Was Moses a War Criminal?

Below is the text a dvar Torah I gave today in my synagogue.

Dvar Torah – Mattot, July 10, 2010

Shabbat Shalom.

Today’s Parsha is the double portion Mattot/Ma’asei. And in keeping with today’s service’ alternate format, I would like to make this dvar more of a discussion than a lecture. Nevertheless I will begin with some opening remarks- to set the background and to express some of my own views on the matter at hand.

And the matter at hand is the slaughter of the Midianites as recounted in Bamidbar chapter 31.

Let me read condensed version of verse 1 - 18.

1. And the Lord spoke to Moses, saying,

2. Avenge the people of Israel on the Midianites; afterwards shall you be gathered to your people.

3. And Moses spoke to the people, saying, Arm some of yourselves for the war, and let them go against the Midianites, and do the Lord’s vengeance in Midian.

...

7. And they warred against the Midianites ...; and they slew all the males.

...

9. And the people of Israel took captive all the women of Midian, and their little ones, ...

10. And they burned all their cities where they lived, and all their encampments, with fire.

11. And they took all the booty, and all the plunder, both of men and of beasts.

12. And they brought the captives, and the booty, and the plunder, to Moses, ... to the camp in the plains of Moab, which are by the Jordan near Jericho.

...

14. And Moses was angry with the officers of the army, ...

15. And Moses said to them, Have you kept all the women alive?

16. Behold, these caused the people of Israel, through the counsel of Balaam, to commit trespass against the Lord in the matter of Peor, and there was a plague among the congregation of the Lord.

17. Now therefore kill every male among the little ones, and kill every woman that has known man by lying with him.

18. But all the young women, who have not known a man by lying with him, keep alive and take for yourselves.

There are three questions I would like us to consider today.

· First, is this moral?

· Second, is Moses a war criminal?

· Third, what are we, as Reconstructionist Jews, to make of this story?

* * *

First, is it moral? Personally I have to say no. And I am not alone among Jewish commentators.

The staunchly Orthodox Rabbi Yosef Zvi Hertz, chief Rabbi of the British Empire, writing in the 1930s, in his commentary on this incident says:

The war against the Midianites presents peculiar difficulties. We are no longer acquainted with the circumstances that justified the ruthlessness with which it was waged, and therefore cannot satisfactorily meet the various objections that have been raised in that connection. Perhaps the recollection of what took place after the Indian Mutiny, when Great Britain was of the same temper, may throw some light on the question. The soldiers then, bent on punishing the cruelty and lust of the rebels, partly in patriotism, and partly in revenge, set all mercy aside.

His best explanation is that Britain had been similarly cruel in a bloody war back in 1857. (Though to be fair to the British, no female prisoners were executed in that war.) Hertz thus raises the moral problem, but answers, or not, by falling back on a common empirical truism: “War is hell. Soldiers are often cruel.”

Similarly Guntar Plaut, in his commentary, writes:

This report [of the war against Midian] contains historical and moral problems of the highest order.

He then goes on to point out that this account is likely a-historical. But as Plaut goes on to say:

... this [a-historicism only] exacerbates the moral question. For if the extermination of the Midianites did not in fact take place ... what would move the authors of the Torah to include it? How can the slaughters of so many prisoners be reconciled with the humanitarian ideals ... of the Torah.

But, ultimately, Plaut too falls back on historical analogy, not moral justification, to explain this text. ‘Everyone acted badly in those days’, is his claim – though in truth, as far as I can tell, this is just wishful thinking on Plaut’s part. It was actually quite rare in ancient times to kill all the captured women and children. They were simply too valuable on the slave market.

Plaut then takes comfort from the fact that the Israelite soldiers were ordered to make a ritual atonement. Frankly, IMO, this is no justification at all, and reminds me, more than anything, of Golda Meir’s remark that she could never forgive the Arabs for forcing nice Jewish boys to kill them.

Plaut seems to realize these are weak arguments.

So, finally, in attempt to save the good name of God from the damning evidence of the text, Plaut decides to throw Moses under the bus. Referencing a remarkable text from Midrash Sifre Bamidbar, he states:

A midrash attempts to relieve God of the responsibility [for the massacre,] and comments that Moses’ anger brought him to sin, implying that it was not God, but Moses, who issued the fatal command...

Thus we have evidence that as early as the second century CE, rabbinic Judaism had a serious problem with the behaviour ascribed to the Israelites in this chapter, and where willing to label it as the work of a “rogue agent” - Moses in his dotage, embittered at his fate. To accuse Moses of a sin, is no small thing for the Mishna Rabbis, so we see that, some of them at least also, saw this incident as inconsistent with moral behaviour – even under the duress of war.

