Simon Jackson
Legal Advisor to Torah Mitzion
“The saying, ‘When the cannons roar, the muses are silent,’ is incorrect. Cicero’s aphorism that laws are silent during war does not reflect modern reality… The roots of this approach are an expression of the difference between a democratic state fighting for its life and the aggression of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law and exploit its violation. The war against terror is also the law’s war against those who rise up against it… Moreover, the State of Israel is founded on Jewish and democratic values. We established a state that upholds the law… Indeed, all of the IDF’s operations are subject to international law… Even in a time of combat, all must be done in order to protect the civilian population.”
Force and Power in the Wars of IsraelIn the laws of the Torah it states: “And you shall live by them.” The Torah was given for life. There is a place for research, for revealing creative ideas, and for innovative interpretation. I believe and am convinced that it is possible to solve the problems of the generations according to the Torah. For our Torah is not frozen in its context. The Written Torah and the Oral Torah are eternal, and have the strength to stand up to the difficulties of the generations…
There is a saying in the Jerusalem Talmud (Sanhedrin 4:2): “If the Torah had been given in a clear and explicit fashion, we could not live by it. Why was it not? So that it could be interpreted either as the forty-nine aspects of impurity or the fortynine aspects of purity.” In other words, if the Torah had been given as a set code – this you can do and this you can’t do – we would not be able to live by it. But it was given in a flexible fashion…
In this generation, we need the great scholars of Torah and Jewish Law to take a “state approach” to issues and a positive relationship to the historical turning point for the Jewish People represented by the establishment of the state.
A Military Shulkhan Aruch
It is clear from Rav Goren’s words that the great scholars with the courage and creativity to meet this challenge must possess 3 qualities. Not only Torah scholarship and a dedication to Zionism, but also a “state approach.” In other words, they must understand that in this legal corpus they are addressing not only the individual as was accepted until then in traditional Jewish writings, but also the Jewish state. Rav Goren took it upon himself to write a “military Shulkhan Aruch,” guidebook for the Jewish army as an entity, not just for the individual Jewish soldier. The main element characterizing Jewish Law as a product of the Diaspora was its lack of laws of state.
One of Rav Goren’s important publications was his four-volume work entitled Response to War: Responsa on Matters of the Military, War and Security. In the first chapter of this monumental work, entitled The Ethics of Warfare from the Perspective of Jewish Law, he advances the argument that the greatest obligation during battle is to try, to as great an extent as possible, to prevent loss of life to the enemy, both soldiers and civilians. The value of human life in Jewish tradition relates to all people, whoever they may be, including the enemy.
The Mishnah states (Sanhedrin 4:5): “Therefore, man was created singly, to teach you that whoever destroys a single soul of Israel, the Torah considers it as if he had destroyed a full world…” Citing this Mishnah, Rav Goren claimed that the proper version of this tractate is a universal message that does not read “soul of Israel” but simply “soul” (Jewish and non-Jewish alike) an approach advocated by Prof. Ephraim Urbach, one of the most important scholars of rabbinic literature of this generation.
Avoiding All Unnecessary Harm to the Enemy
In the continuation of the introductory first chapter to his book, Rabbi Goren touched upon one of the most sensitive issues that came to bear in the Israeli army: the level of responsibility of officers for the welfare of the population in territories under the army’s control:
With regard to the measure of legal or ethical responsibility that falls on officers assigned to take charge of the welfare and security of Jewish or non-Jewish individuals, groups, or squads… : To what degree does the Torah view those appointed to be indirectly responsible for crimes and transgressions committed against the population for which they are accountable?
Rav Goren rests his response to this question on two Biblical sources and their rabbinic interpretations. The first is the Torah injunction “Do not stand idly by the blood of your friend.” Chazal derived from this verse a broad responsibility on the part of every individual to help any person whose life is in danger. Rabbi Goren further derived from this injunction that military officers are bound to do everything possible to prevent injury to the people in the area under their command and responsibility.
The second source that Rav Goren turned to is the fascinating law of the eglah arufah (“Rite upon Finding a Corpse outside Town”) from Sefer Devarim (21:1-9). This law relates to situations in which a corpse is found in a field outside city limits and it is not clear who murdered the person. The law states that the Cohanim must measure which city is closest to the place where the body was found and that the Elders of that city must slaughter a calf and declare: “Our hands have not shed this blood, neither have our eyes seen it…” Chazal raised the following obvious question: “Would it even enter our minds that the elders of the court are shedders of blood?!” To which they answer: “The Elders must declare that he did not come to our area and we allowed him to depart without food, and we did not see him and allow him to go without escort” (see Mishnah Sotah 9:6).
This very query, Rav Goren argued, is indicative of the fact that the Rabbis viewed the City Elders as morally responsible for everything that takes place in their territory, including the welfare and well-being of both the general population and strangers. It is clear that it is not possible to legally charge the Elders with murder, but this ritual is intended to clarify that at the moral level, the spiritual leaders bear responsibility for what transpires in their domain: by the laws of Heaven, they are considered to have shed innocent blood. Rav Goren applied this principle to military commanders with regard to areas under their control. According to the military ethic that he sought to foster, it is forbidden to harm even the enemy in an unnecessary manner. Military commanders bear a very strong ethical responsibility for any individual who is unnecessarily harmed, regardless of who harmed them. The very responsibility over the area in which the person was injured makes the commander morally accountable for the welfare of even the enemy in that territory, whether soldier or civilian.
