When to Invade Rafah

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by R. Gil Student

I. A Time for War

Koheles (3:6) notwithstanding, there is never a good time for war. We hope and pray for a time when there will be no war. But when war is necessary, presumably there should be no time constraints to it. However, the halakhah is otherwise, as we will see. If the Israeli Defense Forces were run completely according to halakhah, which they currently are not, when would be the right time to begin a battle?

As of the time of this writing, Israeli forces are preparing to enter the Gaza city of Rafah in order to subdue Hamas troops and free hostages. At the same time, negotiations for a truce are ongoing. We will discuss here the halakhic considerations for an IDF invasion of Rafah, even though it may not happen or may have already happened.

II. Three Days Before Shabbos

The Gemara (Shabbos 19a) quotes a baraisa which says: “One may not lay siege to the gentiles’ cities fewer than three days before Shabbos. If they already began, they need not stop. And so Shammai would say: ‘[And you should build a siege against the city that is waging war with you] until it falls’ (Deut. 20:20), even on Shabbos.” According to this view, we may not begin a battle within three days before Shabbos. Rashi (Deut. 20:19) quotes the Sifrei which says that this rule is derived from the preceding verse, “If you besiege a city many days to wage war against it to capture it….” The plural word “days” (yamim) implies two days. The additional word “many” (rabim) implies more than two days, namely three days. Rav David Segal (known as the Taz) explains that you wage war “until it falls,” even on Shabbos, only if the war started at least three days earlier (Divrei David, ad loc.). However, most commentators agree with Rav Eliyahu Mizrachi (commentary, ad loc.) that this is a rabbinical rule.

Commentators offer different reasons for this rule of starting a battle only three or more days before Shabbos. Rav Yitzchak Alfasi (Rif, Shabbos 7b) explains that it takes three days to calm down from an attack and enjoy Shabbos. Rav Zerachiah Ha-Levi (Ha-Ma’or Ha-Katan, ad loc., 7a) explains that if within three days before Shabbos you put yourself in a position in which you will have to violate Shabbos, it is as if you are intentionally violating Shabbos. Later commentators accept one or the other explanations. However, the first approach requires more elaboration. It assumes that a battle will take only one day and then the soldiers rest and calm down until Shabbos. Is that always, or even usually, the case? We will return to this question below.

Rambam seems to contradict himself about this three-day-before-Shabbos rule. In two places in Mishneh Torah (Hilkhos Shabbos 2:25, 30:13), Rambam writes that we may not lay siege to a city within three days before Shabbos. He explicitly adopts Rav Alfasi’s explanation, that this rule is to allow soldiers to call down in time for Shabbos (30:13). Rambam distinguishes between laying a siege and fighting a battle. You may not lay a siege within three days before Shabbos but you may fight a battle any day of the week. However, elsewhere Rambam omits the three-days-before-Shabbos rule:

”One may lay siege to the gentiles’ cities and one may engage in battle with them every day, even on Shabbos, as it says, ‘until it falls’ (Deut. 20:20), even on Shabbos. This applies to both a mitzvah war and a permissible war.” (Mishneh Torah, Hilkhos Melakhim 6:11)

III. Two Approaches

Why doesn’t Rambam mention the limitation of three days before Shabbos in Hilkhos Melakhim? There are two main approaches to answering this question. Rav Yosef Karo (16th cen., Israel) asserts that the text must be mistaken and therefore he amends it to: “One may lay siege to the gentiles’ cities three days before Shabbos” (Kessef Mishneh, Hilkhos Shabbos 2:25). Later commentators explain that according to this approach, the key distinction is whether the army is laying a siege or engaging in battle. A siege requires an initial effort to surround a city and then a lengthy period of waiting and holding the siege. An army should lay a siege at least three days before Shabbos so that the siege will be complete and soldiers will have time to calm down by Shabbos. In contrast, a battle lasts a long time. Therefore, it does not matter on which day it begins. Only a siege has the three-day-before-Shabbos rule.

