No CrossRef data available.
Published online by Cambridge University Press: 20 April 2012
In 1953 the government of the newly founded state of Israel sent an elite army unit to attack the village of Kibiyeh, just across the Jordanian border. The attack was in reprisal for violence against Jewish villages on the Israeli side of the border. Since the end of the 1948 war, armed groups from Jordanian border towns had been infiltrating Israel and terrorizing its citizens, and in one such raid on the village of Yehud, a woman and her two young children were killed. The Israeli attack on Kibiyeh was in response to that incident. Kibiyeh was chosen as the target because the perpetrators of the violence in Yehud had apparently come from there. In the Kibiyeh raid, several dozen Arabs were killed, including women and children. Condemnation of the raid from the international community was swift. Opinion in Israel was mostly supportive of the operation, though a vocal minority opposed it.
2. The essay was first published under the title “Takrit kibiyah le-or ha-halakhah,” Ha-Torah ve-ha-Medinah 5–6 (1953–54): 71–113. A slightly expanded version appeared in the collection ‘Amud ha-yemini (Tel Aviv: Moreshet, 1966), chap. 16, 168–205. It has since been reprinted several times. Scholars generally regard the changes in the expanded version to be of minor significance. I will be citing from the 1992 edition published by ’Ereẓ Ḥemdah, Jerusalem.
3. Roness, Yitzchak Avi, “Halakhah, Ideology, and Interpretation: Rabbi Shaul Yisraeli on the Status of Defensive War,” Jewish Law Association Studies 20 (2010): 192Google Scholar. A similar view of R. Yisraeli's essay informs Blidstein, Gerald J., “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies 1, no. 2 (1996): 27–45CrossRefGoogle Scholar; idem, , “The State and the Legitimate Use of Coercion in Modern Halakhic Thought,” Studies in Contemporary Jewry 18 (2002): 13–14Google Scholar; Blau, R. Yitzchak, “Biblical Narratives and the Status of Enemy Civilians in Wartime,” Tradition 39, no. 4 (2006): 21–25Google Scholar. See also Luz's judgment that R. Yisraeli's theory of wars of revenge “found a way of ‘declaring pure something inherently impure’” (Luz, Wrestling, 211).
4. Roness, “Defensive War,” 192–93. Even R. Yisraeli's admirers have been perplexed by the lack of halakhic precedent for his viewpoint. See Gutel, R. Neriah, “Leḥimah be-shetaḥ ravvey ’ukhlosiyah ’ezraḥit,” Ha-milḥamah ba-teror, ed. Halevi, Ya'ir (Kiryat Arba: Makhon Le-Rabaney Yishuvim, 2006), 64–65Google Scholar. This article is a slightly expanded version of an article with the same title that appeared in Teḥumin 23 (2003): 18–42.
5. Roness, “Defensive War,” 192–95.
6. For a discussion of this issue in the Hebrew Bible, see the thorough study of Peels, H. G. L., The Vengeance of God (Leiden: E. J. Brill, 1995), esp. 274–76Google Scholar.
7. I would like to thank Gerald Blidstein and Stuart Cohen for their helpful comments on earlier drafts of this paper.
8. Yisraeli, ‘Amud ha-yemini, 168 (sec. 1:1). Numbers in parentheses refer to sections and subsections. I have added this information because of slight variations in pagination between editions.
9. Luz, Wrestling, 208.
10. Yisraeli, ‘Amud ha-yemini, 168 (sec. 1:1).
15. Halakhah in general recognizes two types of war: mandatory war (milḥemet miẓvah) and discretionary war (milḥemet reshut). These types of war are mentioned in the Talmud (B. Sotah 44b) but are not discussed extensively. Maimonides' discussion of these types of war in Mishneh Torah, Laws of Kings 5:1 offers a more detailed and organized discussion of these types of war, and it is generally considered by rabbinic authorities to be the authoritative starting place for the treatment of this issue. According to Maimonides, mandatory war encompasses biblical wars commanded directly by God—i.e., the wars against the Canaanites and the Amalekites, as well as wars of self-defense. These wars are mandatory because a Jewish king or government may wage them without consultation with the Sanhedrin, and all able-bodied men are required to fight. Discretionary wars are wars that were fought in ancient Israel to expand the territory of the Israelite kingdom and to increase the prestige of the king. This type of war requires consultation with the Sanhedrin, and, according to some authorities, the ’urim ve-tumim, the oracle attached to the breastplate of the high priest. In this type of war, not all able-bodied men are required to fight; some exclusions apply. Opinions on preemptive wars are divided because Maimonides does not mention them, leaving later interpreters with much uncertainty as to how they should be treated. Arguments center on whether preemptive war can be categorized as mandatory or discretionary, and under what conditions it can be waged. Most authorities consider them discretionary. An analysis of these problems and proposed solutions can be found in Bleich, J. David, “Preemptive War in Jewish Law,” Contemporary Halakhic Problems (New York: Ktav, 1989), 3:251–92Google Scholar.
