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Halachos of Warfare (Part II)

In last week’s article we began a discussion of laws pertaining to warfare – in particular with a view to their application in a modern setting. The article gave an overview of the issues of who goes out to war (and who doesn’t), of when it is permitted to go to war (vis-à-vis Shabbos), and of the conditions that halachah demands for the Jewish camp.

We also explained the fundamental distinction between a mitzvah war and a discretionary war, and showed how this distinction can be the source of a number of halachic ramifications.

In this week’s article we will continue the discussion of halachic warfare, this time focusing on laws of engagement. Although the methodology of warfare has certainly changed much over the centuries, the basic principles, as we will see, are readily applicable even to warfare of the modern day.

Offering Peace before War

“When you draw near to a city to fight against it, offer it terms of peace” (Devarim 20:10). Before opening a war campaign against a city or placing it under siege, the Torah requires an offer of peace.

There is dispute as to whether this duty applies even to an obligatory war – a milchemes mitzvah – or only to a discretionary war (milchemes reshus).

Rashi (Devarim 20:10, based on Sifri) understands that the obligation to make a peace offer applies only to a discretionary war.

The Chinuch (527) explains that the purpose of the call for peace is to teach compassion, a character trait worthy of the nation of Israel. An additional purpose of the call for peace is that the call is conditional on the enemy nation’s agreement to subjugate itself toIsrael and to pay tribute. Thus, the obligation to offer peace both trains compassion, and brings the nation material benefit. Yet, according to Rashi there is no place for such matters in an obligatory war, where the obligation is to wipe out the enemy altogether.

According to the Rambam (Melachim 6:1), however, the obligation to make a peace offer applies even to a milchemes mitzvah – provided that the enemy nation surrenders, accepts subjugation to Israel, and agrees to pay tribute. It appears that this approach sees the purpose of the peace offer as a means for achieving the objectives of war without actually going to war, thereby avoiding the loss of life.

The argument of the Ramban, who also disputes Rashi on this issue, and adds that with regard to the Canaanite nations the peace offer must include a total prohibition on idolatry, can be understood in this light. The Torah mentions that the purpose of the war is to ensure that the indigenous population will not cause the nation of Israel to stray after idolatry; for the peace offer to be an option, the same objective must be achieved. The Rambam also mentions that the observance of the seven Noahide mitzvos is included in the peace terms.

Another point that emerges from the Rambam is that the mitzvah does not apply only to a city, but even to people: “War is not to be waged against anyone until they are offered the opportunity of peace.” This mitzvah led the Sages to declare the importance of peace in Judaism: “Great is peace, for Israel requires it even in war” (Sifri, Devarim 199).

The Laws of Siege: Leaving an Opening

Based on a teaching of the Midrash, the Ramban (Comments on Sefer Ha-Mitzvos, Assin 5) writes: “We were commanded that when we lay siege on a city to leave one direction open so that if they want to flee, they can do so.… From this we learn to act with compassion even toward our enemies at the time of war. It also has an advantage that it allows an opening to flee as opposed to strengthening [their efforts] against us.”

The obligation to leave one (of four) directions open is actually ruled by the Rambam (Melachim 6:7); the Ramban only argued that the Rambam should have included this mitzvah in his count of mitzvos. Once again, some authorities – including the Ramban himself – rule that the principle applies only to a discretionary war, and not to an obligatory war (see also Megillas Esther, who relies on this distinction to explain why the Rambam omits the principle from his mitzvah count). The Rambam, however, does not make this distinction (at least not explicitly).

Rabbi Meir Simchah Ha-Kohen of Dvinsk (Meshech Chochman Bamidbar 31:7) explains that the reason why the Rambam does not count leaving an open side as a mitzvah is that the Rambam sees the idea of leaving an open direction primarily as a matter of military tactics. Therefore, it is not an obligation, but rather a recommendation. The Ramban, however, sees the underlying reason as that of compassion, and therefore views it as a full obligation.

It is interesting to note the modern ramifications of this dispute. During the 1982 siege ofBeirut(part of the Peace forGalileecampaign), contemporary halachic authorities disagreed as to whether the Israeli army was required to allow PLO terrorists an opportunity to escape.

Rabbi S. Goren rejected the Meshech Chochma’s approach on a number of grounds, arguing that the obligation to leave an opening in the siege is indeed an obligation (even according to the Rambam), and not optional, and also emphasizing that the obligation applies even to an obligatory war (adding that obligation is derived from the battle against Midyan, which can be understood to be milchemes mitzvah, as stated by the Minchas Chinuch 567:5; but see the Penei Yehoshua, Shabbos 64a, who explains that though obligatory, the war against Midyan was not a milchemes mitzvah).

Therefore, Rabbi Goren concluded that there is a full obligation to leave an opening in a siege in all wars, and applied the ruling even to the siege against Beirut.

Rabbi S. Yisraeli, however, accepted the distinction of the Meshech Chochmah, and ruled that according to the Rambam there was no duty to leave an opening in an obligatory war (understanding that the siege of Beirut was necessary for the defense of Jews, and therefore an obligatory war). The matter is therefore left to the discretion of the military commanders and the government (see Chavos Binyanim no. 15).

Destruction of Trees during a Siege

A special provision of the rules of siege concerns the status of trees in and around the besieged city. As part of the laws of warfare, the Torah records the following instruction:

“When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down. For is the tree of the field man, that it should be besieged by you?” (Devarim 20:19).

According to the Sifri, this rule applies only to a discretionary war. Once again, the Rambam does not note the distinction.

