B’shalach: At War with Law

"Then came Amalek, and waged war with Israel in Rephidim… Then God said to Moses, 'I will utterly blot out the memory of Amalek from under heaven!'" (Ex. 17:8,14)

This week's portion introduces Israel's first encounter with its arch-enemy: Amalek. As Israel flees Egypt into the desert, they are ambushed by a people who appear out of nowhere to prey upon them. God orders the enemy's total destruction in a divine "war with Amalek for all generations." Against such absolute evil, the text suggests that law is powerless. All violence becomes justified. It is a seductive logic-and a dangerous one.

The Amalek trope has long haunted Jewish history as a symbol of ultimate evil. Since shortly after October 7th, when Prime Minister Benjamin Netanyahu invoked Amalek to describe the Israeli military campaign against Hamas in Gaza, it has taken on a new, disturbing relevance. The incendiary rhetoric, coupled with the staggering scale of Palestinian deaths, the destruction of hospitals, and the withholding of food to civilians, have formed the basis for charges that Israel has violated international laws prohibiting genocide and crimes against humanity.

These allegations must be taken seriously, both as legal matters and as moral ones. Inside the Jewish community, however, we hear two common forms of evasion. The first insists that Israel perfectly upholds its legal obligations, but that international law is inadequate to meet the kind of warfare in which the enemy adopts a deliberate strategy of embedding among civilians and using hospitals and humanitarian zones for military purposes. The second questions whether international law is even worth upholding, given Hamas's extreme cruelty and unremitting threat-the very logic of Amalek.

Both positions dodge a central question: Why should we, as Jews, be committed to international law in the first place? 

Of all the rabbis to tackle this question, perhaps the most fascinating answer comes from Rabbi Hayim Hirschensohn (1857-1935). Born in Safed, in Ottoman Palestine, he received a traditional Orthodox education in Jerusalem. Though he remained an Orthodox rabbi throughout his life, Hirschensohn embraced the new cause of Jewish national revival. He co-founded a Hebrew journal that advocated modern approaches to Torah scholarship and promoted Zionism, which brought him into fierce conflict with Jerusalem's ultra-Orthodox rabbinical establishment. He eventually relocated, first to Istanbul and then to Hoboken, New Jersey, where he produced a stream of major rabbinic writings after World War I. Committed to reconciling halachah and democracy, he produced some of the most significant commentaries of his era on how international law related to Jewish law-a body of work largely forgotten today.

Living through World War I, Hirschensohn was shocked when, in 1914, German Chancellor Theobald von Bethmann dismissed international law as a mere "scrap of paper." He was equally dismayed by the way the League of Nations served power rather than humanity. Yet, he remained optimistic that international law could render justice, convinced it was consonant with Jewish tradition. Writing as the Zionist project was taking shape, Hirschensohn understood that the fate of a future Jewish state depended on a just world.

Those concerns informed his approach to Amalek. Whereas Maimonides and other premodern rabbis argued that the commandment to destroy Amalek remained permanently in effect, Hirschensohn differed. In his view, the commandment had lapsed with the creation of the Kingdom of David and Solomon. In his 1926 book, "Eleh Divrei Ha-Brit," he wrote, "there is no longer an obligation to kill souls for no reason, and it is also forbidden to shed innocent blood."

Behind Hirschensohn's ruling was a new theory of how Jewish law and international law interacted in the modern age. As the Jewish people were poised to rebuild their national life in an ancient homeland, they faced immediate questions about violence, conquest, and self-defense.

Three reasons bound Jews to affirmatively uphold the laws of war. First, violating them would desecrate God's name, which he discussed in "Eleh Divrei Ha-Brit:" 

God forbid that Israel should be considered in the eyes of the nations as savages and murderers of souls against international laws... there is no greater desecration of God's name than acting against international law.

Second, as a modern nation, Israel bore obligations under treaties governing war. The quest for sovereignty demanded uniform commitment to the rule of law. Third, Jews must respect what he called "the laws of civilization," elemental principles of morality shared by all humanity.

Hirschensohn had harsh words for those who tried to use religious technicalities to evade responsibility:

It is international law to abide by a treaty or an oath, and with such a law we do not scrutinize with the precise analysis of scribes whether the oath is valid according to Jewish law or not… We are obligated to keep every oath that we swear to gentiles, even if it was not done according to the custom and procedure of a Jewish oath.

An oath was an oath. Legalistic maneuvers to deflect responsibility for violating treaties were untenable. Nor did the fact that other nations might violate these laws relieve Israel of its obligation to abide by them. The moral standing of Judaism itself was at stake.

Today, despair and cynicism around international law run deep in the Jewish world. October 7th was an atrocity-a massacre of civilians that violated every norm of war. But that atrocity does not release Israel from its own obligations to prevent its army from perpetrating atrocities or enforce the law on its soldiers when they violate it. The politicization of international law is no excuse to discard legal obligations or resort to technicalities that allow wanton use of disproportionate force. Nor does the fact that Hamas perpetrated its own atrocities or manipulated the laws of war release Israel from its responsibilities.

The figure of Amalek tempts us toward a vision of enemies so evil that no law constrains our response. Hirschensohn calls us toward a vision of global justice that encompasses Israel and all nations, even in moments of existential danger. Fidelity to international law, even with its flaws, is not weakness; it is the kiddush hashem-the sanctification of God's name before the world. The path forward is neither denial nor dismissal, but renewed commitment to justice-not despite our tradition, but because of it.