The Jewish Way in War

By Elliot Jager
Wednesday, June 1, 2011

How can democracies, acting under the conventions of international law, defeat Islamist terrorists operating by their own benighted rules? How, especially when UN member-states are prepared to enable terrorists by perverting the rules of war and human rights? How, for Israel in particular, all of whose wars since 1973 have pitted the IDF against Arab irregulars entrenched among civilians?

The liberal position, articulated by the renowned political thinker Michael Walzer, is that soldiers may not increase risks to civilians in order to save themselves.  Even warning civilians to vacate an area prior to striking, as the IDF routinely did during the 2008-09 Gaza war, is for Walzer morally insufficient.

Between such idealism and the machinations of international bodies like the UN Human Rights Council, which have shamelessly singled Israel out for special opprobrium, Jewish and Israeli theoreticians have not only insisted on correct interpretations of international law but have also been mining Jewish tradition itself for a moral reality check. Some of the salient issues were thrashed out at a symposium on the dilemmas of asymmetrical warfare held in May at Bar-Ilan University.

What does Judaism have to say about the rules of war? As Aryeh Tepper has pointed out, post-biblical Judaism was mostly silent on the subject until, in the light of Israeli experience, Rabbi Shlomo Goren (1917-1994) composed a code of Jewish military law for the modern Jewish commonwealth. Ever since then, Israel's guidelines have been extrapolated, in part, from preexisting Jewish civil and criminal codes.

The rabbinic concept of the rodef, for instance, makes it permissible to kill someone who is pursuing another with murderous intent.  What is warfare if not rodef writ large? Similarly, the law of pikuah nefesh—that is, the overriding priority given to the saving of a life, and in the first instance a Jewish life—is pertinent to just about any moral/legal/religious conundrum that might arise in circumstances of armed conflict.  At the beginning of the second intifada, Rabbi David Golinkin, the leading halakhic authority of Israel's Conservative movement, appears to have countenanced lethal measures against deadly stone throwers.  

Jewish tradition does not distinguish greatly between conventional and asymmetrical warfare. The basic rules appear the same. What is important, rather, is to distinguish between wars of choice, waged for political ends, and obligatory, zero-sum wars that are forced upon one. The former are subject to various checks and balances; the latter mandate full mobilization and force. 

Would the cause of eradicating the terrorist organizations of Hamas and Hizballah fall under the category of obligatory war?  And would such an all-out war be justified under the biblical command to destroy Israel's enemies utterly (Deuteronomy 7:1-2)?  Some halakhic authorities maintain that these verses applied exclusively to the seven Canaanite nations who inhabited the land of Israel in biblical times.  But others have identified those who are today committed to Israel's destruction as, precisely, the heirs and remnants of the Jewish people's ancient enemies.

Addressing the symposium, Stuart Cohen of Bar-Ilan recalled the storm that broke out in 2010 with the publication of The King's Torah, a Hebrew monograph co-authored by Rabbi Yitzhak Shapira. Distinguishing Jewish from non-Jewish life in time of war, Shapira asked whether Jewish law permits killing the children of a terrorist leader in order to pressure him. What if he uses his family as human shields? Shapira's conclusion: they may be considered fair targets.

Rabbis from across the theological and political spectrum challenged Shapira's strict-constructionist interpretation of halakhic sources. Such egregious behavior by Israeli soldiers, they held, would itself transgress a commandment, namely, the prohibition against desecrating the name of God. They also warned that reckless disregard of non-Jewish life could endanger Diaspora Jews. Shapira was briefly arrested; copies of his work were confiscated and are now almost impossible to obtain.

Among those in the vanguard of crafting sensible 21st-century guidelines for the Israel Defense Forces is the political philosopher Asa Kasher.  At the Bar-Ilan conference, Kasher argued that the ethical starting point for Israel's behavior needs to be the state's responsibilities to its own soldiers and citizens—not what it may or may not do to foreigners. In weighing the life-and-death scales between protecting Israel's citizen-soldiers and those of enemy non-combatants, Kasher contends that there is nothing moral about jeopardizing your own soldiers to protect an enemy population—provided that proper precautions have been taken to avoid unnecessary civilian casualties.

If democracies are to defeat the forces of violent intolerance, they will also need to develop strategies to take back international law from those who have perverted it. Kasher believes that Israel has a front-line role in helping the enlightened world develop the legal and moral tools to confront the scourge of terrorism.  If salvaged, international law has the potential of becoming a binding part of Israel's religio-legal fabric, an idea also championed by the late Rabbi Shaul Yisraeli of the religious Zionist camp. For now, along with distress at the thought of being forced to kill, Israeli soldiers should know that they have the moral authority to defend their country.

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