Laws of War in Sefer Devarim Chapter 20

Introduction: The Context of War Laws in Parshat Shoftim

We’re reading Sefer Devarim, chapter 20. As we discussed, this entire series — the entire Parshat Shoftim — is about public law or laws of the public order. And now, more specifically, we have laws of war.

The parsha that starts כי תצא למלחמה [Ki Teitzei l’milchama — When you go out to war] — everyone knows this law, which is the beginning of the next parsha, called Ki Teitzei after its opening words — deals with specific laws of war. But here we have the regulation, the laws of war, more the beginning of the war, the general laws of war. There’s some back and forth to other parts and then it comes back to that, as we’ll see in the next chapters.

This is, of course, a part of the law, or a kind of law, which isn’t mentioned at all in the previous books. So much of Mishneh Torah — one of the things we always should notice, and Ramban keeps on talking about this — is which laws are repeats of the previous four books, which laws have some difference in the way they’re framed or in their details than the previous four books, and which laws are entirely new, entirely just belonging to this context of the Torah being given to the people who are at the threshold of going into the land and conquering it. And pretty obviously, the laws of war are those that belong to this category.

Previous War Narratives and Their Laws

Of course, we already had stories of Moshe fighting wars, specifically in the end of Sefer Bamidbar, which we’ve discussed over there. And there’s some laws which might be taken to be general laws of war, how the wars should be fought — specifically the halachot of the war against Midyan, the halachot of purification from tumat met [ritual impurity from contact with the dead], which come after the laws of war. And a big part of it is that you need to purify yourself from touching dead people, or maybe even from the act of killing them in a war.

But here we have more general laws of war. In other words, also the positive aspects — also how the war is fought, and some laws about that, and some limitations, or some, what we would call now, laws of war, some limitations on the extent to which wars can be fought, but also some of the opposite. And these go together, as we’ll explain, and that’s pretty obvious to anyone that follows how these things work. You can’t have laws of peace, of like how you give space for peace within a war, if there isn’t also the other side, which is the sort of punishment or deterrence for not accepting that peace, or for not working along with the war.

The Absence of “Just War” Theory

Of course, what is missing entirely in these discussions is the question, later called the question of just war — like which wars should you go to at all? This question isn’t discussed here. And it’s obviously assumed as the pasuk starts: you will go out to war on your enemies. So of course, you could say their enemies are their enemies because they went to war against them. But to read it in a more plausible way, which is, of course, the decision to make war is probably the decision that the king makes, which we’ve seen earlier, or possibly the judges — in the Talmud, it seems like it’s a law, so we have to ask the judges. But for sure, it’s the job of the king, and that’s the job of a rightful king to decide — one of his main jobs is to decide which wars are right and correct to fight.

That’s not discussed here and possibly not seen as something that could be legislated. The only thing that’s legislated is the way in which you fight. And there are some specific differences between different kinds of war and what kind of terms should be given in each of them, as we’ll see. That seems to be the law.

The First Law of War: Do Not Fear (Pesukim 20:1)

Now, the first thing we have to start at the beginning. The first law of war, the first instruction for war — it’s hard to decide if this is a law. The Rambam thinks this is literally a law. But of course, even the Rambam understood what that means. It’s not like a law in the sense of a ritual law, which is like this.

The first law is: as you will go out to war, you will see horses, you will see chariots, riders, many more people than you. And of course, you would have to calculate beforehand if there’s a chance of winning. It doesn’t say that you should go out to wars in which you’re outnumbered. What it’s saying is that even if you go to war and you see many horses, many riders, many chariots, more than you, do not fear them because Hashem, your God, is with you, who has taken you out of the land of Egypt.

The Lesson of Yetziat Mitzrayim

This is one of the important lessons of Yetziat Mitzrayim [the Exodus from Egypt], which we learn throughout Sefer Devarim from the beginning of it, from Moshe’s big speech in the beginning. And in the law here, just as God has taken us out of Egypt, which obviously had also chariots — that’s the thing that Egypt had most famously, their great שש מאות רכב בחור [shesh me’ot rechev bachur — six hundred choice chariots] from Yetziat Mitzrayim — and God has saved us by battle, right, and a kind of battle, by Kriyat Yam Suf [the splitting of the Sea of Reeds] from the Egyptians, so in the same way, He can help you in this war. Of course, assuming that this is done according to the virtues, according to the values of the God that took you out of Egypt, as we’ve discussed in previous shiurim, how you act in the way of that God teaching you and that story showing you.

Why This Is Considered a Law

And here there’s this general statement: don’t fear them. Of course, the Rambam says it’s like a law, because of course everyone knows that cowardice and loss of morale is the biggest thing that makes people lose wars, and especially in the way ancient wars were fought, where there’s even less emphasis in some sense on technical, material power, but also in the way — it’s still this way in many ways. And this is why it makes sense for people like the Rambam to say that this is a law, because these are the basic things that need to be taken care of in the law.

