Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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Respect for Minority Opinionsů

“The State of Israel will be open to the immigration of Jews from all countries; will promote the development of the country for the benefit of all its inhabitants; will be based on the precepts of liberty, justice and peace taught by the Hebrew Prophets; will uphold the full social and political equality of all its citizens, without distinction of race, creed or sex; will guarantee full freedom of conscience, worship, education and culture…” (Israel’s Declaration of Independence, 5708-1948).

Should Israelallow an extreme right or extreme left wing party, whose policies cannot be reconciled with each of the above principles, to run for the Knesset?

***

In 1984, an appeal was made to the Israeli Supreme Court over the decision of the Central Elections Committee to reject applications by two party lists (the extreme right-wing Kach party list, and the extreme left-wing Hareshima Hamitkademet Leshalom list)to take part in elections to the Eleventh Knesset.

In an enlightening judgment, the Court accepted the appeals and allowed the two party lists to run for the Knesset. The judgment is worth reading in full, particularly the words of Justice Menachem Elon:

“There is, I think, no more striking and thorough-going expression of freedom of thought and the importance of every point of view, even that of the individual, than the principle laid down by the Sages regarding the dispute between the schools of Hillel and Shammai: “The utterances of both are the words of the living God” (Eruvin 13b). For practical purposes, the binding norm of the halakha lies withthe schoolof Hillel, “because they were felicitous and patient to their fellow human beings, even to those who disagreed with their views.” Even so, the views of their rivals remain legitimate and substantive in the world of halakha

Even after the Sanhedrin, the highest national court, had decided against him, the “rebellious elder” could continue to adhere to his views and teach them as before so long as he did not give any practical decision accordingly (Sanhedrin 86b). Furthermore, there is always the possibility that a minority view might in time prevail and become accepted in practice. “R. Yehudah said: The words of the individual among the many were recorded in case their time would come and they would be relied on” (Eduyot 1:4)…

Pluralism is a substantive and welcome element in the life of every civilized society. The Sages even drew up a special beracha for this wonderful creative power of pluralism. “One who sees a very large crowd of people makes the beracha: “Blessed be He who discerns secret things, for their features are dissimilar and their views unlike” (Berakhot 7:5 and 58a). A similar beracha is found for creative wisdom: “Just as creative nature renders the appearance of men different, so it is to be believed that wisdom is shared by all men, each different from the other” (Hayim b. Betzalel, Mayim Hayim, Introduction). Diversity of opinion is to be honored properly by the dominant authority

This is the theory of leadership and government in Jewish tradition… that is the great force of the right of each to express his opinion since not only is that essential to orderly and enlightened government, but it is also vital to its creative power…

When out of the various opinions… one view emerges that may damage the social, spiritual and cultural foundations of society, that society must stand steadfast in its spirit and outlook. This end is primarily to be achieved by persuasion and education. Education does not mean mere preaching to those who have strayed from the proper path but also self-examination and questioning of the spiritual and cultural image of the society in which the thistles and thorns have grown

Civilized society will employ, when necessary, the legislative powers available to it to punish those who incite and encourage an evil cultural perception that threatens it. Thos who merit punishment, those in respect of whom all the requirements of the law regarding proof of their offences have been fulfilled, will be legitimately punished… However, denial of so basic a right, in our democratic form of government, is not left to the courts without it first having been expressly empowered in that regard by the Knesset. For a court to take such power into its own hands without the Knesset’s express consent is in itself injurious to an enlightened democracy.

The democratic character of the State of Israel was proclaimed in the Declaration of Independence in the affirmation that the State of Israel will be a Jewish state (and not merely a state of Jews), a state open for Jewish immigration and the ingathering of the exiles (realized later in the Law of Return, 1950), and ensuring complete equality of social and political rights irrespective of religion, race or sex and guaranteeing freedom of religion, conscience, language, education and culture. These principles also serve us as a guide. They form part of the special character of the Jewish state.

My colleague, Justice Barak, observes that invalidation of a party list because its election program is inconsistent with the democratic principles on which the State of Israel is founded will only occur if a reasonable possibility exists that the will of those on the list will be realized… According to what directives and rules is the court to decide what to do?... What I have said may indicate the abundance of problems and difficulties that are foremost in considering the disqualification of a party list because of its political program.”

