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Rabbi Yisraeli’s conclusion, that according to Jewish law the State of Israel is governed by international agreement in matters of war, implies that Israel should not adopt different standards in foreign affairs than those accepted by the nations of the world. This position is revolutionary and has far reaching implications. He argues that from the time that Israel became a sovereign state, Jewish law required it to function within the parameters of international standards. It should be noted that Rabbi Yisraeli published his article in 1954, at the time that the concept of international law in matters of war was just emerging in the wake of World War II. Rabbi Yisraeli was cognizant of this fact and referred to it specifically in his writings. In his opinion, if the nations of the world were to conclude a covenant opposing war, Israel would be obliged to adhere to that covenant. The current situation however is the opposite—war is accepted by all nations and, therefore, the Jewish State is bound to that agreement according to Jewish law.
Rabbi Yisraeli’s innovation regarding the halakhic validity of international agreement regarding war is based on the talmudic concept “the law of the land is the law” (dina demalkhutah dina).64 This principal, which was already established at the beginning of the talmudic period, grants halakhic validity to laws that are legislated by the government of the state in which Jews live. Among the number of rationales suggested in halakhic literature throughout the ages for this rule, Rabbi Yisraeli adopted the rationale based on the principle of the standards of criminal law but certainly permitted according to the accepted standards of war.
See ISRAELI, AMUD HA-YEMINI, supra note 61.
63 Mishnah Sotah 8:7; Mishnah Sanhedrin 1:5; MAIMONIDES, supra note 56, at halakhah 5;
see J. David Bleich, Preemptive War in Jewish Law, 21(1) TRADITION 3 (1983); Noam J. Zohar, Morality and War: A Critique of Bleich’s Oracular Halakhah, in COMMANDMENT AND COMMUNITY: NEW ESSAYS IN JEWISH LEGAL AND POLITICAL PHILOSOPHY 245 (Daniel H. Frank ed., 1995).
64 SHMUEL SHILO, DINA DE-MALKHUTA DINA (Jerusalem Academic Press 1974).
214 CARDOZO LAW REVIEW [Vol. 28:1 agreement.65 He concludes that just as the principle applies to individual Jews who live in a state and agree to abide by its laws, so too
it applies to the Jewish State itself:
The foundation of dina demalkhutah dina relates not only to what transpires within a state, but also to international matters as is the accepted custom.... One of the manifestations of dina demalkhutah dina is war and military conquest. Just as there is dina demalkhutah within a country, so too there is accepted international practice.
Therefore, military conquest must be conducted according to this practice, for only then is it valid by virtue of dina demalkhutah dina.66 What is the “law of the land” that applies here? Rabbi Yisraeli surprisingly identifies it as recognized international law: “We understand from this that a war that is conducted according to accepted international standards is permissible according to the Torah by virtue of the principle dina demalkhutah dina.”67 The halakhic principle “dina demalkhutah dina” was given a new interpretation appropriate to the reality of renewed sovereignty. This principle is dictated by the logical premise that the Jewish legal system governs internal interactions between Jews, but it cannot be expected to govern interactions between Jews and non-Jews. The law of “dina demalkhutah dina” empowers. Just as an individual Jew who lives among the nations is obligated by the laws of the state in which he lives, so too the Jewish State is obligated by the global standards of international law and agreements by virtue of which it exists as a sovereign state. Essentially the “the law of the country” evolved into “the law of the countries.” On the contrary, he advanced this innovation in order to argue that the Israel Defense Force should act in a certain manner because of the
fact that the combatants of the State of Israel act in that way:
In this way, war is permitted as long as it is conducted in accordance with the standards accepted by the nations of the world. With regard to Kibiyah as well, we must examine whether such reactions are carried out and accepted among the nations of the world. If so, we can view it as an agreement among the relevant parties that effectively eliminates the issue of murder.68
65 See SHMUEL BEN-MEIR (RASHBAM), COMMENTARY OF RASHBAM TO BABYLONIANTALMUD, BABA BATRA 54B (section beginning with, “Has not Samuel laid down that the law of the Government is law.”); MAIMONIDES, supra note 56, The Book of Torts [Hilkhot Gezela veAveda] 5:18. For a comprehensive discussion of the rationales for this law raised by the Rishonim, see SHILO, supra note 24, at 59.
