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Killing Shepherds on Mission

I recently read the story of a Navy Seals team that while on a mission to kill terrorists were hiding, when unexpectedly 3 shepherds (of goats) uncovered the Seals positions. The Seals grabbed the shepherds and had to decide whether to let them go free (with the possibility that the shepherd would reveal the Seals location) or kill the (innocent) shepherds (so as not to take any chances).

In this instance the Seals let the shepherds go and the Seals mission was compromised and many of the Seals died due to this breach. In halacha what was the proper approach? Would they have been allowed to kill the 3 innocents as the (legitimate) concern for the Seals own safety? Can you provide sources?

thanks.

Answer:

This is a very complex question, and it is hard to give a simple answer.

It is generally forbidden to kill an innocent individual in order to save the lives of others (see Sources below). There are some exceptions to the rule, but these will not apply in the case of the question.

However, in warfare the laws of combat are different, and although of course we are charged with preserving civilian lives to the extent we can, where combating the enemy requires it, loss of civilian life is something that we accept as inevitable.

The practical approach for each case will depend on the risk, depend on available alternatives, and so on.

Best wishes.

Sources:

The basic source for killing one person in order to save others is the case of Sheva ben Bichri and his revolt against King David, as told in Shmuel II, Chap. 20. Yoav ben Tzeruya, David’s general, chases Sheva ben Bichri to Beit Maacha, and lays siege to the city.

Just as Yoav is ready to breach the walls, a wise woman [Serach bas Asher, according to the Midrash] from the city calls down to Yoav and demands to know why Yoav seeks to destroy her city. Yoav responds that he seeks only the life of Sheva ben Bichri. The woman then instructs the people of the city to kill Sheva ben Bichri, and to throw his head over the wall to Yoav, thereby saving the city from destruction.

The legal significance of this story is spelled out in the Tosefta (Terumot 7:23): “If a group of people is approached by Gentiles and told: “Hand over one of you so that we can kill him, otherwise we will kill all of you,” they should all let themselves be killed rather than hand over a single Jewish life. However, if they specified a particular person, they should hand him over and not give up their lives, as in the case of Sheva ben Bichri.”

Chazal derive from the story of Sheva ben Bichri that although it is prohibited to turn over a Jew, even in order to save many other lives, if the enemy demands a particular individual, it is permitted to turn him over. In this specific case, the rule of “one does not defer one life before another” is waived.

The Jerusalem Talmud (Terumos 8:4) cites a dispute between Amoraim concerning whether the above halachah applies even to an innocent individual, or whether it is limited to a guilty person such as Sheva ben Bichri, who was liable for death due to his rebellion against David. According to Rabbi Yochanan, the halachah applies universally; according to Reish Lakish, it applies only to guilty individuals.

Poskim disagree over the halachic ruling in this dispute. The Rambam (Yesodei Ha-Torah 5:5) rules according to Reish Lakish, and adds that even when the individual is guilty, and the person may be turned over, “we do not instruct this” (the rabbis must try to avoid giving the instruction of sending a person to his death). However, other authorities point out that in general, the halachah follows Rabbi Yochanan in his disputes with Reish Lakish (Yevamos 36a), and that the halachic ruling should therefore follow Rabbi Yochanan’s position. The Rema (Yoreh De’ah 157:1) mentions both opinions, without deciding between them.

The Taz (ibid.) concludes that the halachah should follow the Rambam’s stringent ruling, citing a similar stance from his father-in-law, the Bach. However, the Chazon Ish (Choshen Mishpat, Sanhedrin 25) writes that the principle halachah follows the opinion of Rabbi Yochanan, explaining that the halachah of turning over the requested individual is based on the concept of rodef: “The one that is singled out is considered a rodef, for his escaping among them causes them all to be killed. Although he does not have the full status of a rodef, because he does so to save his own life, nonetheless the entire town does not have to die, for he is the cause, and it is permitted to turn him over.”

Although the Chazon Ish proceeds to mention the ruling of the Rambam, whereby it is forbidden to hand over an innocent individual who was singled out by the enemy, it remains clear that his principle ruling follows Rabbi Yochanan’s broader conception of turning over the threatening individual.

In the case of the question, we have to assume that the shepherds are innocent, since we don’t know otherwise. Because of this lack of knowledge, we cannot even say that there is any danger in their being left alone. However, laws of warfare are different (as I’ve heard many times from Rav Asher Weiss shlita), and we cannot compare times of war to times of peace. This is why there no clear decision can be given, and the matter depends on the unique circumstances of each case.

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