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«INTRODUCTION The Jewish legal system is a traditional system based on a process of ongoing interpretation and reinterpretation of classical Jewish ...»

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evil,52 but the manner in which war is to be conducted (Jus in Bello):

This moral problem did not arise in connection with the war we conducted for our liberation and national restoration.... Only one prepared to justify historically, religiously, or morally the continuation of the exilic existence could refuse to take upon him the moral responsibility for using the sword to restore freedom.

Therefore, in our religious-moral stocktaking, we neither justify the bloodshed of the war (in which our blood was spilled more than that of our enemies) nor do we apologize for it. The problematic issues concern the manner of conducting that war, which goes on to this very day....53 A number of rabbinic writings composed just prior to and following the establishment of the State of Israel dealt with the laws of war. Leibowitz’s final statement on the manner in which war should be conducted expresses the degree to which these rabbinic writings had missed the essential point. They attempted naively to return to ancient sources such as the Biblical description of the military camp, or to the Biblical laws of war, and to continue the deliberation at the exact point that it had terminated. They did not take into account that centuries had passed and that the reality had drastically changed. Leibowitz attempted to internalize the changes, to relate to contemporary reality, and to deal with the real and difficult challenges of military ethics.

Toward that end, he turned to Jewish sources and his religious worldview. There is no question that his discussion of the issues is not complete, and perhaps does not even reflect a consistent approach, but it is undoubtedly interesting because of its pioneering quality and its creativity.

52 In fact, he also denigrates the Haredi position mentioned above:

Attachment to the Galut (Diaspora) and the opposition of many of the best representatives of Judaism to political redemption within historic reality was, in no small measure, a form of escapism reflecting the unconscious fear of such a test—fear of the loss of religious-moral superiority, which is easy to maintain in the absence of temptation and easy to lose in other circumstances.

YAHADUT AM YEHUDI U-MEDINAT YISRAEL, supra note 13, at 230. One of the changes— although not one of the most important ones—that Leibowitz introduced in the article before its republication in his book, Torah u-Mitsvot ba-Zeman ha-Zeh, was his derision of the left, as

represented by Brit Shalom, for their opposition to use of force:

It is very easy—and therefore hardly worthwhile—to express moral reservation about acts of violence and slaughter when one bears no responsibility for defending the community in whose cause such acts are perpetrated. Before the establishment of the state, the community included some adherents of ‘purist morality’ who immigrated to Palestine against the wishes of the Arabs and conducted their lives here under the protection of the British bayonets and the arms of the Hagganah [Jewish self-defense organization], but considered that the right of other Jews to immigrate depended on the consent of the Arabs.

Id.

53 YAHADUT AM YEHUDI U-MEDINAT YISRAEL, supra note 13, at 231.

210 CARDOZO LAW REVIEW [Vol. 28:1 Leibowitz wrote that we could certainly claim that the United States killed one hundred thousand people, most of them innocent women and children, with one bomb on one day in order to end the World War. How much more so are we justified in our actions, engaged as we are in a daily struggle “that has turned into a continuous nightmare of dread of violence and murder.”54 Nevertheless, he asserted that we should never make such a claim and thus adopt the values that are accepted by other nations in their wars. Leibowitz opened his article with the question of whether we are able to act in accordance with our own values. His point of departure is our particular system of military ethics and our religious duty to conduct a moral deliberation on questions of war. Thus, it may be that according to international standards of military practice, the Kibiyah operation was

justified, but that fact is not enough:

It is therefore possible to justify this action, but let us not try to do so. Let us rather recognize its distressing nature. There is an instructive precedent for Kibiyeh: the story of Shekhem and Dinah.

[Genesis 34]. The sons of Jacob did not act as they did out of pure wickedness and malice. They had a decisive justification: “Should one deal with our sister as with a harlot?”... [Genesis 34:31].

Nevertheless, because of this action, their father Jacob cursed the two tribes for generations.55 Leibowitz was not willing to accept international standards, claiming that Jewish tradition must provide the rules for such situations based on its unique worldview. The act of Shimon and Levi, in which they avenged the rape of their sister by killing the men of Shekhem, and Jacob’s reaction to it constitute a Biblical precedent for the claim that even a justified act might be accursed and unethical, especially in war.

