Spotlight Interview 2021: Gilad Ben-Nun, How Jewish Is International Law? (JHIL 2/2021)

In: Journal of the History of International Law / Revue d'histoire du droit international
Raphael Schäfer Max Planck Institute for Comparative Public Law and International Law Heidelberg Germany

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Maren Körsmeier Editorial Assistent, Student of Law, Ruprecht Karls University Heidelberg Heidelberg Germany

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JHIL’s editorial board chose as its 2021 Spotlight, the article ‘How Jewish is International Law?’ by Gilad Ben-Nun (Journal of the History of International Law 23(2) (2021), 249–281). In the following interview, we take a closer look at the article ‘under the spotlight’, the motivations of its author and the research carried out. The interview was conducted by the managing editor of the JHIL, Raphael Schäfer, and JHIL’s student assistant, Maren Körsmeier.

JHIL: Gilad, your article ‘How Jewish is International Law?’ was selected by the editorial board as JHIL’s spotlight article of the 2021 volume, congratulations! How did you come to compare international law with Talmudic law?

GBN: Thank you. It is so nice to have my work acknowledged alongside such scholars as Mark and Maria Adele. It is a wonderful privilege.

In essence, my journey towards comparing international law with Jewish Talmudic law began some ten years ago when I first uncovered the drafting materials of the 1951 Refugee Convention, the 1954 Convention of Statelessness, and the creation of UNHCR in Israeli, Belgian, and UK state archives, in addition to several private ones. It struck me that so many of these international legal refugee protection instruments were drafted by holocaust-surviving Jews. Yet, back then, I still thought of this as a “one-off case”. Then Philip Sands published his great book on Lauterpacht and Lemkin, which already pointed towards something broader, in terms of Jews’ disproportionate influence over the making of modern international law after 1945, and especially the law of International Organizations (UN, IMT in Nuremberg and so forth).

As I began my study of the drafting history of the 4th Geneva Convention for Civilians, I never imagined that the Jews would play any meaningful role here, seeing as this was an ICRC-driven treaty. I then uncovered the fact that even this treaty was ‘Jewish’, in the sense that many of its major drafters were also holocaust-surviving Jews (Convention President Georges Cahen Salvador, Soviet Vice president Nissim Mevorah, and Rabbi Dr. Georg Cohn from Denmark who drafted many articles almost singlehandedly). By the time that manuscript was finished in 2018 and I shipped it off to Bloomsbury, it was already very clear to me that this Jewish issue could not simply have been a haphazard chain of events, where people from the same persecuted minority become so instrumental in forging modern international legal treaties again and again. I thought to myself: why was this role not disproportionately played, for example, by Armenians? What was the ‘red thread’ connecting these East-European Jewish jurists?

As I dived deeper into their biographies, and into their respective correspondences, it dawned on me that I needed to “get into their heads”, in order to understand their drive to contribute to the making of these treaties. Their mindsets, which stemmed from their dual education of Talmudic law and public international law, enabled them to swim with equal ease in both international law and Talmudic law’s metaphorical ‘legal waters’. This meant that there must have been some mutuality between these two worlds. From there on, the way was rather straight forward, in terms of comparing these two legal systems.

JHIL: Might this comparison, offer some deeper insights into comparisons with other religious laws, and don’t you think the ‘specific parallels between Jewish-Talmudic law and international law’ you draw on p. 252 could also be identified vis-à-vis other monotheistic religions?

GBN: I certainly do think that other such comparisons are important, especially when we consider the ‘meta-logical’ assumptions upon which international law rests. Take for instance the fundamental legal principle of pacta sunt servanda. We all agree that in its absence, international law cannot really exist in any meaningful sense. Yet where did we draw it from? I remind you that under Christian dogma, whether or not treaties were to be kept only with other Christians , or with all mankind (and notably with polytheists) was subject to debate under canon law. To many Christian thinkers, polytheists (e.g. the natives of the Latin American ‘New World’) were formally beyond the pale, at least until the Las Casas / Sepúlveda Valladolid dispute of 1551–2, which still did not settle the matter entirely. In contrast, in the Holy Quran, the Prophet Muhamad clearly stated that as for: ‘the idolaters with whom you have a treaty … fulfil the treaty to them’ precisely because: “Allah loveth those who keep their duty” (Holy Quran Surat Tawbah- Repentance 9:4). It is from here that international law draws its unequivocal duty to uphold pacta sunt servanda. For classical Islam, it was precisely with people who are not ‘like us’, that we should uphold treaties, because, at the end of the day, these people we think are really not like us, might just be, very much – like us.

