גריי מאטר ד, ישראל, אי ציות לפקודות בצה"לGray Matter IV, Israel, Disobeying Orders in Tzahal (Israel Defense Forces)
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1If the Israeli Prime Minister orders an Israeli soldier to perform a certain task and his Rosh Yeshiva rules that the task constitutes a violation of Halachah, to whom should he listen? This question emerged as a burning issue during the evacuation of the Jewish communities of the Gaza Strip in August 2005. Many rabbis of the Religious Zionist community in Israel, led by the venerable Rav Avraham Shapira, the Rosh Yeshiva of Yeshivat Merkaz HaRav, strongly urged soldiers to disobey orders. Other major leaders, such as Rav Aharon Lichtenstein and Rav Ovadia Yosef, instructed soldiers not to disobey orders. In practice, only sixty nine soldiers out of an estimated twenty thousand religious soldiers who participated in the withdrawal refused to follow instructions during this painful episode. I, in fact, instructed soldiers to follow the rulings of Rav Lichtenstein and Rav Ovadia Yosef.
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2The Root of the Problem - The Division of Torah and Political Leadership
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3The Torah identifies two institutions of authority. First, the Torah speaks of the beit din, specifically the Sanhedrin, whose Torah leadership we must follow. In this regard, the Torah exhorts us, "Based on the rulings they rule for you, and [based] on the justice they tell you you shall act" (Devarim 17:11). The Torah subsequently speaks of the leadership of a king. The Torah forbids rebellion against either of these institutions of authority. In fact, both a rebel against Torah authorities (zaken mamreih) and a rebel against political authorities (mored bemalchut) are punished by death, because such people threaten the stability and viability of society. The Ramban (Shemot 22:27) and Sefer Hachinuch (Mitzvah 71), in explaining the prohibition of cursing a leader, write that the Torah forbids cursing any national leader, be he from the political authority or from the Torah authority.
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4The Rambam outlines the parameters of these two authorities. Regarding the Sanhedrin, he writes, "The Supreme Rabbinic Court in Jerusalem is the seat of the Oral Law and the center of judicial authority and the source of all legislation of the Jewish people” (Hilchot Mamrim 1:1). On the other hand, the Rambam (Hilchot Melachim 4:10) describes the role of the king as that of waging war and maintaining law and order in society.55See Derashot Haran (11) for a fuller discussion of the role of the king. For a discussion contrasting the views of the of the Rambam, the Ran, and the Abarbanel regarding the role of a king, see this author's essay in Beit Yitzchak 5749 pp. 142-150.
ה׳
5Accordingly, in the Torah's vision of society, the Sanhedrin administers the legislative and judicial aspects of society, while the king constitutes the executive branch of government. It is important that to note that Rav Kook writes (Teshuvat Mishpat Kohen 144) that someone who is recognized by the Jewish people as a leader is, to a great extent, the halachic equivalent of a king.56See the comments of the Radvaz to the Rambam Hilchot Melachim 3:8, which serve as the basis for Rav Kook’s position. Rav Kook’s approach has been adopted by many other poskim, including.Rav Yitzchak Herzog (Techukah L’Yisrael Al Pi Hatorah 1:152), Rav Ovadia Yosef (Teshuvot Yechave Da’at 5:64).
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6Even if one does not subscribe to Rav Kook’s approach, the importance of effective political leadership is emphasized by Chazal’s comment (Avot 3:2) that “One should pray for the welfare of the government [of the country in which he resides], for if not for government's discipline, each man would swallow his friend alive (i.e. utter pandemonium will prevail).”
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7Although the division of powers between the religious and political authority has the advantage of checks and balances, it also carries the distinct disadvantage of allowing potential conflicts between the two authorities. A classic example of such a conflict is when Pinchas and Yiftach (recorded in a Midrash cited by Tosafot to Ta’anit 4a s.v. Vehaynu) could not reach agreement about how to resolve the dilemma regarding Yiftach’s daughter (see Shoftim 11). Yiftach swore that if he would be victorious in his battle with Ammon, he would offer the first thing that exited his house as sacrifice to Hashem. When he returned home after his triumph, his only daughter was the first to emerge from the house.
ח׳
8Chazal question why Yiftach did not seek out the beit din of Pinchas, whom Chazal record as the leading Torah figure of the time, in order to annul his vow. The beit din easily could have released Yiftach from his vow with the approach that Yiftach never would have made this vow had he known that his daughter would be the first to emerge from his home. They explain that Yiftach did not go to Pinchas because he insisted that Pinchas come to him in order to convene the beit din, since he was the political leader. Pinchas, in turn, insisted that Yiftach come to him for the procedure, since he was the religious leader.57Chazal note that both Yiftach and Pinchas were punished for their intransigence. Chazal (cited by Rashi to Breishit 1:16) refer to this predicament with the aphorism, “Two kings cannot share the same crown.”
