Shoftim, Deuteronomy 16:18-21:9
Shoftim v’shotrim – judges and cops – are foundations of civil society. The Torah acknowledges the ongoing need for a legal system supported by enforcement mechanisms. This is not a messianic vision of a world at peace, a world in which individuals choose the good always. It is a realistic vision of violence and punishment and an expression of the fundamental Jewish value of “Justice, justice, shall you pursue!” (Deuteronomy 16:20).
The text continues with rules of land warfare in Chapter 20. Again, war is to be assumed and expected. The Torah does not say “if” you go to war, but rather, “when.” The patriarch Abraham does battle with the four kings, and war has been a feature of human culture ever since. The question is how can we reconcile the essential holiness of each life with the need to conduct defensive and, sometimes, offensive military operations? The theory of “just war” is predicated on eight criteria derived from St. Augustine: just cause, legitimate authority, public declaration, just intent, proportionality, reasonable hope of success and an end of peace. Imperfect diplomatic solutions are always preferable to military options. Yet, an attack on territorial integrity and unarmed civilians requires a willingness to use force in response.
The Torah requires that an offer of peace be proffered before engaging in battle (Deuteronomy 20:10). The text distinguishes combatants from noncombatants, and excuses from battle those who are engaged to be married, who have not dedicated their home, who have planted a vineyard and not yet enjoyed the fruit, as well as any who are simply afraid and whose poor morale may infect the remaining troops.
The inability to distinguish combatants from noncombatants in contemporary military engagements profoundly complicates the conduct of war. The Geneva Convention requires that combatants self-identify by, for example, wearing uniforms, yet many enemies of democratic regimes defy these conventional constraints. Just war theory mandates due diligence in minimizing the threat to life and property. While the Israel Defense Forces work to do so, the practice of using civilians and human shields and civilian locations to store and launch munitions makes it infinitely more challenging to abide by this principle.
Writing on just war theory, Martin Cook notes that the standard is not “what did they know, but what ought they to have known?” When combatants take refuge among civilian populations, civilians become unwittingly culpable for actively or passively supporting the preparation and execution of attacks. The Torah’s prescription to kill every man, woman and child (Deuteronomy 20:16) in towns close by clearly makes us uncomfortable. The death of even one innocent is a profound tragedy, and our tradition mandates that we never become inured to the suffering of our enemies. We continue to spill a drop of wine from our cups at the Passover seder as we reflect on the plagues in Egypt. We cling to our humanity by clinging to our highest moral principles in the conduct of warfare. And yet, Cook writes, those who assisted or harbored attackers are “from a moral perspective (within) the circle of legitimate targets.” When “militarily necessary,” he calls the tactic of proceeding with attacks on civilians “the moral principle (of) … ‘double effect’ … the destruction of the innocents was no part of the plan or intention, but merely an unavoidable byproduct of legitimate military action,” predicated on defeating adversaries who “co-locate themselves and their military resources with civilians and civilian structures in order to gain some sense of protection from such human shields.” Reasonable hope of success and an end-state of peace are problematic just-war criteria in the contemporary conflict. However, the first obligation of any government is the physical safety of its citizens. Thus in Parshat Shoftim, Israelite warriors must be prepared to fearlessly assert themselves when needed, and the Israel Defense Forces continue this brave tradition.