To many, the heritage of treaty-keeping invokes popular images of the Harun al Rashid and Charlemagne, or Salah-A-Din and Richard the Lion Heart. These are Muslim-Christian treaties which would have been theologically ‘easier’ for both parties, since both were monotheists. I always propose to my students to think of the countless treaties that the Muslim Moghul rules of the Indian sub-continent struck with so many of their polytheist neighbours, which from a Muslim theological point of view, would have been far more challenging. That Moghul past, or Ottoman tolerance vis-à-vis the vast human mosaic which comprised the Ottoman empire’s populace was not accidental. Rather, these were manifestations of a legal system, which drew its legal order from a specific Quranic ‘Nass’ (نَصّ – clear legal injunction) of Sharia law namely: the obligation to fulfil signed treaties.

That is just one example. We could hold an entire interview on the search for further parallels of other international legal principles, and see how these were ‘borrowed’ into international law from older ancient legal systems. The notion of Jus Cogens, as stemming from the Greek Neo-Platonic idea of the Seven Noahide laws, developed during late antiquity in poli-confessional Alexandria, saw a mixture of Greek philosophy and religion, which meshed with Jewish influences and an emergent Christian sense of universalism to give rise to the term ‘civilized peoples’. This term, which appears clearly in the Martens clause, and in GC-IV’s Common Article 3, and in the ICJ Statue’s Art. 38, is yet another example worth pointing to. I’ve recently devoted some attention to the parallels between ancient Roman law and Jewish Talmudic law, so as to learn something about how best one might help so-called ‘climate-change refugees’, who are currently beyond the protective purviews of the 1951 Refugee Convention. Yet there is still a huge workload out there which awaits exploration when one follows this approach.

JHIL: In broad terms, one could argue that the history of international law can be told as a history of secularization. Is this too simplistic? How would you position your article within this narrative?

GBN: Not only is this view too simplistic – to my mind it is both historically wrong, and ontologically highly counter-productive. Within Vattel’s 800 pages, there are over 100 references to ‘god’ (trust me – I did the count). Grotius was a religious man, just as much as Samuel von Pufendorf (and John Locke for that matter). We continue telling tell ourselves the story that the history of international law is the history of secularization, because secularization is itself our own ‘western’ notion. And since we as ‘westerners’ still want to hang on to our alleged copyright of ‘inventing’ international law, we endeavour to draw its historical trajectory along a pattern which we can associate with ourselves – the secularization of ‘the west’. We then overlook thousands of years of treaties between China and India, or between the Sunni Ottoman empire and Iran’s Shiaʾ Safavid rulers, or between Omani-Ibadi Muslim seafaring merchants and East-African polytheists in Zanzibar. We then tell ourselves that international law is ‘western’ and hence secular, even though none of these people I have just mentioned ever thought of their treaties in secular terms. We finalize all of this by devoting too much of our research attention towards studying ‘western’ traditions of international law, as we overlook so many other world regions.

Another reason why we tell ourselves this story of international law as being ‘secularized’ stems from our meta-logical postulated equation of secularism with tolerance, and religion with violence. We tend to forget the simple historical fact that one of the most lethal centuries in human history was the 20th century, in terms of its loss of human life. That loss was largely driven by ideologies which were secular par excellence: Hitler, Mussolini and Franco’s fascism, or Stalin, Mao and Pol Pot’s Marxism. Indeed, if international law were really so ‘secular’, then how come that one of its most successful projects ever namely: the European Union, drew its origins overtly and unapologetically from deeply religious Christian Catholicism, as clearly stated by its founding fathers: Robert Schuman, Adenauer, de Gaulle, and De Gasperi.

