(2015/5775)

Introduction

In the wake of the kidnapping of the three Israeli Yeshivah high school students in June 2014 and the attention recently focused on the conduct of the American CIA, the civilized world is once again confronted with the question of the propriety of torturing in order to extract information that will save innocent lives.  On the one hand, Jews have been victims of torture throughout the generations, and we try our best to avoid inflicting the same pain on others.  On the other hand, the extreme and ruthless nature of contemporary terrorism compels considering the option to use torture in the war against terror.  A proper balance needs to be struck in dealing with this delicate issue.   

Israel’s secular Supreme Court fails, in my opinion, to chart a properly balanced approach to this issue.  Its ruling runs counter to Halachah and, LeHavdil, with the rulings of civil courts in Western countries.  Halachah demands a different attitude towards this challenging issue.

The September 1999 Ruling of the Israeli Supreme Court

On September 6, 1999, the Israeli Supreme Court (Public Committee Against Torture in Israel v. State of Israel and General Security Service, High Court of Justice 5100/94) prohibited torture even to elicit information that could prevent an imminent terrorist attack.  The decision, written by then-president of the Supreme Court Aharon Barak, states that the prohibition of torturing is "absolute" as a matter of domestic law, which the court notes is, "in accord with international treaties, to which Israel is a signatory . . ."  (Opinion, paragraph 23).  The decision declares that "[t]here are no exceptions . . ." (ibid.).  

The Innocent-Passive Rodeif

Halachah does not regard the prohibition to torture as absolute.  An individual who refrains from revealing information that may save lives is classified as a Rodeif, one who is in the process of trying to kill someone and must be immobilized either by wounding or, if necessary, even killing him (Rambam Hilchot Rotzei’ach 1:13).  Although a counter argument can be made that one is considered a Rodeif only if he is engaged in the active pursuit of a victim, Rav J. David Bleich (Tradition, Winter 2006 pp.102-105) demonstrates that Halachah regards one who endangers lives as a Rodeif, even if he is entirely passive. 

One proof may be drawn from a ruling of the Rama (Yoreh Dei’ah 157:1) regarding a situation wherein a group of Jews is surrounded by thugs who demand that the group either hand over a specific individual or allow themselves to be killed in their entirety.  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.[1] 

The dissenting opinion appears to be far more reasonable than the primary opinion presented by the Rama.  How can Halachah 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 Rodeif since his remaining alive threatens the lives of everyone else in the group. 

Rav Moshe applies this to the separation of Siamese twins.  In the late 1970s, a situation occurred in which attached infant twins eventually would both die if they were not separated.  However, separating the twins would kill the weaker of the two babies immediately.  Rav Moshe, as explained by Rav J. David Bleich (Tradition, Fall 1996),[2] permitted the separation on the basis that the weaker twin is classified as a Rodeif.  If Halachah regards this innocent individual as a Rodeif, then it certainly categorizes someone who wrongly withholds information that can save lives as a Rodeif.

The Guilty-Passive Rodief

Halachah certainly regards one who immorally fails to act to save lives as a Rodeif.  The Netziv (HaAmeik She’eilah, She’ilta 142:9), in justification of the pronouncement of the Jewish people (Shofetim 21:5) that anyone who would not join the battle against the enemy would be put to death, explains that those who would not join the war would weaken the resolve of the Jewish soldiers and thereby jeopardize their success.  If the Jewish army were to be defeated, the entire people would be at risk.  Accordingly, one who would not join the battle would be classified as a Rodeif, and it would be permitted to kill him.  One who inappropriately conceals life-saving information is similarly regarded as a Rodeif, since his inaction threatens the lives of others.

Torturing as Opposed to Killing a Rodeif

One could potentially respond that Halachah requires us to kill a Rodeif, but does not permit us to torture him.  Basis for this argument could be found in the Gemara’s teaching (Ketubot 33b) that torture is more difficult to tolerate than death.  Rav Bleich (ibid. pp. 105-106) responds that Halachah does not always define torture as more serious than death. For example, it does not allow one to violate one of the three cardinal sins that demand martyrdom in order to avoid torture.[3]  Thus, Halachah does not formally classify torture as worse than death despite the Gemara’s observation that torture can be more difficult to tolerate than death. Thus, in situations where Halachah requires killing a Rodeif to save a life, Halachah requires torturing a Rodeifto save a life. 