***

[Background Note: When the Kach movement submitted its list for the 1984 Knesset elections, the Central Elections Committee ruled that it could not participate in the elections. Kach appealed to the High Court of Justice, and its appeal was upheld. The court ruled that the existing electoral law did not allow for the debarring of a party on the grounds of racism. The Court further suggested that the law be amended. The Kach movement thus ran for election in 1984, winning 26,000 votes, and Meir Kahane, the leader of the movement, became a member of Knesset. He announced that Kach would not support any government that did not advocate the expulsion of the Arabs from Israel.

In August 1985, the Knesset passed an amendment to the Basic Law: The Knesset, in accordance with the High Court's comment in the Kach case. The amendment added “opposition to the democratic character of the State of Israel” and the “incitement to racism” as grounds for barring a party from participating in elections. Accordingly, in 1988, prior to the elections to the 12th Knesset (and later in the 1992 elections), the Central Elections Committee disqualified the Kach list, basing its decision on the above amendment. In his appeal to the High Court of Justice, Kahane claimed that security needs justify severe measures of discrimination against Arabs. The Court rejected the claim and the appeal, stating that the aims and actions of Kach were manifestly racist].


Respect for Human Dignity

In our last column, we cited the 1984 judgment of the Israeli Supreme Court, which allowed an extreme right-wing party list to run for the Knesset against the decision of the Central Elections Committee to reject its application. In the first half of the judgment, Justice Menachem Elon debated the benefits of pluralism. He then proceeds to discuss the importance of respect for human dignity.

***

Elon writes as follows:

A basic element of Judaism is the idea that man was created in the image of God (Bereshit 1:27). It is thus that the Torah commences, and from it the halakhah derives fundamental principles regarding the worth of every human being as such, his equality and the love of him… This verse is the basis of the prohibition on the children of Noah against shedding blood, long before the Torah was given…

The Jewish people are commanded to fight for their existence and to pursue those who seek to conspire against them and deprive them of their sovereignty and their land. But the enemy, too, possesses human worth and dignity…

These cardinal concepts have also determined relations with minority groups under Jewish rule…

***

Perhaps the most incisive expression of human dignity as such may be found in the explanation given by Rabbi Yochanan ben Zakkai (first century CE) for the different penalties imposed for the theft of an ox and of a sheep. Rabbi Yochanan rules as follows:

The Holy One blessed be He is mindful of the dignity of mankind. For stealing an ox, which walks on its own feet, the payment is fivefold; for stealing a sheep, which has to be carried on one’s shoulders, the payment is fourfold (Bava Kama 79b).

As Rashi explains, the penalty is less in the case of a stolen sheep because the thief usually carries it away on his shoulders, thereby demeaning himself!

The mention of human dignity in connection with criminal offenders may seem surprising, but it indicates the supreme importance of the concept. When one accords honor to a person who is entitled to it by reason of merit, that person’s singular qualities are being honored. But when one honors a person who has no such qualities, that person’s character as a human being is being respected. Moreover, here the criminal has violated his own dignity. Despite this, he is not excluded from the scope of the law; on the contrary, Rabbi Yochanan ben Zakkai is at pains to restore his dignity.

Rabbi Yochanan’s ruling also embraces the very origin of the concept of ‘human dignity’. It is worthy of note that the Hebrew phrase he uses is not kevod ha’adam (dignity of man), but kevod haberiot (the dignity of creatures). “Creatures” in this context includes all of humankind, all of whom were created by the Creator of the Universe “in His own image.”

Since the very source of human dignity is that human beings were created by God, the principle applies to all God’s creatures, not just Jews, but all of humanity. As Rambam enjoined: “Do not belittle human dignity, for it overrules a negative commandment enacted by the Rabbis…” (M.T. Sanhedrin 24:10). To shame a person is regarded as marking gross disrespect of the Divine image in man. And since the concern here is with human beings as created by God, all people are included, irrespective of religion or race. Even the criminal and the enemy [after he has been disarmed] are not excluded from the human family and are protected from degradation.

