[Avodah] International Humanitarian Law in Halachah

Micha Berger micha at aishdas.org
Thu May 23 08:28:11 PDT 2019

>From https://www.jpost.com//Israel-News/International-humanitarian-law-in-Halacha-590408

Anyone know an argument why international law that is imposed on a
country might be halachically binding?

If the country voluntarily signed on, then it became dina demalkhusa,
and DDD. But I don't see RSYisraeli's argument (see below) WRT the
case where the UN votes in a law that one's home country not only voted
against, but chooses not to recognize.

And while I see R Aviner's point, that we want reciprocity, and I see how
it can have enough weight to justify bending din in the ways mishum eivah
can. But that's for the country to decide. I don't see it as grounds for
saying -- nor does RDA say -- that it could make the law halachically
binding on me even if my host country rejected that law.

Tir'u baTov!

Micha Berger                 Today is the 33rd day, which is
http://www.aishdas.org/asp   4 weeks and 5 days in/toward the omer.
Author: Widen Your Tent      Hod sheb'Hod: LAG B'OMER - What is total
- https://amzn.to/2JRxnDF             submission to truth, and what results?

The Jerusalem Post - Israel News
May 23 2019 | Iyar, 18, 5779

International humanitarian law in Halacha
By Shlomo Brody
May 23, 2019 08:29

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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