Does halacha require or forbid a soldier to obey an order to evict Jewish settlers?
By Rabbi Alfred S. Cohen
Following the signing of a tentative peace accord between Israel and the Palestinians, and the definite, if reluctant, handshake between Rabin and Arafat, a strong reaction swept through Jewish communities throughout the world. That the voices of settlers in the disputed territory were among those most vocally opposed to the agreement is well understood. But one of the most startling manifestations of the in tense emotions aroused by the proposed new arrangement was the call from three leading rabbis, two of whom are former Chief Rabbis of the State of Israel, for all soldiers to defy any military order to forcibly remove settlers. In other words, leading halachic spokesmen have advocated disobeying an order issued by the government of the State of Israel.
This article will undertake to study the sources and investigate whether, first of all, the Chief Rabbis were setting out on terra incognito or whether they were following hallowed precedent in advising Jewish soldiers to refuse to carry out orders based on the policy of a duly-elected Jewish government. Is theirs a unique position or one sanctioned by Jewish tradition and Jaw? We want to come to an understanding of the processes whereby some leading rabbinic spokesmen, who deserve not to be dismissed merely as advocates of a radical political agenda, can sincerely conclude that Jewish law requires soldiers to defy their officers. Mutiny is not taken lightly by anyone. What, then, is the basis for such a pronouncement? On the other hand, why are many rabbis not willing to join in the call to defy the government? What is the rationale for urging soldiers to obey army orders in the present instance? And do these considerations apply to civilians as well? It is the aim of this article to explain both sides of the issue.
RESPONSIBILITY
When a person follows orders, who is responsible for his act – the one who gave the order or the one who carried it out? Jewish law includes a principle that “a person’s agent is the same as himself” (shaliach shel adam kemoto). Does this imply that a soldier who “was just following orders” is not responsible for the consequences? Is he guilty, or is the officer guilty? Does Jewish law accept the findings of the Nuremberg Trials, which rejected the defense “I was just following orders” and condemned Nazis as murderers? These findings imply that an unjust order may not be carried out by the soldier.
What about army discipline? Can every soldier decide what is morally objectionable and argue about strategy or fighting orders? After all, the soldiers who participated in the Mylai Massacre in Vietnam maintained that they could not second-guess their commanding officer in the heat of battle, and he alone should be held responsible for what transpired. According to halacha, a person’s agent acts for him, the sender, and not for himself; nevertheless, an agent cannot be appointed to do an evil deed (ein shaliach I’ devar aveirah). In other words, if A tells B to steal money for him, and B does steal, it is B who is responsible. He cannot effectively become someone’s agent to do that which God has forbidden him to do. To apply this principle to our present case, if an officer orders a soldier to do something which the Torah forbids, and the soldier does it, it is the soldier who has committed the sin. Moreover, the Talmud rules (Kiddushin 43a) that his “sender” is free of guilt; this rule holds in all areas such astheft, damages, etc.
Two reasons are offered by the Gemara explaining why the doer (the agent) is ultimately responsible, not the sender. One reason is logical, the other Scriptural. Logically, we have to rule ein shaliach l’devar aveirah, no one can be appointed to do a sinful act (as explained above). No matter who he might be, the sender’s authority cannot be greater or even equal to that of God, who is the Master of all. It stands to reason, then, that no agent may act contrary to the command of God.
In addition, the Gemara (Kiddushin 42b and 43a) deduces from certain verses in the Torah that a person is responsible for the sin he commits, regardless of whether he was appointed as an agent to do it (Shemot 24 and 21).
This gives rise to some interesting give-and-take. What if the agent didn’t know that his mission was contrary to halacha (but the sender did know), would that make his sender culpable? In other words, the sender knew that the agent would, in all innocence, carry out the directive. In this case, perhaps the sender is, after all, responsible, since he cannot defend himself with the argument – “I never thought he would do it….”
