Although I normally like to discuss a topic related to the weekly parsha, this week, due to the large amount of mitzvos that are mentioned in this week’s parsha I was spoilt for choice, and couldn’t decide what to talk about, therefore, I decided that to make things easier we would discuss a timely issue instead.
Unfortunately, Eretz Yisroel is in the midst of a long bitter war, which has been going on since Simchas Torah (October the 7th). This war has taken a tremendous toll on the population in both Eretz Yisroel and Chutz La’aretz, both financially and physically. During the course of the war, there have been a number of incidents where Israeli soldiers have accidently killed other Israeli soldiers. In war terms, this is known as friendly fire, and is something which commonly happens during war. Being out on the battlefield is no simple task, and split second decisions must be made. Sometimes it’s a situation of kill or be killed - understandably accidents happen. On one occasion, two Israeli hostages came out waving white flags seeking help, and some Israeli soldiers mistakenly thinking that this was an ambush, ended up killing the Israeli hostages. Understandably, Israeli soldiers who end up killing other fellow soldiers or even hostages in battle feel very bad, the question is, if such a thing happens, do the soldiers require a kaporah [atonement]? Is there a special teshuvah process they should do? Or are they completely absolved for what they have done?
Obviously, I would never attempt to resolve such a shailah on my own. The ensuing discussion is based on a Teshuvah written by R’ Asher Weiss. The way he starts his Teshuvah is as follows:
“With much distress, in the current war many soldiers have mixed up fellow soldiers and hostages with enemy soldiers, and soldiers have accidentally caused the life of both friendly soldiers and hostages to have been cut short due to stray fire. They are very upset and downtrodden about this, but Hashem has brought this into their hands. From the depths they are calling out and asking, if they are considered guilty? What teshuvah they need to do? And what can be done to fix up their souls?”
Is Going to Galus (Oray Miklot) a Punishment or a Protection?
Throughout the Torah, we never find a punishment for someone who commits an aveirah beshogeg [accidentally]. Even if one accidentally does an aveirah which is punishable with kores (36 lavin, and 2 aseh’s), and is obligated to bring a korban chatos [sin offering], the chatos doesn’t come as a punishment, rather, it is brought to help ensure the sinner has a kapporah. The only aveirah in the Torah where we find that there is a punishment for accidental transgression is retzicha [murder]. If one accidentally kills another person, the murderer must go to galus, the murderer must go to one of the six Oray Miklot [Cities of Refuge].
Truth be told, a number of Achronim understand that galus is not even a punishment – it is simply a means for the murderer to be able to protect himself. The halachah is, if one accidentally murders another person, a go’el hadam, a relative of the person murdered, is allowed to take law into his own hands, and he is allowed to kill the murderer. The only way the murderer can protect himself is by running and taking refuge in Oray Miklot.
However, from the Sefer HaChinuch (Mitzvah 410) it’s clear that galus is in fact a punishment. The Chinuch writes: “The roots behind the mitzvah are, since the sin of murder is so great, as it involves the destruction of the world ... therefore it is fitting, that if one killed even accidentally, since such a tragedy happened through him, it is fitting for him to be upset about it. It is fitting for him to undergo the pain of exile, which is similar to the pain of death, as he must separate from his friends, family, and birthplace, and dwell in a foreign land all of his days.” From the Chinuch it’s clear that galus is a punishment, and the reason one is punished for murder even if done accidentally, is because it is such a terrible aveirah.
Due to the severity of the sin, we find in the gedolei haposkim (starting with Chachmei Ashkenaz) various prescribed methods of what to do to help with teshuvah, above and beyond what we find in the words of Chazal. The poskim prescribe things like fasting, going into exile, and various other afflictions. The question is, should these things be applied to the Israeli soldiers, or is the case of Israeli soldiers killing in friendly fire different to the cases discussed by the poskim?