***

The Jewish concepts of kevod haberiot and the Divine image of humankind were adopted in a law recently enacted by the Knesset, prescribing equal rights for persons with disabilities. The Equal Rights for People with Disabilities Law, 5758-1998, states that:

The rights of people with disabilities and the commitment of Israeli society to such rights, are based on the recognition of the principleof equality and the value of human beings created in the Divine Image.

And the purpose of this Law is:

To protect the dignity and freedom of a person with a disability, to enshrine her/his right to equal and active participation in society in all the major spheres of life, and, furthermore, to provide an appropriate response to the special needs of a person with a disability, in such a way as to enable her/him to live with maximum independence, in privacy and in dignity, realizing her/his potential to the full.

The Law thus implements the Biblical commandment according to which the needy must be provided with “all their needs” (see Devarim 15:8) as well as the commandment “and your brother shall live with you” (see Vayikra 25:36).

Not only does the Law set out the entitlements of all those with physical, emotional or mental disabilities, it also sets out the commitment by Israeli society to protect these rights. The emphasis on society’s obligations, alongside the rights of those with disabilities, befits more the approach of Jewish sources, which emphasize man’s duties, rather than his rights and privileges. The Torah is more a ‘Bill of Duties’ than a “Bill of Rights”!

The Torah states: “And God created man in His image, in the image of God He created him” (Bereshit 1:27). The Rabbis commented on this: “Beloved is man that he was created in the image of God” (Avot 3:14). This Law is the first time that Israeli Law has given expression to the fact that man was created “in the Divine Image.” This requires us to view ourselves and our fellow human beings as creatures created in the image of God. This is no small matter: honoring the Divine image of every human being is one of the most difficult challenges confronting us in our conduct toward ourselves and toward others.

While the “Basic Law: Human Dignity and Liberty” passed by the Knesset in 1992 protects kevod ha’adam (human dignity),The Equal Rights for People with Disabilities Law, goes further and uses the words kevod haberiot (the dignity of creatures), which is the term employed in Jewish sources. This expresses our relationship to others as people created by God, the Creator of all human beings, and thus elevates significantly the value of every individual.


The Protection of Human Dignity - at all costs? (Part I)

Drugs have been smuggled into prison by prisoners for personal use and as a means of acquiring influence and status. The drugs are then swallowed by the prisoners.

May the prison authorities administer an enema to prisoners in order to discover the swallowed drugs? Or will considerations of human dignity prohibit this?

***

In Israel, the universal right to human dignity entered the legislation as the “Basic Law: Human Dignity and Liberty” passed by the Knesset in 1992. The purpose of the Law is “to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state” (para. 1A). A Basic Law is a ‘meta-law’ in light of which all other laws and acts of any state body are governed. It thus guarantees that all persons are entitled to protection of their life, body and dignity; that all persons are free to leave Israel; that all persons have the right to privacy and to intimacy, and more.

One interesting case decided by the Israeli Supreme Court before the introduction of the 1992 Basic Law was the question posed overleaf. The proceedings turned on the question of whether the Prison Service and the Governor of Ramlah Prison could order the administration of an enema without the consent of the prisoners concerned in order to discover drugs which prisoners had swallowed. First, Deputy-President H.H. Cohn took pains to point out to his colleagues that Jewish law has much to say on the topic of human dignity:

My learned friend, Justice Barak, in his wisdom cited many impressive passages from English and American legal literature to show that in the view of the leading judges and legal philosophers of the gentile world as well, the safeguarding of a man’s honor is preferable to the satisfaction of the legitimate requirements of law and order. I have said to myself that we do not live by these authorities alone. Let me try to quarry from our own deep sources the sayings of our Sage to illuminate the matter…

He then proceeded to apply the provisions of Jewish Law to the case at hand:

A free and civilized society is distinguished from a barbaric and oppressive society by the degree to which it treats a human being as a human being…

The Sages prescribed the eminent principle: “Great is human dignity, since it overrides a negative commandment of the Torah” (Berakhot 19b). Rav bar Sheva explained that this ‘negative commandment’ refers to the specific commandment “not to deviate from the teachings of the Rabbis neither to the right nor to the left.” In other words, human dignity overrides all rabbinical commands which we are required to observe by virtue of the negative commandment not to turn aside. [A corpse that has begun to smell offensively may therefore be removed on the Shabbat from the place where it is lying on account of human dignity (Shabbat 94b). And although it is forbidden on the Sabbath to move the lightest of stones, especially from the one domain to another, it is permissible to carry them up to the roof, in order to clean oneself after doing one’s needs, on grounds of human dignity - see Shabbat 81a-b].