On the other hand, what if the basis for saying that “there can be no agent for a sinful act” is not the logic of the Gemara (that God’s law has to be listened to before man’s law) but actually Scriptural verse? In that case, the sender is certainly not guilty, because if the Torah forbids something, all Jews are required to know; there is no way the sender could rely on the agent following his bidding. [1]
In part, our understanding of the responsibility of an agent and the sender for their deeds derives from episodes recorded in the Torah. Thus, we find the Prophet Natan accusing King David “Ata ha-ish; you are the man,” you are the one responsible for killing Uriah, although David clearly did not wield the weapon which killed him. Nevertheless, David is responsible, even though, theoretically, his minions should have said to him, “I will not follow an illegal order.”
The Meiri puts the situation into perspective: “Although [we rule that] there can be no agent to perform a sin, yet in any case, it is proper [for a person] to be careful not to cause a disaster and to be responsible for someone else’s sin” (Kiddushin, ibid).
It seems clear that if a wrong is committed, everyone involved is guilty, in one form or another. It is not realistic to say, “I was just following orders,” nor can one be exonerated merely because “I didn’t pull the trigger.”
However, quite a convincing argument could be made that since military discipline is so strict, a commanding officer can be quite sure that the private will obey, and therefore the officer should be the one considered liable for the evil. [2] Indeed, this is the thinking of Radak, who explains that this is why King David is accused of having killed Uriah “Since he [David] was the king, and there is no one who transgresses his command. Therefore, it is as if he [David] killed him.” [3]
LEADERSHIP PREROGATIVES
It is very difficult to advocate disregarding the command of an officer in the army, for such an imperative would lead to a total breakdown of authority; Jewish thought supports strong authority as an essential feature of a well-functioning society.
Under Jewish law, the king is given extraordinary powers to control and shape society, for Judaism considers strong leadership as essential for the beneficial functioning of the community. The Torah posits “You shall appoint a king over yourselves” (Devarim 17), and the Gemara elaborates “so that you shall fear him” (Sanhedrin 19b). Sefer HaChinuch (497) explains, “and we must honor him with the greatest honor.” The power of the king is so outstanding that anyone who defies his orders, “the king has the prerogative to kill him. Even if he orders one individual to go to a certain place, and he didn’t go – he deserves death” (Rambam, Melachim 3:8).
Not only does Rambam declare that a person who refuses to carry out the king’s wish deserves death, he considers that there is an obligation to put the recalcitrant citizen to death. He is not alone in this opinion. [4]
Jewish law gives similar authority to the rules governing communal life, based on the understanding that a community cannot function without the discipline of a framework that all feel compelled to accept. In the same way that a king’s laws must be followed virtually without question, so, too, community rules command total obedience. The Talmud records the community’s powers (Bava Batra 8b):
“The people of the city are entitled to set the conditions of weights and measures, and to control the amounts [of goods which can be sold – i.e., they can control the supply], and to set wages for workers, and to make certain that [these regulations] are carried out [i.e., to fine whoever doesn’t adhere to the rules].” [5]
In each Jewish community, a governing board was established by the citizens, and the minority had to follow the will of the majority in the rules they made. “Because in every group, all individuals are under the control of the majority; according to their [the majority] wishes, they have to act in all their affairs, and their [the majority] have [control] over the people in their city in the same way that the Great Court or the king [have control] over all Israel.” [6]
What effect would the non-compliance of one or a number, of soldiers have on the others? What would happen to military discipline, which is essential for an army’s viability, if only some of the soldiers follow orders, some of the time? Why would one man be willing to risk his life to carry out a mission, if others have decided not to?
And if the army is not functioning at the peak of efficiency, might not Arab forces become even more brazen in their attacks? One soldier’s following his conscience might arguably lead to the deaths of many other Jews who will be attacked by the less-fearful enemy. Are rabbis permitted to issue proclamations advocating non-compliance with military orders in a situation where many lives might thereby be put into jeopardy?