You can’t say, well, it should be just promises or chizuk [encouragement], you should tell people that they shouldn’t be afraid, but how could you command them not to be afraid? But when we say command, we just mean to say this is one of the structural things that need to be taken care of if you go to war. You need to go to war, you need to take care of fear, you need to take care of the cowardice, and therefore you have to tell the people, firstly, that the law themselves, the Torah themselves tells the people: don’t fear them.

The Kohen’s Speech Before Battle (Pesukim 20:2-4)

And then we have the next part of this law. As you get close to the war, to the battle — probably translated as battle here — then the priest goes and speaks to the people and he tells them this precise thing that I’ve just told you in general. He tells them that, and he starts a speech: שמע ישראל [Shema Yisrael — Listen, Israel].

This is how speeches are started in Sefer Devarim, one of the main ways speeches are started. שמע ישראל — of course we know the famous Shema Yisrael that we say every day, but this is like, now we say “Listen up,” listen, Shema Yisrael.

The Content of the Speech

You are now going to war on your enemies, do not be afraid. The Mishnah interestingly reads this, על אויביכם [al oyvechem — on your enemies], that you have to emphasize this to people. Sometimes people don’t realize that the people they’re going to war against are their enemies. Like you’re not going — this is not a civil war. If there will be a civil war then these laws don’t apply, then we have to find out a different — I mean we shouldn’t do that war. But you’re going to war on your enemies, against your enemies, which means they act toward you as enemies, and therefore you should act to them as enemies. Don’t get confused.

And therefore don’t let your hearts be soft, and this doesn’t mean, or at least doesn’t only mean, be hard — it means don’t be afraid, right, don’t be afraid. And there’s four different words that sort of mean the same thing: don’t be afraid, don’t be something like fast to run away, don’t be broken. These are all ways of saying the same thing: don’t get broken by the fear, because Hashem your God is going with you, to fight with you, to save you.

The Practical Application: Exemptions from Battle (Pesukim 20:5-8)

Now we have — so that’s the morale-boosting speech that the Kohen has to give, or is told to give now, in the beginning of the war, as they get close to the battle. Now there’s also a practical result from this idea.

The Principle Behind the Exemptions

Since we understand that the most dangerous thing in war is to lose courage, to lose the morale, there’s also practical laws which say that people who in many ways will destroy the morale, either for themselves or for their friends, should rather not be taken to war. You don’t go to war with people who are going to be afraid; they’re just going to make you lose. So don’t even go to war with those people.

So there’s three levels of the same idea, which is all about the courage and the internal strength that people need to go to war:

1. The mitzvah in general: don’t be afraid

2. The Kohen gives this speech: don’t be afraid

3. Afterwards the Shotrim, which we’ve seen in the beginning of the parsha, right, שופטים ושוטרים [Shoftim v’Shotrim — Judges and officers] — the people who are, it’s not clear what Shotrim means, right, we translate as police, something like the enforcers, the leaders — speak to the people and they tell them these four things, four people who should return, who should return home.

The Four Categories of Exemption

And they’re divided into three and one, because they’re slightly different. The three are ones that have somewhat of a good excuse for being fearful of going to war, for not being ready, for not being in the state of life where you want to go to war.

If you want to go to war you need to be in the kind of state in life where you are ready to go into war, and part of going to war means you’re ready to die in that stage and it won’t be the worst thing for you to die. Of course dying is always a bad thing, especially dying in battle — meaning it’s not an expected life or death — but there are still people who are in the stage of life where it’s worse for them. And since it’s worse for them they will not fight to their full ability. That’s the real problem: they will not fight to their full ability and therefore we can’t have those people in war.

First Exemption: The New House

And those people are: the first person who built a new house and has not yet moved into it, or not exactly clear, but has not started living in it. I’m not exactly clear what this means — it has not started, like, established it, not initiated it. So he’s worried about his house. He’s like, I can’t die, I put in all this effort into building a new house and then I will never even have even one day of living in it. And the pasuk says, lest you die in the war and someone else will take it. But of course this is speaking for the person’s fears.

There’s nothing wrong with someone dying if there’s a just war, then from the perspective of the objective point of this war, there’s nothing wrong with a guy that has a new house dying in the war. But the point is that he will — that’s why I understand — he will think that and it’s like being always worried: wait, someone else is going to take my house that I’ve put in all this effort and I will never live in it. And that will cause him not to be able to fight. So therefore go home.

Second Exemption: The New Vineyard

Same thing: someone has planted a vineyard and never drank from the first fruits of it. That’s what the verb חלל [chilel] means, the content of a vineyard. Same thing: go home because you were afraid someone — you will die and someone else will do it instead in your place.