Mahari Veil
One of the earliest sources to discuss a question similar to ours is the Mahari Veil (1375 – 1456, in siman 125). The Mahari Veil was asked by someone who sent his friend on a mission to carry out a certain task, and in the course of the mission his friend was killed. The sho’el [asker] asked the Mahari Veil what teshuvah he should do. The Mahari Veil cites the Gemara in Sanhedrin (95a) which says that Dovid HaMelech was punished because through him the Kohanim of Nov, Do’eg, Achitofel, and Shaul and his three sons were killed. Although Dovid never directly killed them, as a result of an act that he did, it brought about their downfall. The Mahari Veil cites proof from this episode, that even if one doesn’t directly kill someone, if due to circumstances which come about because of him others are killed, such a person is held accountable and needs to be punished. He concludes, that the one who sent his friend on the mission should fast forty fasts, and if the murdered messenger has young children, he should support them.
Tzemech Tzedek (להגרמ"מ קרוכמיל)
The Tzemech Tzedek (siman 93) discusses a case of someone who went on a trip with a young boy in the middle of the winter. Suddenly there was a big snowstorm, it was very cold and windy, and they went inside the house of a certain non-Jew to help protect themselves from the elements. After a while, they decided to return home, however, on the final leg of the journey, the young boy had no energy and couldn’t continue on. The older man carried on and returned home, and told the people in the city about the young boy he had left behind, however, he never told them the exact whereabouts. By the time they found him, he was no longer alive.
The Tzemech Tzedek discusses in great length why the older man is considered onus, and not accountable for what happened. He then concludes that he should fast for forty consecutive days, every Monday for the first year, and for the rest of his life he should fast BeHaB and every erev Rosh Chodesh. Again, we see, that one should afflict himself with lots of fasting.
Teshuvas Rema
The question that is most similar to our case, however, is a case which the Rema (Teshuvos 37) who was the Rav of Krakow discusses. Someone named Ploni ben Ploni was riding on a horse. He was on the back of the horse in a wagon, and in front was a young boy leading the horse. This Ploni ben Ploni was sitting at the back, and in his hands there was a gun, and he wanted to empty the contents by shooting it towards the sky. However: when attempting to do so, the Sotan got involved and somehow the gun misfired and ended up killing the young driver. After realizing what happened, he wanted to do know what teshuvah would be appropriate, so he went to his rav to ask. The rav prescribed him a teshuvah process and then said, that he should travel to Krakow and see what the Rema has to say about the situation.
The Rema writes, that such a thing is, close to being completely accidental, and isn’t even considered a case of negligence. Then he says, nonetheless, he needs to do teshuvah, and he agrees with the teshuvah process which the first rav prescribed. Namely, that he should go into galus for a year and shouldn’t sleep two nights in the same place. The Rema continues: “In the place where those who have done teshuvah stand, even righteous tzadikim don’t make it there”. The accidental murderer should do the prescribed teshuvah process and then he will be forgiven, especially as it was a complete accident.
The Rema adds, he should say Viduy for an entire year morning and evening, fast everyday until Yom Kippur, and he should fast every year on the day that the accidental killing happened.
We see, that although it was a complete accident, the Rema still says he should go into galus for year, not sleep two nights in the same place, say Viduy every morning and evening for a year, fast until Yom Kippur, and fast every year on the yartzheit.
We see from the above cases, that when one causes the death of another person, even when if completely accidental, there is still a heavy teshuvah process. Presumably, the same thing would be in our case of the Israeli soldiers who accidentally ended up killing other soldiers / hostages in friendly fire.
