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 Shabbat Parashat Va'eira| 5767Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - Siege of a City Containing Terrrorists (e.g., Beirut in 1982) - Part II - Based on Chavot Binyamin, siman 15
[We discussed last time that the Torah instructs the Jewish army to leave a besieged enemy room to escape. We saw different opinions on whether this applies even to a mandatory war (milchemet mitzva= mm) and whether it is advice or an obligation.]
Rav Goren brings as evidence that defensive wars outside Eretz Yisrael are not mm the fact that the Chinuch mentions as mm only the wars against the seven Canaanite nations and against Amalek. This is not a sound proof. The Chinuch, here and generally, uses the Rambam’s language. The Rambam (Melachim 6:4) distinguishes between a mm and a milchemet reshut (an elective war = mr) regarding a case where the enemy rejected the terms of peace. There he mentions the examples of the seven nations and Amalek and omits a defensive war. Yet, the Rambam explicitly considers a defensive war as a mm (ibid.:5:1). In fact, if we did not rule that way, the defensive war in Lebanon would be forbidden, as we lack the conditions to wage a mr. Rather, the Rambam, in discussing opening with an offer of peace, did not need to relate to a case where the enemy initiated the war. Similarly, the Chinuch did not need to discuss allowing the enemy to flee the siege when they initiated the war. After all, in the context of counterattack to prevent their continued aggression, what sense does it make to allow them the opportunity to reorganize? The halacha is necessary in regard to the seven nations which were present when our forefathers were commanded to conquer the Land. There was reason to believe that a mitzva to allow them to escape existed when they neither showed aggression nor agreed to leave the Land.
Now we return to the Minchat Chinuch’s and Rav Goren’s question as to how the mitzva to leave an escape route could not apply to a mm, given that the source was the battle against Midyan. The Ramban (Commentary on Bamidbar 31:6) suggests that the battle against Midyan was not intended to be an all-out one but to cause damage in response to the damage they had caused Bnei Yisrael. When they resisted, the battle turned into an all-out one. Thus, the war against Midyan was a mr, from which we derive the concept of leaving a side open in the siege only for mr.
The Ramban has a second suggestion, that Bnei Yisrael were commanded to wage an all-out war against Midyan. The two opinions may correspond with two opinions in the Sifrei. The opinion that they were commanded to wage an all-out war assumes that they did not allow an escape; the opinion that they were only supposed to damage assumed that they did allow escape.
We can now explain the Rambam differently from the Meshech Chuchma. (Rav Goren pointed out that his explanation did not fit the Rambam’s language well.) The Rambam, in introducing the halacha to leave an opening (ibid. 6:7), describes the battle as one to “seize the city.” In a similar context, the Ramban distinguishes between the conquering a city and waging war against its inhabitants. It is likely the Rambam also is talking about a case where the intention is to inhabit the city, without an intention or need to destroy or weaken its population. That is where the Rambam says that the mitzva to allow the population to flee exists. This applies under certain circumstances, even in the case of mm, if the inhabitants are not from the seven nations. Yet, the Rambam did not count this halacha as a separate mitzva, as it is included in the prohibition to harm people outside the framework necessary for a justified war.
Let us apply the lessons to the siege on Beirut. The terrorists, whose intentions are to kill as many Jews as they can, are a target to whom the special laws of compassion do not apply, as in the case of a classic mm. The general population, which is not involved in the terrorist activity, is not included in the mm and should be given every opportunity to escape danger.
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