Furthermore, what will happen to a soldier who listens to his rabbi’s advice, and refuses to obey the order to vacate settlers from the territories? If it is determined that he is endangering the lives of his fellow soldiers by his refusal to follow orders, he might be declared, by Jewish law, to be a rodef, literally a “pursuer” – i.e., a person who is endangering the lives of others. The halachah is that one may kill the rodef in order to protect his victim.
According to the Netziv, that is precisely the implication of the position taken by the tribesmen of Gad and Reuven in exhorting Joshua to be a strong leader in his conquest of Israel: “And that is why the men of Gad and the men of Reuven said to Joshua, “Any man who transgresses your orders or won’t listen to your command, for whatever you tell him – will be put to death.” (Ha’amek She’elah 142:9).
Why should disobedience to Joshua bring death as retribution? Joshua certainly made no claims to be king. Nevertheless, the Netziv explains, “the leader in time of war is always comparable to a king.” [7] Furthermore, he continues:
“There cannot be a greater obstacle for the Jewish people in their wars with the Canaanites than this [disobedience to the general]; thus, he [the disobedient soldier] is a rodef and deserves death.”
The tremendous powers granted the ruling body, whether a king, or a Court, or a council of citizens, are obviously of great importance in maintaining the stability of the community; the welfare of all benefits when rules and regulations are adhered to by all. But does that imply that rules must be followed in all circumstances? Is blind obedience to the will of the majority demanded by Jewish law? [8]
It would be wrong to foster the impression that strong leadership is considered such an unqualified necessity for a well-functioning society, that other principles are suspended for it. On the contrary. In the very next rule after writing that disobedience to the king warrants death, the Rambam writes:
“Someone who does not fulfill the king’s decree because he was involved in performance of a mitzvah, even a ‘light’ mitzvah, is free of guilt. For if the master [God] says something, and the servant [the king, who is also God’s servant] says something, the master’s words take precedence. And it is not necessary even to say that if the king decreed to disregard a mitzvah of the Torah, one should not listen to him (Melachim 3:9).”
As great as the need is to uphold the authority of the king and to carry out his wishes, our highest loyalty is always to upholding the Torah. If a person is convinced that the order he has been given is contrary to the Torah, he may not carry it out. As awesome as is the power of the king, his authority does not overrule the Torah. [9]
When we speak about government laws, Jewish thinking considers the powers of government to be limited. Regardless of how important it is to have a disciplined society, we are all nevertheless subject to God’s law. No human agency can overturn or override Divine law; thus, any ruler who tries to force people to act contrary to halachah, or who tries to force them beyond the limits of his authority, cannot demand that they obey. In the present instance, a strong case can be made for the position that living in Eretz Yisrael is a mitzvah and that returning land to Arab jurisdiction is contrary to Jewish law.
This is the halachic basis for certain rabbis exhorting soldiers to defy the orders of their officers and to refuse to participate in the removal of settlers from disputed lands. If one believes that it is a mitzvah to inhabit the Land of Israel, then no government has the authority or power to compel a Jew to transgress that mitzvah. Following this line of reasoning, it would be forbidden for any soldier to comply with such a directive.
Although we have shown that Jewish law requires every individual to refuse to obey an order which is contrary to Torah law [10], it is scarcely realistic to assume that the ordinary citizen or soldier will be well-versed enough to make his own determination of every situation. Even the most well-meaning are likely to be confused.
There will surely be occasions when a soldier honestly will not be able to determine what is proper or what might be forbidden for him to do. Thus, many people in Israel today sincerely believe that giving back land will ultimately save lives – while others are just as passionately convinced that it will cost lives. Some rabbis are in one camp, others are pledged to the opposite view. How is the ordinary soldier supposed to know what is the right thing to do, from the standpoint of halachah?
All these factors have to be weighed in arriving at the definitive psak, the final ruling of Jewish law. The issues are not clear-cut, nor can they be readily resolved. For this reason there is lack of unanimity in the rabbinic camp. Some rabbinic leaders focus on the mitzvah of settling the land as paramount, other rabbis emphasize the risks and dangers to the entire community. This is not a partisan issue but a genuine difference of opinion on the requirements of Jewish Law.
