When Must Soldiers Disobey Direct Orders? A Biblical, Talmudic, Midrashic Analysis of An All Too Contemporary Question

Background:
A news article appearing in The New York Times on Sunday, February 10, 2002, dealt with the petition of some Israeli reservists protesting their assignment to duty in the West Bank and Gaza. Benjamin Ben-Eliezer, Israel’s defense minister, defended their democratic right to petition the government, but he criticized their ethical reasoning.  “They want more kosher than kosher,” he said.

In the ensuing article, The Times reporter, John H. Cushman Jr., states that:
Questions of what constitutes a just war, and lawful orders, may, for historical reasons, be especially weighty in Israel, but they are important for all democracies and have been debated by soldiers of many armies.

He also notes:
In 1998, Statutes of the International Criminal Court, which is being set up to try war criminals, established that unlawful orders may be a defense if the defendant was under a legal obligation to obey them and did not know that the orders were illegal – and if the orders were not “manifestly unlawful,” as in a genocidal act.
The refrain of “I was just following orders” has echoed, hauntingly, throughout much of the last half-century, from Nuremberg to My Lai. This refrain has not been limited to acts of murder, or even to times of war.
Our purpose in this lesson is to delineate the Jewish ethical perspective on individual responsibility during times of war by means of a Biblical illustration and its accompanying Talmudic, Midrashic and exegetical exposition.
The scenario we have chosen is the Aggadic version of the trial of Yoav ben Zeruyah for the crimes of murdering Avner ben Ner and Amasa ben Yeter (I Melakhim 2:32). Yoav’s spirited–and successful–defense (Sanhedrin 49a) leads us into the question of issuing and following improper or illegal orders.

A Technical Note:
In order to capitalize on the currency of this issue (a kind of pedagogical mitzvat aseih shehazeman geramah), we have dispensed with the usual “Texts and Topics” format in favor of this abbreviated version. In order to make the unit “e-mailable,” we will refer to the relevant sources, initially, only in their English translations. The full original citations, as well as questions that can be posed to students, can be obtained upon request.

Synopsis of Unit:
As King David lies dying, he instructs his son, Shelomo, to settle old scores with Yoav ben Zeruyah and Shim`i ben Gera. When Yoav hears that Adoniyahu, whose candidacy for the king he supported, has failed to secure the throne, he realizes that his life is forfeit and he seeks sanctuary in the “Ohel.” [While we will not pursue the element of sanctuary, per se, any further, it bears investigation. Try Shemot 21:14, with commentaries, and the Gemara Makkot 12a.] He is brought before the king and charged with the murders of Avner ben Ner (2 Shemuel 3:27) and Amasa ben Yeter (op. cit., 20:10). According to the “peshat” of Sefer Melakhim, he is immediately and unceremoniously executed by Benayahu ben Yehoyada (vs. 34).

The Talmudic Aggadah, however, has Yoav brought to trial where he successfully defends himself against both murder charges and is eventually executed on a third charge–namely, his collaboration in the unsuccessful coup of Adoniyahu. The core of this unit is an examination of that defense in which the element of obedience to the orders of a superior officer plays a pivotal role.

A Heartfelt Hakarat HaTov:
This unit is adapted, unabashedly, from a thoughtful essay by Professor Moshe Greenberg of the Hebrew University, a renowned scholar of Tanakh, Parshanut, and the ancient Near East: “Rabbinic Reflections on Defying Illegal Orders,” appearing in Menachem M. Kellner (ed.) Contemporary Jewish Ethics (NY, 1978), 211-220. I have added sources here and there and, of course, the pedagogical adaptation is entirely original. I alone bear the responsibility for the presentation of the sources and for the conclusions drawn from them.

 

***
Exhibit One: Yoav’s Trial
[Shelomo] brought Yoav to trial and said to him: Why did you kill Avner? He replied: I was avenging [my brother] Asael. Wasn’t Asael in pursuit of Avner? Avner could have saved himself by wounding Asael in one of his limbs [he needn’t have killed him]. Perhaps he was not able to do so? Since Avner was able to strike him at the fifth rib …he could have just wounded him.
He said: Let us leave [the subject of] Avner. Why did you kill Amasa? He replied: Because Amasa committed treason against the king. “The king [David] ordered Amasa to summon all the men of Judah in three days’ time… Amasa went to summon them and tarried” (2 Shemuel 20: 4 ff.). He said: Amasa construed the “but’s and only’s.” He found them engaged in [religious] study and reasoned [as follows]: [The Israelites promised Yehoshua] “Whoever contradicts you or disobeys you, whatever you command, shall die” (Yehoshua 1: 18). Does that include [disagreement on account of] Torah study? The verse states: “Only be firm and resolute” (op. cit., vs. 7).
[So why was Yoav executed?] He was a traitor, as it states: “The news reached Yoav who had sided with Adoniyahu, although not with Avshalom” (1 Melakhim 2:28, Sanhedrin 49a).

Elaboration:
The right of a leader to expect obedience to his instructions is not granted expressly in the Torah (see the prerogatives of royalty in Devarim 17:14-20); it derives from a specific historical precedent. After the death of Moshe, the Israelites swore their allegiance to Yehoshua and promised to punish any disobedience to his word. This pledge, however, was not a blank check. Through their reference to “Only be firm and resolute” (RAK HAZAK VE-EMATZ), they reveal to us our first important insight into the halakhot of obedience: A leader is expressly constrained from requiring obedience that violates Torah law.

NOTE: The Gemara accepts Yoav’s claim vis a vis Avner, but rejects his claim against Amasa by justifying Amasa’s delay. Nevertheless, it prosecutes Yoav on the separate charge of treason. The conclusion appears to be that while he was morally guilty vis-a-vis Avner and Amasa, he was not legally culpable.

