The Rabbi and the Court

Some years ago I was in New York for my brother’s wedding. On Shabbat we went to a convenient synagogue (a Chabad shul), and the rabbi held a little study session before the service. The subject was parashat ki tetse, and in particular he talked about the part that explains what you should do when you take a beautiful woman captive in war.

In the context of a world where enslavement and rape of captive women was standard operating procedure, the Torah (Deut. 10.10 – 10.14) demands  a  different form of behavior. Before having relations with her, her captor is required to take her into his house for a month, and not before the end of that time, marry her. She is to cut her nails and hair (presumably to reduce her superficial attractiveness) and is given time to mourn relatives that were killed in the battle. If he later decides that he doesn’t want to marry her, he must set her free; he is not permitted to enslave or sell her.

Possibly this is not a 21st century feminist position, but it was extraordinarily progressive in biblical times. It clearly prevents the use of rape as a weapon, which is unfortunately quite common today in conflicts around the world.

I admit that I don’t remember exactly what the Chabad rabbi said that day, but I’m sure he did not say that the Torah condones rape in wartime, as Rabbi Eyal Karim, the nominee for the post of Chief Rabbi of the IDF has been accused of saying.

Rabbi Karim was asked in 2002 (Hebrew link) whether it was acceptable to rape a non-Jewish woman in wartime. The question clearly referred to “rape” and asked whether the opinion of “some sages” that one could skip the month-long procedure found in the Torah was correct.  The question was clear, but unfortunately Karim’s answer was not. He explained the reasons that war was a special situation, and gave examples of things that were permitted during war – consuming non-kosher food or wine – that were normally forbidden. He continued that relations with non-Jewish women were in this category, under the conditions that they are allowed.

The problem is, what conditions are these? Did he mean the month-long waiting period as prescribed by the Torah? Was he saying that the special situation of wartime was such that a soldier could have relations with a non-Jewish woman – normally forbidden – if he took her home and married her a month later? Or did he mean that the “some sages” who said the waiting period could be skipped were correct? He did not elucidate.

I want to note at this point, that he did not say that a woman could be raped to satisfy the soldiers’ evil inclination, as his statement was maliciously mistranslated by Ynet.

After reading and rereading the question and his answer numerous times, I concluded that his answer was either a boilerplate response that did not speak to the actual question, or a deliberately vague answer to evade a question whose direct answer he knew would be politically unpalatable.

Ten years later (2012), after his remarks were noted and created a furor, he issued a clarification (Hebrew link), in which he at last said unequivocally that rape in battle was forbidden, and referred to the month-long procedure described in the Torah.

Although in the context of the original question, I would have to interpret his initial answer as suggesting that rape in war is in fact permissible, the clarification establishes that either he did not intend this at first, or that does not believe it now.

I must also note that even if he had not issued the clarification, there are other mitigating arguments in his favor. For one, many of the harsh pronouncements in the Torah have been canceled by the rabbis throughout the years; who stones a disobedient son or tortures a woman suspected of adultery today? And there is a difference between biblical exegesis and practical advice: soldiers do not take prisoners of war home and marry them.

Fast forward to July 2016, when Rabbi Karim was selected to become the new Chief Rabbi of the IDF. Objections were raised to his appointment on the basis of this and other statements he made that were deemed misogynistic or biased against sexual-preference or gender minorities. But Karim satisfied (the secular) Chief of Staff Gadi Eisenkot that his opinions on these subjects were acceptable for an IDF rabbi, and the Defense Minister agreed. After all, we are talking about an Orthodox rabbi, not a social activist.

But that wasn’t enough for the anti-religious Left, as personified by the Meretz party. They petitioned Israel’s Supreme Court to stop Karim from being sworn in on Wednesday, and the court agreed and issued an unprecedented injunction delaying his appointment “pending an affidavit from Karim on his past and current views on wartime rape and the role of women in the military.” The Court actually believes it has the right to define and enforce correct thought – in a rabbi no less!

The army acquiesced and canceled the swearing-in ceremony.

The Court, which in essence appoints its own justices and is not accountable to any other body, accepts no limits on what it can adjudicate. It does not require a petitioner to have standing (that is, he or she doesn’t have to be directly affected by the case). In short, anyone, any time, can ask the Court to take action about almost anything. And the Court isn’t shy about taking action.

The Left, having been emasculated at the ballot box, now uses the Court to achieve its aims. Recently it controversially stuck its nose into diverse issues like the proposal to develop offshore natural gas resources, a law to regulate foreign-funded NGOs, and a proposed law to compensate Arabs with claims to land on which parts of Jewish settlements stand. In every case it leaned leftward.

But interfering with the appointment of an IDF rabbi on the basis of his opinions is something new entirely.

Nobody wants to directly challenge the Supreme Court and appear to be opposed to the rule of law and the independent  judiciary, two pillars of democracy. But the Left and their legal allies may have gone too far this time. If the court can interfere in the appointment of a rabbi by the Chief of Staff, what else can it interfere in? Should it have a veto over other military appointments? Next it will decide to replace the Prime Minister!

The State Attorney’s Office said on Tuesday that the Court has no ground on which to intervene in this appointment. But there are no rules except the ones the Court makes for itself.

What is needed is a Basic Law that defines the functions and powers of the Court. Such a law should specify a way of selecting the justices so that they will represent more than one narrow ideological segment of Israeli society. It must include appropriate checks and balances so that the Court can’t become a dictator in the name of democracy.

This should happen soon, because our system is already suffering from Court-induced paralysis.

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