(2007/5768)
Rav Hershel Schachter, in his work Nefesh HaRav (p. 132), cites a shocking ruling by Rabbi Yosef Dov Soloveitchik. The Rav rules that a Kohen who has killed enemy soldiers in the course of his service in the Israeli army is disqualified from performing Nesiat Kapayim (“duchenen”). As a precedent for his ruling, the Rav referred to the fact that King David was disqualified from building the Beit HaMikdash because he had shed much blood in the course of the wars that he conducted (Divrei HaYamim 1:22:8).
Many major Halachic authorities of the late-twentieth century do not agree with this ruling. Rav Eliezer Waldenberg, Rav Moshe Feinstein, and Rav Ovadia Yosef unequivocally rule that such Kohanim are permitted to duchen, and the mainstream Halachic sources regarding this issue support these authorities.
The basis of this discussion is the Gemara (Berachot 32b) which states that a Kohen who has killed is disqualified from duchenen. As a source for this rule, the Gemara cites a Pasuk from Yeshayahu (1:15) that teaches that Hashem ignores us when we extend our hands (referring to Nesiat Kapayim) if they are filled with blood. The Rambam (Hilchot Nesiat Kapayim 15:3) and the Shulchan Aruch (O.C. 128:35) codify this passage as normative Halacha. The Poskim we will cite focus on the parameters and scope of this prohibition, such as whether it applies to one who kills a Nochri, one who kills BeOnes (under duress), and one who kills in the course of performing a Mitzvah.
Rav Eliezer Waldenberg – Nochri Victims
Rav Waldenberg (Teshuvot Tzitz Eliezer 14:60) focuses on whether this prohibition applies to a Kohen who has killed a Nochri. Halacha clearly forbids murdering a Nochri and in fact may regard it as a more severe crime than killing a Jew because of the Chillul Hashem involved (see Mechilta DeRabi Yishmael Mishpatim Parasha 4, Raavan to Bava Kama 113a, Yerei’im number 175, Meshech Chochmah to Shemot 21:14, and Rav Yehudah Amital’s letter that appears in Alon Shevut 100:55-61). Nonetheless, a major rule of Talmudic analysis is that the source of a Halacha shapes its character. Accordingly, the Perishah (O.C. 128:46 in the Machon Yerushalayim edition), a major early-seventeenth-century commentary on the Tur, rules that killing a Nochri is not encompassed by this rule, since the Pasuk cited from Yeshayahu refers to Kohanim who killed Jews.
However, the Pri Megadim (Eishel Avraham O.C. 128:51) cites the Tzeidah LaDerech (to Parashat Mishpatim), who believes that this disqualification applies even to one who has killed a Nochri, since one who kills a Nochri is classified by Halacha as a murderer (Rotzeiach). For further analysis of this dispute between the Perishah and the Tzeidah LaDerech, see Rav Moshe Shternbuch’s Teshuvot VeHanhagot (1:131).
A number of twentieth-century authorities rule in accordance with the Tzeidah LaDerech. These include Rav Ben-Zion Uzziel (Teshuvot Mishpetei Uzziel 3:10), Rav Gedalia Felder (Yesodei Yeshurun, Maarechet Nesiat Kapayim 31), and Rav She’ar Yashuv Cohen (Techumin 6:31-44). Rav Soloveitchik also must follow this approach, since his ruling was issued in regard to Israeli soldiers who killed enemy Nochrim in the course of battle.
On the other hand, Rav Waldenberg rules in accordance with the Perishah. First, he notes that many prominent, classic Acharonim endorse this view, including the Maamar Mordechai (commenting on O.C. 128:43) and the Kaf HaChaim (O.C. 128:208). Furthermore, Rav Waldenberg notes that the Perishah’s ruling was omitted from most editions of the Tur and was lost for many years due to censorship. He continues that the Tzeidah LaDerech was a student of the Perishah’s and most likely would not have disagreed with his mentor had he been aware of his ruling.
Accordingly, Rav Waldenberg applies the principle articulated by the Rama (Choshen Mishpat 25:2) that a ruling of a later Poseik lacks authority if an obscure earlier source is discovered that contradicts the later Poseik’s ruling, since the later authority would likely have retracted his opinion had he been aware of the earlier decision. Rav Waldenberg claims that this applies in our case, since the Tzeidah LaDerech probably would not have issued his opinion had he been aware that it contradicted the ruling of his Rebbe. My Talmid Avi Levinson notes, however, that this line of reasoning appears a bit difficult, as we find Talmidim disagreeing with their Rebbeim fairly frequently. For example, Tosafot often take issue with Rashi, and the Levush many times disputes rulings of the Rama.
Rav Waldenberg thus concludes that our rule does not apply to a Kohen who has killed a Nochri. He writes emphatically, “Kal VaChomer Ben Beno Shel Kal VaChomer (how much more so), a Kohen who killed a Nochri in case of war or other emergency should most certainly be entitled to participate in Nesiat Kapayim.”
Rav Moshe Feinstein – Ones
In a brief responsum, Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:158) rules that a Kohen who is drafted into an army during time of war and kills in the course of war “is obviously eligible to perform Nesiat Kapayim.” He cites the ruling of the Pri Chadash (cited by the Baeir Heiteiv O.C. 128:59) as a precedent for his ruling. The Pri Chadash rules that if a Kohen, given the choice of killing an innocent person or being killed himself, opts to kill, he may continue to duchen. Although the Kohen acted wrongly, since in such a case Halacha (Pesachim 25b) requires that one forfeit his life rather than kill, nonetheless he is not disqualified, since he was coerced to kill. Indeed, the Rambam (Hilchot Nesiat Kapayim 15:3) writes that a Kohen who takes a life “either deliberately or negligently” is disqualified from duchenen; he does not write that one who kills BeOnes is disallowed from performing Nesiat Kapayim.
