‘Friendly fire’: Parshat Mishpatim 5784

The portion of Mishpatim is a rapid-fire assortment of commandments. They come in no particular order: Some pertain to civil law, some to criminal law, and some pertain to ritual, such as the holidays. The portion begins with the laws of slavery but quickly segues to the laws of premeditated murder [Shemot 21:12]: “One who strikes a man so that he dies shall surely be put to death.” The Torah then describes a case of manslaughter, or wrongful death [Shemot 21:13]: “But one who did not stalk [him], but G-d brought [it] about into his hand, I will make a place for you to which he shall flee.” The incident was an “Act of G-d.” The Torah is alluding here to a “City of Refuge (Ir Miklat)” that it will fully introduce in the Book of Devarim [4:41-43]. A person who has committed manslaughter would be exiled to a City of Refuge, where he would remain until the death of the High Priest (Kohen Gadol). This begs the question: Why does the Torah only allude to a City of Refuge in the Portion of Mishpatim without explicitly mentioning it? Further, all other commandments in the portion appear in the same format: in the third person described by a passive observer (“One who strikes a man…”) Only regarding the law of the City of Refuge does the Torah speak in the first person (“I will make…”) to the second person (“for you”) and then the Torah immediately returns to the standard format. Why is this law different from all other laws?

Since October 7, Israel has been fighting a war in Gaza. The IDF is having great success in uprooting Hamas but at a significant cost in life. Since the ground incursion began, 227 IDF soldiers have been killed in action. The combat occurs in congested built-up areas, and the Hamas underground tunnel network is significantly larger than originally believed, such that IDF soldiers are completely surrounded by the enemy. A tragic byproduct of urban combat – the proximity of the enemy and the increased uncertainty – is death by friendly fire. According to some estimates, a full quarter of IDF soldiers killed in Gaza were killed by friendly fire. Perhaps the most tragic episode was when three Israeli hostages escaped and tried to turn themselves in to IDF soldiers, whom, believing that they were terrorists, shot and killed them. The face of Yotam Haim, one of the hostages killed, with his red locks and his beaming smile, is burnt into the collective memory of each and every Israeli.

In his weekly lesson of last week, Rabbi Asher Weiss[1] discusses whether or not a soldier who has accidentally killed an Israeli in battle requires atonement. He begins his discussion with a preface, noting that regarding all other commandments in the Torah, a person who unwittingly transgressed that commandment is not punished[2]. And yet a person who has unwittingly killed another human being is exiled, potentially for the rest of his life. Rabbi Weiss quotes the Hatam Sofer[3], who posits that because murder of any kind destroys the world, and because a person who kills one soul is as if he has destroyed the entire world, then any murderer, even one who had no evil intent, must be punished in some way. Now that the Cites of Refuge no longer exist, explains Rabbi Weiss, the greatest rabbis have, over the years, levied an array of punishments on unwitting murderers, including fasting and other forms of self-affliction, as well as sentencing the sinner to wander from place to place, or never to sleep in the same bed two nights in a row.

Rabbi Weiss’s next step is to find a case that is similar to that of friendly fire. This is no trivial task, as for thousands of years, Jews did not have a state of our own nor an army of our own[4]. The first case comes from the “Mahari Weil[5]”, regarding a businessman who sent an emissary overseas to do business for him and the emissary was killed. Rabbi Weil ruled that the businessman, while clearly not responsible for the death of his emissary, should fast for forty days and must take financial responsibility for the children of his emissary.

Rabbi Weiss then finds some examples closer to ours: The Rema[6] discusses a case brought before him of a person sitting in a carriage who accidentally killed the driver when his gun discharged. Even though the gun went off accidentally, the Rema ruled that the gun-owner must confess for one whole year, fast every day until after Yom Kippur, and not sleep in the same bed twice for one year. The case most like ours concerns a person who was at a shooting range and a bystander suddenly entered the range and he was shot and killed. The Maharam of Lublin[7] ruled that the shooter should fast three days each week, not drink any intoxicating beverages, not wear a suit more than once a month, not bathe more than once a month, and not shave. Even so, the Maharam asserts that he let the shooter off “leniently.”