16. Yisraeli, ‘Amud ha-yemini, 189–91 (sec. 5:1–7). M. Sanhedrin 1:5 and 2:4 refer to consultation with the Sanhedrin as a prerequisite for going to war. However, Rashi, in an interpretation of another talmudic passage, claims that the Sanhedrin is consulted merely to pray for victory (B. Berakhot 3a). R. Yisraeli settles the contradiction by arguing that discretionary war was implemented by King David, who, as Rashi tells us, consulted the Sanhedrin when going to war so that it would pray for victory. Eventually the custom of consulting the Sanhedrin became law, which explains why the Mishnah treats it as such. Moreover, the Sanhedrin took on the role of representing the will of the public, which was a necessary prerequisite for going to war. Therefore, after the law of consulting the Sanhedrin was implemented, there was no need to consult the Sanhedrin if a public consensus existed in support of the war.
17. A thorough discussion of the history of this principle can be found in Shiloh, Shmuel, Dina de-malkhuta dina (Jerusalem: Jerusalem Academic Press, 1974)Google Scholar.
18. Yisraeli, ‘Amud ha-yemini, 191–95 (sec. 5:8–16).
19. Ibid., 195 (sec. 5:15). However, it should be noted that at the beginning of his essay when he describes the events leading up to the Kibiyeh raid, R. Yisraeli decries the condemnation of the operation by the international community, claiming that their views are hypocritical because no similar condemnations were uttered when Jews were killed by Arab terrorists (ibid., 168). Apparently, R. Yisraeli feels that there is a significant gap between what international law says and the impartiality with which the international community applies it.
21. Here I take issue with R. Gutel's presentation of R. Yisraeli's views. R. Gutel gives the impression that, according to R. Yisraeli, Jews should follow what nations do in war, not what international law dictates (Gutel, “Leḥimah be-shetaḥ,” 94–95). However, as I demonstrate here, that is not what R. Yisraeli says. In making his point, Gutel does not cite R. Yisraeli, but instead refers to the interpretation of R. Dov Li’or. R. Li’or, to my mind, does not faithfully represent R. Yisraeli's views on this issue.
22. R. Yisraeli specifically cites part 2 of R. Shneur Zalman of Liadi's Tanya as a source for this idea. However, the notion that non-Jewish souls are different from Jewish souls permeates kabbalistic thought and has its roots in Judah Halevi's Kuzari.
23. R. Yisraeli cites the Minḥat ḥinukh as support for his position. The Minḥat ḥinukh rules that suicide is not a transgression for non-Jews as it is for Jews, a ruling that R. Yisraeli sees as an endorsement of his theory that non-Jews are in charge of their souls, while Jews are not. See Minḥat ḥinukh (Jerusalem: Jerusalem Institute, 1998), 187Google Scholar.
24. Yisraeli, ‘Amud ha-yemini, 195–202 (sec. 5:14–23). The implication here is that non-Jews may initiate wars against each other but not against Jews, due to the latter's special status. R. Yisraeli, however, does not explicitly draw this conclusion.
26. The text of the Fourth Geneva Convention can be found in Borch, Fred L., Geneva Conventions (New York: Kaplan Publishing, 2010), 183–258Google Scholar. In the same volume, Gary Solis provides a valuable introduction regarding the history of the Geneva conventions, pp. 1–49.
27. Yisraeli, ‘Amud ha-yemini, 202 (sec. 5:25).
29. Y. Sotah 8:10, 23a. The passage in the Jerusalem Talmud to which R. Yisraeli alludes is not unequivocal on this point. It contains a debate about the nature of the disagreement in the Mishnah between R. Judah and the majority opinion of the rabbis regarding the distinction between mandatory and discretionary war. R. Yisraeli claims that regardless of which of the two interpretations of this disagreement is correct, all would agree that both R. Judah and the rabbis regard defensive war as mandatory. Mar'eh panim, a gloss on the Jerusalem Talmud, makes the same argument in order to explain Maimonides’ position that defensive war is mandatory. As we note below, R. Yisraeli uses the passage in the Jerusalem Talmud to justify Maimonides' position on defensive war. See Yisraeli, ‘Amud ha-yemini, 189 (sec. 5:2).
