Monday, May 23, 2011


The Jewish Way in War

How can democracies – Israel in particular – acting under the conventions of international law defeat Islamist terrorists operating by their own benighted rules? How when U.N. members states are prepared to enable the terrorists by perverting the rules of war and of human rights? This perennial dilemma was addressed at a symposium last week at Bar-Ilan University.

The war between democracies and terror organizations is inherently asymmetrical with conventional forces arrayed against terrorists embedded among their own civilian population. The liberal position articulated by the renowned Princeton University political thinker Michael Walzer, is that soldiers may not increase risks to civilians 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.

Caught between such fanciful liberal ideals and the cynical machinations of intergovernmental bodies like the U.N. Human Rights Council that have shamelessly, discriminatorily and obsessively scapegoated Israel for opprobrium, Israeli theoreticians of war are not only insisting that international law not be misrepresented but they are also mining Jewish tradition for a moral reality check.
What does Judaism have to say about the rules of war? My colleague Aryeh Tepper pointed out here that post-Biblical Judaism was mostly silent on the subject until Rabbi Shlomo Goren (1917-1994) composed a code of Jewish military law for the modern Jewish commonwealth.

Israel's war guidelines have been partly extrapolated from preexisting Jewish civil and criminal codes. The "rodef" concept, for instance, had long made it obligatory to kill someone who is "pursuing" another with murderous intent. What is warfare if not "rodef" writ-large? Similarly, the law of "pikuah nefesh" the saving of a Jewish life (in the first stance) has primacy when confronting just about any moral/legal/religious conundrum. For example, writing at the beginning of the second intifada, Rabbi David Golinkin, the leading halachic authority of Israel's Conservative movement, appears to countenance lethal measures against deadly stone throwers.

Since 1973, all of Israel's wars have involved asymmetrical combat, pitting the IDF against Arab irregulars entrenched among civilians. Jewish tradition does not seem to distinguish greatly between conventional and asymmetrical warfare. The basic rules appear the same. What is important in Judaism is to distinguish between obligatory zero-sum wars forced upon Israel and wars of choice waged for political ends. The former requires full mobilization and all-out war; the latter are subject to various checks and balances.

Would eradicating Hamas and Hezbollah fall under the category of obligatory war? The command to utterly destroy Israel's enemies, some halachic authorities citing Maimonides maintain, applied exclusively to the seven Canaanite nations that inhabited the Land of Israel in Biblical times. However, some right-wing theologians argue that those who are committed to Israel's destruction today are metaphysical remnants of its ancient eternal enemies and that the biblical laws apply.

Addressing the symposium, Prof. Stuart A. Cohen, of the Begin-Sadat Center at Bar-Ilan recalled the theological and moral storm that broke out in 2010 with the publication of Hebrew monograph The King’s Torah by Rabbi Yitzchak Shapira, dean of the Od Yosef Chai seminary at Yitzhar, a settlement in Samaria. Shapira's starting point was to make a distinction between Jewish and non-Jewish life in time of war. Does Jewish law permit killing the children of a terrorist leader in order to pressure him? What if he uses his family as human shields? The rabbi concluded that they could be considered fair targets. Issues of proportionality and collateral damage simply would not matter in obligatory wars waged by Jews against non-Jews. Rabbis from across the theological and political spectrum challenged Shapira's strict constructionist interpretation of Halachic sources on the grounds that egregious behavior by Israeli soldiers would transgress the commandment not to bring shame unto God (hillul ha-Shem) and could, moreover, endanger Diaspora Jews (pikuah nefesh). Police briefly arrested Shapira; copies of his halachic-academic work were confiscated and are now near impossible to obtain.

Among those in the vanguard of crafting sensible 21st century war guidelines for the Israel Defense Forces is political philosopher Asa Kasher of Tel Aviv University. Kasher, who also addressed the Bar-Ilan conference, argued that the ethical starting point for Israel's behavior needs to be the responsibilities the Jewish state has 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 argued that there is nothing moral about jeopardizing your own soldiers to protect an enemy population – provided proper precautions have been taken to avoid unnecessary civilian casualties.

If democracies are to defeat the forces of violent intolerance they will 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 championed by the late Rabbi Shaul Yisraeli of the national-religious camp. For now, accompanied by the distress they ought to feel at the thought that they may be forced to kill, Israeli soldiers should know that they have the moral authority to defend their country.
May 23, 2011

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