66 ISRAELI, AMUD HA-YEMINI, supra note 61, at 192.
67 Id. at 193.
68 Id. at 202.
2006] LAW, INTERPRETATION, AND IDEOLOGY 215 Rabbi Yisraeli’s response to the question of the Jewish attitude to war is clear on the theoretical level—the halakhah recognizes the legitimacy of any war that is conducted according to the accepted practice among the nations.69 Rabbi Yisraeli’s response represents the opposite of the position taken by Leibowitz, which demanded that Israel adopt Jewish values in the conduct of war rather than learning from
accepted international practice. In his original article, Leibowitz wrote:
We can, indeed, justify the action of Kibiyah before “the world.” Its spokesmen and leaders admonish us for having adopted the methods of “reprisal”—cruel mass punishment of innocent people for the crimes of others in order to prevent their recurrence, a method which has been condemned by the conscience of the world. We could argue that we have not behaved differently than did the Americans, with the tacit agreement of the British, in deploying the atomic bomb.... It is therefore possible to justify this action, but let us not try to do so. Let us rather recognize its distressing nature....70 In direct contradiction to Leibowitz, Rabbi Yisraeli argued that there is no place for particular Jewish values in wars against external enemies. His goal was to come to the defense of the Israeli soldiers, arguing that there was no place for condemnation or rebuke. Thus, for
example, he concluded his long article with the following comment:
There is a place for acts of retribution and revenge against the oppressors of Israel.... Those who are unruly are responsible for any damage that comes to them, their sympathizers, or their children.
They must bear their sin. There is no obligation to refrain from reprisal for fear that it might harm innocent people, for we did not cause it. They are the cause and we are innocent.71 It seems that Rabbi Yisraeli never repeated this argument explicitly in his later writings, in which he dealt to a greater extent with issues of state in general and war in particular. Yet, as I will discuss infra with regard to the siege of Beirut, there is no question that Rabbi Yisraeli was consistent in his thinking that, at least in modern times, Jewish law does not include its own laws of war. To the degree that halakhah allows the conduct of war, it must be conducted according to internationally accepted standards, or at least the accepted standards of the combatants.
69 See also Ravitzky, supra note 61, at 120. The next stage in the argument of Rabbi Yisraeli is that this agreement even overrides the prohibition of murder.
70 YAHADUT AM YEHUDI U-MEDINAT YISRAEL, supra note 13, at 231-32.
71 ISRAELI, AMUD HA-YEMINI, supra note 61, at 205; see Blidstein, supra note 61. Blidstein is correct in his characterization of Rabbi Yisraeli as a militant halakhic authority on matters relating to war and the use of force. There is no doubt that his legal decisions, and perhaps to a greater extent his unequivocal rhetoric, exerted a large influence on the Rabbis and legal authorities in the broader Religious Zionist circles. Yet, this was not the primary impact of his innovative position.
216 CARDOZO LAW REVIEW [Vol. 28:1 Rabbi Yisraeli continues by discussing the concept of obligatory war and characterizes the wars of Israel as obligatory wars under the halakhic category of “saving Israel from the hand of the oppressor.”72 Nevertheless, even in an obligatory war, the halakhah only relates to the permit to go out to war, while the manner in which the war is to be conducted is determined by accepted practice in such wars. Thus, if the nature of a particular war requires causing injury to innocent civilians, the permit to engage in the war includes the understood acceptance and legitimization of that fact.
As indicated supra, Yeshayahu Leibowitz was the spokesman for an ideology that had two main arguments. The first argument was the necessity of internalizing the change and the new reality of Jewish life brought on by the renewal of Jewish sovereignty. The second argument was that Jewish Law is the primary, if not the only, component of Jewish culture. Thus, Leibowitz’s ideology posited that Jewish Law must adjust itself and respond to the new reality. Rabbi Yisraeli’s fascinating innovation was that, while adopting Leibowitz’s primary arguments, he arrived at the opposite conclusion. His novel argument flows from a demarcation of the limits of the applicability of halakhah based on an internalization of the new reality. While Jews lived in exile among the nations of the world, the authority of Jewish law extended only within the context of internal relations between Jews. It did not feign to extend to relations between Jews and non-Jews, nor could it.
