War is no excuse.

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Israel's Army Doesn't Need a Rabbi to Settle 'Debate' on Wartime Rape

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When religious conservatives try to rationalize ancient texts that express outdated morals, things can go bad quickly. The latest controversy involves the newly appointed chief rabbi of the Israel Defense Forces, who got himself in trouble with comments that seemed to condone raping non-Jewish women in wartime.

A close analysis of his comments and their background in classical Jewish law suggests the critics may be right, notwithstanding the rabbi’s later efforts to offer more context.

The deeper lesson is that today’s religious authorities need to apply current standards of morality if they want to make traditional religious sources relevant. Indeed, having a chief rabbi of the IDF may itself be a mistake for a state of Israel that wants to be both democratic and Jewish.

The rabbi, Eyal Karim, was trying to explain the logic behind the rabbinic interpretation of a biblical passage which allows Israelite fighters to marry captured war widows. But the situation he described sounded to critics very much like the rapes perpetrated by Islamic State -- a good reason to think he didn’t belong in the job.

To understand the brouhaha, take a breath for a deep dive into the Bible and its subsequent interpretation.

Deuteronomy 21:10-14 tells the Israelite warrior that if he sees a “woman of beauty” among war captives, he may take her as a wife after a 30-day waiting period in which she must shave her head, allow her nails to grow ungroomed, and mourn the loss of her family.

In its original historical context, this law was probably understood as an improvement over widespread practices of battlefield rape and the sexual enslavement of female captives. This was progressive nearly 3,000 years ago.

Today, forced marriage is legally a form of rape. Wartime rape, kidnapping and forced marriage are crimes against humanity.  

Yet the Bible did require full marital status for the captive woman, and explicitly outlaws selling her as a slave once she has been married. On its face, the biblical text would also seem to prohibit battlefield rape by requiring the waiting period and marriage process.

But some ancient rabbis noticed that the biblical text never expressly prohibits rape. Rather, it prescribes a process for marrying a captive woman.

That led to a difference of opinion among the rabbis of the Talmud, who lived nearly 2,000 years ago. Some are reported to have said that the Bible meant to prohibit battlefield rape absolutely. Others reportedly took the view that the biblical text allowed a single rape at the moment the captive woman was chosen -- after which the rest of the biblical commandment applied, and the man could not have sex with the woman unless he married her.

The medieval Jewish authority Moses Maimonides (born in 1135), ruled in his legal compendium that an initial sexual encounter was permitted, specifying that the fighter was not permitted to leave her after the sex but must bring her into his household and marry her after the waiting period.

In a nutshell, things went awry when the current rabbi, Karim, was asked about this medieval ruling allowing an initial rape in an anonymous question on an Israeli religious nationalist website in 2003.

Karim didn’t criticize Maimonides’s ruling, or even explain that there was an ancient debate about whether the Bible permitted the initial rape. Instead, he bafflingly told the questioner that in wartime, the interests of the collective overruled those of the individual. He added that “in wartime, the boundaries of sexual morality and the Kosher laws are sometimes ‘breached.’” Finally, Karim theorized that sexual congress with a non-Jewish woman (he didn’t call it rape) was permitted “under the circumstances” in wartime “out of thoughtfulness for the difficulties of the combatants.”

Nine years later, in 2012, after controversy about the comments first arose, Karim added a clarification to the website. He said that it’s “clear that the world has now reached a moral level where we no longer take female captives in wartime.” He said it was “certain that we do not follow this law in practice, which is absolutely against the principles and orders of the military.”

Even so, Karim’s initial comments are still deeply troubling for someone who is now supposed to become the chief rabbi of a modern military force. Karim should have at a minimum told the questioner that there were multiple possible interpretations of the biblical law – some of which outlaw battlefield rape. He should also have made it clear that modern morality and international law and Israeli law clearly criminalize battlefield rape.

What’s worse is Karim’s theoretical justification of the medieval ruling. Nothing in any of the traditional rabbinic sources says anything about wartime rape being justified to compensate for the difficulties faced by warfighters. Even Maimonides, who allowed the initial encounter, described the law as a concession to the “evil inclination,” not an affirmative gift.

Karim isn’t the right rabbi for the job as spiritual guide to a professional army that includes men and women, and that aims to follow modern law and morals. Indeed, the IDF said today it’s reconsidering the appointment. But perhaps the real message is that the job of chief rabbi of the IDF shouldn’t exist at all. The army of a democratic state doesn’t need a leader who will apply ancient texts to contemporary wartime issues. That’s one thing for private individuals whose religious beliefs require it. But in the case of an army, it’s an invitation to ignore or subvert current morals -- and the international laws of war, which rightly outlaw rape as a crime against humanity.

  1. The debate may have been between Rav and Shmuel, or between Rav and Rabbi Yohanan, depending on which text in the Palestinian Talmud is relied upon. For a brilliant overview see Rabbi Joseph Caro’s Kesef Mishneh on Maimonides, Laws of Kings and Their Wars, 8:2, citing inter alia Babylonian Talmud, Sanhedrin 21a, Tosafot ad loc. (If this footnote seems technical, well, that’s what footnotes are for.)

  2. Maimonides also ruled that she should be encouraged to convert to Judaism.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net