By contrast, the commandments of the Torah do notyield to human dignity.For example, if one sees a person dressed in a garment of a mixture of wool and linen, one must tear it from his body even in public, “and even if he was his teacher who taught him wisdom, since human dignity does not displace the prohibition of an express negative commandment of the Torah” (M.T. Kilayim 10:29).

This distinction between the Written Law - which does not yield to human dignity - and the Oral Law which does so yield affects the matter before us. If we “translate” the Written Law into legal terms as meaning primary legislation [Knesset enactments] and the decrees of the Sages as being secondary legislation [other directives, orders etc. made by virtue of the primary legislation], we may say that even human dignity cannot prevail over primary legislation, whereas secondary legislation must yield to human dignity.

An infraction of human dignity, by forcible penetration of the individual’s inner parts, would thus only be permissible under primary legislation. So long as it is not so permissible, however, such dignity is immune from any license to violate.

Justice Cohn proceeds to state that the analogy between the Written Law and primary legislation is untenable, because even primary legislation is a human act, variable and repealable at the wish of the Knesset, whereas the Written Law is eternal and immutable. In this respect, he argues that:

The Oral Law of the Rabbis is similar to the primary legislation of our own times. That may also suggest to the primary legislature [the Knesset] that just as the Rabbis were bold enough to waive all prohibitions instituted by them where necessary to preserve human dignity, it, too, should be cautious in sacrificing human dignity on the altar of any other requirement whatsoever.

Moreover, the halakhah that one must do everything to prevent another person from committing an act prohibited by the Written Law, even if his honor is affected, will only apply to a transgression manifest to all and where there is no doubt as to the identity of the offender… since it is equally forbidden to touch a person merely suspected of a wrong (Menachot 37b). That is the situation in the case before us, concludes Cohn:

Even were it permitted to prevent the commission of a wrongful act by removing drugs from the body of a person, when it is clearly and demonstrably known that the drugs are in his body, there is no authority to penetrate his body merely to search, to establish whether an offense has been committed or not. Human dignity thus remains supreme since it prevails over the prohibition of introducing drugs into prison.

Questions for further thought:

Do you agree with Justice Cohn’s equation between the laws of the Knesset and the Oral Law, such that effectively no law ought to override the ‘meta-principle’ of human dignity?

Should considerations of “human dignity” prevent the application of ‘necessary pressure’ by Israel’s General Security Services on the bodies of potentially ‘ticking bombs’?


The Protection of Human Dignity - at all costs? (Part II)

Israel’s General Security Services (GSS) have been on high alert following a warning about expected terror attacks in public places.

After a recent suicide-bomber incident in central Jerusalem, which fortunately caused no fatalities, police helicopter pursuit lost track of a man fleeing the scene on foot as he got into a light brown car, but later picked up a similar abandoned vehicle in one of the eastern Jerusalem neighborhoods. The car was immediately traced to a resident in another area - where a small bomb factory was discovered; the owner was arrested, but is refusing to cooperate with GSS investigators.

The bombs in the factory are of the kind previously used in suicide bombings and the suspect is presumed to be linked to a well-organized network of suppliers, perpetrators and assistants and alternative terror cells through some of his contacts. The information he could provide may well save victims from a repeat attempt targeted at the Israeli public. The clock is ticking to the next attack (the so-called “ticking bomb” scenario). What can the GSS do right now to obtain this information?

***

On September 6, 1999, nine Israeli Supreme Court Justices ruled unanimously that Israel’s General Security Services does not have the authority to use physical pressure or deprivation in interrogations under Israeli law. This applied even in cases of “ticking bombs” as described above. By so doing, it ruled in favor of a long list of petitioners who had requested the Court to order the GSS to cease shaking suspects during interrogations.

The Court conceded that a criminal’s interrogation is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust. An interrogation is rather a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and to elicit the information that the investigator seeks to obtain. And society has a natural desire to uncover the truth, in accord with the public interest in exposing crime and preventing it.

