Sol­diers who kill against or­ders

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The Jerusalem Post Magazine - - JUDAISM - SHLOMO BRODY The writer, au­thor of

In my pre­vi­ous col­umn, I dis­cussed the uti­liza­tion of ex­ces­sive force by po­lice of­fi­cers. I now turn to the sub­ject of sol­diers who wrongly kill in the course of ser­vice. In June, a sol­dier from the Du­vde­van Unit was sen­tenced to 18 months of jail time af­ter he killed a fel­low sol­dier while the two were play­ing with their weapons. On other oc­ca­sions, sol­diers were killed fol­low­ing mis­takes by their com­rades in train­ing ex­er­cises. Most fa­mously, Elor Azaria was sen­tenced to jail af­ter he shot a neu­tral­ized ter­ror­ist un­der dis­puted cir­cum­stances.

Ev­ery case re­quires its own in­ves­ti­ga­tion, but I’ll try to de­velop a frame­work for think­ing about this sub­ject.

As Prof. Eliav Sho­chet­man has doc­u­mented, ha­lachic sources gen­er­ally dis­tin­guish be­tween three types of un­in­ten­tional killings (shogeg): in­ad­ver­tent, neg­li­gent and ac­ci­den­tal.

The first case is con­sid­ered to be karov le’oness (bor­der­ing on un­willed), since one de­lib­er­ately com­mit­ted an ac­tion but had no in­ten­tion to kill the victim or any par­tic­u­lar rea­son to think that the ac­tion would cause that harm. Many cases of friendly fire in the midst of com­bat, for ex­am­ple, would fall into this cat­e­gory, and it would be un­fair to pun­ish the sol­dier in this cir­cum­stance.

In the sec­ond case, we deem the ac­tions karov le’mezid (bor­der­ing on in­ten­tional) be­cause one’s neg­li­gence led to the mishap, even if it was not in­tended. Cases like the sol­diers play­ing with guns in their army tents would likely fall into this cat­e­gory.

In the third case, the ac­tion was done with­out the in­tent to il­lic­itly kill, yet the re­sults should not have been un­fore­seen or could have been pre­vented through greater care or de­lib­er­a­tion. In bib­li­cal times, such a per­son would have been ex­iled to live in a “city of refuge” (ir mik­lat).

The dis­tinc­tions be­tween these cat­e­gories are not clear-cut and it’s not al­ways clear how to cat­e­go­rize a given case. None­the­less, they give us a gen­eral sense of how to think about un­in­ten­tional killings.

IN THE case of civil ser­vants, Halacha also takes into con­sid­er­a­tion that these peo­ple were per­form­ing mitzvot. In gen­eral, Jewish law is sen­si­tive to not dis­cour­ag­ing peo­ple from tak­ing on these roles. It al­lows, for ex­am­ple, cer­tain ac­tions on Shab­bat to al­low emer­gency per­son­nel to re­turn home af­ter mis­sions. If we hold them li­able for ac­ci­den­tal killings in the line of duty, this may dis­cour­age peo­ple from tak­ing on these tasks. The Tal­mud rules that those who per­form mitzvot that man­date vi­o­lence are ex­empt from dam­ages if they were caused un­in­ten­tion­ally. This in­cludes, for ex­am­ple, doc­tors treat­ing pa­tients and court agents ad­min­is­ter­ing cor­po­ral pun­ish­ment. The logic given for this rul­ing is tikkun olam (im­prov­ing the world), in­di­cat­ing that we do not want to dis­cour­age peo­ple from tak­ing on cru­cial tasks for fear of pun­ish­ment in the al­most in­evitable case of mishaps.

That said, the Tal­mud also as­serts that a civil agent is li­able for dam­ages caused with in­tent or from neg­li­gence. Ul­ti­mately, his en­ti­tle­ment to use licit force in the course of duty does not pro­vide him with im­mu­nity in all cases. Serv­ing as a doc­tor or court agent is a mitz­vah but also a weighty re­spon­si­bil­ity, and those that neg­li­gently stray from pro­to­cols may be held ac­count­able.

As Rabbi Ye­huda Zoldan has doc­u­mented, it’s not al­ways easy to cat­e­go­rize a given ac­tion. Take, for ex­am­ple, the case of an am­bu­lance driver who un­in­ten­tion­ally strikes a pedes­trian while speed­ing to the hos­pi­tal. A trained driver should avoid such mishaps, yet some ac­ci­dents are al­most in­escapable, and it’s a state in­ter­est to pro­tect peo­ple do­ing this dif­fi­cult job. Thus there is a gen­eral in­cli­na­tion to with­hold pun­ish­ment ex­cept in cases of ne­glect.

Sol­diers en­dan­ger them­selves to pro­tect the state in a task that in­her­ently re­quires vi­o­lent be­hav­ior. Ac­cord­ingly, as Sho­chet­man ar­gues, sol­diers should not be crim­i­nally pe­nal­ized for mishaps that oc­cur in the course of duty, even if there is a sense that the ac­ci­dent could have been pre­vented with greater care. This is in ac­cor­dance with the nor­ma­tive tal­mu­dic po­si­tion that civil agents are not ex­iled to a city of refuge for ac­ci­den­tal killings. Neg­li­gent be­hav­ior, on the other hand, may be pun­ished not only be­cause of the de­gree of cul­pa­bil­ity but also be­cause there is a clear state in­ter­est in pre­vent­ing such types of harm­ful be­hav­ior, es­pe­cially when done against or­ders.

De­ter­min­ing the level of cul­pa­bil­ity re­quires care­ful in­ves­ti­ga­tion that is fair and im­par­tial. I have no ex­per­tise to com­ment on the Azaria case. Yet the fact that the case was be­ing judged (in both di­rec­tions) in the court of pub­lic opin­ion well be­fore a proper in­ves­ti­ga­tion and trial could be held should be a source of em­bar­rass­ment to Is­raeli so­ci­ety. The very least we owe to our sol­diers and cit­i­zenry is to judge them fairly and pro­fes­sion­ally. ■

A Guide to the Com­plex: Con­tem­po­rary Halakhic De­bates, di­rects the Tik­vah Over­seas Stu­dents In­sti­tute and is a pres­i­den­tial scholar at Bar-Ilan Univer­sity Law School. Face­book.com/Rab­biShlo­moBrody

(Marc Is­rael Sellem)

AN IDF sol­dier pa­trols the Gush Etzion junc­tion.

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