Of Sieges, Peace, and Compassion in War
Peace is so beloved to the Jewish people that they need it even in the midst of war. That is the essence of a Midrashic comment that draws upon a verse in this past week’s Torah reading, describing an imperative incumbent upon the nation of Israel prior to engaging in a military conflict: “When you approach a city to do battle against it, you shall call out to it for peace (Deut. 20:10)”.
Further, this mandate is not simply a single act, but represents a broader value expressing itself in multiple ways. Accordingly, the Sefer HaChinukh, in his codification of this as a recognized commandment (#527), includes a number of other actions. Among these is a requirement specific to siege warfare: When an enemy population is enclosed for that purpose, the enclosure must not be absolute, but rather a “fourth wall” must be left open so that anyone who wishes to can flee and their lives will be spared.
This is a widely accepted idea with a somewhat obscure source. Not explicitly stated in the Pentateuch or even in the Talmud, it is found in the Midrash (Sifrei Matot 31:7, piska 157), where it may be the opinion of a single sage, R. Natan. Invoked in the context of the battle against Midyan, it is presented after the majority view which appears to disagree, although there are variant texts, thus leaving the matter somewhat ambiguous.
Nonetheless, it features prominently in the writings of both Nachmanides, who listed this as an independent commandment (#5), and Maimonides, who did not, but did codify it as unquestioned Jewish law (Hilkhot Melakhim 6:7).
Nachmanides provides an explanation for this rule: It is to teach that we must act with compassion, even against enemies in wartime. Similarly, the Radbaz asserts that this rule is “from the paths of the Torah, that all of its ways are peace”. Notably, this option is being provided to a population that has already rejected an overture of peace.
Nachmanides then provides a second reason. If the enemy is boxed in with no way to escape, they will fight even more ferociously to the very last man. This will inevitably result in higher casualties on both sides. Allowing an escape route will make the conflict far less bloody.
The historical resonance of this second rationale is powerful. Just a few weeks ago was the 80th anniversary of the bombing of Hiroshima and Nagasaki, which followed an agonizing decision process on the part of the United States. The ferocity of the Battle of Okinawa, in which it was clear the Japanese were prepared to fight to the death, and its staggering toll on both soldiers and civilians, loomed heavily in the American decision to deploy the atomic bomb. The alternative, an invasion of mainland Japan, was predicted to involve casualties on both sides in the millions.
The Abravanel, in his biblical commentary, provides an additional rationale, drawing from a close reading of the verse (Deut. 20:21) “And if it does not make peace with you but engages in war against you, you may lay siege to it.” The present tense usage suggests the relevant population is actively engaged in war; those who are not, and wish to flee, should be given the opportunity to do so. As R. Eliezer Yehudah Waldenberg notes (Hilkhot Medinah, II, p. 181), the Abravanel presumably did not invent this derivation, but rather had a tradition that this was an early rabbinic teaching.
However, there appears to be a significant dispute as to when this obligation applies. Jewish law possesses a number of categorizations for wars. The two primary ones are: a milchemet mitzvah, or a mandatory war; and a milchemet reshut, which might be translated at the moment as a discretionary war. Defining the concepts accurately is challenging, in particular the second one, given that war, with all of its tragic consequences and necessary suspension of general peace-time protections, is presumably only undertaken under very pressing situations. The notion of a war that can be considered “discretionary” in any sense of the word is surprising. (The Talmud also mentions a third possibility, a milchemet chovah, a term that may convey necessity but could be introduced to redefine either of the other two through comparison.)
What falls into which category is subject to extensive debate both in the Talmud and in the later rabbinic literature (see Sotah 44b; Rashi, Sanhedrin 2a; for a very thorough survey and analysis, see R. J. David Bleich, Contemporary Halakhic Problems, III, pp. 251-292). To speak very broadly, and to draw in particular on Maimonides’ formulation (Hilkhot Melakhim 5:1), it is reasonable to say that the mitzvah category includes the biblical mandates to do battle against Amalek and the seven Canaanite nations, as well as fighting against an enemy who attacks (i.e., a defensive war).
