BaruchHashem, the bloodthirsty murderers were found. The Shin Bet uncovered this Hamas cell of five in Shechem.

How did they uncover them? It seems the information was procured through torture. Is this morally and halachically permitted? Most who have examined the halachic literature seem to say that it is. But what happened next is truly mind-boggling. The Shin Bet is apparently requesting that the murderers receive light sentences so that the method of information extraction won’t be revealed in a courtroom.

There is one word that describes this last point. It is a place located 16 miles west of the Ukrainian border, slightly southeast of Lublin, Poland, north of Zamość, and south of Biała Podlaska.

The one word, of course, is “Chelm.”

Generally speaking, torture is abhorrent. It has been used throughout our history to elicit confessions of guilt from the purely innocent. However, when there is a situation analogous to a “ticking time-bomb,” most reasonable people and ethicists see the justification in utilizing torture to prevent future deaths.

Finding the murderers of Rav Henkin and his rebbetzin certainly is analogous to the ticking time-bomb because, as we have seen, they struck twice before.

True, torture is prohibited under international law by at least three different conventions: 1) the Geneva Convention against Torture; 2) the European Convention on Human Rights; and 3) the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

However, when life and death are at stake, it is sometimes permitted to violate the rule of law.

How To Do It

How this is done from a moral and ethical point of view, however, is tenuous. You do not want to openly flout the law, so some nations choose not to pursue the law, in a given situation. For example, there are presidential candidates who have openly and undeniably broken the law, and yet we are choosing (perhaps for good reason) not to pursue that legal violation.

The halachic imperative to save lives clearly outweighs the desire to avoid the abhorrent use of torture. The Yerushalmi in Sanhedrin tells us, “Whoever saves one life it is as if he has saved the entire world.”

The Rodef Argument

The halachic justification of torturing the Palestinian for the information is based upon the principle that the person who knows where this Hamas cell is to be found is considered halachically to be a rodef—a pursuer attempting to eliminate life. When dealing with a rodef, certain activities are permitted. There is a famous ten-page TeshuvasHaBach (#43 as translated by Rabbi Dr. Elijah Schochet) that deals with the following question:

“This concerns the false accusations leveled in the city of Kalish against a Jew who was arrested in the matter regarding [the stealing of] their ‘savior’ (i.e., the host, or possibly a statue of the Nazarene).

“As he was being led away, he handed over his purse to some co-religionists, among them his father-in-law and brother-in-law, who were standing amidst a large throng of non-Jews. Now after this Jew had suffered martyrdom, his libelers leveled a charge against the kahal (the council representing the community) claiming that the [martyr’s] father-in-law who was shamash of the kahal had taken the purse from the prisoner’s hand and that the “savior” was contained within that purse!

“The officials of the Royal Court handed down the verdict that the elders [of the Jewish community] were responsible for surrendering the shamash to [stand] trial before the Wojewoda. Should they not surrender him, it would be they who would suffer the punishment [intended for him] meted out by the Royal [Court].

“In the interim, this shamash had made his escape and was now being hidden by a fellow Jew. There is reason to fear that if, G‑d forbid, he were to be forced to stand trial before them, he would be unjustly subjected to tortures not even in keeping with their own [proper judicial] procedures. [This is evident] from the decree which they have issued against the [Jewish] community, for according to their own rules and regulations the community is under no obligation to stand trial. Since, as we have observed, they do as they please contrary to the rules, it is a matter of life and death should he be forced to stand trial. What is the ruling as regards this man? Is it or is it not permissible to surrender him to stand trial?”

The Bach cites a Yerushalmi in Trumos (8:10) that discusses the Navi in ShmuelII (chapter 20) in his answer. There, Sheba ben Bichri rebelled against Dovid HaMelech, who responded by ordering his execution. Yoav, the king’s general, surrounded the city that gave Sheba ben Bichri refuge. Sheba was to be handed over or the city’s residents would be destroyed.