Third Exemption: The Betrothed Man

Same thing: if you have betrothed a woman. This is one of the places where we see that there’s a concept of אירוסין [erusin — betrothal], distinct from נישואין [nisuin — marriage], right. That means you promised a woman that you will marry her, you made her promise or her father, whoever is in charge of her, that you will marry her. And the same thing: I’ve went to all this effort to get a wife and I’ve never consummated a marriage. Same thing: go home.

Fourth Exemption: The Fearful and Soft-Hearted

And then they add one more thing. So these are three people who have something of a good excuse. But then they add after all of this, they say: anyone who’s afraid, anyone who’s afraid, who has a softness of heart, should please go home and not make soft [the hearts of his brothers]—

The Fearful Soldier and the Point of No Return

So this is, I think, the general point of all of these laws, but there’s one more for explicit, and as of him, as Mechlech Yisrael [the fearful one in Israel], this means someone is afraid that he did a virus [aveirah — sin] and therefore he doesn’t worth it to go to war, or the other shithead, literal shithead is just afraid, someone who doesn’t have the courage, some people can’t see swords open, can’t see, literally can’t see the war, so he doesn’t have the courage for that, so therefore it’s better for him to go home.

And then, after they do all of this, then they’re ready, after the Shaitan [shotrim — officers] finished speaking to the people, they give the leaders, the generals, to go in the head of the people and lead them into battle. So these are all preparations for battle and, in other words, you need to organize an order of battle before you know who you’re going to battle with, so first we have to make sure that everyone is ready and then we set that up.

There might be also a meaning in this, which is like, after that, you don’t have a chance to lose, that’s how the Mishnah reads it, after you’ve, you’re not one of the people that took the chance, you give a chance to people to go home, after that, you don’t have a chance to go home, you’re considered a deserter, you get punished, you get physically blocked from going home, you can’t, there’s no way back.

So that’s the law from the perspective of the people going to war, the fighters, the soldiers.

The Offer of Peace: Domination, Not Withdrawal

Now we have an important, the second important law of war, the second side, which is how the terms are given to the enemy, how do we deal with the enemy, and there’s again an important law from before the battle. The first thing is, as you get close to a city and you want to fight about it, first you call it, you give it an offer of peace.

And here there’s two options, very important to notice that the offer of peace works with these two options. Of course there’s an offer of peace, really it’s an offer of domination, right, it’s not an offer of peace in the sense which is going to go away, because obviously there’s a reason for this war, as we discussed, the Torah doesn’t discuss why you’re going to war in the first place, you’re obviously going to war in the first place for some reason, there was some, something did, those people did something wrong, there’s some reason why you deserve to go to war to them and to win them.

Why Offer Peace in a Justified War?

But you should still, this is why it’s important, people don’t realize, people think if I say it this way, okay so then why are we even offering peace, no, you offer peace precisely when the war was justified, if it’s not justified then there’s no point in the whole thing. The offer of peace is not saying don’t do war when you don’t need to, that’s obvious. The offer of peace is saying even someone who deserves to be subjugated, they deserve to have a war against them, you should still offer them peace, which really means offering them submission, it means offering them some sense of fear, surrender terms, that’s really the kind of surrender that the Torah imagines.

The Two Outcomes: Submission or Siege

It’s like this: if they will answer you with peace, if they will open the door to you now, if they will open the doors for the city to you, then you will take the people and they will, which is a way of saying they will be your slaves, or usually we translate mas [tribute/tax] as tax, but the ancient tax wasn’t always necessarily money, it might be taking their crops, it might be taking some of their people to work for you, but they will be kept alive, they will just be what’s called a city under the empire, under another king.

But if not, if they will not make peace and they will war with you, then you will lay siege to the city, right, they didn’t open to you so you have to lay siege to them, and the Torah promises or hopes that Hashem will give her in your hands, you will win the battle.

The Terms Must Be Credible

And then, this is the result of a battle, and this is also, I think these terms need to be very clear because otherwise people never have an incentive to make peace, they always say okay, I’ll make peace at the last minute, it’s very important, and this was also like a Roman law, once the battering ram touches the wall of the city, there’s no peace terms anymore, because that’s the only way your offer of peace can be credible. This offer of peace isn’t like a nice peace, it’s a strong peace, right, it’s a peace where it says, their other option is this, so this is why this other option has to be there, I don’t think it can work without that.

The Fate of the Conquered

So you kill all men, right, all males, but it means all men, not children, right, in other words, all soldiers, because in the ancient war, and really also nowadays, people, we like to imagine that there’s men that are not soldiers, but they’re kind of always, if there’s a real siege on your city, then by default, all your able, what they call sometimes military-aged men, they are all your soldiers, so they all get killed. I don’t know to what extent, like, yeah, you might be able to leave some over, it doesn’t say, because obviously only in the next verse, like, in the story of Shiv Amen [Sheva Amim — the seven nations], it tells you explicitly not to leave over any living thing, so, but this has to be, it has to be like a full loss.

