Parshat Shoftim  2 Ellul 5762, 10 August 2002

Shabbat Shalom: Parshat Shoftim    Deuteronomy 16:18-21:9

By Shlomo Riskin

Efrat, Israel - Although our young State of Israel has been involved in six wars during the less than six decades of her existence, we have always subscribed to a policy known as "purity of arms," or ethical conduct in the course of battle. The foundation for this policy harks back to the Bible, and particularly to this week's Torah portion of Shoftim, which insists that "when you draw near to a city to wage war against it, you must first call out for peace" (Deuteronomy 20:10). Both Maimonides as well as Nahmanides maintain that this principle of initially requesting peace - and for Maimonides, that includes the enemies' willingness to accept the seven Noahide laws of morality, most notably "Thou shalt not murder" (Maimonides, Laws of Kings 6,1; Nahmanides, ad loc) - applies even when waging a battle in self-defense, even when warring against Amalek or the seven indigenous inhabitants of the Land of Canaan.

However, the Bible continues to prescribe that if they refuse to make peace, then "from those of the cities which the Lord your G-d has given you as an inheritance, you shall not leave any living being alive; you must utterly destroy them" (Deuteronomy 20:16,17) - and this would seem to include innocent women and children as well. How are we to understand our compassionate Bible, which teaches that every human being is created in the Divine image and is therefore inviolate, sanctioning the destruction of innocent residents?

In order to compound our question, only two verses after the command to "utterly destroy" appears the following curious - and exquisitely sensitive –Divine charge (Deuteronomy 20:19): "When you lay siege to a city… to wage war against it and capture it, you may not destroy a faint tree to lift an axe against it; after all, it is from it that you eat, so you may not destroy it because the human being is (derives his sustenance from) the tree of the field" (or alternatively, is the tree of the field a human being who is capable of escaping a siege?).

Can it be that our Torah cares more about a fruit tree than about innocent human beings? Is it logical to command the destruction of children in one verse and to forbid the destruction of fruit trees two verses later - with the argument that the human being owes his sustenance to the tree or that the inanimate tree can neither protect itself or be forced to surrender as a result of a siege?! After all, children symbolize humanity's hope for the future and are certainly unable to act in self defense!

Furthermore, the very next chapter, and the conclusion of the our Torah portion, records the law of a broken-necked heifer (eglah arufah). If a murdered corpse is found in the field between two Israeli cities with the assailant unknown, the elders of the nearest city must break the neck of a heifer for an atonement sacrifice, declaring: "Our hands have not shed this blood and our eyes have not witnessed (the crime); forgive Your nation Israel whom you have redeemed, O Lord, and do not allow innocent blood in the midst of Your nation, Israel…" (Deuteronomy 21:1-9).

Clearly as a post-script to the laws of obligatory and voluntary war found in our Torah portion, the Bible is attempting to caution the Israelites not to become callous at the loss of life, even at the loss of one innocent human being. Indeed, the elders of the city must take responsibility and make atonement for this unsolved murder, proclaiming their innocence but at the same time admitting their moral complicity in a crime which might have been prevented had they taken proper precaution and exhibited greater vigilance in providing adequate welfare services. Once again, if the Torah is so sensitive to the loss of an individual life, how can our Sacred Law command that we destroy women and children?

Rav Naftali Zvi Yehuda Berlin, the end of the nineteenth century - Dean of Yeshivat Volozhin, in his masterful commentary on the Bible known as HaAmek Davar, provides the beginning of our answer. He insists that when the Bible ordains that we "utterly destroy" even the women and children, this is limited "to those who gather against us in battle; those who remain at home are not to be destroyed by us" (HaAmek Davar, Deuteronomy 7:1,2). It is almost as though he took into account our present war against the Palestinians, who send young women and children into the thick of the battle as decoys, cover-ups, and suicidal homicide bombers. We are trained to be compassionate, even in the midst of warfare; nevertheless, "those who rise up to murder innocents, even if they themselves are children, must be killed" if humanity is to survive and good is to triumph over evil.

Perhaps we might add one more consideration. Our present enemy, who constantly targets innocent men, women and children for their suicidal homicide attacks or drive-by shootings, understand our sensitivity and compassion; they therefore place their murderers - who are the only ones we target in our attempt at self-protection - in close proximity to women and children in residential areas. It is always unfortunate when innocents must die; but if this collateral damage is the only way we can prevent a murderer from wreaking havoc on our citizens participating in a Passover seder, studying at school, sitting in a Pizza parlor or sleeping at home - then for the good of the future of a free humanity we must take the risk of destroying children as well. "Those who are compassionate to the cruel will end up being cruel to the compassionate"!

Shabbat Shalom.

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