* * *

Let us turn to the second question. Is Moses a war criminal?

This is a tricky question. Crime – as opposed to moral offence – is dependent on the law of the land in force at the time. Homosexual relations, or l’havdil, flogging a horse to death, may or may not have been moral offences in 1870s Canada; but one was certainly a crime and the other certainly legal at that time – while today the legal status of these two acts is reversed.

So let me say right off that Moses was not a War Criminal, in his time and place. There were simply no Jewish laws of war laid down in the Bible prior to this incident. But just a few weeks after this incident, by the Bibles own chronology, that is no longer true, and Moses may have been guilty of War Crimes by the standards of those new laws.

In Deuteronomy 20:10 Moses himself, in the name of God, tells the people:

When you approach a city to do battle with it, you should offer it peace. And if they respond in peace and they open the city to you, then all the people in the city shall pay taxes to you and obey you. But if they do not make peace with you, only then shall you wage war with them...

The Talmudic Rabbis understood this to be a great and general principal. Rabbi Josse Hagalili is quoted as stating

"How meritorious is peace? Even in a time of war one must initiate all hostile activities with a request for peace.”

One must always try negotiations before going to war. Before the seeking of peace, battle is prohibited.

Moses did not offer peace to the Midianites under any conditions. His purpose was their death: pure and simple revenge. And therefore he would seem to have been guilty of a War Crime based the Law as it was in effective only a few weeks after this massacre

Rashi, writing in the 11^th century, says that is not so. He limits the obligation to seek peace prior to entering battle to voluntary wars (Milchemott Reshut), not commanded wars Milcehmot Mitzvah) and God did command Moses to attack the Midianites. Thus, according to Rashi, Moses would have been off the hook even had this law been in effect at the time.

Maimonides, however, disagrees with Rashi. He states:

One does not wage war with anyone in the world until one seeks peace with him. This is true both of voluntary and obligatory wars, as it says [in the Bible] "when you approach a city to wage war, you must first call out for peace." If they respond positively and accept the seven Noachide commandments, one may not kill any of them ...

But more than that: the obligation to seek peace as explained above, applies to battle between armies where no civilian population is involved. However, according to Maimoinides, Jewish law requires an additional series of overtures for peace and surrender in situations where the military activity involves attacking cities populated by civilians. Maimonides writes:

Joshua, before he entered the land of Israel sent three letters to its inhabitants. The first one said that those that wish to flee [the oncoming army] should flee. The second one said that those that wish to make peace should make peace. The third letter said that those that want to fight a war should prepare to fight a war.

Nor was the general obligation to warn the civilian population enough to fulfill the mitzvoth: Maimonides codifies a number of very specific rules of military ethics, based on Biblical and Talmudic sources. He writes:

When one surrounds a city to lay siege to it, it is prohibited to surround it from four sides; only three sides are permissible. One must leave a place for inhabitants to flee for all those who wish to abscond to save their life.

Nachmanides, a later medieval Rabbi, elaborating on this commandment states:

It is from this commandment that we learn to deal with compassion - even with our enemies and even at time of war;

Of course Moses obeyed none of these strictures in the war against Midian.

But, you might say, none of this addresses the brutality of the war after it had started – and that is what really bothers us today.

That too is addressed by Maimonides. According to his interpretation of another verse in Deuteronomy 20 – the prohibition to destroy fruit trees in time of war – it is forbidden to do any wanton destruction that is not an absolutely militarily necessary. This is part of the general principle of Bal Tashchit. Maimonides tells us that it is prohibited to induce deliberate suffering, famine, or unnecessary waste or damage in the enemy camp. Maimonides, in his book of commandments, (in Negative Commandment #57 to be precise) explicitly links the prohibition against destroying fruit trees, to the deliberate intention to expose the enemy to any undue suffering.

Thus not only would Moses have been guilty of

• failing to have offered peace prior to the war,
• failing to allow civilians to separate themselves from the military and thus save themselves,
• and failing to offer the enemy an escape route;

his murder of the non combatant prisoners and the destruction of the Midianite cities can both be classified as wanton destruction and a violation of the principal of Bal Tashchit.

Maimonides recognizes that his understanding of the Deuteronomy’s Laws of War would find Moses to be a War Criminal. He excuses Moses only by the fact that those Laws had not been given at the time of the Midianite War.