CHILUL HASHEM
An ancillary question which arises from all the diverse opinions is what effect all this tumult may be having on the world image of Judaism. The danger exists of chillul Hashem, of causing a desecration of God’s name, of arousing contempt for rabbinic leadership.
What must the world think of us when a former Chief Rabbi is quoted in international news briefs as urging that Arafat be shot if he comes to Jericho? [11] How will non-Jews react to the spectacle of the Prime Minister of a state signing a peace treaty, and the former Chief Rabbi calling for the signatory’s assassination? [12] There is a strong danger here of arousing disrespect for Judaism, because we can hardly assume that the average reader of this news item will recall that Arafat has often boasted of killing Jews. Would many non-Jewish people be likely, therefore, to conclude that the former Chief Rabbi is fully justified in calling for his assassination as a precaution against further murder of Jews?
Need we be concerned with what non-Jews think of us, and if so, how much do we have to let this concern advise our decisions or actions? Let us turn once again to Scripture for guidance.
In the Book of Joshua, we read of a hoax perpetrated upon the Jews by a Canaanite people, the Gibeonites. The Torah warns repeatedly that the Jews were not to make peace treaties with the inhabitants of Canaan after they entered the land. [13] The Gibeonites had originally turned down the peace overtures, but after witnessing the miraculous destruction of Jericho, they became terrified of fighting the Jews. Believing that at this point it was too late to sue for peace, they carried out a scheme to trick the Jews into thinking that they were actually from very far away, and at that point, signing a treaty with them. When, subsequently, it was discovered that the Gibeonites had perpetrated a fraud, Joshua and the leaders nevertheless felt obliged to honor their word. Therefore, he did not kill the Gibeonites, but had them become servants in the Temple.
The people objected strongly to this leniency, and challenged their leaders. But the leaders responded: “We swore to them by God, and now we are not able to touch them.” What a strange answer! Obviously, the treaty was signed in error, Joshua and the elders never intended to make peace with this group, and the Gibeonites lied about their identity. On what basis could anyone claim that the friendship oath was valid? But the Gemara explains, (Gitlin 46) they could not kill them “because of the sanctity of the Name [of God].” And Rashi clarifies, “so that the nations of the world should not say that the Jews acted contrary to the oath they took in the name of God.” Joshua realized that many people would hear about the Jews’ having promised the Gibeonites to be friends, and they would also hear about the betrayal of that oath – but they might not have heard that the Gibeonites had tricked the Jews into thinking they were from far away, by dressing up in tattered clothing, as if from a long journey. Therefore, apparently they went against a clear prohibition in the Torah – not to make a treaty with Canaanites [14] – rather than possibly cause a chillul Hashem by violating their oath.
What does this teach us in practice? Does it mean that if the world disapproves, we can’t do something? If the United States was upset when, years ago, the Israelis blew up a nuclear facility in Iraq, does it mean that Israel should not have done it, for fear of causing non-Jews to think badly of us? Should Israel have waited for Iraq to produce a bomb, rather than incur the displeasure of non-Jews? Surely, that cannot be what Jewish law requires? Or does it? Clearly, we will have to explore the parameters of kiddush Hashem and chillul Hashem. [15]
An interesting problem was posed to the author of Chavot Yair (R. 139). A Jew had been convicted by the government of being a thief, and had been hanged. Now, a ransom was demanded for his body. Was the Jewish community under obligation to raise the ransom money so that the thief could be buried in a Jewish cemetery? Some were opposed to paying anything at all to redeem his body, since he represented a danger to the Jewish community (the gentiles would now have an excuse to accuse all the Jews of being criminals, and attack and kill them). But the Chavot Yair refused to accept this contention, for “…although there is a chillul Hashem when the gentiles accuse the Jewish people of being criminals, yet this is nothing more than the talk of the mob, and not of their wise people … for after all, they see in their own [community] and of their own [people], thousands [of thieves] like them….”
