Ask the Rabbi: Soldiers who kill against orders‏

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

IDF soldiers of the Duvdevan Unit (photo credit: IDF SPOKESPERSON'S OFFICE)
IDF soldiers of the Duvdevan Unit
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.
The writer, author of 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.