The Court further conceded that even a democratic society, desirous of liberty, seeks to fight crime and to that end is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect provided that this is done for a proper purpose and that the harm does not exceed that which is necessary. However, the Court also noted that the rules pertaining to investigations are important to a democratic state: “They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.”

For example, the Court accepted that “a person undergoing interrogation cannot sleep like one who is not being interrogated… This is often the inevitable result of an interrogation.” However, it ruled that the above described situation “is different from one in which sleep deprivation shifts from being a ‘side effect’ of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or ‘breaking’ him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.”

The Court was prepared to presume that if a GSS investigator, who applied physical interrogation methods for the purpose of saving human life, was criminally indicted, the “necessity defense” afforded by the Israeli Penal Law “is likely to be open to him in the appropriate circumstances.” However, the Court was not prepared to establish in advance of any such legal proceedings that particular physical interrogation methods (if any) could be implied from the “necessity defense.” Instead, the Court argued: “If the State wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability.”

As a final word, the Court acknowledged the harsh reality of terrorism in which Israel finds herself: “We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy - it does not regard all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security… The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves… Therefore, in deciding the law, we must act according to our purest conscience.”

Consequently, the Court ordered, that the GSS does not have the authority to “shake” a man, to hold him in the “Shabach” position with his hands tied behind his back, or to deprive him of a sleep in a manner other than that which is inherently required by the interrogation. Moreover, the “necessity defense” could not serve as a basis of authority for interrogation practices or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. However, the Court concluded that “our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators, either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.”

Questions for further thought:

1) From the legal point of view: the Israeli Penal Law states that: “No person shall bear criminal responsibility for an act that was immediately necessary in order to save his own or another person’s life… from a real danger of severe injury… there being no alternative but to commit the act.” Doesn’t the wording of the law indicate that a GSS investigator who is forced to apply necessary pressure to a suspect in a “ticking bomb” situation is exempt, from the very outset (and not just after the fact, at best), from all criminal liability?

2) From the practical point of view: can it be right that, due to the absence of explicit legislation, the State should be helpless in those rare emergencies defined as “ticking bombs” and would not be authorized to order the use of exceptional interrogation methods in such circumstances? Does not every country have an implicit obligation to defend its existence and well-being, and to safeguard the lives of its citizens? Doesn’t the State, as well as its agents, have a natural right to “self-defense,” in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens?


“Ticking Bomb Suspects” - Should the rights of suspects also tick away?

A given suspect is arrested by Israel’s General Security Services (GSS). It can be reasonably assumed that he holds information regarding the location of a bomb that was set and will imminently explode (the so-called “ticking bomb” scenario). There is no possibility of diffusing the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured.

Is a GSS investigator authorized to employ physical means on the body of the suspect in order to obtain this information, or do considerations of ‘human dignity’ prevent the use of force in such circumstances?

***

In our last column, we outlined the position of the Israeli Supreme Court on the issue of ‘ticking bombs’. The Court declared as illegal the practices approved by the Landau Commission of Inquiry in 1987, including the application on suspects of even a “moderate degree of physical pressure.” The Court held that the power to interrogate granted to the GSS investigator is the same power the law bestows upon the ordinary police investigator, and nothing more.

The Court regarded itself constrained by the Basic Law: Human Dignity and Liberty. It argued that this law protected even a ‘ticking bomb’ suspect against any infringement to “his life, body or dignity as a human being,” save where a law (enacted for a proper purpose and to an extent no greater than required) permitted this.

It is true that Jewish Law would also restrict the ability of the GSS to apply pressure on suspects. However, this would be to a far lesser extent than the Supreme Court’s restrictions. It is important to emphasize the reality that the GSS is not dealing with ordinary crime, but with organizations which have set for themselves the goal of destroying the State. This may require a somewhat different approach, one which requires a deviation from the theoretical rules, in the same manner that the rules that apply to a fighter in uniform during battle differ from those rules that apply to a normal citizen during peacetime. Indeed, the Halachic texts teach us that letzorech sha’ah (i.e. in time of emergency), societal institutions (the Government and the Courts) are entitled to deviate from the theoretical rules. This approach was voiced by Supreme Court Justice Y. Kedmi, in his minority opinion, in the 1999 judgment cited in our last column:

It is difficult for me to accept that, due to the absence of explicit legislation, the State should be helpless in those rare emergencies defined as “ticking bombs,” and that the State would not be authorized to order the use of exceptional interrogational methods in such circumstances. As far as I am concerned, authority does exist under such circumstances, a result of the basic obligation of the State - like all countries of the world - to defend its existence, its well-being, and to safeguard the lives of its citizens. It is clear that, in those circumstances, the State - as well as its agents - will have the natural right of “self-defense,” in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens.

