Calculated risk management or risky gambling

Parshat Hashavua – Parashat Ki Tetze 5784

Rabbi Eliezer Haim Shenvald

Praying for the IDF soldiers' success, to safeguard them lest any harm come to them, to the healing of all the wounded and the return of the abducted.

A state and its army are committed to the safety of its residents. Its duty is to strengthen their security and remove threats and risks to their lives. If necessary, they have an obligation to use military force to thwart threats and risks. If there is no choice, they must act in a way that poses even a proportional risk to the soldiers. The mode of military action should be powerful, strive for victory and decisiveness, unequivocal, as fast as possible, which will create a long-term deterrence. It is their duty to take steps to prevent the formation of threats and risks in advance, and to be on appropriate alert to thwart them if they do arise. Assessing future risks, which are not tangible enough, is one of the most difficult things in the process of decision-making, personal and strategic. It requires the activation of the imagination, to illustrate them to the right extent.

Intelligence monitoring is mandatory to follow the enemies, to identify trends that may endanger the residents, in the short and long term, and alert them. For this, the enemy's capabilities and intentions must be analyzed. Capability mapping involves gathering information of actual data, (relying on visible information, and qualified information disclosure).

Identifying these intentions requires an assessment of what is 'cooking' in the enemy's mind. One should be aware that when there is a cultural and religious gap with the enemy, it is difficult to identify his motives and intentions.

There is an additional risk; that the agendas and concepts may affect the evaluation of the intentions and dangers. They may intensify them or ignore them, depending on what suits the concept or agenda.

Failure to assess risks and threats is one of the main reasons for past failures. Threats that materialized without prior preparation created a complete surprise, which took a heavy toll on casualties, and damaged deterrence.

In the past, political and military moves were taken whose leaders promised that they would resolve conflicts, and that there was a chance for a better future. However, they ignored the risks, or downplayed their severity, and claimed to have managed the risks in a calculated manner. But in fact, it was a fatal bet. The risks have materialized. Some immediately and some after a while charged a heavy price.

I heard from my friend Brigadier General (res.) Uzi Keren that an important distinction is made between 'calculated risk management' and 'gambling'. We must examine whether there is a real answer to the question: what will happen if the basic assumptions collapse and the risk materializes, will we have the tools to return the situation to its original state, without paying a heavy price? If the answer is positive then it is a calculated risk, if the answer is negative, it is a dangerous bet.

In our Parasha, the Torah forbids taking risks and betting on the fate of life:

כִּי תִבְנֶה בַּיִת חָדָשׁ וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ וְלֹא תָשִׂים דָּמִים בְּבֵיתֶךָ כִּי יִפֹּל הַנֹּפֵל מִמֶּנּוּ

"When you build a new house, then you shall make a parapet for your roof, so that you don't bring blood on your house, if any man falls from there". (Dvarim 22:8)

The Torah requires homeowners to install a safety railing to the roof to prevent risk to the user. Maimonides enumerated two Mitzvot: a positive commandment (Mitzvat Haseh): "Make a parapet for your roof”, and a negative commandment (Mitzvat Lo Ta’aseh) "And you shall not put blood in your house"(by refraining from setting up a parapet). (Rambam -Mishne Torah - Rotzeach uShmirat Nefesh - The Laws of Murderers and the Protection of Life 11:1-3)

The Rambam also states that there is a general obligation to avoid risks and to gamble on life:

וכן כל מכשול שיש בו סכנת נפשות מצות עשה להסירו ולהשמר ממנו ולהזהר בדבר יפה יפה. שנאמר השמר לך ושמור נפשך.

“Similarly, it is a positive Mitzvah to remove any obstacle that could pose a danger to life, and to be very careful regarding these matters, as Devarim 4:9 states: "Beware for yourself; and guard your soul." (ibid)

The Torah imposes liability and guilt on those who are negligent in removing dangers under their responsibility endangering their safety and the safety of others:

ואם לא הסיר והניח המכשולות המביאין לידי סכנה ביטל מצות עשה ועבר בלא תשים דמים.

“If a person leaves a dangerous obstacle and does not remove it, he negates the observance of a positive commandment and violates the negative commandment: "Do not cause blood to be spilled." (ibid)

The obligation is absolute, and it is forbidden to 'rely on a miracle' or that nothing will happen, and the risk will not materialize:

וְעַל כֵּן תְּצַוֵּנוּ הַתּוֹרָה, לִשְׁמֹר מִשְׁכְּנוֹתֵינוּ וּמְקוֹמוֹתֵינוּ, לְבַל יִקְרֵנוּ מָוֶת בִּפְשִׁיעוּתֵנוּ, וְלֹא נְסַכֵּן נַפְשׁוֹתֵינוּ עַל סְמַךְ הַנֵּס, וְאָמְרוּ זִכְרוֹנָם לִבְרָכָה (תורת כהנים אמור פרשתא ח), שֶׁכָּל הַסּוֹמֵךְ עַל הַנֵּס אֵין עוֹשִׂין לוֹ נֵס.

“...therefore the Torah commands us to guard our dwelling places and our locales, lest death encounter us in our negligence. And we should not endanger our souls by reliance upon miracles; and they, may their memory be blessed, said (Sifra, Emor 8) that a miracle is not performed for anyone who relies on a miracle". (Sefer HaChinuch 546:3)

On the other hand, there are cases in which an individual is allowed to endanger himself with a calculated and proportionate risk.

However, when it comes to endangering the public, stricter rules should apply:

מְכַבִּין גַּחֶלֶת שֶׁל מַתֶּכֶת בִּרְשׁוּת הָרַבִּים בִּשְׁבִיל שֶׁלֹּא יִזּוֹקוּ בָּהּ רַבִּים, אֲבָל לֹא גַּחֶלֶת שֶׁל עֵץ

“One may extinguish a piece of white-hot metal in a public area on Shabbat so that the masses will not be injured. However, one may not extinguish a red-hot wood coal”.

(Shabbat 42a:1)

דנזקא דרבים כסכנת נפשות חשיב ומותר לעשות גם מלאכות דאורייתא למנוע נזק של רבים

It is permissible to do general categories of labor that are forbidden by the Torah if there are damages that put the public at risk of injury, considered as endangering their lives" (Second Shut Menchat Shlomo 37).

The same should be done regarding security risks:

כִּי גַּם בְּהִלָּחֵם יִשְׂרָאֵל מִלְחֶמֶת מִצְוָה עַל פִּי הַשֵּׁם, הָיוּ עוֹרְכִין מִלְחַמְתָּן וּמְזַיְּנִים עַצְמָן וְעוֹשִׂין כָּל עִנְיָנָם, כְּאִלּוּ יִסְמְכוּ בְּדַרְכֵי הַטֶּבַע לְגַמְרֵי, וְכֵן רָאוּי לַעֲשׂוֹת לְפִי הָעִנְיָן שֶׁזָּכַרְנוּ, וַאֲשֶׁר לֹא יַחְלֹק עַל הָאֱמֶת מֵרֹעַ לֵב יוֹדֶה בָּזֶה.

“Since even in Israel’s fighting of a war commanded by the word of G-d, they would [still] organize their war and equip themselves and do all of the [required] matters, as if they were completely relying on natural processes [to win the war]. And so, is it fitting to do according to the matter that we mentioned. And the one who does not argue with the truth from a perverse heart will concede this”. (Sefer HaChinuch 546:3)