A milchemet reshut, again addressed very broadly, would include wars for territorial expansion or to otherwise enhance the nation’s defensible status, and taking pre-emptive action to reduce the military power of a nation suspected of planning aggressive action for the future. While one Talmudic passage (Berakhot 3b, and Sanhedrin 20b) indicates that such a war may even be approved for economic reasons, commentaries explain that the situation at hand was one in which military threats had been inflicted upon the Jewish people through economic means (see R. Reuven Margoliyot, Margoliyot HaYam and Nitzotzei Ohr, and R. Moshe Dov Wolner, Resp. Chemdat Tzvi, IV, 59).
This last point highlights some of the fluidity between the categories. Defensive wars, which in post-Biblical times would make up the lion’s share of Israel’s military conflicts, exist upon a continuum between the two categories. This is reflected in the formulation of Maimonides. Commentaries struggle with the fact that his assertion that a war against attackers would be deemed a milchemet mitzvah is intuitive and understandable, but is not explicitly based on the Talmud; while it seems to correlate to a statement that is, regarding the reduction of military force that may potentially pose a threat, although that is characterized as a milchemet reshut.
Resolving that tension may require recognizing that the terms are not inherently absolute but reflect a spectrum of relative concepts that are compared to each other. (See, for example, Resp. Mekom Shmuel, 8.) With that understanding, given that the nature of defensive wars varies along a spectrum, with some more immediate and definitive, and others less absolute and perhaps even pre-emptive, a theory that explains how some can be seen as mandatory, and some can be seen, at least in relative terms, as discretionary or rather subjectively decided, can begin to emerge.
However, as a matter of Jewish law, this subjectivity is problematic, as the two categories are not merely a matter of semantics but are governed by different rules, thus necessitating an assessment to be made. Most significantly, a milchemet reshut can only be undertaken with the permission (perhaps another meaning of the designation “reshut”) of official bodies that do not exist today, such as the Sanhedrin, a king, and the Urim V’Tumim (see Hilkhot Melakhim 5:2). Accordingly, for a war to be deemed legitimate in contemporary times it must be acknowledged as a mitzvah.
There are a number of other differences between the two in application, which contribute to the necessity of classification. This highlights a significant difference between Jewish law on the one hand and general philosophy and international law on the other.
The latter systems recognize two distinct concepts: Jus ad bellum, which refers to the justification for going to war in the first place; and Jus in bello, which are the rules regulating the conduct within war. These are considered to be separate from each other. The first does not impact the second, meaning that the same rules of conduct are applied regardless of justification.
This is mostly for reasons of legal policy. According to the ICRC, “If it were otherwise, implementing the law would be impossible, since every party would claim to be a victim of aggression. Moreover, International Humanitarian Law is intended to protect victims of armed conflicts regardless of party affiliation. That is why jus in bello must remain independent of jus ad bellum.”
Jewish law, which is a system of divine morality, is not subject to the same constraints and indeed does correlate the two. Accordingly, the two categories of war, which are defined by their justifications, are indeed governed by different sets of policies.
Into this maelstrom enters the “open fourth wall” requirement. There is significant ambiguity and debate as to which category of war this rule applies.
Put succinctly, Maimonides does not mention any distinction, leading some to understand that he would apply it in all cases, although some commentaries differ. Nachmanides, in contrast, explicitly uses the term reshut in applying his distinct commandment, and the Chinukh includes it in that language as well, although the later commentary, Minchat Chinukh, challenges his basis for the distinction.
Given that this obligation has been associated with the mandate to make overtures for peace, one would assume there should be a correlation, although there is ambiguity on this point as well. Maimonides (Melkahim 6:1; but see Sefer HaMitzvot 170) applies that commandment to all wars (notably even the war against Amalek). Thus, if he indeed does not distinguish regarding the fourth wall obligation, the linkage between the two obligations is as expected. For some other authorities, however, the two applications do not necessarily line up as neatly.
