home, lest he melt the heart of his brethren like his heart."

This call by the officers to the fainthearted to return home complements the speech of the kohen in an inverse manner. The kohen strengthens the nation in a positive way in his speech, while the officers prevent any "melting of the hearts" among the nation by calling upon those who might cause this (and who were not affected by the words of the kohen) to leave the battlefield. And thus the conclusion of this section connects back to the beginning.

But why are the other three exempted? Ramban writes (20:5): "[The Torah] commands that these three return, for their hearts would be towards their homes, etc., and they would flee." Ibn Ezra, Rashbam and Chizkuni offer similar explanations. This interpretation fits in with the context of the parasha as a whole, which deals both in both speeches with the strengthening of the nation's fighting spirit. The literary structure of the officers' speech – the "three and four" model – also reinforces this interpretation. We find, therefore, that this parasha is unified in its subject as well as its purpose – the strengthening of the nation's spirit with a view to victory.

However, close examination of the text reveals difficulties with this interpretation. The Torah specifically draws a distinction between the first three types who return home and the fourth: the first three are exempt "lest he die in battle and someone else [realize that which this person has prepared]." Rashi (20:5) provides a wonderfully simple explanation as to the reason for the exemption:

"'[Lest he die in battle] and someone else dedicate it' – this is a matter of anguish (ogmat nefesh)."

It is a cause of great anguish when a young person in the midst of his preparations for a new life dies in battle before his time, not meriting to realize that for which he prepared so carefully – and even worse, that someone else reaps the benefit of his efforts. This sorrow is so great that in the curse contained in parashat Ki Tavo the Torah threatens Israel with precisely this scenario:

(28:30) "You shall betroth a woman but another man shall lie with her; you shall build a house but not dwell in it; you shall plant a vineyard but not eat of its fruit."

If this is the explanation for these men returning home, we find ourselves asking whether this speech by the officers does not in fact contradict the previous speech by the kohen and its intention. The Ramban (20:5) answers as follows:

"Here the kohen, who is the servant of God, warns them to fear Him and then He will keep them safe, but the officers speak in the parlance of the real world – 'lest he die in battle,' for it is the way of the world that in every war there are casualties, even on the side of the victor."

Hence, this speech by the officers reveals the ugly reality of war – that it brings death without distinction and before one's time, even for the victors. As the Ibn Ezra explains (20:7), "Here the Torah gives a sign that there are those who die in their proper time, but one who dies in battle dies before his time." War cuts short a life of building and creativity, it halts the efforts of the person who plants, it divides lovers and destroys relationships in formation – it is a matter of anguish. The officers' call to these three categories of people to go back and complete what they began is a declaration of preference for life and creativity over war and death.

The parasha of "Ki tetze la-milchama" ("When you go out to war") contains some equivocation – perhaps even an internal contradiction – in its attitude to war. It does admittedly help to strengthen the fighting spirit with a view to victory, but it is far from a militaristic spirit. The Israelite soldier does not approach the battlefield to the accompaniment of an impressive military orchestra, nor of fiery speeches boasting of glory and prowess. He is led on by the kohen's words of faith – "For it is the Lord your God Who walks with you to fight for you against your enemies, to deliver you." The Ramban explains,

"He warns them... that they should not rely on their bravery, thinking 'We are heroes and men of valor for war;' rather they should return their hearts to God and put their faith in His deliverance."

He is likewise guided by the words of the officers, declaring that war is "a matter of anguish," and that the values of building, planting and raising a family are far preferable – not only in theory, but also in deed.

Does this quiet protest against war not weaken the spirit of the fighters? Not necessarily. War is waged not for its own sake, but rather in order that the builders and planters and betrothers be able to complete their actions, and so that their brethren returning in peace from the battle be able to join them and continue their blessed daily life.

 

c. OFFERING PEACE BEFORE WAR

(20:10) "When you approach a city TO WAGE WAR AGAINST IT, you shall PROCLAIM PEACE TO IT."

What is the reason for this mitzva? We may perceive in it some pragmatic logic: if surrender may be achieved peacefully, why wage war? The Sefer Ha-chinukh (#527) detects a different pragmatic reason:

"This (a peaceful surrender of the enemy) holds benefit for us, in that our king would thus have slaves to serve him and to pay him a permanent tax... By killing them there is no benefit, if they are prepared to remain subservient to us, and so it would be a matter of corruption and would represent cruelty on our part, such that it would be a disgrace for anyone to hear of it."

According to these pragmatic reasons, this mitzva is aimed at promoting the victory of the Israelite army without any cost in blood.

But an examination of the style of the verse immediately reveals the paradox that underlies its words: You are approaching a city TO WAGE WAR AGAINST IT, and I command you TO PROCLAIM PEACE TO IT! Furthermore, note the difference in the participle: proclaiming peace TO it is the opposite of war AGAINST it.