Given this background, one would think that Rabbi Weiss would have no other option but to treat an Israeli soldier who accidentally killed another soldier or a hostage with the same severity. Nevertheless, he maintains, the case of IDF soldiers is qualitatively different. They are fighting a “War by Commandment (Milchemet Mitzvah)” to defend the State of Israel and any act of wrongful death was committed as they were carrying out their holy mission. Their lives are constantly in danger, and they have a duty to protect themselves and their comrades. Sometimes only a fraction of a second stands between life and death such that even if they have unwittingly caused another soldier or a hostage to die, circumstances are considered completely beyond their control (oness gamur) and thus “they are absolved of any requirement for atonement whatsoever.” Further, if a soldier is always second guessing whether he will be punished, then his ability to fight will be compromised. Rabbi Weiss concludes by stating that that one day when the war has been won and the fighting is over, soldiers who unwittingly caused the loss of life should take upon themselves some kind of reparation (tikkun) in the memory of the souls of the fallen, since “at the end of the day, they spilled innocent blood (dam naki).” He recommends Torah study, prayer, and charity.

Rabbi Weiss’s conclusion is puzzling in that he seems to be contradicting himself. Did he not just write that an IDF soldier should be “absolved of any requirement for atonement whatsoever”? I suggest that the necessity for “some kind of reparation” is not for the purpose of atonement, but, rather, for something else altogether. Jewish customs of death and dying seem strict. For seven days the mourner sits on the floor and does not bathe. For a month he does not shave. For one year he does not listen to music or wear new clothing. But these customs are not punitive – they are restorative. They assist the mourner in dealing with his pain and gradually returning to a normal life, albeit a new normal. In a similar way, I suggest that the reparations levied on a soldier who has unwittingly killed are not as much punishment as they are therapy. Much research has been performed on the effect on the psyche of one who has unwittingly killed. In an article called “Experiences of Causing an Accidental Death: An Interpretative Phenomenological Analysis[8]” by Sarah Rassool and Pieter Nel, the authors describe the perpetrator/victim as trying to make sense of a life-changing moment; struggling to cope with the enduring trauma of causing a death, and a changed sense of self. Their findings “emphasise the need to develop appropriate interventions to help alleviate this psychological distress.” It is the alleviation of this distress that Rabbi Weiss seeks to advance.

May G-d bless our soldiers, crown them with victory, and grant them blessing and success.

Ari Sacher, Moreshet, 5784

Please daven for a Refu’a Shelema for Sheindel Devorah bat Rina, Rina bat Hassida, and Esther Sharon bat Chana Raizel.

[1] Rabbi Weiss is one of the most erudite and widely accepted halachic arbiters (possek) in our time.

[2] If a person unwittingly commits an act that is punishable by Karet (excision), he must bring a sacrifice.

[3] Rabbi Moshe Sofer, known as the “Hatam Sofer”, lived in Bratislava (Pressburg) at the turn of the 19^th century. He was one of the leading Orthodox rabbis of European Jewry and the Headmaster (Rosh Yeshiva) of the prestigious Pressburg Yeshiva.

[4] Jews did fight on opposing sides in WWI, leading to some rare cases of inter-Jewish friendly fire.

[5] Rabbi Jacob Weil, known by his acronym “Mahari Weil,” lived in Germany in the 15^th century.

[6] Rabbi Moshe Isserles, known by his acronym “Rema,” lived in Krakow in the 16^th century.

[7] Rabbi Meir ben Gedaliah, known by his acronym “Maharam,” lived in Lublin at the turn of the 17^th century.

[8] https://www.tandfonline.com/doi/full/10.1080/07481187.2011.610559