Simon Jackson
Legal Advisor to Torah Mitzion

 

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 be criminally 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?