The Mishnah Berurah (128:128) cites the Pri Chadash as normative and does not cite a dissenting opinion. Rav Feinstein writes:
If so (the Pri Chadash is accepted), how much more so someone who was drafted into the army and is obligated to join due to the government regulations and did not act in contradiction to Halacha is permitted and even obligated to duchen. This is a simple and clear matter.
Rav Soloveitchik, on the other hand, apparently does not accept the Pri Chadash, Baeir Heiteiv, and Mishnah Berurah’s ruling as normative.
Rav Ovadia Yosef – Mitzvah
Rav Ovadia Yosef (Teshuvot Yechaveh Daat 2:14) refers to the late-nineteenth-century and early-twentieth-century Poskim who grappled with the question of Kohanim who fought in wars and killed soldiers from the opposing side. These authorities include Teshuvot Tiferet Tzvi (number 37), Teshuvot Levushei Mordechai (2:O.C. 17) and Teshuvot VaYitzbor Yosef (number 36). Rav Ovadia writes:
However, they addressed the issue based on their time and place, and the discussion focused primarily on the issue that they killed enemy soldiers among whom were Jews. [A lingering trauma in the collective Jewish conscious is the tragedy of Jews having fired on fellow Jews during World War One, since Jews were drafted into the armies of both sides - C.J.] Here (in the case of Israeli soldiers who killed enemy soldiers), in a defensive war where Kohanim risked their lives to confront the enemy and to save Jewish lives, it is proper to tell these soldiers ‘Yeyasher Kochachem’ and ‘May your hands be strengthened.’ The matter is clear beyond any shadow of a doubt that they are eligible and worthy of Nesiat Kapayim, and they should be blessed from the One above.
We may add that Rav Ovadia’s ruling equally applies to non-Israeli citizens who volunteer to serve in the Israeli army, since such people are performing a Mitzvah. The ruling also seems to apply to one who has legitimately killed enemy non-combatants in the course of a justifiable military operation, since this is a legitimate aspect of the Mitzvah of waging war and defending innocent lives, as we will (IY”H and B”N) explain at length in a series of essays later this year.
My Talmid Rav Ezra Frazer (TABC ’96), in Beit Yitzchak 35:651-652, cites the Shulchan Aruch (O.C. 128:36 and see Mishnah Berurah 128:133, who interprets this ruling expansively) as support for Rav Ovadia’s ruling. The Shulchan Aruch rules that a Kohen remains eligible to duchen if an infant upon whom the Kohen performed a Brit Milah dies. The Mishnah Berurah (128:132, citing the Magen Avraham 128:52) presents three reasons for this ruling: he intended to perform a Mitzvah, there is a possibility that the child was not a viable child (a Neifel), and the child could have died from other causes.
The first reason certainly applies to a soldier in the Israel Defense Forces. We should also note that this ruling of the Shulchan Aruch seems to apply to a soldier who mistakenly kills a fellow Israeli soldier in a “friendly fire incident.” Since this is an almost unavoidable, albeit tragic aspect of warfare, it would seem that in such a case a Kohen may continue to duchen, since his intentions were noble. This ruling might not apply, however, if the soldier fails to exercise proper care and caution in the action that leads to the death of his comrade.
Rav Soloveitchik apparently assumes that the Shulchan Aruch’s ruling regarding the Mohel applies only when all three reasons offered by the Magen Avraham and the Mishnah Berurah apply. In most cases, a soldier in the IDF will not be dealing with all three, and therefore, in Rav Soloveitchik’s view, is disqualified.
Conclusion
Rav Waldenberg, Rav Feinstein, and Rav Yosef each offer distinct justifications to permit a Kohen who kills enemy soldiers in the course of serving in the Israeli army to continue duchenen. Rav Soloveitchik somehow is not convinced by arguments that these Gedolim consider “certain,” “obvious,” and “true beyond any shadow of a doubt.” The precedent of David HaMelech’s disqualification from building the Beit HaMikdash appears to be a unique issue that is not cited by the classic Poskim in their discussions regarding Nesiat Kapayim. Moreover, Tosafot (Yevamot 7a s.v. SheNe’emar) assert that a Kohen who murders is not disqualified from performing the Avodah in the Beit HaMikdash. Rav Frazer notes that the only compelling support for the Rav’s approach is the Zohar to Parashat Pinchas, from which Rav Felder (ad. loc.) infers that Pinchas was disqualified from the Temple service because he killed Zimri ben Salu, despite the fact that his intentions were for the sake of a Mitzvah and to save Am Yisrael.
Finally, I recall from my years of study at Yeshivat Har Etzion (1981-1983) that the Kohanim who fought in the 1982 Lebanon War continued to duchen despite the fact that the Rav’s son-in-law and leading Talmid, Rav Aharon Lichtenstein, was one of the Roshei Yeshiva at that time. Were the Rav’s ruling to be followed, it would deal a significant blow to the morale of Israeli soldiers, for whom it is essential to enter combat with a clear and unambiguous understanding that the battles that they wage are clearly justified both morally and Halachically. (We should note that the Rav does not question the legitimacy of such battles, as he compares them to the wars of David HaMelech). Indeed, when asked by Kohanim who fought in the 1982 Lebanon War if they may continue to perform Nesiat Kapayim, Rav She’ar Yashuv Cohen (ad. loc.) responded with a resounding yes, stressing the legitimacy of that war. Although the Rav’s ruling emerges from both his profound reverence for human life and his deep moral character, it seems not to constitute normative Halachic practice. Indeed, my Talmid Jesse Dunietz reports that Rav Aharon Lichtenstein told him that at Yeshivat Har Etzion, Kohanim who have killed in battle continue to duchen.