By Jonathan Rotter, September 7k 2024
There’s a lot in parshat Shoftim for a lawyer to talk about. Magistrates and officials, the requirement to follow rulings, how injuries are valued, tzedek tzedek tirdof, prohibitions on bribery. We deal with all of that here in Los Angeles today and the Jewish people have lived those subjects for thousands of years.
Due to the tragic and dangerous circumstances we’ve found ourselves in since Simchat Torah, I’ll focus on a set of laws in parshat Shoftim that we don’t use day to day in Los Angeles, and that the Jewish people didn’t have to implement communally for a couple thousand years. The laws of war. After the failed Bar Kochba revolt against the Romans in 137 CE, there was another lesser known failed attempt about 200 years later, the Gallus revolt, and then it was over 1600 years until Jews fought as a nation again. During that time a lot happened in the development of warcraft, in technology, in the organization of societies for war, and in the development of international norms and treaties. So when the Jewish nation rejoined the international war-fighting club in 1948, a lot of water had passed under the bridge.
To be sure, Jews continually studied the laws of war. In Rambam’s Mishneh Torah’s Sefer Shoftim, there’s a whole section on kings and their wars. It distinguishes between two types of wars: first, a mandatory war, for which the king doesn’t need permission, including a war of self defense and wars to eradicate the seven Cannanite nations and Amalek – and second, a permissive war to expand borders and prestige, for which the king needs the approval of the Sanhedrin.
But, in light of how much has happened since we last had to engage with national warfare, are the laws in our parashah, as interpreted by our sages, of any use at all? Here’s a starting point: Dvarim 20 verse 10-11: “When you approach a town to attack it, you shall offer it terms of peace. If it responds peaceably and lets you in, all the people present there shall serve you at forced labor.” If that sounds problematic to you, I’m sorry to report that the populations of resisting towns are subject to total annihilation. Maybe that was the international standard at the time, but if so, we might ask whether Judaism has anything to add to the Geneva conventions, today’s international standards.
This is not my field of practice or study, but in October 2023, Shlomo Brody finished a book on exactly these questions. It is called Ethics of our Fighters, and proposes a systematic Jewish perspective on military ethics. I commend it to anyone who is interested in these questions. I’m just going to preview it a bit.
Rabbi Shlomo Goren, who was chief chaplain of the IDF for 20 years and later Ashkenzic chief rabbi, wrote a multivolume work on Jewish military law. Rabbi Goren generally emphasized respect for human life, and he tended to cabin examples of excessive violence in the Torah. For example, Rabbi Goren asserted that Simon and Levi’s slaughter of Shechem could not serve as a justification for reprisal raids in modern times, because Jacob denounced the action. He also asserted that the commandment to wipe out the seven Canaanite nations was limited to a particular time. However, Rabbi Goren was no pacifist. He played an important role convincing the leaders of the religious parties to support a preemptive strike in 1967.
Then there’s Rabbi Yehuda Amital, who wrote a treatise on the spiritual importance of military service, and started a seminary that combined army service and yeshiva studies. He also supported the Camp David accords against rabbinic arguments that territorial compromise was forbidden. He elevated the value of pikuach nefesh, which does not provide answers to strategic dilemmas or a crystal ball into how compromises will play out – but giving that value increased prominence will certainly affect how to evaluate treaties that involve ceding land. Rabbi Amital also called for an end to the Lebanon war and the occupation of Beirut, on the ground that only defensive wars or preemptive attacks were permissible. Rabbi Goren, on the other hand, believed that Lebanon was a defensive war to protect the villages of the Galilee – something that those villages are again calling for today.
But Rabbi Goren also brought Jewish law to bear on the conduct of the Lebanon war. He cited the Gemara, and Rambam, who ruled that in besieging a city the attacker must leave one side open for non-combatants and combatants and to flee. That is not required by international conventions. But it is what the IDF did, and the IDF was criticized heavily in Israel for doing it. It is a remarkable example of Jewish law shaping not only overall evaluations of the justness of wars, but shaping particular, and consequential, tactics, imposing requirements that go beyond the international rules of war.
I’ll mention one contemporary legal issue. The prosecutor of the International Criminal Court earlier this year filed applications for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. A group of high-level former military officers from the United States and European countries submitted an amicus brief describing, among other things, Israel’s Civilian Harm Mitigation Cell, which operated “during every phase” of the current conflict. These military officials reported: “It is our professional opinion that such a unit is extremely unusual and we are not aware of any other military with a comparable risk mitigation methodology. We assess this is an unprecedented measure, along with millions of leaflet drops, phone calls, text and voice messages, to help commanders prevent or minimize risk to civilian life.” The entire amicus brief is worth reading and is available here: icc-cpi.int/court-record/icc-01/18-267
If you’d like to know more, read “Ethics of our Fighters”, and Rabbi Kanefsky will be lecturing on Rabbi Amital as part of our Elul series the evening of September 19.