(2009/5769)

In honor of Yom Haatzma’ut we shall explore an issue of great importance facing Medinat Yisrael - the Halachic propriety of torturing someone in order to reveal information that will save innocent life. Our discussion will be based to a certain degree on an essay written by Rav J. David Bleich on this subject (Tradition Winter 2006). This is a critical issue regarding the security of the nearly six million Jews who reside in Eretz Yisrael as well as the lives of the residents of civilized countries. 

The stance of the secular Israeli Supreme Court has adopted regarding this issue is not in harmony with Halacha or (L’havdil) with the rulings of civil courts in any other country. We look forward to the day that Medinat Yisrael adopts the policies of Halacha regarding this matter and all others, especially in regards to societal issues.

  The September 1999 Ruling of the Israeli Supreme Court

On September 6, 1999, the Israeli Supreme Court prohibited torture and even physical pressure to elicit information that could prevent an imminent terrorist attack. The decision, written by the then president of the Supreme Court Aharon Barak, includes the following:

It is decided that the order be made absolute, as we declare the General Security Services (Shabach) does not have the authority to shake a man, hold him in the ‘Shabach’ position…force him into a “frog crouch” position and deprive him of sleep in a manner other than which is inherently required by interrogation. 

  The Innocent Passive Rodef

The Halacha strongly disagrees with this notion of refraining from torturing a ticking bomb in order to reveal information that will save lives. The individual who refrains from revealing information is classified as a Rodef. A Rodef is one who is in the process of trying to kill someone and must be immobilized either by killing or (if it is a viable alternative) by wounding him (Rambam Hilchot Rotzeich 1:13). One might counter that one is considered a Rodeif only if he is engaged in active pursuit of a victim. We can demonstrate, however, that the Halacha regards one who endangers others lives is regarded as a Rodef, even if he is entirely passive. 

  One proof may be drawn from a ruling of the Rama (Yoreh Deah 157:1) regarding a situation where a group of Jews are surrounded by thugs who demand that the group hand over a specific individual or else the entire group will be killed. The Rama rules that it is permissible to hand over that individual even though he is not guilty of any wrongdoing. He does, however, acknowledge a dissenting opinion that it is forbidden to hand an individual to the criminals unless that named person is guilty of a capital crime. 

The dissenting opinion appears to be far more reasonable than the primary opinion presented by the Rama. How can Halacha countenance handing over an innocent individual to face death at the hands of evildoers? Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:60) explains that the named individual is regarded as a Rodef since his remaining alive threatens the lives of everyone else in his group. 

Rav Moshe applies this to the separation of Siamese twins. There was a case in the late 1970’s where attached infant twins would eventually both die if they were not separated. However, separating the twins would immediately kill the weaker of the two babies. Rav Moshe, as explained by Rav J. David Bleich (Tradition Fall 1996), permitted the separation on the basis that the weaker twin is classified as a Rodef. If Halacha regards this innocent individual as a Rodef how much more so should Halacha consider as a Rodef someone who wrongly withholds information that can save lives.

The Guilty Passive Rodef

Halacha indisputably regards one whose immorally fails to act to save lives as a Rodef, as articulated by the Netziv (Ha’amek She’elah, She’ilta 142:9). The Netziv justifies the pronouncement of the Jewish People (Shofetim 21:5) that anyone who does not join the battle against the enemy will be put to death. The Netziv explains that those who do not join the war strengthen the hand of the enemy and weaken the resolve of our own soldiers and therefore they threaten the lives of the Jewish People and therefore are classified as a Rodef. One who inappropriately does not reveal life saving information is similarly regarded as a Rodef since his inaction threatens the lives of others.

  Torturing as Opposed to Killing a Rodef

One could potentially respond that Halacha requires us to kill a Rodef but not to torture a Rodef, based on the Gemara’s teaching (Ketubot 33b) that torture is more difficult to tolerate than death. Rav Bleich responds that the Halacha does not recognize such a distinction as it does not excuse one from required martyrdom (if one is ordered to commit one of the three cardinal sins – murder, adultery or incest and idolatry) even if one is threatened with torture. Thus, in situations where Halacha requires killing a Rodef to save a life, Halacha requires torturing someone to save a life. 