The fact that Jews now lived in a state of their own among the family of nations necessitated a new demarcation of the limits of the applicability of Jewish law. The application of this principle in the age of Jewish sovereignty led Rabbi Yisraeli to the conclusion that halakhah should not feign to govern relations between the Jewish State and the other nations.
It is understood that Rabbi Yisraeli did not view the adoption of the military ethic of the enemy as an ideal, but rather as a necessity dictated by reality. His claim that Jewish ethics is not designed to govern the foreign affairs of the State of Israel flows from the fact that otherwise, it would be impossible to maintain the existence of the state.
Rabbi Yisraeli believed that there was a dangerous delusion in the aspiration to conduct wars according to independent Jewish ethics. A war conducted according to different standards than those of the enemy is a war that is destined to fail and to bring a catastrophe upon Israel.
The siege of Beirut, which will be discussed infra, is an excellent example. For this reason, Rabbi Yisraeli placed limitations on the use 72 MAIMONIDES, supra note 56, at halakhah 5:1. According to this halakhah there are three categories that justify going to war: “It includes the war against the seven nations, that against Amalek, and a war to deliver Israel from the enemy attacking him.” Id. Only the third category is relevant at this time since the nations mentioned in the first two have vanished from the world.
2006] LAW, INTERPRETATION, AND IDEOLOGY 217 of force in situations where it is not required. Nevertheless, in a war against terror, he held that the killing of innocent civilians was at times necessary. As such, a prohibition of such attacks would deem the struggle against terrorism ineffective, allowing terrorists to operate from within civilian populations. At the same time, he prohibited harming children in situations where it could be prevented as well as strictly retaliatory actions that served no deterrent function.
V. RABBI SHLOMO GOREN: DERIVING NEW LAWS OF WAR
Rabbi Shlomo Goren (1917-1994) founded the Rabbinate of the Israel Defense Forces immediately after the establishment of the State of Israel and served as its head for approximately two decades.
Subsequently, Rabbi Goren served as the Chief Rabbi of Tel Aviv and then as the Chief Rabbi of the State of Israel. The scope of his literary work is broad, and many of his publications deal with military laws according to Jewish law. In his writings, he dealt with the many sides of military law from the operation of a military camp according to halakhah to laws of military engagement that are the focus of this article.73 Rabbi Goren saw his role in a much broader light than that of the traditional military rabbi. He sought to infuse the fabric of the evolving Jewish army with the spirit of Jewish law and ethics. The role of the military rabbis who served in armies in Europe during the modern period was to help Jewish soldiers who wished to maintain a Jewish lifestyle under military conditions. Even in Israel, many of the military rabbis perceived their role similarly. Rabbi Goren believed, however, that the era of Jewish sovereignty demanded a new definition of the role of the military rabbi. In his opinion, the rabbi in the new reality had to relate to the army rather than to the individual soldier. Therefore, he 73 In spite of the richness and innovativeness of Rabbi Goren’s writings, they have been largely ignored by scholars. See Aryei Edrei, Spirit and Power: Rabbi Shlomo Goren and the Military Ethics of the Israel Defense Force, 7 THEORETICAL INQUIRIES IN THE L. 255 (2006).
Some of his writings that relate to the topic at hand have been edited and included in the following books: SHLOMO GOREN, MISHNAT HA-MEDINAH: A HALAKHIC HISTORIC RESEARCH ON THE MOST IMPORTANT SUBJECTS SINCE THE ESTABLISHMENT OF ISRAEL (1999) (Heb.) [hereinafter GOREN, MISHNAT HA-MEDINAH]; 1-4 SHLOMO GOREN, MESHIV MILHAMAH:
QUESTIONS AND ANSWERS IN MATTERS OF ARMY, WAR AND SECURITY (1982-1983) (Heb.) [hereinafter GOREN, MESHIV MILHAMAH]; SHLOMO GOREN, TORAT HA-MEDINAH: A HALAKHIC