Rav Moshe Lifschitz (16th cen., Russia) takes a different approach (Lechem Mishneh, Hilkhos Melakhim 6:11). He argues that Rambam mentions the three-day-before-Shabbos rule in Hilkos Shabbos and therefore does not need to repeat it. The key distinction for Rambam is between a mitzvah war (milchemes mitzvah) and a permissible war (milchemes reshus). A permissible war, whether a siege or a battle, must be started at least three days before Shabbos. A mitzvah war may begin on any day of the week, even Shabbos.

Rav Yitzchak Ben Sheishes Prefet (Rivash, 15th cen., Spain-Algeria) seems to follow an approach similar to Rav Lifschitz’s explanation of Rambam’s view. He applies the three-day-before-Shabbos rule only to a permissible war (Responsa Rivash, no. 101). Rav Ya’akov Ben Asher (14th cen., Spain) writes likewise (Tur, Orach Chaim 249). In contrast, Rav David Ibn Zimra (Radbaz, 16th cen., Egypt) seems to take an approach similar to Rav Karo’s explanation of Rambam’s view. He does not distinguish between a mitzvah war and a permissible war (Responsa Radbaz, vol. 4, no. 77). However, rather than amending Rambam’s text, Radbaz suggests that Rambam is discussing holding a siege, not laying it. You may hold the siege any day of the week, even Shabbos. But you only lay the siege at least three days before Shabbos.

Rav Shlomo Goren (20th cen., Israel) follows Rav Yosef Karo’s approach, that a siege must be laid at least three days before Shabbos but a war may be started any day of the week (Meishiv Milchamah, vol. 1, part 1, no. 2). Rav Eliezer Waldenburg takes this approach, as well (20th cen., Israel; Hilkhos Medinah, vol. 2, part 10, ch. 3, par. 11). Rav Nachum Rabinovitch does also (Melumedei Milchamah, no. 36). According to these authorities, you may begin a battle any day of the week. Since the entry into Rafah is a battle and not a siege, the three-days-before-Shabbos rule does not apply.

However, Rav Rabinovitch’s colleague, Rav Yitzchak Shilat, adopts the approach of Rav Lifschitz and not Rav Karo. Rav Shilat has not only retranslated and published many of Rambam’s writings, he also published an edition of Mishneh Torah titled Rambam Meduyak (Jerusalem, 2021), which is based on the best Egyptian, Syrian and Israeli manuscripts. In his recently published Medinah, Halakhah Ve-Kavanos Ha-Torah (Jerusalem, 2023), Rav Shilat says that there is no textual basis for Rav Yosef Karo’s emendation (pp. 300-305). Instead, he accepts the distinction between a mitzvah war and a permissible war. Rav Yitzchak Herzog (20th cen., Israel) rules likewise (Heikhal Yitzchak, Orach Chaim 37:3). The question then becomes whether invading Rafah is a mitzvah war or a permissible war.

IV. Practical Applications

It is notable that, as mentioned above, Rav Ya’akov Ben Asher includes this law in his Tur even though he usually omits laws with no practical implications in his day. Why does he include a law of war when there was no Jewish state or Jewish army in 14th century Spain? Rav Yoel Sirkes (17th cen., Poland) suggests that this rule was practical even in Medieval times if Jews were captured by bandits — other Jews can go, together with gentiles, as a group to fight to free those captives, even on Shabbos (Bach, Orach Chaim 249). This seem to apply directly to the proposed invasion of Rafah, where many hostages are believed to be held.

Rav Goren (ibid., pp. 86-87) also discusses a prolonged war with multiple starts and stops to the battles. Does each new battle (or rather, siege) require beginning at least three days before Shabbos because it is a new start or is it a continuation of an existing war? Rav Goren suggests that any battle of a similar nature against the same army constitutes the same war, even if they take place over decades. The battle in Rafah would be part of the war against the PLO and Hamas, which has been ongoing for decades, and therefore would be a continuation which does not fall under the three-days-before-Shabbos rule. Additionally, Rav Herzog (ibid.) rules that once we are attacked, any military response constitutes a mitzvah war. Since the entry into Rafah is part of the response to the October 7 invasion, it constitutes a milchemes mitzvah that can be done any day of the week.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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