Accordingly, R. Shlomo of Chelm, in his commentary Mirkevet HaMishnah concludes that if all wars, for Maimonides, have this rule, then this is true even when the nation is under attack. This conclusion troubled R. Yitzchak Yedidiah Frenkel (Derekh Y’sharah II, 51) who argued that not every milchemet mitzvah need be treated equally, and it may be necessary to draw distinctions even more finely. Regarding the original biblical mandates of warfare against specific nations, it may be understandable that escape routes should be provided. However, when there is an ongoing aggression, that group is classified as pursuers seeking to kill (rodfim) and must be stopped absolutely. It should not be so obvious then that escape should be provided in the same way, even if both examples superficially share the designation “mitzvah”.
Nonetheless, he considers the possibility that Maimonides’ language does require that conclusion and endeavors to understand why. He suggests that despite the fact that preventing the pursuit would indicate a need to definitively eliminate the pursuers, it is possible that our inclination towards peace and our desire to reduce the intensity of conflict is so significant that it dominates nonetheless.
Notably, R. Yehoshua Menachem Ehrenberg (Resp. Dvar Yehoshua, II, 126) felt that the application of the open fourth wall rule must be variable, and in a way that cannot neatly be correlated with the mitzvah and reshut designations, but in a directly inverse fashion from that of R. Frankel. He also posits two versions of the mitzvah category connected to the purpose of the military mission. Regarding Amalek and the like, the Torah has identified them as direct dangers (if they do not make peace), and thus they should not be allowed to escape. In the case of an isolated defensive war, the goals may be accomplished even if the enemy is allowed to escape, and the rule should apply. (See also R. Yehudah Gershuni, Kol Yehudah p. 197.)
Similarly, he argued, a milchemet reshut may not automatically have this policy applied; it would depend on the specific goal of the individual campaign. Further, he posited, it may be that the entire policy is no longer necessary in the modern era, for a surprising reason: escape was necessary when the alternative was everyone would be killed. In the contemporary context, it is now accepted that the besieged population can surrender rather than be killed. As such, escape routes are not necessary as an expression of mercy.
This debate played a major role in a modern-day dispute. In 1982, during the Lebanon War, the IDF laid siege on Beirut. Then-Chief Rabbi Shlomo Goren insisted that the open fourth wall policy be applied (see Meishiv Milchamah, pp. 240-265). R. Shaul Yisraeli intensely disagreed. His argument was largely not only about reshut/mitzvah, although he analyzed that issue at length (see Techumin, IV, pp. 25-36). Rather, the question was: is Israel attacking, or being attacked? In the latter case, it is impractical to apply the package of behaviors that are connected to making peace overtures. In that situation, the matter is purely a decision for military experts. (See also the analysis in Kol Yehudah, p. 210)
Very significantly, the argument between them was focused on how the actual terrorists were to treated. Both agreed that non-combatants had to be allowed to flee. Further, as R. Shlomo Brody details (Ethics of Our Fighters pp. 241-242) both positions were substantially beyond what have historically been the demands of general philosophy and international law, where absolute sieges had long been customary.
This, we have seen, has been the case from time immemorial. The corpus of Jewish law has blazed the trail of establishing the balance between compassion for enemies even in the context of warfare, and the need for successful and effective just wars that protect its citizens. Finding that balance has required an ongoing back-and-forth over the centuries of analysis, interpretation, and application, all in development of values rooted in the text of the Torah.
It is, by its nature, exceedingly complex, and thus will always require this learned interaction between deeply committed proponents for its realization to be refined and perfected. In the space of these few verses, the Torah intersperses commandments requiring, on the one hand, the prioritization of peace, the expression of mercy towards enemies, and care with plant life; and on the other, the need to be absolute in eliminating those who would continue to pose a threat to the Jewish people and to the world (see Sam Derekh, pp. 98-99). It is as if to say the risk of forgetting one vital priority while attending to the other is always present, and can never be neglected. Answering this call, in a violent world, will never be easy and cannot be done perfectly. Reality demands that there will be a cost, as much as we are bidden to minimize those costs. The effort is by nature deeply aspirational, always striving for more.