Leibowitz claimed, based on Maimonides, that Shimon and Levi were justified in what they did. Yet, in spite of this justification, their father Jacob cursed them harshly for generations.56 From this he derived the 54 Id. at 232.





55 Id.

56 See Genesis 49:5-7. Apparently, Leibowitz accepts Maimonides’ interpretation of the incident of Dinah. See MAIMONIDES (RAMBAM), MISHNEH TORAH [THE CODE OF MAIMONIDES], The Book of Judges, Laws of Kings and Wars [Hilchot Melahim] 9:14.

Maimonides established that the brothers acted in accordance with the law—that the men of Shechem were guilty of death because they had not prosecuted the perpetrator in accordance with the Noahide law requiring the establishment of a court system. Nevertheless, Maimonides does not state anywhere that the act was immoral. Nachmanides directly refuted the position of Maimonides. In his opinion, Jacob called the act “violence” and cursed his sons because there was no justification for the act that thy perpetrated. See NACHMANIDES (RAMBAN), COMMENTARY ON THE TORAH; Genesis 34:13, 49:5; see also Yaacov Blidstein, Maase Shehem [The Story of Shekhem], 1 ET VA-DA’AT [PEN AND KNOWLEDGE] (1997) (Heb.). For further expansion see Gerald J. Blidstein, The State and the Legitimate Use of Force and Coercion in Modern Halakhic Thought, in JEWS AND VIOLENCE: IMAGES, IDEOLOGIES, REALITIES 3 (Peter Y.

Medding ed., 2002).

2006] LAW, INTERPRETATION, AND IDEOLOGY 211 principle that in war, the fact that an action is formally justifiable by law is not the complete picture. The act must be examined on an additional level, that of the ethics of war. Leibowitz concluded his article with the dramatic declaration: “Let us not establish our third commonwealth on the foundation of the curse of our father Jacob!”57 A number of months later, Leibowitz expanded his article and essentially changed its message and its emphasis. In the new article, he claimed that the society was confronting a “clear religious problem” expressed in the question: “What produced this generation of youth that is capable of perpetrating such a dreadful act?”58 He responded: “This act is the result of the application of religious categories of holiness to societal, national, and political matters and values.”59 In the later article, he suggested that, if so, there are two principles that can lead to the proper conduct of war: (1) the recognition that there are ethical values that go beyond what is permissible or forbidden according to the law; and (2) the eradication of any religious significance to war. He claimed that these two principles are learned from Jewish tradition itself.60 Before beginning the discussion of Rabbi Goren, who followed in the spirit of Leibowitz, I will examine the position of Rabbi Shaul Yisraeli, who opposed it.

IV. RABBI SHAUL YISRAELI: TURNING TO INTERNATIONAL LAW

Rabbi Shaul Yisraeli (1909-1995) also published an article that analyses the Kibiyah action in light of Jewish law, in which he expressed a position regarding war that is completely in opposition to that of Leibowitz.61 At the time, Rabbi Yisraeli was already one of the 57 This sentence appeared in the original newspaper article but was dropped from the later version of the article. Instead, the judgmental paragraph about Israel Defense Force soldiers that executed the operation was included, which will be discussed immediately. D. Ohana rightfully found in this article a foundation for Leibowitz’s Zionist Spirit. See David Ohana, The Zionism of Yeshayahu Leibowitz, 8 KIVUNIM 161 (1995) (Heb.).

58 YAHADUT AM YEHUDI U-MEDINAT YISRAEL, supra note 13, at 233.

59 Id. at 233.

60 There is no doubt that the transition from the first version to the second version of the article reflects a change in Leibowitz’s thought. As mentioned infra, the first article is engrossed in the discussion of a Torah state, while the additions represent the first sparks of his later thought in which he advocated a separation between religion and state, as well as opposition to both the occupation of lands captured in 1967 and to the sanctification of national symbols. See Ohana, supra note 57.

61 Shaul Israeli, Takrit Kibiyeh le-Or ha-Halakha [The Kibiyah Incident in Light of Jewish Law], in 5-6 HA-TORAH VE-HA-MEDINA [THE TORAH AND THE STATE] 71-113 (1954) (Heb.).