If Moses could have been judged a War Criminal by the Deuteronomy’s standards, by Talmudic standards, and by Maimonides standards - how much more so by current secular legal standards? The Geneva convections of 1949 – as updated in 1977 - specifically disallow the following acts, all of which Moses – and the Israelites it must be said – engaged in, in this Parsha:

• Deliberate killing of non-combatants during war
• Killing of prisoners of war under your power
• Killing of protected persons under your power
• Failing to protect women and children
• Collective punishment
• Punishment of non-combatants under your power without due legal process.
• Moving of conquered people from their land
• Moving of the conquering nations citizens into the conquered peoples lands

However, even a modern day War Crimes Tribunal, conducted under the Geneva conventions would have found Moses innocent. The Geneva conventions are not retroactive. Had they been, not only would Germans and Japanese have been found guilty, but also many allied soldiers, commanders, and politicians.

* * *

This brings me to the third point I want us to consider. What should all this mean to us – as Reconstructions Jews?

Let me offer just a few thoughts before we open this up for discussion.

First, the Torah is not, and it should not be, the be all and end all of our moral and legal thinking. Our concepts of right and wrong evolve. What was OK for Moses was not OK for Joshua, and many an ancient Jewish leader would have been condemned had he stood trial under Maimonides rules. In war in particular, it is often the very excesses of war that cause humanity to update its rules. Just as what Moses did to Midianites was outlawed only a few weeks after he did it, so too many common World War I & II practices where outlawed by the Geneva convections of 1949.

Second, in war, as in other things, our ethics should not be based on Jewish law alone – or even primarily on Jewish law. The same Maimonides, whom I quoted as a man with a kinder gentler view of war, declares that rape in time of war, though limited,
is allowed! He stands on firm Talmudic precedent in this. Yet I am sure none of us in this room would condone this common but vile war time practice. It took the 1949 Geneva conventions to explicitly declare rape by soldiers a War Crime.

Third, I bring these points up, not just to have an intellectual discussion about nature of evolving law, and the need to incorporate both secular and Jewish sources into our moral and legal thinking. I bring them up because these are pressing issues for the Jewish people today – particularly in Israel.

Two examples if I may.

First, in response to the Goldstone Committee’s findings of possible War Crimes by Israeli Forces in the 2008/2009 Gaza War – in particular for alleged deliberate targeting of civilians in time of war, and in failing to adequately protect civilians, Prime Minister Netanyahu declared that the allies had done much worse in WW II. He cited the fire-bombing of Dresden as one example. In response, Judge Goldstone pointed out that Dresden would be illegal under the current Laws of War as codified in the 1949 Geneva conventions. The world was so horrified by the total-war ethos of WW II that it sought to outlaw similar behavious in all future conflicts. Armies must now, even if it puts their own soldiers at some risk, go out of their way to protect civilians.

Second, at this very moment as I speak to you this Shabbat, in Israel, the Ministry of Justice is sponsoring a conference at the Park Hotel in Upper Nazareth. The title of the conference “Hebrew Law - The Land of Israel: Vision and Realization”. Session topics include (and remember this is the Israeli Ministry of Justice, not some Yeshiva, sponsoring and this conference):

· The centrality of the Land of Israel in Jewish law

· “And you shall inherit it and you shall reside therein” The commandment of settling the Land of Israel according to Nahmanides.

· The obligation to risk lives to settle the Land of Israel

· “The land shall not be sold in perpetuity” (Leviticus 25:23)

and

· “Show no mercy unto them” (Deuteronomy 20:16)

One of the invited lecturers at this conference is Professor Rabbi Dov Lior, who in the middle of the Gaza War, publicly supported the killing of Palestinian saying: “There is no term in the Halacha that states one must consider innocents during war. “

More recently, Professor Lior endorsed a book entitled Torat HaMelech (The King’s Torah), written by Rabbis Yitzhak Shapira and Yosef Elitzur, which explains when it is, and is not, permissible to kill non-Jews.

The book argues that one may kill non-Jews and their children if their presence is dangerous to the Jewish people and if one is reasonably certain that the children will grow up and harm Jews. Rabbis Shapira and Elitzur site Moses’ slaughter of the Midianite women and children, in today’s Parsha, as one of the sources for their ruling.

* * *

It seems to me that there is no point in arguing Biblical exegesis, or the finer points of Jewish law against this kind of thinking. Sometimes, we should just admit that the Torah’s morality has been superseded by better ideas. In any case, as Reconstructionists, we read Torah, not to be told what to believe or do, - but, rather to learn what our ancestors thought, - and to start, not to end, a discussion of ethics, meaning, and the human condition. The Bible is a beginning, not a destination. True Torah is a journey.

I look forward to hearing your comments. -- Shabbat Shalom