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THe 1864 Geneva Convention, the first codified international treaty that covered sick and wounded soldiers on the battlefield (first page)..(Photo by: ICRC/FLICKR)
International humanitarian law in Halacha
By SHLOMO BRODY
05/23/2019
MANY RECENT scholars have argued that the international community’s failure to uniformly enforce its rules entirely undermines any possible halachic recognition of international law.
One of the biggest questions in contemporary jurisprudence relates to the relationship of national jurisdiction and international law. Given the growth of international treaties and bodies to enforce those agreements, jurists are increasingly challenged how local laws may be impacted by international standards.

This question has also been asked by Jewish legal decisors regarding how Halacha might be impacted by such norms. We’ll try to sketch some of the broader approaches taken in this ongoing conversation, particularly as they relate to the laws of war.
 
International law generally comprises two types of norms: those agreed to by multinational treaties and those established by customary practice. The former include, most famously, the various Hague and Geneva conventions regarding warfare, while the latter include many norms regulating maritime practices, for example.
 
When a country has formally signed a given agreement, it is readily understandable that its own laws should encompass those norms. When it does not formally consent, however, it is more difficult to understand why it should relent on its own sovereignty and accept standards imposed by others. This broader issue engages many scholars and remains a critical point of contention amongst jurists.
 
Within Jewish legal circles, one of the first scholars to address this question was Rabbi Hayim Hirshenzon (1857-1935). While a figure of minimal influence in his time, Hirshenzon remains a fascinating figure because he addressed many of the challenges posed by the political and moral developments of the modern era.
 
Following the bloodshed of World War I, he supported the founding of the League of Nations as a method of peacefully resolving international disputes. This included the adoption of ethical standards, including the Hague Conventions, that were intended to tame wartime behavior.
 
Hirshenzon believed that Jews were obligated to follow such standards, even in cases when they were not signers of such covenants. This was, in part, because it would be a desecration of God’s name (hillul Hashem) for Jews not to support progressing toward a better civilization. When Jews signed covenants, they were further bound to uphold them even when its provisions were not endorsed by Jewish law.
 
As precedent, he cited a remarkable case in the Talmud which describes how the Jewish people suffered because King Saul had violated a covenant with the Gibeonites. The Gibeonites demanded that, to make amends for this breach, seven of Saul’s children be handed over to be killed. King David remarkably agreed to these demands, which the Talmudic sages condoned because it was a sanctification of God’s name to show that the Jewish people upheld their promises! International agreements, Hirshenzon concluded, are therefore binding, even when they demand acts that would otherwise be prohibited.
 
A more moderate model was suggested by Rabbi Shaul Yisraeli. While arguing that Jewish law imposed few restrictions on wartime behavior, he asserted that Israel would be bound by the regulations agreed upon by the nations of the world. This was because Jewish law accepted the notion that “the land of the kingdom is the law.” While this principle normally demands observing laws within a given country, Yisraeli broadly applied it to intergovernmental institutions. Accordingly, if the nations of the world would ban warfare – and hold to that agreement – then Jewish law would prohibit such wars. Yet in the absence of such agreements (or actual observance of the agreed-upon restrictions), Jewish law would not impose such restrictions.
 
MANY RECENT scholars, including Rabbi Shlomo Aviner, have argued that the international community’s failure to uniformly enforce its rules – and worse, its inordinate targeting of Israel for censure while hypocritically remaining silent in the face of human rights abuses by Israel’s enemies and others around the world – entirely undermines any possible halachic recognition of international law.
 
This is for two reasons: firstly, because the premise of treaties is reciprocity. If one side is not committed to fighting by the agreed-upon rules, then the other side is no longer bound to those restrictions. Moreover, the unfair application of the rules is legally analogous to a state discriminately imposing taxes on one sector of the population. Ultimately, this is a form of extortion or theft, and the discriminated-against population would not be obligated to follow such rules. So, too, when the world gives disproportionate scrutiny to Israel’s behavior, it reflects a bias that undermines the legitimacy of the entire system.
 
Perhaps for that reason, a better model might be to see international law as an external challenge that can be compared to Jewish law. In this model, international standards deemed worthy of emulation still do not become obligatory; instead, a challenge is posed for decisors to search Jewish law and find internal precedents for observing these values.
 
As Amos Israel-Vleeschhouwer has argued, this model may explain, for example, the attempt of figures like Israel’s first Ashkenazi chief rabbi, Rabbi Isaac Herzog, to assert that minority groups should receive equal status under Israeli law. Similarly, one could suggest that the attempts of figures like Rabbi Shlomo Goren to argue that Jewish law prohibits targeting noncombatants, in spite of the biblical passages that seem to indicate otherwise, were attempts to bring Jewish norms into line with contemporary moral beliefs.
 
The disadvantage of such an approach is that it may create situations in which decisors appear to force-read a given text. The distinct advantage, however, is that it gives Jews the impetus to derive new ideas from our own authoritative texts.
 
Especially given the shaky status of international law, this may be the best path for Judaism to continue to develop a rich moral discourse.
 
The writer is the director of the Tikvah Overseas Students Institute, a postdoctoral fellow at Bar-Ilan University Law School, and the author of A Guide to the Complex: Contemporary Halakhic Debates.
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