I’m not saying that there is not a whole lot of truth in viewing the history of international law as the history of secularization. We have all read Emmanuelle Jouannet’s majestic Liberal-Welfarist Law of Nations, which for me remains one of the most eloquent portrayals of this secular school of thought. Yet that is just one school. There are others. There is nothing which should prevent us, alongside Jouannet’s reading, from demanding that our students equally read Khadduri’s wonderful English translation of Shaybani’s 9th century Siyar (The Islamic law of Nations). When today, Israel and Hamas agree to a cease fire in Gaza, do you think Hamas refers only to the 4th Geneva Convention? They read Shaybani – before they read the ICRC. In our planet of eight billion people, of which at least 5.5 billion think in ancient religious terms, be it in China (with its heavy influences of Confucianism), India (under Hindi Sanskrit), and almost 2 billion Muslims who clearly draw their inspirations from Quranic and Hadith sources, we need far more thought and research into international law’s religious roots.

So in short, international law’s history is certainly that of European secularism, all the while and alongside influences of other deeply religious legal systems which fundamentally struck their imprint into it. I just think we have delved a lot into the former, and not enough into the latter. I would say that in most of my work, I try to plug that very gap from my humble perspective.

JHIL: One of the similarities you see between Talmudic law and international law is a ‘limitation in their ability to apply coercion to enforce their decisions and rulings’ (p. 253). In your opinion, how and why did both legal systems historically succeed and prevail without major collapses when they were lacking one of the fundaments of almost every domestic legal system, the executive? Was this lack maybe even an advantage?

GBN: Here again, I’m afraid, we are far to influenced by western culture, and specifically by Thomas Hobbes. In his Leviathan, Hobbes exalted the coercive measures associated with the law – which make it law, stressing that absent the measures of coercion there is no law but ‘custom’ at best. This way of thinking about law is too reductionist, and evades the possibility inherent to many legal systems, whereby people largely abide by the rules of the system not because of fear from its sanctions (or at least not primarily), but rather because they fundamentally believe that system’s deep ontological merits.

The fundament of Talmudic law, international law, and I would say many Sharia law based systems is that they can intellectually and emotionally sufficiently bind their constituents through their belief in that legal system’s ultimate goals and inherent merits. And once that happens, when a legal system’s members are sufficiently convinced of its ontological validity, there is far less need for coercion. I believe we all underestimate just how much validity the most fundamental tenets of international law actually do hold over most humans on the planet. I think the international reactions to what the Russian army has recently done in Bucha Ukraine, with its rape of women and children, its wholesale targeting of civilians, and its ‘scorched earth’ policies has triggered universalist sentiments in peoples hearts the world over, precisely because of such widely shared notions. That is also because the laws of war are so ancient, and are mutual to many of the world’s cultures. There is something in the longue durée of Talmudic law, and of international law’s predecessor jus gentium (the old law of nations), which binds people to their authoritativeness, above and beyond coercion. We despise Russia’s scorched-earth policies in Bucha, because we remember WWII Warsaw, and Louis XIV’s burning of Heidelberg, and ultimately, we recall Scipio Aemilianus’ pouring of ‘salt over Carthage’ so that nothing shall ever grow there.

In legal systems that have long and deep pasts such as Talmudic law and Jus Gentium, we carry our customs and traditions (and even our memories), from our past, into our present. In that sense, I really do feel that international law (as stemming from jus gentium) is actually a very ancient legal system whose constituents tend to behave in that same way as orthodox Jews would, in their reverence for their old legal codes. That would be yet another parallel between international law and Jewish-Talmudic law.

JHIL: On p. 268 you state that many Talmudic passages construed cardinal debates concerning a fundamental issue ‘around an entirely mundane and seemingly dull question’. Why is this so and what does this mean for (legal) interpretation?

GBN: The point here by the Talmud concerns its absolute engagement with human life. Real life. Real people and their real, practical, and day-to-day problems. Judaism and Islam are faiths where the religious cycle revolves around doing. Christianity primarily revolves around believing. This was, of course, the great departure which St. Paul undertook upon nascent Christianity’s behalf, to drive a wedge between it as a new religion and its Jewish ‘old testament’ predecessor. It is interesting that you raise this question, specifically concerning Achnai’s oven (p. 268) namely, concerning a question regarding Kashrut (Jewish dietary laws). If you observe carefully, you see that orthodox Judaism is almost obsessed with what can one eat, wghen, in which cutlery and crockery and so forth. So in many passages of the Talmud, serious religious debate comes forth as the result of a real-life question or problem that either one of the rabbis, or one of their folk were confronted with.

