An issue of great importance facing Medinat Yisrael is the halachic propriety of torturing someone in order to extract information that will save innocent lives. On one hand, Jews have been victims of torture throughout the generations, and we try our best to avoid doing to others what we so much did not want done to us. On the other hand, the extreme and ruthless nature of contemporary terrorism compels Medinat Yisrael to consider torture as an option. A proper balance needs to be struck in dealing with this delicate issue.
Israel’s secular Supreme Court adopts an extreme approach to this issue and fails to chart a balanced approach to this challenging issue. Its ruling is not in harmony with Halachah or, for that matter, with the rulings of civil courts in any other country. We shall attempt to demonstrate that Halachah demands a different attitude towards this delicate 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, HCJ 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
The 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 Rotzeich 1:13). One might counter that one is considered a rodeif only if he is engaged in active pursuit of a victim. Rav J. David Bleich (Tradition, Winter 2006 pp.102-105) demonstrates, however, 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 (Y.D. 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 itself to be killed in its 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.45The Taz (ad. loc. 7) rules in accordance with the dissenting opinion cited in the Rama.
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),46See our later chapter devoted to this topic. 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 regards one who immorally fails to act to save lives as a rodeif. The Netziv (Ha’ameik 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.47See Tosafot (Ketubot 33b s.v. Ilmalei). 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 may also require torturing a rodeifto save a life.
Coercing Someone to Perform a Mitzvah
Halachah does not make the fulfillment of mitzvot 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).48See the interesting debate between the Ketzot and Netivot (C.M. 3:1) regarding who may coerce someone to perform a mitzvah. 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 is permitted him 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).
Obligations of a Nochri
A nochri 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 (Breishit 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 (Breishit 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.49For a more thorough discussion of this topic and its halachic implications, see Gray Matter 3:211-223. It seems that he agrees that a legitimate authority may hold a nochri 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.
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 (Teshuvot Mishpat Kohen 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 L’Yisrael Al Pi Hatorah 1:152), Rav Ovadia Yosef (Teshuvot Yechave 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 Halachha 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.
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 Halachha (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.50For further discussion of this issue, see Gray Matter 3:217-218. Harvard Law Professor Alan Dershowitz (The Case for Israel ch. 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 dicta51“Dicta” refers to those sections of the written opinion of the court that do not consist of the official ruling being handed down. 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 C.M. 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. Moreover, we have noted 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.
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. This argument, however, does not seem to have been the motivation behind the decision of the Israeli Supreme Court.
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, so too we must not engage in torture unless all other avenues have been pursued. Moreover, it is important for the 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 O.C. 248:1 and Gray Matter 2:19-23).52Alan 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.
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.53See Devarim 25:3, which specifically admonishes the court official who administers lashes not to hit the individual more than required.
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.54We should clarify that the court 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.
It is an example of the 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.” We hope that the State of Israel reverses this unjust and unwise decision by legislative or other legal means.