War and Peace II ~ War in Rabbinic sources ~ preparations and exemptions

MISHNA: Cases concerning monetary law are adjudicated by three judges. Cases concerning robbery and personal injury are adjudicated by three judges. ... Cases of capital law are judged by twenty-three judges. An animal that copulated with a person and an animal that was the object of bestiality are judged by twenty-three judges... The court judges cases involving an entire tribe that sinned, or a false prophet (see Deuteronomy 18:20–22), or a High Priest who transgressed a prohibition that carries a possible death sentence, only on the basis of a court of seventy-one judges, i.e., the Great Sanhedrin. And the king may bring the nation out to an optional war, i.e., a war that was not mandated by the Torah and is not a war of defense, only on the basis of a court of seventy-one judges. They may extend the city of Jerusalem or the courtyards of the Temple only on the basis of a court of seventy-one judges. And they may appoint a lesser Sanhedrin of twenty-three judges for the tribes only on the basis of a court of seventy-one judges. A city may be designated as an idolatrous city, i.e., a city whose residents all practice idolatry, and therefore according to Torah law all the residents must be killed and the city must be destroyed (see Deuteronomy 13:13–19), only in accordance with the ruling of a court of seventy-one judges. Additionally, the court may not designate a city as an idolatrous city if it is on the frontier, close to the borders of Eretz Yisrael, and three adjoining cities may not be designated as idolatrous cities. But the court may designate one city, or two adjoining cities, as idolatrous cities. § With regard to the number of judges in the different courts the mishna presents a halakhic midrash: The Great Sanhedrin was composed of seventy-one judges, and a lesser Sanhedrin was composed of twenty-three. From where is it derived that the Great Sanhedrin was composed of seventy-one judges? As it is stated: “Gather Me seventy men of the Elders of Israel, whom you know to be the Elders of the people and officers over them, and bring them into the Tent of Meeting, and they shall stand there with you” (Numbers 11:16), and together with Moses at the head of this body, there are a total of seventy-one. Rabbi Yehuda says: Moses was indeed at the head of the body, but he is not counted as part of the group. Consequently, a future Great Sanhedrin modeled after these Elders is to be composed of seventy judges. And from where is it derived that a lesser Sanhedrin is composed of twenty-three judges? As it is stated: “And the congregation shall judge between the assailant and the avenger…and the congregation shall save the manslayer from the hands of the avenger” (Numbers 35:24–25). Therefore, there must be a congregation, which consists of at least ten judges, that judges the accused and attempts to convict him, and there must be a congregation, also consisting of at least ten judges, which attempts to save the accused by finding him innocent. Together, there are twenty judges here. Before proceeding to derive the requirement for the final three judges, the mishna clarifies: And from where is it derived that a congregation consists of at least ten men? As it is stated concerning the spies: “How long shall I bear with this evil congregation that keep complaining about me?” (Numbers 14:27) There were twelve spies; excluding Joshua and Caleb, who did not complain, there would be ten men who are called: A congregation. Accordingly, the verses describing a congregation that attempts to convict the accused and a congregation that attempts to acquit him together add up to twenty judges. And from where is it derived to bring three more judges to the court? From the implication of that which is stated: “You shall not follow a multitude to convict” (Exodus 23:2), I would derive that I may not convict a person on the basis of a majority but I should follow the majority to exonerate. If so, why is it stated in the same verse: “To incline after a multitude,” from which it can be understood that the majority is followed in all cases? In order to resolve the apparent contradiction it must be explained: Your inclination after the majority to exonerate is not like your inclination after the majority to convict. Your inclination after the majority to exonerate can result in a verdict by a majority of one judge. But your inclination after the majority to convict a transgressor must be by a more decisive majority of at least two. Therefore, the court must have at least twenty-two judges. And since there is a principle that a court may not be composed of an even number of judges, as such a court may be unable to reach a decision, therefore they add another one to them, and there are twenty-three judges here. And how many men must be in the city for it to be eligible for a lesser Sanhedrin? One hundred and twenty. Rabbi Neḥemya says: Two hundred and thirty, corresponding to the ministers of tens, as outlined by Moses and Yitro in the wilderness (Exodus, chapter 18). That is to say, each member of the Sanhedrin can be viewed as a judge with responsibility for ten residents. If there are not enough men in the city to enable this calculation, it would not be honorable to appoint a Sanhedrin, as their members will each preside over less than the minimum of ten residents. GEMARA: ...

(3) He may breach³²Vineyards and fields. to build roads, and no one can stop him from so doing. The “king’s-way” has no dimension, but is whatever size he needs. He need not make the way tortuous in order to circumvent someone’s vineyard or field. Rather, he cuts straight through and goes about his war.

(4) It is a Positive Commandment to exterminate the Seven Nations, as it says, “surely, you shall destroy them” (Deut. 20:17). Anyone who comes across any of these nations and fails to kill them violates a Negative Commandment, as it says, “you shall not keep alive any soul” (Deut. 20:16). Nonetheless, they have already all been destroyed and their memory forgotten.