The demand here, posed before the Talmudic legal system, is that it stands and provides solutions for life’s real problems, irrespective of the fact that the Talmud itself is 2,000 years old, and that it interprets a text (the Torah) which is another 1300 years older than that (dating back to approximately 1300 BC). These demands are relevant to orthodox and ultra orthodox Jewish communities to this day. Indeed, recent questions before major rabbinical institutions have revolved around, for example, questions of parenthood and surrogation when using in-vitro fertilization (IVF). There has recently been a commission of ultra-orthodox rabbis debating the question of responsibilities under the Jewish laws of torts when self-driving vehicles shall be used, and with accidents bound to occur. Who is liable for the damages, these rabbis ask, according to Jewish Talmudic tort principles (Talmud’s Tractate Bava Mezia).

In a follow-up article to the one published here in JHIL, the late beloved Michael Stolleis, along with Till Van Rahden asked me to further elaborate on this point. In the conclusion of that article, I quoted the reply which Israeli Prime Minister Menachem Begin received from the foremost of all rabbinical authorities at the time Rav Eliezer Schach, concerning the dilemma as to whether or not remove Israeli-built settlements in the Sinai Peninsula, so as to secure the 1978 Egypt-Israel peace accords. The rabbi urged the prime minister to pursue the treaty, and if need be, to give up: ‘any part of the holy land of Israel for the sole purpose of securing peace’. The rabbi based his decree upon the old Talmudic passage of the three oaths of Tractate Ktubot (111), and readers who are interested in this can read the full article. The point is that these three major oaths, which have bound the Jewish people ever since the Talmudic sages extolled them some 2000 years ago, were given in reply to another seemingly mundane question: a quarrel between a Jewish wife and her husband in Babylon. The wife wished to return to Israel while the husband preferred to stay in Babylon. A similar debate is actually taking place today between several Jewish-Israeli couples I personally know in Frankfurt and Berlin.

JHIL: How do we have to understand the ‘Obligation to Better One’s Non- Jewish Environment’ (p. 254)? Is Jewish influence on international law due to this obligation and what role do the various (sharp) Talmudic minds you speak of throughout your article play in this context?

GBN: I really do believe that this general obligation to better one’s non-Jewish environment’, as first put forth in prophet Jeremiah’s decree to the exiles of Babylon, was at the heart of these jurists’ efforts. It then found its expression in a more specific manner in these jurists’ work towards ‘people-oriented treaties’. The Genocide Convention, The 1951 Refugee Convention, the 4th Geneva Convention for Civilians, René Cassin’s work for the UDHR and for the ECHR. Its something about having people in the middle of your legal optic, slightly above and beyond all other interests. The late Amos Oz once said that God made a mistake by not including the 11th Commandment which should have read: ‘thou shalt not cause pain’. I think Jacob Robinson would most probably have agreed with Oz. And he framed it beautifully at the end of the 1951 Refugee Convention’s travaux préparatoires: ‘countries should accept refugees as human beings, with all the infirmities and weakness inherent in the human condition’. So you see what I mean by ‘people-oriented legal thinking’.

As for the sharp Talmudic minds, I think it is this combination of being used to legal debate, and of being accustomed to the often excruciating work of treaty-drafting, and finding the common language which can unite different or opposing parties. I think it had also to do with their understanding of the limitations of any legal system once it losses its legitimacy in the eyes of its own constituents, as we currently see vis-à-vis the contemporary demotion of the UNSC and the global dangers that poses (from possible nuclear catastrophe in Zaporizhzhia to the paralysis of dealing with the effects of climate change). Lastly, I think it was also about the knowledge of languages. People with ‘sharp Talmudic minds’ are used to studying legal issues in at least four languages: Hebrew, Aramaic, and their vernacular languages (English, German French, and so forth). It is interesting that Jacob Robinson was always asked to lead the task force on coordinating the French and English texts of the treaties he drafted (the 1951 refugee Convention and the 1954 Convention on statelessness). Indeed, in his early commentary on the UN Charter (published in 1946), he lamented heavily the fact that the UN had 5 official languages, when the experience from the League of Nations’ two official languages was complicated enough. I think this feature, of being conversant in many languages, for the sake of judicial expertise, is also very much a mutual feature of international lawyers and Talmudic jurists, probably far more so than strict domestic jurists.