30. One might ask why the problem of forcing soldiers to fight did not arise in R. Yisraeli's discussion of discretionary wars. The answer, it would seem, is implicit in R. Yisraeli's understanding of how discretionary wars are waged. As we noted above, R. Yisraeli claims that when discretionary wars were fought in ancient Israel, the Sanhedrin had to be consulted because it represented the will of the people, and it was therefore responsible for ensuring that the king did not coerce his subjects into fighting a war the public did not support. According to R. Yisraeli, this point explains why a Sanhedrin is not necessarily needed in the present day to wage discretionary war. If indeed the public is in support of waging a discretionary war, consultation of the Sanhedrin would be superfluous. In a democracy such as the modern state of Israel, the government itself represents the will of the people—at least ideally—and therefore the problem of coercing soldiers to fight does not arise.
31. Numbers 25:16–18, 31:1–18.
32. Numbers 31:2.
33. Yisraeli, ‘Amud ha-yemini, 204 (sec. 5:30–31).
34. Numbers 25:16–18.
35. Numbers Rabba 21:4; Tanḥuma, Pinḥas 3.
36. Yisraeli, ‘Amud ha-yemini, 204 (sec. 5:31).
37. Mishneh Torah, Laws of Kings 5:1.
38. Yisraeli, ‘Amud ha-yemini, 204 (sec. 5:31).
39. See above, n. 25.
40. Numbers 31:13–18.
41. Based on Deuteronomy 24:16.
42. Exodus 24:5.
43. Deuteronomy 13:13–9; Maimonides, Mishneh Torah, Laws of Idolatry 4:6.
44. Yisraeli, ‘Amud ha-yemini, 204 (sec. 5:31).
46. Roness, “Defensive War,” 192
47. Gutel, “Leḥimah be-shetaḥ,” 64–65.
48. According to the version in Numbers Rabba 21:4. A similar passage appears in Tanḥuma, Pinḥas 3.
49. B. Berakhot 58a, 62b; B. Sanhedrin 73a.
50. Beit ha-Beḥirah on B. Sanhedrin 72a. R. Ḥayim David Halevi follows Meiri's interpretation here in his article, “Ha-ba le-horgekha hashkem le-horgo” Teḥumin 1 (1980): 344–45Google Scholar.
51. E.g., Teshuvot Radbaz (New York: Otsar ha-Sefarim, 1966)Google Scholar, vol. 3, responsum 1052. However, some disagree and claim that a person is obligated to endanger himself to save the lives of others. See, e.g., Kesef mishneh on Mishneh Torah, Laws of Murderers 1:14. A discussion of this issue can be found in Shlomo, R.Goren's, R.Meshiv milḥamah (Jerusalem: Ha-Idra Rabbah, 1986), 3:268–72Google Scholar. See also Bleich, “Preemptive War,” 275, and Rakover, Naḥum, Mesirut nefesh: hakravat ha-yaḥid le-haẓalat ha-rabim (Jerusalem: Jewish Legal Heritage Society, 2000), chap. 9Google Scholar. Bleich notes (276–77) that another difficulty with waging war is that in the course of battle, innocent civilians on the enemy side are likely to be killed, and halakhah does not permit one to kill an innocent bystander to save another person's life. Bleich points out that classical halakhic sources generally do not deal with this problem. However, in recent decades, religious Zionist rabbis have discussed this issue extensively as moral questions regarding civilian casualties have proliferated on account of the ongoing Israeli-Palestinian conflict.
52. Kook, R. Abraham Isaac, Mishpat Kohen (Jerusalem: Mosad ha-Rav Kook, 1966), 308, 315.Google Scholar
53. R. Goren argues this point in several places in Meshiv milḥamah. See, e.g., 3:276–77. R. Goren entertains other arguments for justifying defensive war, and, as we shall see below, one of those arguments refers to the same midrashic source about the Midianite war cited by R. Yisraeli.
54. B. ‘Eruvin 45a; Bleich, “Preemptive War,” 274.
55. See, e.g., Roness, “Defensive War,” 191–92 and sources cited there.
56. E.g., the law of the pursuer is justified in B. Sanhedrin 73a by reference to Deuteronomy 22:25–27, which describes the case of a betrothed girl who is raped, and Leviticus 19:16, which commands that one must not “stand idly by the blood of your brother.” Neither of these cases is concerned with war.
57. The source is Exodus 22:11, a verse that allows a person to kill a thief who is attempting to invade one's home. See M. Sanhedrin 8:6. For sources on the pursuer, see n. 56 above. In some sources, the right of self-defense is also conflated with the law of the pursuer on the premise that if a pursuer may be killed by a bystander to save the life of the one being pursued, the person being pursued may kill the pursuer as well. See B. Berakhot 58a and 62b.