(5) It is a Positive Commandment to obliterate Amalek, as it says, “erase the memory of Amalek” (Deut. 28:19). It is a Positive Commandment to perpetually remember their wicked deeds and their ambush in order to arouse our enmity against them, as it says, “remember what Amalek did to you” (Deut. 25:17). By Tradition we have learned that “remember” means by speech, “do not forget” (Deut. 25:19) – in one’s heart; for it is forbidden to forget their enmity and hatred.

(6) Any lands conquered by Israel with a king, and in accordance with the Court, are lands “conquered by the masses” and are equal in status to Eretz Yisroel in every respect, as were the lands conquered by Joshua. This is as long as these lands were conquered after all those lands mentioned in the Torah have already been conquered.

(1) War is not conducted against anyone in the world until they are first offered peace (and refuse it), whether this is a Discretionary War or a War of Mitzvoh, as it says, “when you come close to the city to fight with it, you shall call to it to make peace” (Deut. 20:10). If they make peace and accept the Seven Commandments incumbent upon the Sons of Noah (Gentiles), none of them are killed, but they must pay us tribute, as it says, “and they shall be for you a tributary, and they shall serve you” (Deut. 20:11). If they propose to accept upon themselves the payment of the tribute but not servitude to us or they accept servitude but not the tribute, we ignore their proposal until they accept both. The servitude referred to here is one of disgrace and is demeaning. They are not to raise their heads up to Israel for any reason. They must be subjugated to us and may never be assigned to a Position over us. The tribute they must pay shall be for service of the king, with their bodies and their money, such as the building of the walls³⁷Of Jerusalem. and the strengthening of fortresses and the building of the royal palace and similar, as it says, “And this is the account of the levy which King Solomon raised to build the Temple of G-d, and his palace, and Milo, and the wall of Jerusalem…and all the store-cities which Solomon had…the Emorites who remained…and Solomon imposed a head-tax, until this very day. And of the Children of Israel, Solomon made none a bondsman; but they were the soldiers and his servants and his officers and his captains and those in charge of his chariots and his horsemen” (I Kings 9:15-22).

(2) The king may make a deal with them that he can take half of their money or land and leave all their moveable goods or take their moveable goods³⁸Or, chattel. and leave their lands. This is all in accordance with whatever arrangement he makes with them.

(3) It is forbidden for us to lie to them in their peace treaty or deceive them after they have made peace and have accepted the Seven Commandments.

(4) If they do not come to peaceful terms or they make peace but do not accept the Seven Commandments, we engage in war against them and slay all their adult males. We take all their money and children as spoils. We do not kill the women or minors, as it says, “the women and the children” (see Deut. 20:14 and 2:34) which means the male children. To what do we refer? To a Discretionary War with one of the other nations. However, with one of the Seven Nations or with Amalek who do not make peace, we leave no soul alive, as it says, “so you shall do with everyone…only of the cities of the nations…do not leave alive any soul” (Deut. 20:15-16), and regarding Amalek it says, “erase the memory of Amalek” (Deut. 25:19). How do we know that this is referring to those who do not make peace with us? For it says, “there was no city which came to peace with the Children of Israel except the Chivites, dwellers of Givon. Everything, they took in the war. For from G-d their hearts were strengthened to the call of war with Israel, so that they may be destroyed.” (Joshua 11:19-20). They were offered peace, and refused.

(5) Joshua dispatched three communiqués before entering the Land. The first one he sent read, “Whoever wishes to flee, may flee”. The next read, “Whoever wishes to make peace, let him make peace”. The next read, “Whoever wishes to make war, make war”. If so, why did the residents of Givon go and deceive us³⁹Saying, “we are from a distant land” when they could have simply made peace with us (Joshua 9:9).? He had sent the (first) letter to them, and they did not accept it. Being unaware of the Laws of Israel, they thought that we won’t again be offering them peace⁴⁰After the first time, i.e., they would not have a second chance.. So, why was this matter difficult for the Heads⁴¹Of the Tribes., and they saw that it would have been proper to smite them by sword were it not for the oath⁴²That they made with the Givonites.? Because they made a treaty with them, and it says, “make no peace treaty with them” (Deut. 7:2). Thus, their verdict was that they were to be serfs. Now, since we, in error, made an oath with them, by law, they should have been killed because they deceived us, were it not for the disgrace doing so would have caused to G-d’s Name.

(6) We do not extend offers of peace neither to Ammon nor to Moab, as it says, “do not seek as to their peace or their prosperity all your days” (Deut. 23:7). Our Sages have said that from what it says, “and you shall call upon her (the city) to peace” (Deut. 20:10) we might have thought that we can offer Ammon and Moab peace, were it not to say “do not seek their peace”. From the phrase, “With you he shall dwell…and you shall not wrong him” (Deut. 23:17) one would think that we can offer peace to Ammon and Moab. However, from the phrase, “and for their prosperity” we learn that although we do not offer them peace if they, on their own, make peace, we accept them.

(7) When we besiege a city which we want to capture, we do not encircle it from all four sides, but only on three. We leave one side open for them to flee. Anyone who wishes to escape with his life may so do, as it says, “and you shall deploy against Midian, as G-d had commanded Moses” (Numbers 31:7). By Tradition we have learned that this is what was meant.