(2015/5775)

Introduction

Last week we presented a number of Halachic approaches that permit a government to torture individuals for the purpose of saving lives. This week we conclude our discussion by presenting how the practical implementation of this principle in a reasonable and balanced manner in contrast to the Israeli Supreme Court declaring all torture to be illegal even it is necessary to save lives.

International Law Prohibiting Torture

Torture is prohibited by international law under the Geneva Convention against Torture, the European Convention on Human Rights, and 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 adhere to them even if they run counter to Halachah (Rambam Hilchot Melachim 6:3).

However, Rav Shaul Yisraeli (Amud HaYemini 16) clarifies that Halachah honors international law as it is practiced by civilized nations and not as the law is written.[1] Harvard Law Professor Alan Dershowitz (The Case for Israel Chapter 19) 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 the United States Court of Appeals for the Eleventh Circuit (Leon v. Wainwright, 734 F. 2d at 772-773), which at length in dicta[2] approved the actions of police who tortured an individual until he revealed the location of a kidnapping victim. The court explained:

We do not by our decision sanction the use of force and coercion by police officers. Yet this case does not represent the typical case of unjustified force. We did not have an act of brutal law enforcement agents trying to obtain a confession in total disregard of the law. This was instead a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death.

Accordingly, international law does not obligate the Israeli government to refrain from torturing individuals to save innocent lives.

Certainty

Rav Bleich (Tradition Winter 2006 p. 105) permits torture only if it will certainly save lives. He bases this limitation on the rulings of Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:69) and Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:72), who define a Rodeif 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 a person as a Rodeif even if there is substantial doubt as to whether he will kill someone[3]. Moreover, we noted in last week’s essay that torture to save lives is permitted due to considerations other than Rodeif. Thus, the limitations regarding Rodeif are not necessarily applied to torture to save lives. Moreover, Rav Warhaftig (ibid. page 147) notes that since torture does not involve killing the criminal, the degree of certainty required in a case of Rodeif is not required to justify torture when necessary. This is certainly true if only physical pressure is being applied and not actual torture (e.g. depriving the prisoner of sleep as opposed to removing a fingernail).

We should note, however, that there are those who claim that torture is not effective in saving lives. If compelling evidence were presented to prove this assertion, then Halachah would never sanction engaging in torture. Until this question is conclusively resolved, though, torture is permitted even it is only possible that it may save a life and especially when less aggressive modalities are employed.

Human Dignity

The Israeli Supreme Court emphasizes that the paramount value of human dignity, which emerges from the fact that humans were created in the image of God, prohibits torture even to save a life. Halachah, by contrast, certainly respects human dignity; however, the obligation to respect the law of God supersedes the respect due to human beings. The Rambam (Hilchot Sanhedrin 24:10) expresses this idea poignantly in his discussion of Beit Din’s obligation to impose extra-Halachic penalties when necessary:

In such situations, the intention of the Rabbinic judge must be solely for the sake of God.

He may not regard human dignity lightly, as human dignity outweighs even negative rabbinic prohibitions… The rabbinic judge’s intention must never be to trample upon human dignity but to enhance respect for God.

Thus, while even the dignity of prisoners must be respected, the Torah’s mandated obligation to save lives has priority over the dignity due to those who refuse to reveal information that will save lives.

Conclusion

The Jewish people are characterized as Rachamanim (merciful; see Yevamot 79a). We certainly abhor the use of torture in ordinary circumstances. However, we are required to violate almost every Torah prohibition in order to save lives. Therefore, we may torture individuals to elicit information necessary to save lives.

However, just as one does not kill a Rodeif unless there is no alternative, we must also not engage in torture unless all other avenues have been pursued. Moreover, it is important for Israel and other civilized countries to invest in the development of creative means of extracting information that will avoid the need for torture. This is similar to the Halachic obligation to take reasonable proactive measures to avoid the necessity to violate Shabbat in order to save lives (see Shulchan Aruch Orach Chaim 248:1 and Gray Matter 2:19-23). Similarly, torture is unacceptable if more moderate means of pressure can elicit the lifesaving information.[4]

It also is important to stress that even when torture is permitted, it should not be conducted in an excessive manner. Just as speaking Lashon HaRa (when it is required) is permitted only to the extent that is necessary and any exaggeration is strictly prohibited (Chafetz Chaim Hilchot Rechilut 9 and Hilchot Lashon HaRa 10:2), torture is permitted only to the exact extent that is required to save lives.[5]

Nonetheless, the secular Israeli Supreme Court’s ruling outlawing torture even to save lives is a tragic example of misplaced compassion and misguided moral intuition.[6] It is an example of King Solomon’s warning not to be overly righteous (Kohelet 7:16). The Midrash (Kohelet Rabbah 7:1:16) commenting on this verse, writes, “He who has mercy on the cruel is cruel to the merciful.”[7] The evil kidnapping of the three Israeli children makes it clear that the time has come for the State of Israel to reverse the unjust and unwise decision of its High Court of Justice by legislative or other legal means.

[1] For further discussion of this issue, see Gray Matter 3:217-218.

[2] “Dicta” refers to those sections of the written opinion of the court that do not consist of the official ruling being handed down.

[3] Also see Minchat Chinuch to Mitzvah 600 who raises the possibility that one may kill a Rodeif even in a case where it is a Safeik (doubt) if the latter is defined as a Rodeif.

[4] Alan Dershowitz’s proposal (Shouting Fire pp. 476-477) that torture be sanctioned to save lives but only after receiving a “torture warrant” from an appropriate oversight body seems to be analogous to requiring a warrant before a policeman fires a weapon. One could imagine situations where obtaining such a warrant would cause delays that might lead to loss of life. This seems parallel to the Shulchan Aruch’s ruling, in regards to violating Shabbat to save lives, that, “It is a Mitzvah to violate Shabbat for one who is dangerously ill. Furthermore, one who acts quickly in such circumstances is worthy of praise, whereas one who poses a question [to a rabbi to see if it is permissible to violate Shabbat to preserve life] sheds blood.”

One could suggest, however, that just as an investigation is conducted after an officer of the law fires his weapon, each case of torture should be followed by a review by an oversight panel that would judge if it was warranted. This could prevent abuse of the permission to torture in order to save lives.

[5] See Devarim 25:3, which specifically admonishes the court official who administers lashes not to hit the individual more than required.

[6] We should clarify, in fairness, that the Israeli Supreme Court in its decision notes that certain physical means are necessary to secure the safety of the interrogator or to conduct the interrogation. For example, some degree of keeping the suspect fatigued or uncomfortable, as well as handcuffing the suspect so that he cannot attack the interrogator, are within the scope of acceptable law enforcement practices (Opinion, paras. 23, 26). But the court finds that Shabach and other techniques at issue transcend the basic need to protect the interrogator and enable him to conduct a reasonable interrogation. These techniques serve to degrade and dehumanize the suspect, as well as to cause unnecessary pain (Opinion, paras. 26-30). The court concludes that under Israeli law as currently constituted (1999), the GSS lacks the legal authority to use such physical means. The court does not, however, rule that Israeli law may not authorize such techniques. To the contrary, the court states, "If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose" (Opinion, para. 37). In a concluding note, the court emphasizes, "Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time" (Opinion, para. 39). In addition, the court does leave open the possibility that an interrogator might avail himself of a “necessity defense” in case of prosecution for torturing someone in order to save lives.

[7] Melachim I Chapters 20 and 22 present the severe consequence for King Achav’s misplaced compassion on Ben Hadad, King of Aram.