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9However, there were times in Jewish history when one outstanding individual, such as Moshe Rabbeinu, Shmuel Hanavi, and David Hamelech, assumed both roles. In these times, such conflicts did not occur. The question facing us, though, is how to manage a conflict between the Torah and political authority, especially when the conflict emerges in a critical area such as the military.
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10When Torah and Political Leadership Clash
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11Ordinarily, a king must be obeyed, and the penalty for refusing to do so is death (moreid bemalchut chayav mitah; Rambam Hilchot Melachim 3:8). Both the Maharatz Chiyut (Torat Hanevi’im pp. 47-48) and the Netziv (Ha’amek She’eilah Parashat Va’etchanan She’ilta 142) explain that the reason for the severity of this punishment is that the rebel is categorized as a Rodeif, one who literally threatens the lives of the members of society. Although, as Rav Yehuda Shaviv notes (Techumin 15:122 and 129-130), this issue is greatly relaxed in a democratic society, where dissent (within limits) is deemed necessary for the functioning of a healthy society, in a military situation, dissent creates a very real danger. A successful military, so necessary for Israel given the fierce and tenacious hatred of its many enemies, depends on discipline and listening to orders. In fact, the essential goal of a military’s basic training period is to teach the soldiers to obey orders.
י״ב
12However, the Rambam (Hilchot Melachim 3:9) writes that if a king issues an order to violate Halachah, the king's order should be disregarded. An example of appropriate disobedience of a king's order is when the generals of Shaul Hamelech, Amasa and Avner, refused to follow the latter's order to kill the Kohanim of Nov as punishment for aiding David (Shmuel I 22). Furthermore, Chazal (Sanhedrin 49a) criticize Yoav for not disobeying David's order to arrange for Uriah Hachiti’s death.
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13Ambiguous Situations
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14When a leader's order is clearly in violation of Halachah, the reason for refusing to follow the order would be understood by all. Hence, the refusal to disobey such an order would not lead to pandemonium and the breakdown of military discipline. For example, the refusal of Amasa and Avner to follow Shaul's order to kill the Kohanim of Nov would not lead to disarray, because all decent people would agree that this is an appropriate refusal to follow immoral orders. However, if it is unclear whether an order violates Halachah or not, then the required course of action may be quite different. Mutiny in this case will cause soldiers to debate whether the mutiny was permitted or not, and in a military situation, this can lead to pandemonium and a breakdown in military discipline, which is extremely dangerous for the security of the country.
ט״ו
15This may account for why the rabbis did not call for disobedience in certain situations. The Gemara (Pesachim 56a) relates that king Chizkiyahu removed the door to the Heichal (main hall) of the Beit Hamikdash and sent it to the king of Assyria in order to avoid war. The Gemara relates that Chazal disapproved of this action. Rashi (ad. loc. s.v. V’ Lo Hodu Lo) explains that they felt that Chizkiyahu should have had more faith in Hashem. The Tiferet Yisrael (Pesachim 4:9) explains that Chazal did not call for disobedience to the king because of eimat malchut, fear of the king. Chazal were not afraid that Chizkiyahu would harm them, as Chizkiyahu was an exceptionally righteous king. Rather, it seems that Chazal sought to protect the respect and integrity of the king. They appreciated the ambiguity of the situation, and therefore, it did not warrant mutiny that could threaten societal stability.
ט״ז
16This also might explain why Chazal do not criticize Yoav for not resisting David Hamelech’s order to count the nation (see Shmuel II ch.24). Rav Itamar Warhaftig (Techumin 15:153) suggests that Yoav assumed that David felt that it was permissible to do so, as there are certain situations where counting the nation is permitted (see, for example, Ramban to Shemot 30:12 and Bemidbar 1:3). Therefore, a military order that is unambiguously wrong, such as gratuitously harming a peaceful demonstrator who is not endangering anyone, should be disregarded. If, however, the Prime Minister orders Tzahal to do something that is halachically ambiguous, it seems that the order must be obeyed.
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17Contemporary Applications - Rav Yaakov Ariel
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18Rav Yaakov Ariel rules (Techumin 4:178, published in 1984) that one cannot disobey an order in a situation of ambiguity. He rules that Israeli soldiers should not disobey an order to conduct a military exercise on Shabbat even if there are serious doubts as to whether there is legitimate concern for pikuach nefesh (danger to life). In addition, he views disobedience due to political concerns to be entirely unacceptable. For example, he rejects the actions of soldiers who refused to participate in Tzahal’s siege of Western Beirut (then a stronghold of the PLO) in 1983 due to their claim that the siege was morally offensive.
י״ט
19Rav Ariel aptly notes that the morality of the siege is at its core a political question as to the efficacy of the military mission. The issue becomes a moral one only if one assumes that the operation is unnecessary, which is a political question. If one believes that the operation is required, though, then it is morally acceptable. Rav Ariel rules that such decisions should be left to the discretion of the government.
