Preventing Flight from War

Sotah (8:6) | Yisrael Bankier | 6 months ago

The eighth perek of Sotah discusses the laws of war. This includes the speech of the mashuach milchama -- the kohen appointed for this task -- and the laws detailed by the shotrim. After those speeches, the Mishnah (8:6) explains that people were appointed at the front and back of the troops. They were referred to as zekifin.

Rashi (44a) explains that those at the front would prop up those that feel and encourage them with their words. However, the ones at the back had a different task. The Mishnah explains that they were armed with khashilin. The Bartenura explains that these were a type of iron axe. If they saw anyone attempt to flee the battlefield they would cut them down by their legs. The Mishnah explains that the this was important because the beginning of defeat is when the troops begin to flee the battled field. Grant that there was a psychological threat that they were trying to prevent, what is the legal basis of harming our own soldiers?

The Netziv (Meromei Sadeh, Sotah 42a) explains that the ability stems from the law of a rodef. Recall that a rodef is someone that is pursuing an individual with intent to kill. One is allowed to intercede an even kill that person to save the one being pursued. Since the threat posed is life threatening, one attempting to flee is defined as a rodef. The Netziv explains that even though the soldier might have no intent to put the other soldiers life in jeopardy and is only fleeing due to fear, the law of rodef still applies. His proof is from the Gemara (Sanhedrin 72a) where we learn that the law of rodef can even apply to an unborn child.

The Maasei LeMelech (Klei Mikdash 87:5) also asks how we can effectively exact a physical punishment without a warning, witnesses or a beit din on the battlefield. The Maasei LeMelech also initially answers that it is based on the principle of rodef. In other words, since the flight will cause panic and their ultimate loss on the battlefield poses a direct threat to the lives of the other soldiers, those wanting to flee are defined as rodfim.

The Maasei LeMelech however also suggests that is based on din Melech. In other words, we find that a king can deliver extrajudicial punishments when necessary. He cites the Gemara (Bava Metzia 83) where R' Elazar became an appointee of the king to catch and punish thieves. He learns from that case that a shaliach, an agent of the king, has the king's ability to punish without beit din. That being the case, the zekifim can carry out this task, since they are acting with the king's authority.

The Chatam Sofer (OC 208) however explains that during war, different rules are in place than during times of peace. He uses this understanding to explain many cases in Tanach that do seem to follow the normal legal practice, [ע"ש]{dir="rtl"}. In other words, this is built into military law and does not need to lean on rodef or din melech to justify its practice.

Download