(2017/5777)

Introduction

Consider: A pilot in the Israeli air force is sent on a mission to destroy an enemy platoon. As he is en route and outside the range of communications, the air force learns that the intelligence was flawed and the target is actually an area populated by its own soldiers. According to Halacha, is Tzahal permitted—or even obligated—to shoot down its own plane, sacrificing the pilot for the sake of the soldiers?

This question, based on a tragic, real-life scenario, was put to students from eight U.S. high schools who squared off in the second annual Beis Medrash L’Talmud-Lander College for Men Model Beis Din competition. The cutting-edge tournament invited teams to the Kew Gardens Hills campus to match wits on the ramifications of this complex halachic quandary.

The winning team, for the second straight year, was the Torah Academy of Bergen County (TABC) in Teaneck, New Jersey. Yeshivat Shaare Torah in Brooklyn, New York and Yeshiva Ohr Yisrael of Atlanta, Georgia placed in second and third place, respectively. Students from Rambam Mesivta in Lawrence, N.Y., last year’s second-place winner; Mesivta Ateres Yaakov in Lawrence; Hebrew Academy of Nassau County (HANC); Ma’or Yeshiva High School in Long Branch, N.J.; and Cooper Yeshiva High School of Memphis, Tennessee also participated.

Arguments Against Shooting Down the Plane:

The participants were expected to argue both in favor and against the Halachic permissibility of shooting down the plane. Let us first examine eight arguments against shooting down the plane.

1)       The Mishnah (Ohalot 7:6) teaches

“A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated. However, once the head of the baby has emerged, one cannot touch it as we are forbidden to kill one individual to save another” (Ein Dochin Nefesh Mipnei Nefesh).

This Mishnah directly prohibits killing one person to save another, seemingly precluding killing the pilot to save the civilians.

2)       The Gemara (Sanhedrin 72b) explains that the Mishnah does not justify killing the baby as a Rodeif[2] since “Mishmaya Ka Radfei Lei” (a literal translation of this phrase is that the mother is being pursued by heavenly intervention). One could understand the Gemara as teaching that a Rodef B’Oness is not a defined as a Rodeif - if one does not intend to harm others, there is no justification to kill the innocent pursuer. The pilot in our case most certainly is a Rodeif B’Oness.

3)       Rashi (to Sanhedrin 72b) – Rashi notes that the episode of the wise woman advising the killing of Sheva ben Bichri to save her town seems to contradict the principle of Ein Dochin Nefesh Mipnei Nefesh. Shmuel II Chapter 20 records the story of a “wise woman of the town of Avel Beit Ma’achah” who hands over the rebel Sheva ben Bichri to King’s David’s general Yoav ben Tzeruyah. She did so in order to spare the entire town from being destroyed by Yoav ben Tzeruyah for harboring Sheva ben Bichri. The Navi apparently condones the actions of this woman as it refers to her with the complimentary title “wise woman”.

Rashi offers two defenses of the Ishah Chachamah killing Sheva Ben Bichri (Rashi’s answers are based on the Tosefta to be cited later) in order to save the town of Aveil. Neither defense permits killing one person to save the many. Rashi’s two justifications of killing Sheva ben Bichri, Chayav Mita[3] and he would have died anyway, do not at all justify killing the pilot to save the many civilians he would be attacking.

4)       The Rambam (Hilchot Rotzeich U’Shemirat Nefesh 1:9 and Hilchot Choveil UMazzik 8:15) writes that the fetus and the baggage on a ship in danger of sinking are K’Rodeif (comparable to a Rodeif) but not an actual Rodeif. A fetus and baggage are not defined as an actual Rodeif since they are not making a conscious decision to harm. Thus, the pilot should not be construed as a Rodeif since he does not intend to harm.

5)       The Yerushalmi (Terumot 8:4) and Tosefta (Terumot 7:23) forbid killing one person to save a large group of Jews proving Ein Dochin applies even to save more than one life.

“A group of individuals on a journey and are encountered by evildoers who said to them ‘Give us one member of your group or we shall kill the rest of you’ – let them all be killed and we must not release even one Jewish soul (Yemsaru Kulam V’al Yismasru Lahem Nefesh Achat B’Yisrael)”.

Reish Lakish and Rav Yochanan both articulate exceptions to this rule. Rav Yochanan explains that Sheva ben Bichri differs because he was designated for death by Yoav ben Tzeruyah. Reish Lakish explains that the situation of Sheva is different because according to Halacha, Sheva deserved the death penalty. Neither exception is applicable to our situation with the pilot.

6)        Rav Yosef Shalom Eliashiv, cited by his son-in-law Rav Yitzchak Zilberstein (Sheilot UTeshuvot VaHa’arev Na 3:331) forbids shooting the pilot since one engaged in Maaseh Hatzalah (act of rescue) and risking his life in doing so, cannot be defined as a Rodeif. Rav Eliashiv writes that even in the tragic case addressed by the Chatam Sofer (Teshuvot Orach Chaim 177) where a mistress mistakenly poured kerosene down the mouth of her maid to save her would not and could not be seen as a Rodeif (and be killed by someone who realized her grievous error).

7)       Rav Meir Goldvicht (who served as an officer in Tzahal) and the morale of the IDF soldiers – notes (in his contribution to Zichron HaRav; his essay addresses the release large numbers of Arab prisoners in exchange for a captured soldier) that maintaining Tzahal morale is a matter of Pikuach Nefesh (saving lives; it allows the soldiers to fight effectively). Morale may require the knowledge that even if one makes a mistake in battle (which is easy to happen – battlefields are extremely chaotic) he will not be fired upon by fellow Jews.

8)       The pilot is not a definite Rodeif since he might notice at the last minute that the soldiers are Jewish or radio contact may be reestablished with the pilot. Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:69) and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:72) define a Rodef only as one who is “close to certainly” threatening the life of another. The pilot is only possibly a Rodeif.

Conclusion

One may make a wide variety of arguments forbidding the shooting down of a friendly fighter pilot who erroneously is about to fire on his own soldiers. Next week, iyH and b”n, we will present a wide variety of arguments to permit killing the pilot to save soldiers.

[1] A Yasher Koach to Yosef Solomon and Shlomo Korsinsky for helping me with the Noam Elimelech.

[2] Halacha sanctions and even obligates killing a Rodeif, one who attempts to kill another.

[3] The fact that Sheva ben Bichri was deserving of the death penalty due to his being a Moreid B’Malchut, one who destabilizes the country by defying the king.