In other words, not everything disliked by others can be considered a chillul Hashem. What is considered acceptable behavior by decent, Jaw-abiding non-Jews? What does “the world” understand to be right or wrong?
Breaching these “universal” standards is a chillul Hashem. In most of the world, people believe that a country is bound to honor a treaty entered into by its legitimate representatives. There is contempt and scorn for nations, or individuals, who do not live up to their word. Assassinating a political leader who has signed a peace treaty with your country is viewed as treachery. These are the standards of ordinary decent people that definitely should impact on our own understanding of what we may do or not do. When a Jew is a thief, as lamentable as it is, it does not usually reflect on the community as a whole. Chillul Hashem depends to some extent on how the action will be perceived by the world. If the world expects better behavior in a certain instance – then it would be chillul Hashem to act otherwise.
The same logic is employed by the Magen Avraham in a case he considers (244). He notes that in his country, the non-Jews are careful to treat their day of rest with respect, not allowing certain public activities. Therefore, he rules that it is forbidden for Jews to have their garbage removed on Shabbat, even if done in a halachically-permissible manner, for it may cause non-Jews to consider that our religion is inferior to theirs, since they act with more respect for their day of rest than do the Jews.
In the present situation, we too have to consider how the world will react to what has or may transpire in Israel. Would the refusal of some soldiers to carry out orders be perceived as insubordination by a number of individuals, or will it be deemed something else? Would those who resist government orders be dismissed as a fringe group of radicals – or considered representatives of Judaism? Will they arouse contempt in the world community for not being willing to give peace a chance, or will they be seen as people dedicated to a cause?
The question of causing a chillul Hashem is not a matter that ought to be dealt with lightly. Perhaps in this context, it is advisable to ponder the words of the Netziv in his commentary to Bereishit [16]. He explains why the Sefer Bereishit is also called Sefer Yesharim, the Book of the Righteous Ones:
“This was the praise of the Patriarchs, that not only were they saintly and pious and lovers of God in the greatest possible measure, but they were also righteous (yesharim); that is, they interacted with the nations of the world, even those who worshipped disgusting idols, yet they nevertheless treated them with love and were concerned with their welfare, for in this way the existence of mankind was sustained.”
IN CONCLUSION…
We have seen that there are a number of halachic principles which form the foundation of rabbinic reactions to the current situation in Israel. It is important to appreciate that rabbis who make pronouncements which may shock us are not grandstanding, but are rather expressing a moral conviction based on their understanding of halachah. The halachic issues are complex and can legitimately lead to opposing conclusions. The issues are further complicated by our obligation to bear in mind that our actions and pronouncements must always reflect the dignity, uprightness, and beauty of God’s word.
Rabbi Cohen is Rabbi of Congregation Ohaiv Yisroel in Monsey, NY, and a rebbe at Yeshiva University High School. He is editor of the Journal of Halacha and Contemporary Society.
NOTES
[1] For a full discussion of the implications arising from the true source of the Gemara’s dictum, which source will result in differing consequences, see S’ma 182; Rabbi Akiva
Eger, Bava Metzia 10b; Shach, Choshen Mishpat 148:6; Ritva, Kiddushin 42b; Rashi, Bava Kamma 51b, s.v. Ain; Tosafot, Bava Kamma 79a, s.v. netano.
[2] This logic, of course, prevails up and down the chain of military command, so that the sergeant is only carrying out the orders of the major, who is only carrying out the orders of the general, who is truly following the policy imposed upon him by the Commander in Chief, the head of state, who is the one truly fully responsible for what happens.
[3] Similarly, “[King) Saul, who ordered [his soldiers) to kill the entire [population) of Nov, city of Kohanim, it was as if he killed them himself.”
[4] See Minchat Chinuch, Mitzvah 497, for a full analysis of the rationale of giving so much authority to one individual. Further valuable information may be gleaned from the following: Responsa Chatam Sofer 208; Maharatz Chajes, Sefer Torat HaNeviim, chapter 7 and chapter 5, Gezeila; Responsa Rashba 3:411, “Whatever the king decrees with the consent of the Jewish people, is done and obligatory upon all.”
