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Sinai and Geneva

1 August 2006

Last week, DovBear posted an essay by Michael Walzer on how the principles of “just warfare” apply to Israel’s current war with Hezbollah. Chardal objected to this whole line of argument, since it was not grounded in any Torah source. How can a frum Jew argue about “morality” based solely on principles expounded by non-Jewish jurists and philosophers? And if the Torah’s own principles on how Jews should fight wars conflicts with this “morality”, then why should we care about the latter?

DovBear followed up with this argument: according to Maimonides, a Jewish king can fight an optional war for the sake of magnifying the country’s reputation. Obviously, in such a war, soldiers would be killed. Therefore, the modern State of Israel can regulate how it fights the current war for the sake of its reputation.

I’m not sure this line of argument works, since an optional war can only be fought with the permission of the Sanhedrin, which we don’t have. Let me suggest a couple of other reasons.

Following the international laws of war can be justified on purely amoral grounds. As Jonathan “Head Heeb” Edelstein argues:

It is very rare for a military victory, no matter how decisive, to end the underlying conflict, and when the war is over, the issues will still have to be resolved and the conflicting parties rebuilt. Any measure that conserves human life and civilian infrastructure during the war will make those tasks that much easier, while scorched-earth warfare might win an immediate victory at the cost of making the underlying conflict more intractable. Israel, for instance, has won all its wars, some more decisively than others, but even its most spectacular military victories have failed to resolve the political conflicts that lie at their root. The ultimate solution has to be political, and in those cases where wars must be fought, it’s important to fight them in a way that doesn’t make reconstruction and mediation more difficult.

From this point of view, the IDF has a good reason to protect Lebanese civilians even if the Torah has nothing to say on the matter. The question “how many soldiers’ lives should we risk to avoid harming Lebanese civilians?” can be treated as a necessary strategic calculation, along the lines of “how many solders’ lives should we risk to avoid compromising military intelligence?”

Furthermore, the Torah does have something to say on the matter, which dovetails nicely with Edelstein’s argument.

Rabbi Yehuda Henkin, in Equality Lost, has a chapter discussing a similar case: whether a terrorist who has been captured (and is therefore no longer a threat) may be summarily executed. According to the Geneva Conventions, even if such a person does not qualify as a prisoner of war, he is hors de combat and therefore may not be executed “without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. In the classical sources regarding Jewish warfare, there is no such protection (cf. Deuteronomy 20:12-13).

However, Rabbi Henkin points out, the prohibition of chillul haShem, “desecration of God’s Name”, applies even when relating to non-Jews and even during wartime. Case in point: the Gibeonites (Joshua 9:3-27), who tricked the Jews into an oath of non-aggression. Even though the Gibeonites were among the Canaanite nations whose extermination God had explicitly ordered, and even though the oath that protected them was obtained through deceit, the Gemara concludes that because of kedushat haShem, Joshua was right to keep the oath; better to let the Gibeonites live than to have other nations say that Israel violates its oaths. Rabbi Henkin also cites the Jerusalem Talmud, Bava Kama 4:3, in which Rabban Gamliel taught Torah to officials of the Roman government. He followed a minority opinion that the Torah permits Jews to rob non-Jews, but once government officials learned of this law and said it was not “becoming and praiseworthy”, Rabban Gamliel outlawed this practice, because of chillul haShem.

Rabbi Henkin concludes:

When…an act is not widespread among the Gentiles, and their governments and scholars are unanimous in its condemnation, chilul haShem is certainly applicable, and such is the case regarding the killing of captured and bound terrorists.

The application to other “laws of civilized warfare” is straightforward. If Joshua and his princes were bound by an oath contracted under false pretenses, lest the neighboring countries somehow find out that it was broken, how much more so is the modern State of Israel, a country that has been formally at war since its inauguration, bound by the Geneva Conventions, when the slightest rumor of their violation is carried by CNN to the four corners of the world! Furthermore, even if Israel had not signed the Conventions, to the extent that those treaties codify practices that the rest of the world finds abhorrent, it would be chillul haShem to engage in those practices.

The only counterargument that I can think of is that Rabbi Henkin was describing a case where following the Geneva Conventions would not harm anyone, whereas taking too much effort to protect Lebanese civilians will lead to the deaths of many Israeli soldiers. I don’t know how the laws of pikuach nefesh apply to the strategic calculations of a Jewish state at war, but…