Simon Jackson
Legal Advisor to Torah Mitzion

 

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

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 active rodef – 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 passive rodef 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. 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.

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 ,i>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 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.”