The way in which the Rambam formulates this mitzva (Hilkhot Melakhim 6:1) indeed points to a fundamental moral principle that underlies it – a perception which has nothing to do with military, political or economic pragmatism:

"War is not waged AGAINST ANYONE IN THE WORLD unless peace is first offered; neither in a voluntary war nor in an obligatory one... and it is forbidden to violate the covenant and to cheat them once they have surrendered peacefully and accepted the seven Noahide laws."

The Sefer Ha-chinukh, in his first reason for this mitzva, regards it as being of fundamental moral importance:

"Since mercy is a good quality, and it is appropriate that we – of holy seed – conduct ourselves accordingly in all matters, therefore [we act with mercy] even towards pagan enemies."

Thus we understand that the mitzva of offering peace, which precedes any war whatsoever (including an obligatory war, even a war against Amalek!), also includes – like the speech of the officers to the nation in the previous parasha – a subdued protest against war. But the protest in the previous parasha was directed at the suffering of Israelite casualties, whereas the protest in the present parasha is directed against the suffering of the enemy. Spilling the blood of the enemy should be avoided if possible.

 

d. IS THE TREE A MAN?

(20:9) "When you besiege a city for a long time to wage war against it to take it, you shall not destroy its trees by wielding an axe against them, for you shall eat of them, and you shall not cut them down, for is the tree of the field a man, that it should be besieged by you?"

The reason for the prohibition against destroying fruit-bearing trees is quite explicit in the text: "for you shall eat of them." When? Ramban explains: "You shall live from them (these trees) AFTER you conquer the city AND ALSO WHILE YOU ARE ENCAMPED to besiege it." This pragmatic reasoning would indicate that the mitzva is meant both to help in the effort towards victory and also to maximize the bounty following the conquest of the city.

But the prohibition of destruction is accompanied by another reason, one which is somewhat opaque: "For is the tree of the field a man, that it should be besieged by you?" (The Hebrew original can be translated in several different ways.) What is the meaning of this? The scope of the present study does not allow for a review of all the commentaries. We shall suffice with the explanation proposed by Rashi, which seems to suit both the language and the general tone which we are discovering in the laws of warfare. He comments:

"'For is man a tree of the field' – the word 'ki' ('for') here indicates a question. Is the tree of the field a man, that he becomes part of the siege, to suffer hunger and thirst like the inhabitants of the city? Why should you destroy it?"

What we have here is a rebuke, phrased in language of moral pathos. The offer of peace to the enemy has been rejected, and the siege of the city is taking a long time. A siege is a cruel situation; it is meant to cause suffering to the inhabitants of the city, and to cause them to weaken from starvation and thirst, "until you subdue it." When everyone is concentrating on bringing death and destruction, and the perception of man's worth is trampled, what value is there to the fruit trees dispersed around the city, which we are forbidden to destroy? But the Torah teaches otherwise. The battle is waged against other humans, but a fruit-bearing tree is a symbol of life and growth, an island of peace in the midst of the ravages and destruction of war. The tree is not your enemy, and therefore "why should you destroy it" for no reason?

Indeed, what reason could there be for destroying fruit trees? The Ramban explains:

"Our Sages rule (Bava Kama 81b) that it is permissible to cut down a fruit tree in order to build a siege. The Torah only stipulates (in verse 20), 'Only the trees which you know not to be trees for food' in order to teach that such a tree should be used in preference to a fruit tree."

This being the case, the Torah is then warning that these trees not be destroyed FOR THE SAKE OF DESTRUCTION, with no relation to the requirements of the siege, AS IS CUSTOMARY IN MILITARY ENCAMPMENTS, "the reason being that the fighters destroy both the city and the surrounding countryside, with a view to perhaps being able to conquer it thus."

The Ramban here explains that an army may adopt a scorched-earth policy in order to facilitate victory. However, elsewhere (23:10) the Ramban provides another description of the "custom of military encampments," according to which the destruction seems unnecessary:

"'When you encamp against your enemies, stay away from every evil thing' – It appears to me with regard to this mitzva that the Torah is warning at the time when the sin is common. IT IS WELL KNOWN THAT WHEN ENCAMPING in war every abominable thing is eaten, there is stealing and corruption and there is no shame even in immoral relations and consumption of dead meat. Even a person who is righteous by nature becomes clothed in cruelty and fury when the forces go out to the enemy. Therefore the Torah warns, 'You shall stay away from every evil thing.'" (It is interesting to compare these words of the Ramban with the Latin proverb above.)

One of the characteristics of armies at war is the preoccupation with destruction for the sake of destruction, born of the "cruelty and fury" that envelops even someone who is righteous by nature. Military forces often leave behind them "scorched earth," even when this is not required for any military purpose – and even when it is contrary to their own interests. In the face of this, the Torah records its open protest against the destruction of the soldiers' human nature: "Is the tree of the field then a man, that it should be besieged by you? Why should you destroy it?"

The protest against war in this parasha is directed not towards the "anguish" which it causes to the soldiers of Israel, nor even to the spilling of the enemies' blood. It is directed against the needless destruction which war brings upon the world, even to the plant kingdom. We may even say that it is a protest directed against the perversion of the character traits which war brings upon "a person who is righteous by nature."

(Translated by Kaeren Fish)

 

 

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