by R. Gil Student
Israel is currently laying siege on the Gaza strip in order to prevent terrorists from leaving, particularly with Israeli hostages. Is a full siege on Gaza halakhically permissible? In the summer of 1982, the Israeli army placed a siege on Beirut in a successful attempt to force the PLO out of Lebanon. On August 6th, then-Chief Rabbi of Israel Rav Shlomo Goren published an article in the newspaper Hatzofeh in which he argued that, according to Jewish law, the siege must allow terrorists to escape the city. Understandably, this caused a bit of a furor and Rav Shaul Yisraeli wrote a letter in response. (The letter was intended to be private but due to a confusion at the newspaper was printed without Rav Yisraeli’s permission. This led to an exchange over whether one may publish Torah insights without permission from the author.) Rav Goren responded in turn and the exchange was published in Hatzofeh on Sep. 17th. The next year, Rav Yisraeli published an article on the subject in the journal Techumin (vol. 4).
Rav Goren’s argument is as follows (as published in Toras Ha-Medinah, ch. 28):
1) The Sifrei (on Numbers 31:7) extrapolates from the war on Midian that when laying siege, a Jewish army may only block off three sides but must leave a fourth side open for those under siege to escape. This is quoted as law by the Rambam (Mishneh Torah, Hilkhos Melakhim 6:7), Ramban (Sefer Ha-Mitzvos, addenda to positive commandments no. 5) and Sefer Ha-Chinukh (527). Therefore, the siege on Beirut must allow those under siege to escape. Presumably, this would also apply to Gaza.
2) The Ramban and the Chinukh state that this mitzvah only applies to an optional war (milchemes reshus), such as a war to conquer new land. But a mandatory war (milchemes mitzvah), such as war against Amalek, the 7 nations or to defend Jews, does not have such a requirement and a full siege may be placed. The Lebanon War was a defensive war and thus obligatory. If so, then according to the Ramban and the Chinuch the siege on Beirut could be complete. However, Rav Goren argues that the Ramban and the Chinuch were only referring to the first two types of mandatory wars – wars against Amalek and the 7 nations – when we are obligated to kill every single person. That is why we may not allow people to escape a siege. But a defensive war is similar to a milchemes reshus and the siege must allow people to escape. The siege on Gaza is also part of a defensive war.
3) The Minchas Chinukh asks how anyone can say that this rule does not apply to a mandatory war when its entire source is from the war against Midian, a mandatory war! Rav Goren suggests that wars outside the land of Israel automatically gain the status of an optional war. Therefore, the war against Midian was technically an optional war. If so, the war in Lebanon is also an optional war and the rule regarding sieges should still apply. Gaza, too, lies outside the halakhic boundaries of the land of Israel.
4) Rav Goren compared this rule to that requiring that before we attack anyone we attempt to establish peace first. That is clearly a humanitarian commandment, attempting to avoid unnecessary bloodshed. Similarly, the obligation to allow an escape route in a siege is also a humanitarian commandment to avoid war, i.e. let them escape and allow us to win. This comparison between the two commandments is evident in the Rambam’s including both in the same chapter of Mishneh Torah and the Chinukh including them in the same commandment. This might not apply to Gaza, where we are attempting to save hostages.
Rav Shaul Yisraeli responded:
1) The Rambam, in formulating this rule in Mishneh Torah, writes that it applies when one sieges a city in order to conquer it. This implies that it only applies to an optional war, when the war is to conquer new land, and not a defensive/mandatory war. Thus, all three rishonim only apply this rule to an optional war, which the war in Lebanon was not. It is not clear whether Israel currently intends to conquer Gaza but, regardless, this is a defensive war.
2) This rule was extrapolated from the war against Midian – a mandatory war – because that war was historically unique and comparable to a contemporary optional war in that there was no command to directly kill the enemy. Thus, an escape route was required.
3) The Meshekh Chokhmah (Numbers 31:7) points out that the Rambam does not list this commandment in Sefer Ha-Mitzvos while Ramban does. He explains that according to the Rambam this rule is a military tactic, i.e. the best way to create a siege is to leave a side open so the fighters have an escape route and do not need to fight to the end. Therefore, it is part of the laws of making war and not a mitzvah unto itself. According to the Ramban, though, this is a humanitarian law. Therefore, according to the Rambam this rule only applies when the tactic is appropriate but according to the Ramban it always applies (albeit, only to a permitted war). While Rav Goren adduces problems for this explanation (e.g. the Rambam still includes the commandment in Mishneh Torah and we do not dismiss a commandment simply because its rationale does not apply), Rav Yisraeli defends it. However, Rav Yisraeli also suggests that according to the Rambam this rule is part of the law prohibiting killing an idolator who does not want to fight us, which is why the Rambam did not list it in Sefer Ha-Mitzvos.
4) Rav Yisraeli vigorously objects to Rav Goren’s connecting the commandments to request peace (before launching a war) and leaving an escape route in a siege as similar humanitarian laws. They are entirely unconnected. The former is to afford the enemy the chance to surrender and live under Jewish rule while only the latter is a humanitarian law.
Note that everyone agrees that civilians must be allowed to leave a siege and the enemies may be prevented from entering a siege or bringing in supplies. The only discussion is regarding soldiers that are under siege. In Gaza, it is not clear whether it is feasible to distinguish between civilians and soldiers, nor whether doing so will bring harm to the captives. According to Rav Goren, a case can be made that a complete siege is appropriate in Gaza in order to save the hostages and a case can be made that a complete siege is against halakhah. According to Rav Yisraeli, the complete siege seems entirely permissible and necessary.