Several situations need to be distinguished. The first scenario is where the suspect is the terrorist directly responsible for the ‘ticking bomb’. The Mishnah (Sanhedrin 8:7) clearly directs that certain individuals “must be saved [from sinning] even at the cost of their lives.” These include killing a person who is pursuing his neighbor to slay him (rodef), where there is no other choice but to kill him. Modern Poskim (Rav I.Y. Unterman, Rav S. Yisraeli etc.) have stated that this law applies not only to a person who is directly endangering the life of another person, but even where the danger is indirect (e.g. killing a person who is a collaborator with the suspect).

It is true that after the fact (e.g. once the bomb has already exploded), the terrorist must not be touched, and only the Court is authorized to decide his fate (Rambam, Laws of Murder and the Preservation of Life 1:5). However, “if one person is pursuing another with the intention of killing him, even if the pursuer is a minor, it is the duty of every Israelite to save the pursued, even at the cost of the pursuer’s life” (ibid. 1:6). The very fact that he poses a threat to the (innocent) life of the person being pursued deprives him of the basic rights to which the pursuer would otherwise be entitled.

It should be made clear that the approach of the Halacha towards a third party who has performed a criminal act against an attacker (such as by wounding or even killing him), in order to save the person being pursued, is not merely ‘forgiving - after the fact.’ The Halacha regards it as a basic obligation imposed on every individual to assist his fellow whose life (or body - e.g. in case of rape) is in danger: “A person who sees his fellow being pursued with the intent to kill him… and he is able to save him, and does not do so, has transgressed one positive commandment (‘and you shall cut off her hand’) and two negative commandments (‘you eyes shall not take pity’ and ‘you shall not stand idly by the blood of your neighbor’)… For anyone who destroys a single Jewish life it is as if he has destroyed the entire world; while a person who saves a life is regarded as having saved the entire world” (ibid 1:15-16).

This approach was adopted by the Knesset when it amended the wording of the “necessity defense.” The wording used to be: “A person may be exempted from criminal responsibility for any act or omission if he can show that the latter was [reasonably necessary].” The current wording of the defense is different. Section 34(10) of the Israeli Penal Law now reads: “A person will not becriminally liable for an act which was immediately necessary in order to save his or another’s life, liberty, body or property, from real danger of severe harm…”

The catalyst for this change in the wording of the law was the judgment of Supreme Court Justice Elon in the case of Afangar v. State of Israel, in which the appellant argued that the defense of necessity was available to him on a charge of assault. Justice Elon ruled: “An act which in normal circumstances would constitute an offense, but which is done out of good will, to rescue another person from danger to physical injury, is unassailable as a criminal act, taking into account, of course, the amount of force used and keeping some balance between the ‘two evils’…”

Every individual has the basic human duty not to remain indifferent to the plight of others. To deprive a person of his moral right to apply pressure in order to save those “being pursued” thus constitutes a violation of his human dignity and of his elemental right to act ethically. Moreover, the preservation of human life is itself a fundamental value, which is protected by the Basic Law: Human Dignity and Liberty; and surely a person who threatens the lives of others cannot at the same time be entitled to assert his basic rights. It cannot be right, therefore, to state that GSS investigators have no right to act without any express legislation authorizing them to do so. To the contrary: it is the negation of a person’s right to defend his innocent neighbor against an aggressor that requires an express provision of law.

It follows, therefore, that if GSS investigators are holding a terrorist who was a collaborator to the placement of the bomb, and the only means of averting the tragedy is by applying force against him, there is no doubt that, according to the Halacha, not only is it permitted to apply such force, but it is mandatory to do so.