He concludes that the shamash made himself a rodef as well in the particular circumstances of accepting the item and may thus be handed over.

It is clear that the Palestinian who knew the location of the murderers should likewise be considered a rodef. Just like the Talmud tells us that one can stop a rodef by attacking his limb, and if that is ineffective, one may do so by taking his life, it is clear that one may stop the future consequences of another rodef’s actions through torture as well.

There are other mitzvos here as well in finding the future murderers.

Saving life is a fundamental mitzvah. What is the source of this mitzvah? The verse in ParashasKi Seitzei (Devarim 22:2) discusses the mitzvah of hashavasaveidah—returning an object—with the words, “Vahasheivoso lo—and you shall return it to him.” The Gemara in Sanhedrin (73a), however, includes within its understanding of these words the obligation of returning “his own life to him as well.” For example, if thieves are threatening to pounce upon him, there is an obligation of “Vahasheivoso lo.” In other words, this verse is the source for the mitzvah of saving someone’s life. It is highly probable that it is this general mitzvah that the Shulchan Aruch refers to in Orech Chaim 325.

Lo Sa’amod
Al Dam Rei’acha

The situation is particularly poignant, with some yeshivos in Eretz Yisrael having as many as eight different bateimidrash. To properly defend against any possible onslaught, it would require two guards at each of the eight bateimidrash. Such manpower could perhaps be paid for or provided by the city on a temporary basis, but what about for the long term?

There is a negative mitzvah of not standing idly by your brother’s blood as well. This is mentioned in Shulchan Aruch (CM 426:1) and in the Rambam. Collectively, if we adopt such a policy in having armed people in every beis midrash in EretzYisrael, we can ensure that we do not stand idly by our brother’s blood.

Lo Suchal L’hisalem

There is yet another negative commandment associated with the positive commandment of hashavas aveidah, and that is the verse in Devarim (22:3), “You cannot shut your eyes to it.” This verse comes directly after the mitzvah of hashavasaveidah. The Netziv (HeEmek She’eilah) refers to this mitzvah as well.

V’chai Achicha Imach

The Sheiltos (Sheilta #37), based upon the Gemara in BavaMetzia 62a, understands these words to indicate an obligation to save others with you. The Netziv in his HeEmekShe’eilah understands it as a full-fledged obligation according to all opinions. He writes that he must exert every effort to save his friend’s life—until it becomes pikuachnefesh for himself.

V’ahavta L’rei’acha Kamocha

The Ramban, Toras haAdam Shaar HaSakanah (pp. 42–43), understands the verse of “And love thy neighbor as yourself” as a directive to save him from danger as well. Although he discusses the issue of medical danger, it is clear that this is an example, and it would apply to danger from physical enemies as well. Even without the Ramban, however, it is clear that defending and protecting someone from danger is a fulfillment of this mitzvah.

We see from all this that it is pretty clear that the alleged actions of the Shin Bet were correct.

The Plea Deal

But what about working out a sweetheart deal so that there will not be an official finding of torture in an Israel court? There is a balance here between keeping the Shin Bet’s ability to catch future murderers and ensuring that these vile murderers remain off the streets for a while.

Let’s also not forget that although Gilad Shalit’s freedom and presence among the living is most welcome, the murderers that were released in the trade for his freedom have thus far murdered six other victims, Rachmana litzlan.

It would be nice if there was some third alternative—where the issue of torture need not be exposed and at the same time, short prison sentences not be handed out.

It is high time to bring back the death penalty for terrorist murderers. The Shin Bet, in the future, could make sweetheart deals to avoid the torture issue in exchange for no death penalty but rather life in jail.

There is another issue. All of the imperatives above also demonstrate the need to show that Jewish blood is not cheap. Serving a minimum sentence just encourages other hate-filled murderous acts.

The loss of these two remarkable individuals is huge. They had the brightest future, and the pain to these four children who witnessed their murder is indescribable. May Hashem bless us all with a genuine and long-lasting peace. v

The author can be reached at Yairhoffman2@gmail.com.