Shabbat Parashat Shemot| 5767
From the works of Hagaon Harav Shaul Yisraeli zt”l - Siege of a City Containing Terrrorists (e.g., Beirut in 1982) - Part I - Based on Chavot Binyamin, siman 15
[We are in the midst of a period of terrorist activity, during which much of the following discussion is relevant. However, this adaptation was not meant to coincide with or imply a ruling on any specific current event.]
The Ramban (Assin 5) writes: “We were commanded that when we lay siege on a city to leave one direction open so that if they want to flee, they can do so … From this we learn to act with compassion even toward our enemies at the time of war. It also has an advantage that it allows an opening to flee as opposed to strengthening [their efforts] against us …” The Rambam (Melachim 6:7) agrees with the Ramban; the latter simply thought that the Rambam should have included this mitzva in thecount of 613 mitzvot. The Megillat Esther (ad loc.) answers that the Rambam viewed this halacha as subsumed under the laws of milchemet reshut (an elective war). In truth, the Rambam does not explicitly distinguish in this regard between a milchemet reshut and a milchemet mitzva (an obligatory war); the Sefer Hachinuch (#527) says that it applies only to a milchemet reshut.
The Rambam (ibid. 6:5) and Chinuch agree that the mitzva to present to the enemy the option of a settlement applies to milchemet mitzva as well. The Ra’avad (ad loc.), though, says that the mitzva to make peace with the Canaanite nations ended when Bnei Yisrael crossed the Jordan. The Kesef Mishneh (ad loc.) assumes that according to the Rambam, it was sufficient that Bnei Yisrael had offered peace previously. However, if they had changed their minds and accepted the terms of peace, it would have been accepted later. However, the Rambam’s language indicates that they offered the Canaanites peace even after entering the Land. If so, why did they send the first conciliatory message if they would repeat it later? Apparently, the first message was to give them the opportunity to flee before any of the obligations of a milchemet mitzva, requiring them to accept certain terms, applied. The Ramban might have been able to extrapolate from here that subsequently, the mitzva to leave an opening in the siege did not apply to the Canaanite nations.
The Meshech Chuchmah (Bamidbar 31:7) says that the reason the Ramban counted the mitzva to leave a gap in the siege and the Rambam did not is that they viewed Hashem’s instructions differently. The Ramban viewed it as an obligation to act in a humanitarian fashion. However, the Rambam viewed it as advice to give the enemy an option other than fighting to the last man. According to the Rambam, then, it is not an obligatory mitzva. Part of the machloket between them appears to stem from different versions of the Sifrei’s text.
Rav Goren applied the issue at hand to the case of the siege on Beirut during the Peace for Galilee Operation. He objected to the Meshech Chuchma’s approach on a few grounds. He rejected the claim that according to the Rambam, leaving an opening in the siege is optional and says that it is written in the form of set halacha. He also found the Ramban’s opinion that the mitzva to leave an opening in the siege applies only to a milchemet reshut to be difficult. After all, the halacha’s source is the battle against Midyan, and that was a milchemet mitzva.
Therefore, Rav Goren reached the conclusion that there is an obligation to leave an opening in a siege in all wars. He claimed that even the Ramban agreed, just that he called any war that took place outside the boundaries of Eretz Yisrael a milchemet reshut. Rav Goren applied that rule to the Beirut siege as well and said that Israel was required to allow a way out of the city. However, it is difficult to accept Rav Goren’s assertion that all battles outside of the boundaries of Eretz Yisrael are a milchemet reshut. After all, the gemara (Sota 44) states clearly that any battle to ward off the enemy from attacking is a milchemet mitzva, no matter where it takes place.
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