58. With regard to the Canaanites, see Deuteronomy 7:1–2, 20:16–17. With regard to the Amalekites, see Exodus 17:8–16; Deuteronomy 25:17–19; 1 Samuel 15.
59. Sifrei Bamidbar, 157.
60. Mishneh Torah, Laws of Kings 6:7.
61. Goren, Meshiv milḥamah, 3:283–303.
62. Exodus 22:11, and note 57 above.
63. Goren, Meshiv milḥamah, 3:289–95.
65. Another rabbinic authority we should mention here is R. Aaron Soloveichik, who takes a similar position to that of R. Goren and R. Yisraeli in identifying the midrashic source about the Midianite war as the authoritative source for wars of self-defense. See “Yishuv ha-’areẓ u-milḥemet miẓvah be-yameinu,” ’Or ha-Mizraḥ 19, no. 2 (1970): 109–10Google Scholar. However, R. Soloveichik makes no mention of R. Yisraeli's prior reflections on this issue.
66. See above n. 38–39.
67. The great twentieth-century Protestant thinker Reinhold Niebuhr is often regarded as the best representative of this approach. For a brief but informative discussion of moral realism and the ways in which it differs from just war theory, see Clough, David L. and Stiltner, Brian, Faith and Force: A Christian Debate about War (Washington, DC: Georgetown University Press, 2007), 64–66Google Scholar. For the general phenomenon of realism in all its forms, including moral realism, see Mapel, David R., “Realism and the Ethics of War and Peace,” in The Ethics of War and Peace: Religious and Secular Perspectives, ed. Nardin, Terry (Princeton, NJ: Princeton University Press, 1996), 54–77Google Scholar, and in the same volume, Jeff McMahan, “Realism, Morality, and War,” 78–94.
68. Clough and Stiltner, Faith and Force, 64–66. Clough and Stiltner do, however, note correctly that even just war theorists often take positions on noncombatant immunity that are not too distant from those of moral realists. For example, the just war theorist Michael Walzer justifies the British firebombing of German cities in World War II because the situation was a “supreme emergency” that called for waiving the principle of noncombatant immunity. Similarly, just war theorist Jean Elshtain pleads for a return to Niebuhr's realism in dealing with the contemporary jihadist threat. See Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed. (New York: Basic Books, 2000), 54Google Scholar; Elshtain, Jean Bethke, Just War against Terror (New York: Basic Books, 2003), chap. 7Google Scholar.
69. In light of these observations, one can question whether the term “revenge” is the appropriate rendering for nakam or nekamah in R. Yisraeli's vocabulary. Robert Nozick draws a distinction between “retribution” and “revenge,” and perhaps the former is more apt here. He argues that there are three differences between the two terms: (1) retribution is in response to a wrong, while revenge may be perpetrated for any injury, harm, or slight whatsoever, even if no wrong has been committed; (2) the amount of retribution is proportional to the harm done, whereas revenge can exceed that proportionality; (3) retribution need not be personal, while revenge generally is (“I am doing this because of what you did to my father”). See Nozick, Robert, Philosophical Explanations (Cambridge, MA: Harvard University Press, 1981), 366–74Google Scholar. However, one can question whether even the term “retribution” is appropriate here. When R. Yisraeli speaks of milḥemet nakam, he is speaking about defensive wars, the main purpose of which is to save lives and to deter the enemy from future attacks. If civilian lives are lost, it is not really for retribution, but because such casualties cannot be avoided in modern-day warfare. I would like to thank an anonymous reviewer for directing me to Nozick's discussion.
70. Walzer, Just and Unjust Wars, 180–82.
71. Yisraeli, ‘Amud ha-yemini, 205 (sec. 5:32); see above n. 45.
74. See especially Ahituv, Yosef, “Milḥemot yisra'el u-kedushat ha-ḥayyim,” in Kedushat ha-ḥayyim ve-ḥeruf ha-nefesh, eds. Ravitzky, Aviezer and Gafni, Isaiah (Jerusalem: Merkaz Zalman Shazar, 2003), 267–71Google Scholar; Blau, “Enemy Civilians,” 24–25.
75. One could argue, however, that R. Yisraeli's position here is still ethically problematic. When it comes to the ethics of warfare, he is willing to follow gentile practice, but when it comes to their humanity, he suddenly becomes a chauvinist! I would like to thank an anonymous reviewer of this article for this insight.
76. Blidstein's essay “The Treatment of Hostile Civilian Populations” is largely devoted to this issue.
No CrossRef data available.