For further thought:

Would the above analysis also apply where the suspect is not the terrorist himself or his direct collaborator - e.g. in the case of a person who holds (direct or indirect) information about the ‘ticking bomb,’ or where there is no certainty at all (merely a suspicion) that the person held by the GSS is concealing essential information?


“Ticking Bomb Suspects” - Who says there’s a bomb?

In our last column, we concluded that if GSS investigators are holding a terrorist who was a collaborator to the placement of the bomb, and the only means of averting the tragedy is by applying force against him, there is no doubt that, according to the Halacha, not only is it permitted to apply such force, but it is mandatory to do so.

In most cases, however, the suspect will not be the terrorist himself or his direct collaborator - e.g. where the suspect is a third party family member or neighbor of the terrorist who merely holds certain information about the ‘ticking bomb.’ In fact, in many cases, there may be no certainty at all - merely a suspicion - that the person held by the GSS is concealing essential information. Would Halacha also permit the application of force in such cases, or perhaps considerations of human dignity would prevail over ‘potential security considerations’?

***

The application of force against a person who has information concerning an impending attack[1]

We saw from the words of the Rambam (Laws of Murder and the Preservation of Life 1:15-16) that a person who has the ability to prevent the destruction of another person’s life, and who fails to do so, is regarded as if has destroyed the entire world. As such, the mitzvah “to save the pursued, even at the expense of the life of the pursuer (rodef)” would seem to apply even in the case of a person who has information concerning an impending attack but who fails to disclose this information. On the other hand, such a person is clearly not an activerodef - he did not create the danger: he merely failed to stop its occurrence. However, the 16th century Salonikan Halachist, R. Shmuel ben Moshe de Medina (the Maharshdam), equates a passiverodef with an active one, in the context of a person whose refusal to allow robbers to violate his monetary rights prevented the release of his colleagues from captivity and thus endangered their lives (see his fascinating responsa to Choshen Mishpat, Siman 344). Certainly, modern Israeli law would brand a person who failed to save others in such circumstances as an aggressor.

The problem with the Maharshdam is that he does not cite any sources to back up his above mentioned equation. It may, however, be possible to base a license to apply force to a suspect on other normative texts. Take the “necessity defense,” which exempts a person from all criminal liability for an act which is immediately necessary in order to save his or another’s life, liberty, body or property, from real danger of severe harm. Surely the application of force on the body or mind of the suspect by GSS investigators is necessary in order to prevent terrorists endangering the lives of the innocent? Here a distinction must be made between physical or mental injury to a suspect and between violating the suspect’s human dignity. The license/obligation to save the pursued by injuring the pursuer is based not only on the need to save the pursued, but on the premise that the pursuer is the person who has unlawfully created the danger[2] . In the case in question, the suspect has not created the danger, and it is therefore forbidden to save oneself by injuring another (innocent) person.

By contrast, to violate a suspect’s human dignity by degrading his self-esteem, while the latter is generally a serious aveira, this does not amount to any violation of his right to life. The prohibition against injuring a suspect’s human dignity is thus overridden when the value in need of protection is the act of saving lives. It is well known Halacha that almost all prohibitions are waived in the face of pikuach nefesh (saving innocent human lives): “In time of danger, one is permitted to breach any of the prohibitions in the Torah, save for idolatry, adultery and murder” (Rambam, Hilchot Yesodei HaTorah, 5:6).

So far, we have reached the conclusion that it is doubtful as to whether there are any grounds on which to permit the use of force on the body of a suspect. It may be possible, however, to base a license of this nature on a different premise: the suspect has breached his duty to disclose information and to save other innocent human beings. “Anyone who could save others but fails to do so transgresses the negative commandment of standing idly by the blood of your neighbor” (Rambam, Laws of Murder and the Preservation of Life, 1:14). In such case, the Halachic principle of “coercing a person to perform the commandments” (kefiya al hamitzvot) should apply, certainly in a case like the present in which the breach of the commandment injures others. On the other hand, the majority of Poskim hold that where the act which could have saved others involves physical danger to the person in possession of the information (e.g. where the suspect refuses to collaborate out of fear of threats made against him or against members of his family), such person is not obligated to endanger his own life in order to save others’ lives.

