Opportunism and war. A passage at the end of Shoftim and it’s near parallel in Ki Tetzei – the prohibition against the cutting down of fruit trees in war and the laws concerning the rape of a woman during the heat of battle – are as relevant today as they were in the Late Bronze Age Levant.
Surely we are more civilized today – if we go to war, it’s with the Geneva conventions at our back. Rules of modern warfare, in theory, should not be so similar. And yet they are. After all, the Geneva Conventions are supposed to limit barbarism, and restore balance to the war zone in a timely fashion. Are you surprised that they don’t?
כי-תצור אל-עיר ימים רבים להלחם עליה לתפשה לא-תשחית את-עצה לנדח עליה גרזן כי ממנו תאכל ואתו לא תכרת כי האדם עץ השדה לבא מפניך במצור: רק עץ אשר-תדע כי לא-עץ מאכל הוא אתו תשחית וכרת ובנית מצור על-העיר אשר-הוא עשה עמך מלחמה עד רדתה:
When you besiege a city for many days to wage war against it to seize it, do not destroy its fruit trees by swinging an ax against them, for from them shall you eat, and you shall not cut it down; is the tree of the field a man that it should enter the siege before you? Only a tree that you know is not food, it you may cut down and destroy, and build a bulwark against the city that makes war with you, until it is conquered. (Deut.20:19-20)
The issue here is self-interest. If the Israelites intend to inhabit the city, they don’t destroy its fruit trees. Seems pretty obvious, but as there is not a single word extra in the Torah, we know that the active concept here is that the intent is to take over the city – if make it your own, don’t destroy its assets.
Now let’s look at the parallel situation in Ki Tetzei.
כי-תצא למלחמה על-איביך ונתנו ה’ אלקיך בידך ושבית שביו: וראית בשביה אשת יפת-תאר וחשקת בה ולקחת לך לאשה: והבאתה אל-תוך ביתך וגלחה שביה מעליה וישבה בביתך ובכתה את-אביה ואת-אמה ירח ימים ואחר כן תבוא אליה ובעלתה והיתה לך לאשה: והיה אם-לא חפצת בה ושלחתה לנשפשה ומכר לא-תמכרנה בכסף לא-תתעמר בה תחת אשר עניבה:
When you will go out to war against your enemies, and HaShem, your G-d, will deliver him into your hand, and you will take over and make him your captive, and you will see amongst the captives a woman who is beautiful of form, and you will desire her, you may take her to yourself for a wife. You shall bring her to the midst of your house; she shall shave her head and let her nails remain untrimmed. She shall remove the garments of her captivity from upon herself and sit in your house and she shall weep for her father and her mother for a full month; thereafter you may come to her and live with her, and she shall be a wife to you. Btu it shall be that if you do not desire her, then you shall send her away on her own. You may not sell her for money; you shall not enslave her, because you have afflicted her. (Deut.21:1-14)
So what’s the relationship between women and fruit trees. Aside from the obvious – that both bear fruit – the actual discussion is still about self-interest balanced against future intent. A solider can’t grab a captive woman in the heat of battle, rape her out of lust, and then just cast her aside. He has to show interest in her future before he can do what apparently comes naturally in war. Intent, again is the issue.
What constitutes a war crime today? The original Hague Convention (1907) stated: The right of belligerents to adopt means of injuring the enemy is not unlimited. The Third Geneva Convention determined the rights of prisoners of war. The Fourth (1949) relates to the rights of civilians in times of war.
The limitations set in the last two parashot show that the ancient world did have a clear code of conduct for war, and an understanding that people are answerable for their actions, even within a conflict.
We can see from the depiction of the 7th century BCE Assyrian siege of Lachish that the fruit trees were studiously avoided. Clearly, one would preserve the agricultural integrity of the area, in order that, whoever the victor might be, the land would be returned as soon as possible to food production. That was the standard of the era.
But women were clearly chattel, easily taken in war. If it was known amongst the enemies of Israel, and surely it was, that the women might be raped once, but that then the soldiers would be forced to take them home to marry them, what would you do for your daughters when you saw the Israelites coming? Their best hope for survival would be to be dressed in their best, hair and nails done.
It took until 1947 to determine that prisoners of wars and civilians have rights. And yet the concept was understood in the Late Bronze Age.
Again – it’s a question of intent. If you intend to build, you don’t destroy fruit trees. If you intend to take captives, you have to be prepared to either kill them in battle or invite them into your home. Capturing women to sell them into slavery was not to be considered. The profit of war was not human trade, but land. And if you caused damage by taking someone, you sent them away without harming them.
When Gush Katif was given away, we left them greenhouses: here – this is an extra gift – take the land and continue to plant it. The greenhouses were destroyed in order to put rocket-launchers in their place.
Is it any surprise that the natural Israeli response to the threat of an enemy is to establish neighborhoods, build houses and plant trees? The correct and natural order is to build in the face of threat.