But you will take their women, their children, their animals, their livestock, everything, all their possessions, you take them, and this is the spoils of war, which Hashem gave you, and you have that, so those are the two options of going to war.

The Exception of the Seven Nations

Now, there’s an exception set to this option, it’s not clear entirely to which exception, at which stage this exception is set, I think that we should probably read it, and I think Rambam and others read it this way, as being after peace was not accepted. So Rambam quotes explicitly a gemara that says, even for the wars, and these people, even the Shiv Amen, the seven nations of Canaan, there was an offering of peace, they could have accepted that, but after that, there’s a difference.

Distant Cities vs. The Seven Nations

In the, in any city that’s far from you, that’s not part of the place where you have to actually live, so there’s an option of, like, subjugating them, and they’re being under you. But from these cities, if they do not accept terms of peace, which is them accepting really to live under you, and by your terms, then you will have to do something more than that, do not let alive any living being, Kal Neshumah [kol neshamah — any soul], don’t let anything alive, and this probably means that’s the basic point.

The Law of Cherem

And, but, you should do Kerem [cherem — total destruction/ban], right, Kerem means destroying it entirely, in other words, you’re not even going to take their soul [spoils], right? Of course, this was not entirely done, even Yeshua [Yehoshua — Joshua] did some Kerem, not entirely, only certain cities, but what this means also is don’t take any of their stuff, and we know in Sefer Devarim, many times there’s a concern that you’ll take their stuff, you’ll take their idols, you’ll take their, and then you will end up doing the same thing.

But, you will put them to ban, but make a Kerem, and it gives a list of precisely who, so this is a very precise law, these seven people, as God is commanding you.

The Reason: Cultural Contamination

And the reason for this, this is not, there’s no, there’s an important reason for this, since these are people that are going to be living with you, so if they entirely accept, that’s one thing, but as long as they’re enemies, subjugated enemies, the problem is that they will continue with their evil culture, and you do not want them to teach you all their abominations, which they do for their gods, as the Torah in other places says, it means they will teach you child sacrifice, and things like that, and you will send [sin] to Hashem your God, so you don’t want them to teach that to you.

So you have to entirely destroy them, not destroy all of their culture, even their material culture, right, don’t even take their gold and silver, their nice things, and so on. That’s the law of the Kerem of the seven nations. That’s, so, and this is like a qualification for the law of what you do when you win a city. So, for that, there’s a qualification that it’s not the exact same, when you are talking about these nations, that you have to live with them, because then you have to be worried about their influence, even after you won, that’s an important thing.

The Law of Fruit Trees During Siege

Now there’s one more law, again, a limitation on the war, so we discussed, and this is also a qualification, something we learned, we discussed that if you, that this is all about siege warfare, about conquering cities by siege, so there’s an important limitation on the siege, it’s very interesting to understand this law, what the point of it is.

Preserving Productive Infrastructure

And the law is, if when you place siege to a city, for many days, right, that’s how the logic of a siege, you have to do it for many days until the city gives up, or you find you breach it, then you should not destroy its trees. You do not cut up the trees, you do not let an axe fall on their trees, in other words, the trees that produce fruit, that’s the regular tree mentioned in the Tanakh, it’s not just a tree with leaves, it’s the trees that produce fruit, but you should eat from it, but do not cut it down.

The Rhetorical Question

And it gives a sort of reason for, as a tree, as not, right, it’s a thing and a question, it’s a rhetorical question, is a tree a human being that will run and come into the siege for you? In other words, we assume, and this is matching what we said, the aim in here, and specifically not from the Shevam [Sheva Amim], is not total destruction, we always want to conquer the city, we want to have the city as much as we can, we want to not destroy more than we need to.

So if there’s an infrastructure, that’s the way, the broader way to say this, right, there’s infrastructure, there are fruit trees that give out fruit, don’t destroy those trees, you need them to eat for yourself, you need them, once you conquer the city, you don’t want the city to be entirely destroyed, so don’t destroy their vital infrastructure that gives them food, because that’s not smart. Humans, you’re not destroying, they’re going to be stuck in the siege, and yes, you want them to surrender in the end, you really want them to stay. But a tree, just outright destroying, that’s not what you can do.

Using Non-Fruit Trees for Siege Equipment

But of course, you need trees for your siege, right, a siege, you build all kinds of things out of wood, siege towers and stuff like that, so that’s what it says, you’ll cut down the trees that are not, not trees that give out food, not fruit trees, you will cut down and create a siege, and then you will lay siege to the city until it goes down, until it surrenders in front, before you.