No Comparison Whatsoever
However, R’ Asher Weiss writes:
“However, the truth is that this is not so. Our case is entirely different, as the solders are fighting in a mitzvah war, and are doing what they are supposed to be doing - fighting against the enemy and protecting themselves and their friends. The Shu”t Maharshal (siman 96) already writes, that there was a certain man named Moshe who was chasing after a Jewish lad in order to tell him off and punish him, to help calm down the non-Jews who were chasing him, due to something he had done wrong to them. His (Moshe’s) intention was to protect the lad from being punished by the non-Jews. In the end the boy ended up falling and somehow dying. The Maharshal writes that this R’ Moshe doesn’t need any atonement as his intention was simply to save the boy. If we punish R’ Moshe harshly, it will deter him in the future, and in the future he may end holding back from saving someone from danger, therefore, we rule leniently with him.”
The Chasam Sofer (Orach Chaim 177) says a very similar thing. There was a Jewish maid that had fainted. The Lady of the House wanted to save the maid and intended to give her some schnapps to revive her. Accidently, she ended up giving her gasoline, and it had the reverse effect and ended up killing her. The Chasam Sofer rules that she was trying to save her, and it was a complete accident, therefore, she doesn’t need to do teshuvah. He then writes: “She intended on saving her, therefore, we shouldn’t be overly strict as it may end up deterring her in the future.”
Therefore, R’ Asher Weiss writes:
“Certainly in our case, where the soldiers are constantly in danger of death, in this harsh war, against a harsh enemy who is out there to kill us and wipe us out. It is of upmost importance that they protect themselves, and any delay – even just a second could cause great damage. In such a case they are completely uncountable for their acts, and being that they are busy with a mitzvah there is no need for any atonement.”
“Additionally, if we act harshly with the soldiers and with the teshuvah they must do, it will break their spirits and they won’t be able to fight properly, as they will be scared to accidentally kill others. Therefore, based on all this, it would seem they don’t need to do anything.”
Seeming Contradiction
However, there seems to be a clear Shulchan Aruch which disagrees with the above, and maintains that even if one is trying to save a life etc. and is doing a mitzvah, if he accidentally kills someone, he must do teshuvah.
The Mechaber (Yoreh Deah 336) writes: “If the doctor has a license from Beis Din to heal, and he makes a mistake and damages, he is exempt from punishment carried out by man, however, in Shomayim he is held accountable. If he killed, and it was accidental he must go to galus”.
Seemingly, we see from here, that even if one is busy with a big mitzvah, if he accidentally kills, he must go to galus and needs atonement, and we aren’t worried about deterring him in the future?
Two Answers
However, there are at least two answers to the above.
1) The Gemara in Makkos
There is a Gemara in Makkos (8a) which teaches, “If a father hits a son, a rav hits a talmid, or a messenger of Beis Din accidentally kills, they are all exempt from going to galus, as they are busy with a mitzvah.”. The question is, if one is exempt from galus when busy with a mitzvah, why is a doctor any different?
The Ohr Some’ach (Hilchos Rotze’ach 5:6) answers that the din of the Shulchan Aruch is based on a Tosefta, and the Tosefta argues on the Bavli. The Ohr Some’ach points out that the Rambam rules like the Bavli and argues on the Tosefta, and ends off asking why the Shulchan Aruch who normally follows the Rambam and Bavli suddenly here decides to go with the Tosefta. So, although the Shulchan Aruch seems to disagree with what we said, this is based on a Tosefta which the Bavli argues on, therefore, it could be that we don’t need to follow the Shulchan Aruch in this case and we can follow the Bavli.
2) The Aruch HaShulchan
The Aruch HaShulchan (Yoreh De’ah 336:2) writes, that the Mechaber is talking about a case where the doctor was negligent and lazy. However, if it was in fact a complete accident then he wouldn’t need any teshuvah.
Conclusion
Based on all the above, it seems that the Israeli soldiers that killed other soldiers and hostages in friendly fire don’t need any teshuvah or kapporah. On the contrary, they shouldn’t do anything, as it will make it harder for them to fight properly and it will deter them in the future. However, R’ Asher Weiss writes, since in the end of the day they killed someone, they should take upon themselves something leiluy nishmas, the person they killed, and the main thing to do is Torah, tefillah and tzedokah leiluy nishmosom.