***

The application of force or pressure in circumstances of uncertainty

The reality is that, in the majority of cases, investigators are forced to operate in reliance on one or more uncertain assumptions: that a bomb has in fact been placed (the only ones to know this for certain are the terrorists); that it will explode if we do not neutralize it (the terrorists may be insufficiently professional); that it is even possible to neutralize it (the bomb may explode as soon as we attempt to neutralize it); that the person in our hands in fact knows where the bomb is hidden (perhaps he was not informed of this, or perhaps the terrorists moved it upon learning of his capture); that if we torture him he will in fact divulge the required information (and will not die beforehand, or remain silent, or give over false information); that if he divulges the information we will be able to neutralize the bomb (and it will not be too late to do this); and there are no other means to discover the bomb (e.g. the use of sophisticated electronic means to stimulate certain centers of the brain such that pain can be inflicted upon an individual without physical abuse or physical side effects!); etc. A heavy burden thus rests on the shoulders of those wishing to justify the use of such an extreme and ethically shocking act as torture[3] .

In circumstances such as these, the entire picture changes, because a “doubtful rodef” is not subject to the same laws as an actual rodef. No injury may be caused to a person where no certainty exists that such person is threatening the life of another. The same applies regarding the principle of kefiya at hamitzvot. It is obvious that we can only coerce a person to perform his duty to save in a situation when it is clear that the possibility in fact exists of his being able to save others and he refuses to act. As to the defense of necessity to justify the infringement of human dignity of a person who is suspected of concealing information, the Halacha would distinguish between situations. Where there is no near certainty that there exists a danger at all - the suspect must not be harmed, because Biblical prohibitions are only overridden in cases of real (v. hypothetical) danger. Therefore, this defense is unable to aid the GSS in the course of their routine collation of intelligence information. By contrast, if the danger is real (e.g. it is known that a bomb has been placed), and the doubt is merely whether the suspect possesses any essential information in this regard, there is possible room for leniency in permitting an infringement of the suspect’s dignity, even where there is no certainty that he is in fact concealing essential information (provided that there exists a reasonable basis to assume that this is the situation).

Summary and conclusion: It may be that none of the above cited Halachic principles apply in the usual situations of uncertainty with which the Shabak has to confront. If so, it would appear that the battle forced upon us by the terrorist organizations needs to be fought on the basis of exceptional principles - “state of emergency” (hora’at sha’a), and the like, notwithstanding the difficulty of defining the boundaries of such principles. Again, we return to the minority opinion voiced by Justice, Y. Kedmi in the 1999 Supreme Court judgment[4] with which we opened this series:

It is difficult for me to accept that, due to the absence of explicit legislation, the State should be helpless in those rare emergencies defined as “ticking bombs,” and that the State would not be authorized to order the use of exceptional interrogational methods in such circumstances. As far as I am concerned, authority does exist under such circumstances, a result of the basic obligation of the State - like all countries of the world - to defend its existence, its well-being, and to safeguard the lives of its citizens. It is clear that, in those circumstances, the State - as well as its agents - will have the natural right of “self-defense,” in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens.


[1] This article draws heavily on a fascinating Hebrew article (“Investigations by the GSS in Light of the Principles of Jewish Law”) written by Dr. Michael Wygoda, Head of Jewish Law at Israeli Ministry of Justice, and published at: www.daat.ac.il/mishpat-ivri.

[2] This point is well made by Prof. Dov. I Frimer, in his article “The Right of Self-Defense and Abortion,” printed in “Maimonides as Codifier of Jewish Law,” edited by Prof. N. Rakover, 1987.

[3] Daniel Statman, Professor of Philosophy, at BarIlanUniversity, "The Absoluteness of the Prohibition Against Torture"1997; see www.philo.haifa.ac.il/faculty pages/statman.htm, Hebrew article #11. My thanks are extended to Emanuel Cohn, former Shaliach in Montreal, for referring me to this valuable article.

[4] HCJ 5100/94 The Public Committee Against Torture in Israelv. The State of Israeland the GSS et al.See http://62.90.71.124/eng/home/index.html for the text of the full translated judgment.

 

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Jewish Law in our Times > Human Dignity - and Ticking Bombs

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