כ׳
20Furthermore, Rav Ariel notes that soldiers were obligated to obey military orders to evacuate Jews from Yamit, the Sinai Jewish community that was destroyed by the Israeli government (then headed by Menachem Begin) in 1982 in the wake of the peace treaty signed with Egypt. He explains:
כ״א
21This is because the government at worst erred in its judgment, but it did not intend to sin. Rather, it thought that this would help the Jewish people and Eretz Yisrael…While it is true, regrettably, that the government did not consider its steps due to Torah concerns, nonetheless, the fact is that there were some rabbis who permitted the matter.58See Gray Matter I:142-143, where it is noted that Rav Yosef Dov Soloveitchik, Rav Moshe Feinstein, Rav Yitzchak Hutner, and Rav Ovadia Yosef all permit exchanging Israeli land for peace.
כ״ב
22The fact that some rabbanim permitted exchanging Israeli land for peace defines the question of evacuating Jewish communities in Eretz Yisrael as “ambiguous” and delegitimizes refusal of military orders based on the claim that such evacuation violates Halachah. Such a claim is divisive, destabilizing, and dangerous. As Rav Yehudah Shaviv notes (Techumin 15:130), “We must very carefully consider what weakens Jewish control over and the existence of Jewish life in Eretz Yisrael - obeying an order to evacuate a Jewish community or disobedience of a military order, which is liable to divide and weaken.”
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23A Bad Government is Better than No Government
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24The comments of the Sefer Hachinuch (Mitzvah 71) highlight the importance of obeying military orders even in a situation that is morally and/or halachically ambiguous:
כ״ה
25It is impossible for a community to function without a leader whose orders will be followed. This is because people have differing views regarding various maters and it is impossible that they will agree on a course of action regarding these matters. Thus, if there were no leader, nothing would ever be accomplished. Therefore, the decisions of one person must be accepted, be they good decisions or be they poor decisions, in order for the community to function properly. Sometimes the leader will be successful and sometimes he will not. This, however, is far superior to strife and discord which causes complete destruction (emphasis added).
כ״ו
26Accordingly, Rav Lichtenstein and Rav Aviner seem to have been correct in urging soldiers not to disobey orders to evacuate the Jewish communities of as Gush Katif.
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27Contrasting Gush Katif with Yamit
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28Rav Ariel notes that he heard the ruling regarding Yamit from none other than his rebbe, Rav Avraham Shapira. He notes that Rav Shapira issued this ruling despite his personal opinion that the withdrawal from Sinai constituted a Torah-level violation. This is indeed shocking in light of how strongly Rav Shapira insisted that soldiers disobey orders to evacuate the Jewish communities of Gush Katif.
כ״ט
29The most compelling explanation of Rav Shapira’s stance regarding Gush Katif does not focus on the fact the Jews were being evacuated from their homes in Eretz Yisrael. Indeed, Rav Shapira ruled that soldiers were obligated to obey orders to evacuate Yamit because some rabbis permit exchanging land for peace. The difference seems to be the planning on behalf of the evacuees.
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30The residents of Yamit were generously compensated for their homes and successfully relocated. However, there was no plan for properly relocating the evacuated residents of the Gaza Strip. Even if one were to agree that the withdrawal from Gaza was strategically necessary, it was irresponsible to evacuate more than eight thousand citizens without a proper plan for their relocation. Thus, Rav Shapira’s argument for disobedience appears quite cogent.
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31Supporting those who Discouraged Disobedience
ל״ב
32I nonetheless counseled soldiers to obey orders to evacuate the Jewish residents of the Gaza Strip. This was due to the fact that even though the evacuation was conducted in an irresponsible manner, there was a bigger picture to consider. During the summer of 2005, tensions were running extremely high between the Jews of Eretz Yisrael who supported the disengagement and those who opposed it. The disputes were ubiquitous and intense and for the most part ran along the religious-secular divide, a perennial area of serious concern in Eretz Yisrael. Concern for violence was very real. It seemed that massive disobedience on the part of religious soldiers might have sparked a serious conflagration.
ל״ג
33The Gemara (Sotah 49a) notes that sometimes we have to make the decision not between good and bad, but rather between bad and worse. Although the evacuation was conducted irresponsibly, a civil war would have been far worse. As we quoted from the Sefer Hachinuch, “strife and discord causes complete destruction.”
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34Conclusion - “The Jewish People Need a Strong Army”
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35In practice, only sixty-nine soldiers out of an estimated twenty thousand religious soldiers who participated in the withdrawal refused to follow orders during this painful episode. With the advantage of hindsight, I believe that the soldiers who participated in the withdrawal are to be applauded. They did so with a very heavy heart and acted solely out of conviction that (in the words of one student of mine) “The Jewish people need a strong army.”
ל״ו
36The greatest heroes of this episode were the evacuated residents of the Gaza Strip, who, in the words of eyewitness Rav Shlomo Riskin, behaved liked princes during the evacuation. They placed the well-being of the nation over their personal concerns and almost completely refrained from violence despite the irresponsible lack of government planning. The Jewish people owe these former residents of Gaza a large debt of gratitude, and they deserve our generous support for their resettlement and return to living as productive citizens.