It should be noted that this verse constitutes the basis for the general prohibition against destroying fruit trees, and of the destruction of property in general, independent of the rules of war (Rambam, Melachim 6:8).

The prohibition only applies to unnecessary destruction. Felling trees for the purpose of constructing the siege, or to deprive the besieged enemy of wood for its own use, or to prevent the enemy from using the trees as cover, is permitted (see Ramban, Comments on Sefer Ha-Mitzvos 6).

A special reason for the prohibition is mentioned by the Ramban in his Torah commentary (Devarim 20:19-20). The Ramban explains that once the city is captured its property will fall into the hands ofIsrael, and the soldiers must have faith in Hashem that they will be victorious and that they will inherit the spoils. Thus, the prohibition derives from the rule that a person may not destroy his own property. According to the Ramban, where the purpose of the war is not conquest but the destruction of the city, all the trees may be destroyed.

In keeping with this principle, we find that during Israel’s war against Moav, the prophet Elisha expressly commanded that the army “fell every good tree, and stop up all springs of water, and ruin every good piece of land with stones” (II Melachim 3:19). The explanation given for this deviation from the Torah instruction is that it was an emergency measure (Radak).

Spoils and Looting

The Ramban’s interpretation concerning the prohibition against destroying trees leads us on to the issue of the spoils of war.

It is clear from a number of Torah verses that the taking of spoils was common, and was viewed as an integral part of war (see Bereishis 11:24; I Shmuel 30:24). Following the command to make a peace offer, the Torah states thatIsraelwill enjoy the spoils of a city that refuses the offer (Devarim 20:14).

The Rambam (Melachim 4:9) thus rules that

“in regard to the other spoil [other than land and royal treasures] which is taken: The soldiers may take spoil. Afterwards, they must bring it to the king. He is entitled to one half of the spoil, and takes this portion first. The second half of the spoil is divided between the combat soldiers and the people who remained in camp to guard the baggage. An equal division is made between them as I Shmuel 30:24 relates: ‘The portion of those who go down to the battle will be as the portion of those who stay with the baggage. They shall divide equally.'”

With regard to conquered land, the Rambam explains that this belongs to the king, and he must divide it up as he sees fit. The king’s decisions should not be based on motives of personal gain, but only “for the sake of Heaven” – “to elevate true religion, to fill the world with justice, to break the power of the wicked, and to fight the wars of Hashem” (Melachim 4:10).

Abandoned Arab Land

The question of “spoils of war” was raised in a contemporary setting with regard to the lands left behind by Arabs who escaped the advance of Zionist armies in 1948.

Rabbi Zvi Pesach Frank (Har Zvi, Orach Chaim 2:74) addresses this issue, citing the ruling of his questioner according to which “the fields and their produce, vineyards and orchards, are not ownerless, but rather remain the property of their Arab owners, because of the law that forbids the taking of enemy property.”

Rabbi Frank himself disagrees with this analysis, writing that Arab lands were conquered by the Israeli government, and their produce of olives and grapes was sold to Jews who use them to produce wine and oil. Both according to Jewish law, and according to the laws of non-Jews, the produce that arrives in the hands of Jews is strictly theirs, and it is forbidden for others to take it.

As to the question of how the Jews acquired a status of ownership on the land and its produce, Rabbi Frank explains that although land cannot be “stolen” (meaning, unlike movables, a thief has no potential rights to land he steals), its ownership can transfer by means of conquest in battle – a principle that is explicit in the Gemara (Gittin 38a).

Eating from the Spoils

In the second Lebanon War, communication problems left a number of units short of provisions. Being left with little choice, soldiers entered Lebanese houses, and ate whatever they could find. In spite of the difficulty of the situation, some officers objected to the practice, claiming that this was considered “theft” of private property, which should be left untouched.

As we have seen, it appears that the soldiers were perfectly within their rights to eat whatever they found – in keeping with the halachos of war spoils. Moreover, according to the Rambam the soldiers did not have to restrict themselves to kosher food, but, where necessary, could even eat non-kosher food, as he ruled (Melachim 8:1): “When the army’s troops enter the territory of non-Jews, conquering them and taking them captive, they are permitted to eat meat from animals that died without being ritually slaughtered or which were treif, and the flesh of pigs and similar animals, if they become hungry and can only find these forbidden foods.”

The Rambam adds that this license is derived by Chazal from the verse (Devarim 6:10-11): “G-d … will give you … houses filled with all the good things.” The Kessef Mishnah explains that in times of war the soldiers must be solely occupied with the war, and not with matters of provisions. To ensure their full focus on the task at hand, the prohibition against eating non-kosher food is waived where there is a need.

However, the Ramban (Devarim 6:10) disputes the ruling of the Rambam, and argues that the permission to eat non-kosher food applies only to a mitzvah war, and only to the Land of Israel. The Turei Even (Rosh Hashanah 13b) discusses the dispute at length, and concludes that the halachah follows the opinion of the Ramban (see also Tzitz Eliezer 18:70).

Harming Innocent Civilians

The Torah states that that if, in a discretionary war, the enemy does not accept the terms of surrender offered by the army of Israel, then all the men are to be killed: “But if it makes no peace with you… you shall put all its males to the sword” (Devarim 20:12-13).

This is the conclusion drawn by the Rambam (Melachim 6:4), who emphasizes that that women and children are not to be killed.

Of course, where women or children present a concrete threat, such as children used as “suicide bombs,” there is no question that they can be targeted, in spite of the human tragedy involved. Even where the enemy cynically exploits women and children as “human shields,” it appears that there will be halachic permission to target the shield together with the combatants hiding behind it. Tragic as it is, this, too, is part of warfare.

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