by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion
In 1982, the IDF placed the city of Beirut under siege with the purpose of trapping thousands of terrorists who had fled there from Israeli pursuit. During the siege, Rav Goren, then Chief Rabbi of Israel, published an article in Hatzofeh, a daily newspaper with a religious-Zionist leaning, in which he claimed that the siege was prohibited under Jewish law. Rav Shaul Yisraeli, a prominent religious-Zionist leader of the time, published a very sharp response to Rav Goren, claiming that the siege was legal under Jewish law. This debate, the arguments that were raised, and the sources that were cited, reflect an essential discourse on the relevance of the classic Jewish laws of war to the contemporary wars of the Israel Defense Forces.
In our last column, we cited the midrash on the Biblical story of the Israelite war against Midian. According to the midrash,Bnei Yisrael surrounded Midian “on all four sides.” Rabbi Natan, however, disagrees, holding that “they allowed them the fourth side in order to escape.” Rambam includes this commandment in his Laws of Kings and Wars (6:7).
Rav Goren’s Approach
Notwithstanding his above ruling, Rambam does not include the law of leaving open an escape route for the enemy as a separate commandment in his Book of Commandments. Ramban criticises Rambam for this omission, as the commandment to leave open the fourth side is a “commandment for all generations that applies to all permissible wars” (milchamot reshut) .
According to Rav Goren:
(a) Rambam disagrees with Ramban, ruling that the commandment to leave the fourth side open applied to obligatory wars (milchamot mitzvah) as well as permissible wars.
(b) The contemporary wars of Israel meet the criterion of obligatory wars, because their goal is “to save Israel from the hands of an oppressor” (one of the three types of milchemet mitzvah).
(c) The Peace for Galilee War was, indeed, a milchemet mitzvah.
(d) Rav Goren claimed that the law as codified by the Rambam was relevant to the contemporary wars of Israel and that it should be interpreted in its literal sense.
Rav Yisraeli’s Opposition
Rav Yisraeli opposed Rav Goren’s reasoning. As mentioned, there are three categories of obligatory wars: (i) the war against Amalek; (ii) the war against the 7 Canaanite nations; and (iii) any war to save Israel from an oppressor. With regard to the first two categories, it cannot be claimed that they entail an obligation to leave an escape path open, because the very essence of the obligatory war was not to allow the enemy to live! Thus, Rav Yisraeli argued, the same would be true by association of the third category of obligatory war. And when Rambam established the obligation to keep the fourth side of a city open during a siege - he was referring only to a permissible war (as noted by Ramban)!
Rav Goren’s Rejoinder
Notwithstanding Rav Yisraeli’s arguments, Rav Goren stood firm in his position that this law applies to obligatory wars that are intended to save Israel from the hands of an oppressor. He went so far as to argue that when Ramban stated that the law to leave an escape route did not apply to obligatory laws - his intention was to the first two categories of obligatory wars ((i) and (ii) above), but not to the third category (to save Israel from an oppressor) which even Ramban would have defined as a permissible war and would therefore have applied the duty to leave open an escape path.
A Call to Peace
Rav Goren noted that Rambam placed the law to leave the fourth side open in the same chapter as the obligation to “call to make peace” to the enemy, which applies to “both a permissible and an obligatory war” (6:1). Therefore, he argued, the two duties should be read in a unified fashion: just as the obligation to call to the enemy to make peace applies to both permissible and obligatory wars, so too does the commandment to leave open the fourth side of the besieged city apply to both types of war.
Rav Yisraeli argued against this point. The rationale behind the duty to make a call for peace is that an affirmative response to the call constitutes an acceptance of the seven Noachide laws which are incumbent upon all mankind, he held. Rav Goren countered that the reason for the duty is not related to the acceptance of the Noachide laws by the Canaanites, but rather it is based on the essential principle of the fundamental importance of peace in Jewish tradition, as a value that takes priority over war. Rav Goren argued that this rationale should apply as well with regard to the law to leave the fourth side open.
Fear for the Enemy’s Military Strategy or Mercy for the Enemy’s Life
Rav Goren also referred to the Meshech Chochmah’s commentary to Bemidbar 31:7, which concluded that allowing an escape route during a siege is essentially a matter of strategy: viz. that leaving an opening for escape reduces the enemy’s motivation to engage in battle. Rav Goren strongly rejected this explanation, arguing that we should not even consider the possibility that the commandments of the Torah relate to military tactics, arguing instead that the rationale underlying this law is to cultivate one’s personal morality, by fostering mercy for the lives of one’s enemies.
By contrast, Rav Yisraeli could not comprehend the logic in allowing someone who is waging war against you to escape, given the probability that they will return to attack you. According to Rav Yisraeli, therefore, the law to leave the fourth side open is not applicable today, only in messianic times! Rav Goren’s somewhat optimistic response to this argument was, “We do not understand the secrets of God” (cf. Berachot 10a), i.e. Hashem who gave us the law will save us.
Yet Rav Goren’s return to Jewish legal sources to set the laws of war for the State of Israel was motivated not only by his belief that this would characterize Israel as a Jewish state. More significantly, he viewed Jewish law as a moral conscience of the highest degree and felt it appropriate to follow its teachings as a normative source of the highest degree, even when adhering to its standards might entail a heavy cost. The obligation to leave the fourth side open and the duty to make a call for peace law are two of the most important and unique laws relating to war in classic Jewish sources. And according to Rav Goren’s religious-Zionist-messianic philosophy, it is incumbent on the State of Israel to give effect to the values and practices rooted in Jewish law.
Next Column: Rav Goren and the Development of a Jewish Military Ethic
 Sifrei De’vei Rav, Bemidbar 31:7.
 Ramban’s comments on Sefer HaMitzvot, Forgotten Positive Commandments: Commandment 5.
 A. Edrei, “Divine Spirit and Physical Power - Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces,” Theoretical Inquiries in Law 7:1 (2006).
To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net
Jewish Law in our Times > Ethical Dilemmas of the Jewish State at War