Coercing Someone to Perform a Mitzvah

The Torah does not regard the fulfillment of Mitzvot as optional.  It mandates coercion (Ketubot 86a), including by means of whipping, of those who refuse to abide by its rules (see, for example, Rambam Sefer HaMitzvot Mitzvah 176).[4]  In fact, Mashiach 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, the Beit Din is permitted to force him to do so.  Similarly, one may be coerced by any means possible to execute his obligation to rescue the lives of others (VaYikra 19:16).  Rav Itamar Warhaftig (Techumin 20:146) correctly notes that the role of Israel’s Shabach (General Security Services) is to serve as the community’s representatives and bring about by any means compliance with the Torah obligation to save others. The same applies to the CIA.

Obligations of a Gentile

The Shabach’s (and CIA) obligation applies even to a gentile since he may be killed for failing to run a just society (Dinim).  The Rambam (Hilchot Melachim 9:14), on this basis, justifies Shimon and Levi’s assassination of all of the males in Shechem (BeReishit 34).  The Rambam believes that all of the males in the city were guilty of failing to punish those who kidnapped and imprisoned Dinah.  The Ramban (BeReishit 34:13 and 49:5-6), who disagrees with the Rambam’s evaluation of this episode, does not criticize the Rambam regarding this particular point.[5]  It seems that he agrees that a legitimate authority may hold a gentile responsible to do whatever is in his power to help the functioning of a just society, which includes insuring that innocent people are not murdered.  Thus, a legitimate authority may torture an individual in order to extract information that will insure justice by preventing murder.  Rav Warhaftig (ad loc.) goes as far to say that refraining from torture when it is the only manner in which to save lives makes one a partner in the terrorist crime, since the Rambam holds guilty those who could have prevented a criminal act but refused to do so. 

Obligations of a Melech

The Rambam (Hilchot Rotzei’ach 2:4 and Melachim 4:10) teaches that a king may reach beyond the limits of strict Halachah in order to, “destroy the hand of evildoers.”  Rav Kook (TeshuvotMishpat Kohein 144), in an oft-cited comment, rules that if the Jewish people accept the leadership of a certain body, that body partially assumes the status of a king.  Rav Kook’s approach has been adopted by many other Poskim, including Rav Yitzchak Herzog (Techukah LeYisrael Al Pi HaTorah 1:152), Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 5:64), and Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 10:1:14).  Rav Waldenberg writes:

Even in our times, the president, government, and Knesset (despite all of their problems regarding spiritual matters, and thus it is clear that with regard to Torah, any decisions made counter to Torah are invalid) that were chosen by the majority of Jews who reside in their land…are regarded as the king in respect to all national matters. 

Accordingly, the Israeli government is empowered and required by Halachah to take the necessary steps (even beyond that which is permitted by Halachah) to insure the safety of its citizens, including torturing individuals in order to extract information needed to save innocent lives.  Thus, even if one were to argue that Halachah forbids torture even to save a life, the Israeli government would be permitted to torture. 

Waging War

Rav Hershel Schachter told me that torture to elicit critical information to save lives is permissible, since it is a means of properly waging a justified war.  In his B’ikvei Hatzon (pp. 206-207), Rav Schachter cites Rav Yaakov Kaminetsky, who maintains that Israel has been in a constant state of war (from a Halachic perspective) since the establishment of the state.  Rav Yaakov accordingly ruled in 1970 that it was forbidden to ransom the great Rav Yitzchak Hutner, who at that time was being held captive in Jordan by Arab terrorists who had hijacked the flight on which he was a passenger.  There was a suggestion to offer a huge sum to ransom Rav Hutner, since Tosafot (Gittin 58a s.v. Kol) permit paying an exorbitant sum to save a great Rav.  Rav Yaakov argued that Tosafot’s ruling applies only during peacetime. Since Israel’s ongoing struggle with terrorism constitutes a war, Rav Yaakov ruled, it was forbidden to ransom even one as great as Rav Hutner. Rav Schachter reasons that just as killing enemy soldiers is justified when waging a just war, it is permissible to torture to obtain life-saving information when engaging either terrorists or a more conventional enemy[6].

We will conclude our discussion next week, IYH, on how to properly balance human dignity with the need to protect lives.

[1] The Taz (ad loc. 7), though, rules in accordance with the dissenting opinion cited by the Rama.

[2] See Gray Matter 4:282-286 for a full discussion of this topic.

[3] See Tosafot (Ketubot 33b s.v. Ilmalei).

[4] See the interesting debate between the Ketzot and Netivot (Choshen Mishpat 3:1) regarding who may coerce someone to perform a Mitzvah.

[5] For a more thorough discussion of this topic and its Halachic implications, see Gray Matter 3:211-223.

[6] Rav Warhaftig (ad. loc. page 147), though, writes that the Jewish community through its authorized representatives, determines if a state of war exists.