The article was re-published in SHAUL ISRAELI, AMUD HA-YEMINI 168-205 (1961) (Heb.) [hereinafter ISRAELI, AMUD HA-YEMINI] (references according to this edition). In reference to this article, see Aviezer Ravitzky, Prohibited Wars in the Jewish Tradition, in THE ETHICS OF 212 CARDOZO LAW REVIEW [Vol. 28:1 well-known rabbis of the Religious Zionist community. In later years, he became a member of the Chief Rabbinical Council, one of the heads of Yeshivat Mercaz Harav Kook, and one of the most important and influential halakhic authorities of the Religious Zionist community.

Rabbi Yisraeli’s article was a systematic and challenging legal article, one of the most important published on the topic of war and Jewish law. Rabbi Yisraeli’s breadth with regard to his outstanding command of the halakhic sources, the sharpness of his analysis, and the extent of his creativity are all expressed in this article. The article is essentially dedicated to Leibowitz’s challenge regarding the establishment of Jewish laws of war. His conclusions are surprising and important: in the military situation of the State of Israel, Jewish law obligates the adoption of standards of war that are agreed upon by the combatants. Therefore, in his opinion, there is no place for Leibowitz’s demand that the halakhah produce norms that it does not address and does not want to include.

In the beginning of his article, Rabbi Yisraeli examines the Kibiyah action, and any other military action, within the context of criminal law and the right to self-defense. He concludes that based on criminal law, such an action is completely forbidden since the right to self-defense does not allow one to harm anyone other than the actual attacker himself. Rabbi Yisraeli suggests, however, that a military situation must be considered within the context of different legal categories that address war as a unique phenomenon.62 His argument is WAR AND PEACE—RELIGIOUS AND SECULAR PERSPECTIVES 115, 119 (Terry Nardin ed., 1996);

see also Gerald J. Blidstein, The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel, ISRAEL STUD., Fall 1996, at 27, 27-44.

62 In the first four chapters of the article, Rabbi Yisraeli discusses the problem from the perspective of criminal law. In the first two chapters (Chapter 1: “Agency for a Transgression Among the Sons of Noah With Regard to Murder and Other Transgressions;” Chapter 2: “The Law for Sons of Noah Who Refrain from Prosecuting the Guilty”), he discusses whether, according to the Noahide laws, it is possible to hold a civilian population from which terrorists operate accountable for murder, either by virtue of the fact that through their support of terrorism the terrorists become their agents (Chapter 1), or by virtue of the fact that they have not brought the terrorists to justice (Chapter 2). Each instance relates to one of the Noahide laws. From both perspectives, Rabbi Yisraeli comes to the conclusion that the population cannot be held accountable from a halakhic perspective. In the third and fourth chapters, Rabbi Yisraeli also deals with the issue from the perspective of criminal law based on the right of self defense, the law of the pursuer (rodef) (Chapter 3: “The Law of the Pursuer With Regard to a Population That Aids Murderers;” Chapter 4: “Harming Innocent People in an Attack Designed to Eradicate Cells of Murderers and Those Who Help Them”). His conclusion is that even if part of the population can be considered pursuers by virtue of their support of terrorism, and the fact that their support will lead to more murder in the future, there are still many (particularly little children) who cannot be considered pursuers. Thus, the law of the pursuer cannot justify the action of the Israel Defense Force in Kibiyah. At this juncture, Rabbi Yisraeli makes a transition to a consideration of the issue from the perspective of military law. Chapter 5 is entitled “Acts of Defense and Reprisal as Military Actions.” In his introduction to this chapter, Rabbi Yisraeli clearly distinguishes between the category of criminal law and the category of war that demands a unique set of norms. He concludes that an action such as the Kibiyah action is forbidden according to 2006] LAW, INTERPRETATION, AND IDEOLOGY 213 that the very acceptance of the right to conduct war includes a tacit agreement to define legal standards that differ from the standards of criminal law. It is implicit that in war people die without trial, and that innocent people die. Rabbi Yisraeli argues that the very fact that Jewish law distinguishes between obligatory war (milhemet hovah) and permissible war (milhemet reshut) indicates that it recognizes war as a separate legal category.63 The readiness of Jewish law to deal with the concept of war and its outcomes flows from a recognition of the realities of human nature, adopting war as a means to solve conflicts.

As a result, the parameters of what is permissible and forbidden in the conduct of war are based on agreement. One who initiates an armed conflict essentially declares his agreement that the other combatant or combatants will respond in kind.



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