  Coercing Someone to Perform a Mitzvah

  The Halacha does not offer the choice to fulfill Mitzvot. Halacha (see for example, Rambam Sefer Hamitzvot Mitzvah 176) provides for the coercion of individuals to abide by the divinely mandated laws of the Torah. In fact, a hallmark of the Mashiach is that he will coerce everyone to abide by Torah law (Rambam Hilchot Melachim 11:4). Thus, if a man refuses to place Tefillin on his arm and head, Beit Din can coerce him to do so (also see the interesting debate between the Ketzot and Netivot 3:1 regarding who may coerce someone to do a Mitzvah). Similarly, one may be coerced by any means possible to execute his obligation to rescue the lives of others. 

  Obligations of a Nochri

  A Nochri may also be killed for failing to run a just society (Dinim). The Rambam (Hilchot Melachim 9:14) in fact justifies on this basis Shimon and Levi’s killing all the males of Shechem (Breishit chapter 34) due to their failure to punish those who kidnapped and imprisoned Dinah. The Ramban (34:13 and 49:5-6) who disagrees with the Rambam’s evaluation of this episode does not criticize the Rambam for this particular point of a legitimate authority holding a Nochri responsible to do whatever is in his power to run a just society, where criminals do not savagely kill innocent individuals. 

  Obligations of a Melech

  The Rambam (Hilchot Rotzei’ach 2:4 and Melachim 4:10) teaches that a Melech (king) may reach beyond the limits of strict Halacha to “destroy the hand of evildoers”. Rav Kook (Teshuvot Mishpat Kohen 144), in an oft-cited comment, rules that if the Jewish people consent to an individual or individuals to lead them, he is considered in certain regards as a Melech. Accordingly, the Israeli government is empowered and required by Halacha to take the necessary steps to insure the safety of its citizens, which includes exerting physical pressure and even torturing individuals to provide information to save innocent lives.  

  International Law Prohibiting Torture

  Torture is prohibited by international law by the Geneva Convention against Torture, the European Convention on Human Rights and by the United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Since Israel has signed these treaties, it is obligated to do so even if it runs counter to Halacha (Rambam, Hilchot Melachim 6:3, based on our honoring the treaty with the Givonim). 

  However, Rav Shaul Yisrael (Amud Hayemini 16) has clarified that Halacha honors international law as it is practiced by civilized nations and not as the law is written (for further discussion of this issue, see Gray Matter 3 pages 217-218). Harvard Law Professor Alan Dershowitz (The Case for Israel chapter nineteen) writes “I know of no other Supreme Court decision acknowledging that the restrictions it imposes on interrogation will almost certainly cost the lives of its civilians.” He notes that the United States, England and France practice torture in order to acquire information to save lives. He specifically mentions a ruling of the United States Court of Appeals for the Eleventh Circuit (Leon v. Wainwright, 734 F. 2d at 772-773) which approved the actions of police who tortured an individual until he revealed the location of a kidnapping victim. Accordingly, international law does not constitute a reason for the Israeli government to refrain from torturing individuals to save innocent lives. 

  Certainty

  Rav Bleich notes that Halacha permits torture only if it will certainly save lives, based on Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:69) and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:72) who define a Rodef as one who is “close to certainly” threatening the life of another. However, the Vilna Gaon (C.M. 388:74), and Rav Shmuel Wosner (Teshuvot Sheivet Halevi 5:193, based on the Chiddushei HaRan to Sanhedrin 73a) define one as a Rodef even if there is substantial doubt to the danger he poses to life. 

  Conclusion

  The Jewish People are characterized as Rachmanim Bnei Rachmanim (merciful the children of merciful; Yevamot 79a). We undoubtedly condemn the use of torture in ordinary circumstances. However, we violate almost every Torah prohibition including Shabbat in order to save lives. We may certainly torture individuals to elicit information to save lives. 

  The secular Israeli Supreme Court’s ruling outlawing torture even to save lives is a tragic example of misplaced compassion and misguided moral intuition. It is an example of the wise King Solomon’s (Kohelet 7:16) warning not to be overly righteous. The Midrash (Kohelet Rabbah 7:1:16) commenting on this verse writes “He who has mercy on the cruel is cruel to the merciful”. We hope that the State of Israel reverses this unjust decision by legislative or other legal means.