January 8, 2010


Published December 30, 2009, issue of January 08, 2010.
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Laws of War Apply, Irrespective of an Occupation’s Legality

In an otherwise insightful article, J.J. Goldberg makes a seriously erroneous assertion about international law as it relates to the Israeli-occupied territories (“Four Myths About the Mideast and Real Estate,” December 25).

Goldberg claims that the broad consensus about the applicability of the Geneva Conventions to the Israeli occupation implies that the occupation itself is legal. This claim misstates the basic structure of the international law of war.

This body of law is actually divided into two areas: rules concerning the initiation of armed force, known to lawyers as jus ad bellum, and rules concerning the conduct of armed conflict, known to lawyers either as jus in bello or as international humanitarian law. These two bodies of law are intended to apply independently of each other. In other words, even an aggressor in a war (i.e., a state that has initiated armed conflict in violation of jus ad bellum) is required to observe the rules about the conduct of armed conflict (jus in bello). Or, to give a concrete illustration: Both the aggressor and the defender are required, for example, not to shoot prisoners that they capture.

The rules about the conduct of occupation (rather than the fact of occupation) fall into the category of jus in bello, or international humanitarian law. The question about whether an occupation itself is legal (a question for jus ad bellum) is simply irrelevant when it comes to the applicability of the rules governing the conduct of the occupation. For example, the Iraqi occupation of Kuwait (a clear violation of jus ad bellum) was governed by the Geneva Conventions, and Iraqis could have been prosecuted for war crimes for violating those conventions. Similarly, the Israelis are required to observe the Geneva Conventions regardless of whether the occupation is legal or illegal.

In short, the applicability to the Israeli occupation of the Geneva Conventions and other treaties and customary rules governing its conduct commands a near-universal consensus among international lawyers. At the same time, the legality of the continued occupation of territories captured in 1967 is highly contested.

Nathaniel Berman
Rahel Varnhagen Professor of International Affairs, Law, and Modern Culture
Watson Institute for International Studies
Brown University
Providence, R.I.

Beyond Messianism And Charisma, an Objectionable Ideology

I was grateful for the honesty in Rabbi Shmuley Boteach’s tribute to Chabad (“The Great (and Imperfect) Hope That Is Chabad,” December 18).

Yes, there is a love-hate relationship with Chabad by the rest of Judaism, which boils down to “We admire their success, but suspect their motivations.” If Rabbi Boteach is correct in his analysis, the suspicion is justified.

His description of Chabad’s success: “what the Rebbe understood more than anyone else is that ideologies are perpetuated through charismatic leadership.”

That observation is superficially correct. Charismatic leaders, especially teachers, can inspire the ones and the millions. It is a lesson that kings and knaves, elected leaders and dictators, quarterbacks and ringleaders illustrate in a value-neutral world.

I don’t oppose charisma. I shamelessly exploit the small measure I have. But charisma is a minority stakeholder in the endeavor of Torah. It is a tool, not a value. Charisma as a value turns good ideas into cults of personality — the ideology of celebrity.

Charisma has worth only when promoting worthwhile ideas. And while I applaud the devotion of Chabad to ritual performance and care for individual Jews, I won’t surrender other values to the cult of personality. Women, converts, gays and lesbians are marginalized. Non-Chabad rabbis, respectfully treated in social situations, are ignored in matters of Jewish thought and law. (Imagine: Heschel is a stranger to Chabad.) Non-Jews, says the Tanya, the original Chabad rebbe’s magnum opus, have souls more akin to animals than to Jews. And as for the State of Israel, under the Chabad model there would be no soldiers and no one to sing “Hatikvah.” Messianic fervor about the Rebbe may be incidental, but these other matters are not.

My own Conservative ideology might be similarly objectionable to some Jews. The difference: We do not claim to be the only legitimate approach to Jewish piety.

Charisma can obscure ideology, not just promote it. If the lack of charisma leads to more transparency about beliefs and values, then my hope is that people see clear through their leaders to the Torah they claim to represent. If they then embrace Chabad, they will share Boteach’s fine and devoted community. If not, a host of Conservative, Reform, Orthodox, Reconstructionist and other rabbis and leaders await with a path of Torah that leads to love of God, Israel and the human family.

Rabbi Jack Moline
Alexandria, Va.

A Shande at the Wall

Your January 1st edition notes that worldwide, pan-denominational prayer rallies are being organized in support of Women of the Wall (“Oren Asks for Inquiry on Wall Arrest”).

Thank you for helping to get the word out!

When I wore my tallit and tefillin at the Kotel in 1972, the only thing that happened then is that a pious woman asked me to give charity, as is fitting. It wouldn’t even have occurred to me to be afraid of my people at the Kotel!

By 1986 men threw chairs into the women’s section during a Torah service I attended, hitting many including a pregnant woman, no less the babies some held. Some women in traditional head coverings hissed at us.

Women wearing tzitzit is a revival of the Torah’s guidance for “all” to put fringes on their garments as a daily reminder to live a mitzvah-centered life. This practice had lapsed by the time of the Maimonides’s 12th-century Mishneh Torah. The Talmud (fourth century) in Tractate Menahot 43a, records only one sage, Reb Simeon, as declaring women not to be obligated to wear tzitzit. (Note: “not obligated,” not “prohibited.”) The key element to note in that section is: “Reb Yehudah attached fringes to the aprons of women in his household, declaring: All must observe the law of tzitzit: Kohanim, Levites and Israelites, converts, women and slaves.”

What if God is in this place, in the act of Jews of all genders taking on the mitzvah of tzitzit and coming together at the Kotel as shared holy space, and the Jewish people, we, we do not realize this? A messianic act takes place right in front of our people’s eyes, and instead of embracing a miracle in our midst, a womanly spark of messiah-time gets booked as a criminal for disturbing a Jewish worship site. Such a shande!

Rabbi Goldie Milgram
Philadelphia, Pa.

George Cohan’s Tribe

The illustration accompanying the December 25 essay “Credit Where Credit is Jew” points to a number of illustrious Jewish stars, but, alas, George M. Cohan should not have been counted among them. Although an associate of many Jewish songwriters of his day, Cohan hailed from a different tribe, Irish Catholics.

Ann K. Brodsky
Fair Lawn, N.J.

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