[5] Rambam, Hilchot Mechira 14:9, writes that if there is a recognized Torah authority living in the town, the rules cannot be made without his consent; however, if there is no
such authority, the rules are set by the council chosen by the people.
[6] Responsa Rosh 5:5, Responsa Rashba 3:411.
[7] See also Mishpat Kohen 144:15.
[8] There are certain provisos which limit the absolute authority of the ruler, whether an individual or an elected council: “If a law was enacted…contrary to [Jewish) law, and there is no “benefit” in it – then even if the heads of the community and its great men made this [law), the people are not obligated to adhere to their wishes.” Responsa Rashba 7:108. The Rashba brings as proof the precedent of Daniel, who had enacted a decree that people should not use certain oils. However, the people found this rule difficult, and subsequently, R. Judah the Prince repealed the regulation.
[9] Having said all this, we now have to consider how these Torah perspectives impact on the political realities of our own time. What status does halachah bestow upon a secular government in the land of Israel? What are the prerogatives of a Prime Minister, as far as Jewish law is concerned, and to what extent does religious law obligate the individual to obey the directives of a secular elected government? Can we equate the powers of the
Prime Minister with those of a king in Jewish thinking?
Indeed, the legendary first Chief Rabbi of the Jewish community during the British Mandate, Rav Kook, did draw this comparison. Mishpat Kohen 144:15. This position is also adopted by R. Shlomo Zevin, Ohr HaHalacha p.16, who suggests that an additional source for this position can be derived from Ramban, Sefer HaMitzvot, at the end of Mitzvot Lo Ta’Aseh.
[10] Does the principle “there can be no agent to do a sin” apply also when the sin in question is a rabbinic, rather than a biblical, transgression? This point, which is quite germane to our discussion, is raised by Rabbi Yoseph Mitrani and elaborated upon by the Mishneh Lamelech (Rotzeach 2:2). Can it be claimed that since no biblical prohibition is involved, then an agent appointed to do something contrary to rabbinic teaching is nevertheless an agent? In that case, the sender would be responsible, and the agent would be absolved. On the other hand, if a person sent to act contrary to rabbinic law does indeed follow his instructions, he is himself liable for what he does, he cannot blame it on the sender. Thus, if we take the former position (that there can be no agent to commit a sin is a principle which does not apply to rabbinic law), then the ministers and generals who command soldiers to forcibly remove settlers from the West Bank are themselves culpable for stopping people from observing the rabbinic command to settle the Laud of Israel. See the article by Rabbi Hershel Schachter in Journal of Halacha and Contemporary Society Vol.8, p.14, which discusses whether living in Israel today is a biblical or rabbinic mitzvah. See also, JHCS Vols. 16 and 18, which have various articles discussing the halachic implications of “Land for Peace.”
[11] Rambam, Hilchot Rotzeach 1:1, clearly rules that it is forbidden to kill another human being. The Frankel edition of Rambam has a variant text. For a fuller understanding of the issue, see Tur, Beit Yosef, Yoreh Deah, 158, d.h., uma she’amar Rebbi. See also, Avoda Zara 26, and Masechet Sofrim, chapter 15:10.
[12] Sefer Chassidim 1008 writes that if a Jew and a non-Jew entered into a mutual assistance agreement, then the Jew is obliged to help the non-Jew, even going so far as to kill any Jew who tries to kill the non-Jew.
[13] The Canaanites were invited to vacate, or, if they chose to stay, to agree to follow at least the seven Noahide commandments, so that there would not be any idolatry in the Land of Israel. See Rambam, Hilchot Melachim, chapter 6.
[14] See, however, Tosafot, Gittin 46a, d.h. keivon.
[15] See correspondence on this question in the Journal of Halacha and Contemporary Society, Vol. 19, letter of R. David Cohen on p. 127.
[16] Introduction to Commentary to Bereishit. A translation appeared in Jewish Action,
Spring 1992, p.71. See also Yoma 83a.