***
Exhibit Two: Avner, Amasa, and Disobedience
Avner and Amasa, ironically, play a critical role in the derivation of the halakhic principles of obedience.
In 1 Shemuel 22:17, Shaul commands his servants to kill the kohanim of Nov because they had aided and abetted David in his escape. The soldiers refuse to shed the blood of “servants of the LORD,” so Shaul turns the task over to Doeg the Edomi who has no such compunctions, and kills them.

The Yerushalmi (Sanhedrin 29a) asks:
Who were those servants [who refused the order]? Rav Shemuel ben Yitzhak said: They were Avner and Amasa. They said to Shaul, If we owe you anything besides these belts and coats (their military insignia?), take them back!
The Bavli (Sanhedrin 20a), however, has certain reservations about their conduct:
Rav Yehudah said in Rav’s name: Why did Avner meet an untimely death? Because he failed to take a stand against Shaul. Rav Yitzhak said: He took a stand, but he was overruled.
Elaboration:
Avner’s death at the hands of Yoav is his just dessert for his failure to assume a more vigorous opposition to the murder of the kohanim of Nov. This provides us with our second important insight into the halakhot of obedience: It may not be sufficient to abstain from obeying an illegal order; you might have to offer more than your resignation.
[Indeed, the Gemara (Shabbat 55a), in elaborating on Yehezkel 9:4 (“Go through the streets of Yerushalayim and place a mark on the foreheads of all who sigh and groan over the abominations committed in her”), makes the point that it is not enough to refrain from committing evil when one can also take a strong stand against it.]

***
Exhibit Three: Yoav and Disobedience; A Contrast
Given the Aggadic penchant for validating the aphorism, “According to the measure that one metes out so is it meted out to him,” we should not be surprised to discover that the disobedience that goes around comes around. The same Gemara (Sanhedrin 49a) with which we began, continues:
God brought [Yoav’s] guilt down upon his own head for having struck down two more righteous and better men than he. Better, in that they [Avner and Amasa] construed the “but’s and only’s,” while he did not. More righteous, in that they refused a command that came only orally, while he obeyed a command that came [only] in writing.

Elaboration:
While Avner and Amasa defied a questionable command which, by virtue of its verbal nature, carried an inherent note of ambiguity, Yoav failed to defy a written order–to place Uriah the Hitti in the line of fire–whose illegality patently meets the “manifestly unlawful” criterion noted by The Times in the Introduction.

***
Exhibit Four: Crime and Commission
The Gemara in Kiddushin (43a) stipulates:
If one commissions an agent to commit murder and he complies, the agent is guilty and the principal is exempt. Shammai, the Elder said in the name of the prophet, Haggai, the principal [too?] is guilty, as it states [of David, regarding Uriah]: “You slew Uriah… by the sword… and killed him by the Ammonite sword” (2 Shemuel 12:9).

Elaboration:
Given their negative assessment of Yoav’s morality in this case (Exhibit Three), why does Hazal not rebuke him openly for his complicity in Uriah’s death–applying Shammai’s principle [which is expressed as either ein shaliah lidevar aveirah, or divrei harav vedivrei hatalmid divrei mi shom`im] that every individual bears responsibility for his own deeds and cannot slough off that responsibility by arguing that he was only “following orders”?

The contemplation of this question leads us to our third and final observation on the halakhot of obedience: The rule of individual responsibility stops short of the throne.
Just above, we cited the verse: “You slew Uriah… by the sword… and killed him by the Ammonite sword” (2 Shemuel 12:9).  RADAK, commenting on the ostensible redundancy, notes that soldiers–even commanders–may, in the heat of battle, or even in relatively relaxed times, take for granted that their commander-in-chief, the king, has done the necessary values clarification and assume that any order he gives is legal:
You slew him: As though you had slain him [personally] by instructing Yoav to place him in harm’s way. You killed him: [Why the repetition?] You have compounded the felony by having him slain by the Ammonites, the enemies of Israel.

Our Sages have said: Although the universal rule is “there is no agency for the commission of a crime,” and everywhere the agent and not the principal is culpable, here the situation differs since the verse calls [David] a killer. Why is this? Since he was the king and his word was law, it is as though he did the killing himself. Similarly, when Shaul ordered the killing of the kohanim of Nov, it was as though he killed them himself.

Generally, a person should refrain from following the king’s orders in such a case. We have explained, apropos of “Anyone who defies your word shall die” (Yehoshua 1:18), that this does not include the commission of a crime, as the verse states: “Only” [be firm and resolute, excluding instructions that violate Torah law].
Not everyone, however, is capable of construing “but’s” and “only’s.” The onus [punishment], therefore, is on the king.

***
OPERATIVE/ NORMATIVE CONCLUSIONS
In conclusion, we cite several “codifications” of the laws of obedience.

1. RAMBAM Hilkhot Melakhim (3:9)

Whoever defies a royal order on account of a preoccupation with mitzvot, even of a minor variety, is not culpable. When the master and the servant both speak–the master’s words take precedence. It goes without saying that if the king commanded that a mitzvah be annulled, he is not to be obeyed.

2. HaRav Shelomo Min-HaHar: DINEI TZAVA U-MILHAMAH (#28)

The regulations of the General Staff and the Military Rabbinate are available to assist soldiers in all cases. According to regulations, orders that contravene Halakhah are invalid.

3. U.S. Dept. Of the Army, Field Manual: The Law of Land Warfare 182:

[Military courts are admonished] to take into consideration the fact that obedience to lawful orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received.

4. The American Law Institute: Model Penal Code, Military Orders (2.10):

It is an affirmative defense that the actor, in engaging in the conduct charged to constitute an offense, does no more than executing an order of his superior in the armed forces which he does not know to be unlawful.