JHIL: Do you think international law would look different today if it hadn’t been influenced by these ‘sharp Talmudic minds’?

GBN: My feeling is that it would have been even more étatist and state-centric than it already is. And I think that several of the features many of us would like to see today, such as more standing for individuals, more standing for communities, and NGOs, all these would have been far less represented had it not been for their participation in the making of these treaties back then.

JHIL: In your conclusions, on p. 274, you stress the need of further research on ‘the distinct difference between the East-European orthodox jurists whose work I have examined in this article and their German-Jewish, stringently secularist peers from this period.’ Do you have a certain hunch and shouldn’t your article actually be entitled ‘How East-European Jewish is International Law’?

GBN: My feeling is that the distinction between the East European jurists I talk about, and their German-Jewish counterparts, had to do with the role of the Jewish religion, and its meaningfulness for the former, as opposed to its non-relevance for the latter. This really goes back to the beginning of this interview and the questions concerning belief and secularism. The German- Jewish jurists were virtually all secular. As such, they were much more prone to drift towards naked Machiavellian Realpolitik and the discarding of any moral considerations in their work. Someone like Hans Morgenthau could more easily write his Habilitation thesis with Hans Kelsen in Geneva, even if Kelsen did not agree with Morgenthau’s harsh views. You would be much more hard pressed to imagine someone like Jacob Robinson, Louis Henkin, or Hersch Lauterpacht easily agreeing to chair that same committee charged with examining Morgenthau’s Habilitation. The drift from secularism to nihilism can happen really fast. Though when thinking of a movement such as ISIS, I should probably qualify my own statements and acknowledge that such a drift can happen just as fast within religious movements. I might as well be exposing my own favourable prejudice here, and I accept that. Yet for me today, when I examine who are my real heroes, I find myself yearning towards the thoughts of the Dalai Lama and especially the current Catholic Pope (a real hero of mine), especially now that archbishop Desmond Tutu has passed away last year. In terms of Jewish thought, I would say that the recent loss of Rabbi Prof. Lord Jonathan Sacks was the single most important intellectual loss to Judaism in the past half century. Just look at his TED talk on Youtube, and you’ll see what I mean. And as for Islam, look no further than the great Saudi Sheikh Mohammed al-Issa who was honoured with delivering the main sermon at the height of the annual Hajj pilgrimage at the Nimrah Mosque on Mount Arafat outside Mecca this year. In 2020, it Sheikh al-Issa who lead a senior delegation of Muslim clerics to Auschwitz for the first time. So these are the people I look up to: renowned jurists within the respective legal systems of their respective faiths.

As for the title ‘How East-European Jewish is International Law’, I must confess that I initially did think of that title for the article, but later discarded it on two grounds. The first (rather mundane) ground was the simplicity and catchiness of the article’s title in its current form. But the second ground is more profound and has to do with its content. You see, these East-European Jewish jurists could not become what they became without 2000 years of Jewish Talmudic and rabbinical thinking which they learnt. Now these sources, the Talmud and commentaries are by and large not East European. The Talmud is from Babylon and Jerusalem. Maimonides was an ‘Arab Jew’ who wrote all but one of his 37 books in Arabia (Arabic with a Hebrew alphabet). Rashi, the greatest of commentators was your German-French speaking Heidelberger neighbour from Mainz and Worms. You see, Judaism’s very sources of Jewish Talmudic law are so vastly global, that they cannot be reduced to one region, even if at a certain point in history (the 20th century post WWII) they were being used by Jews from that certain area for a certain cause (the making of modern international law). And so in the title, I opted to retain Judaism’s global universal purview over and above any specific region (in this case Eastern Europe). Remember, God chose to give the Torah to the Jews not in Israel, nor in Jerusalem, but rather in the middle of the Sinai desert. French anthropologist Marc Augé would have termed that as a ‘non-place’ (non-lieu). That’s no accident. Global considerations are just as important as local ones.

JHIL: Dear Gilad, this is a lot food for further thought indeed, thank you so much for this insightful interview!

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