It is in this context that the current war exists. One particularly confounding aspect of accusing Israel of causing hunger in Gaza is the unique nature of the present situation. In the debate regarding the “open fourth wall”, it emerges clearly that this was a step that would precede bringing in food, as R. Goren stressed the obligatory opening was only to go out, not for bringing in. (See also R. Zvi Sheilat, Medinah, Halakhah, V’Kavanot HaTorah, pp. 320-321). In this case, the fourth wall is being closed off by a different country, Egypt, and that general closure, in multiple ways, is being supported by the other nations against Israel’s will. Israel is being constrained to work against multiple obstacles while literally being forced against a wall in unprecedented fashion. This has prompted much internal debate, a matter greatly complicated by the unreliability of news reports and unclarity of the facts on the ground, and vexing logistical challenges in the distribution of aid. The unprecedented and unacknowledged inversion of the situation creates a context that deserves more careful judgment.
Perhaps it doesn’t matter that Israel faces constraints and obligations no other nation is asked to bear; aspirational standards have always been part of Israel’s ethos. The noble heroism of the soldiers of the IDF, who take on additional risk, and too often make the ultimate sacrifice, so that they can better protect the civilian population being used as human shields by vicious terrorists is a magnificent realization of the multiple values the tradition has taught over the centuries. The challenge of facilitating aid in the environment of these multifaceted and shifting obstacles, all while continuing to search for increasingly imperiled hostages, fight a brutal enemy subject to no restraints, and protect their soldiers and civilians of both sides is a continuation of this legacy.
Writing in a different context, R. Shaul Yisraeli (Amud HaYemini, pp. 194-195), in struggling to understand how the existence of war as a concept reshapes moral principles, ultimately suggests that it operates on a principle similar to dina d’malkhuta dina, the notion recognizing the law of the land as binding (comparable approaches were posited by the Chatam Sofer, Resp, CM 44, and Rav Kook, Resp. Mishpat Kohen,143). Just as that rule, according to some interpretations, emerges from a social contract of mutual consent, the fact that the world has always conducted its international affairs through warfare conveys its legitimacy. As such, the evolution of laws of war have enhanced the morality of the conduct within that structure, through the same mechanism.
Further still, every gesture toward the sanctity and preciousness of life contributes to an evolving understanding, that one can hope will slowly have an impact as well. For now, protecting life often means that aggressive and harsh measures must be taken against those who threaten it, and tragically, inevitably impacting those who are innocent as well. But the belief in a perfectible world means that we can continue to strive against all obstacles to model a humanity in the image of God, and that someday, it can be different.
The imperative of “you shall call out to it for peace” is stated in the context of actual warfare between nations. Still, it has been classically understood, at least homiletically, as a call to internal harmony and respect. (See, for example R. Yaakov Etlinger, Minchat Ani; R. Chaim Kasar, Ketz HaMizbeach to Devarim; Dr. Avraham Arzi, in Machanayim, no. 123, p. 28-33; and R. Yitzchak Raphael, Torah SheB’Al Peh, vol. 21, pp. 9-11.) These two applications converge during wartime, as conflicting visions and evolving understandings of how to balance the necessary values inevitably lead to dissent and mutual accusations and recriminations. It is thus exceedingly important that attention be paid to this value of peace, not only externally but internally as well.
It is noteworthy that one of the sources for the prohibition of lashon hara is found in this week’s Torah reading: “Guard against any evil thing (davar, indicating dibur, word; Deut. 23:10)”. Significantly, the context of the verse is specifically one of wartime. When this derivation is relayed in the Talmud (Ketubot 46a), it is in the name of the same R. Natan, who taught of the need to open the fourth wall and show compassion to our enemies at war. He also recognized the harm that can happen internally in those moments of great vulnerability, when negative sentiments and possibly unfair characterizations are hurled, when motivations are attacked, and when conclusions are drawn with insufficient basis.
These laws command us to focus on what we do know. We know that the people of Israel have been barbarically attacked by brutal enemies who continue to threaten and to hold hostages in the cruelest of circumstances. We know that the army of Israel has accomplished, through the grace of God, unprecedented battlefield successes under unparalleled pressures while exercising unequaled sensitivity to human dignity and well-being. We know that the Torah sets a standard for the Jewish people beyond that of any other nation. May the continuing efforts to reach greater realizations of that standard serve as the actual “call to peace” that is soon answered by the entire world.