(2012/5772)

Last week we discussed (in an essay archived at www.koltorah.org) whether Halachah would sanction the United States Air Force shooting down United Airlines Flight 93 on September 11, 2001, in order to avert an attack of the magnitude of the World Trade Center devastation. We cited Rav J. David Bleich who stated that it is absolutely forbidden to do so. We noted, however, that it is not clear cut that Halachah prohibits such action. We cited Chazon Ish who raised the possibility that we are permitted to kill an individual in order to save the lives of many. We continue this week and cite four arguments supporting the possibility that it is permitted to kill a number of individuals who are slated to die within a very short amount of time, in order to save the lives of many more individuals.

Rashi to Sanhedrin 72b

Rashi (Sanhedrin 72b s.v. Yatza Rosho) justifies the people of Aveil Beit Ma’achah delivering Sheva ben Bichri to Yoav ben Tzeruyah to be killed, in order to spare the lives of the rest of the town’s inhabitants (as we discussed last week). Rashi specifically mentions the rule (discussed last week) that Ein Dochin Nefesh MiPenei Nefesh, that we are not permitted to kill one individual to save the life of another individual. Rashi at first answers that since even if Sheva ben Bichri had not been delivered to Yoav, he would have been anyway killed by Yoav, it was permissible to kill him. Rashi explains that it is forbidden to kill one to save another only if he would have been spared. Accordingly, Rashi in this answer sanctions shooting down Flight 93, since all of the passengers would have died in short order when the plane would be crashed into its intended target.

Nonetheless, one cannot derive a definite proof from Rashi, since he offers a second defense of handing over Sheva ben Bichri. In his second explanation, he states that Sheva ben Bichri is an exception since he was deserving of capital punishment due to his being a Moreid BeMalchut (one who rebels against the king, as we discussed last week). Thus, since the passengers on Flight 93 were entirely innocent, it is not clear from Rashi that they could have been sacrificed to save the many.

Rav Akiva Eiger to Ohalot

Another possible proof may be derived from Rav Akiva Eiger’s comment to the Mishnah we discussed last week that forbids killing a baby to save the mother, once it has emerged from the birth canal. He raises the question as to the permissibility of killing the

baby in order to save the life of the mother when, otherwise, both mother and baby would die absent intervention (Tosafot R. Akiva Eiger, Ohalot 7:6, no. 16). Although he leaves his question unresolved, Rav Akiva Eiger does however cite Teshuvot Panim Me’irot, III, no. 8, who rules that such a course of action is permissible. Tiferet Yisra’el (Ohalot 7:6, Bo’az, number 10), similarly comments that, “perhaps it is permissible to sacrifice the infant in such circumstances in order to rescue the mother.” The passengers on Flight 93 are analogous to the baby who will die together with its mother absent intervention.

Rav Bleich dismisses this analogy, arguing that the baby is different, since fundamentally the baby is a Rodeif (one who is pursuing the life of another), and essentially would have deserved to die had the baby’s pursuit not been neutralized by the mother pursuing its life. Rav Bleich argues that the terrorists or even the hijacked pilot on Flight 93 are considered Rodefim but the passengers are not, since they do not control the plane. One could question this point by arguing that the passengers are entirely analogous to the passengers, in that the baby is pursuing its mother’s life due to a process entirely beyond its control, just as the passengers are pursuing the lives of those in the terrorists’ intended target due to a process entirely beyond their control.

We should note that Rav Moshe Feinstein, cited at length in an essay published in Gray Matter 4, permitted the sacrificing one conjoined twin in order to save the other in a situation that otherwise both would have died. Although we present another explanation, it is possible that Rav Moshe follows the opinions that we may sacrifice one to save another in case where absent intervention both individuals would die.

Bava Batra 10b – Lulinus and Papus

The Chazon Ish cites the Gemara’s evaluation of the actions of Lulinus and Papus as possible proof that we should make efforts to limit the loss of life as much as possible. Rashi to Bava Batra 10b (s.v. Harugei Lod) cites a remarkable story about a wicked Roman leader named Turinus who found his daughter dead in the city of Lod. He immediately accused the Jews of killing her and decreed that all the Jews of Lod be slain in revenge. In order to save the town from the terrible decree, two holy Jewish brothers, Lulinus and Papus, pretended that they had killed the girl and they were executed. The Gemara states that Lulinus and Papus received the highest possible reward in Olam HaBa (heaven)[1].

Roi Klein is another example of a heroic Jew who went beyond Lulinus and Papus who gave themselves up to the Romans to save the lives of many Jews. Roi Klein jumped on a grenade in the Second Lebanon War in July 2006 to save the lives of the soldiers he commanded. Rav Osher Weiss, one of the leading contemporary Poskim, compared (in a speech at Congregation Rinat Yisrael in Teaneck in August 2006) Roi Klein to Lulinus and Papus saying that his action constitutes the highest level of Kiddush Hashem.

The Chazon Ish’s suggestion goes even a step further and suggests that a third party may kill an individual in order to save the many. We must stress, however, that the Chazon Ish does not reach a definitive conclusion about this matter. Moreover, Rav Isser Yehuda Unterman (the Ashkenazic Chief Rabbi of Israel during the 1960’s) specifically writes (HaTorah VeHamedinah 7:35) that one may not coerce someone to sacrifice his life even in order to save lives of many.

Rav Shaul Yisraeli’s Interpretation of the Yerushalmi Terumot

Rav Bleich’s primary basis to prohibit killing someone to save the lives of others even if that person was expected to die shortly is the Yerushalmi we cited last week that stated:

A group of individuals on a journey who are encountered by evildoers who said to them ‘Give us one member of your group or we shall kill the rest of you’ – let them all be killed and we must not release even one Jewish soul (Yimsaru Kulam V’al Yimasru Lahem Nefesh Achat B’Yisrael).

This passage in the Yerushalmi seems to contradict the Chazon Ish and eliminate any possibility of killing a small group destined for death in order to spare a large group of people. However, Rav Shaul Yisraeli (Torah She’Be’Al Peh 14:72) understands the prohibition to hand over the Jew as a result of the obligation of Kiddush Hashem (sanctifying Hashem’s name in the face of those who seek to coerce us to violate the Torah) and not due to the prohibition to murder. Thus, in a situation where Nochrim are not demanding one Jew to be relinquished for murder, there remains the possibility that one may kill the few destined to death in order to save the many.

A tragic situation that occurred in Tyre, Lebanon in the early 1980’s when a large building, where many Israeli soldiers were located, collapsed, killing many but leaving some victims trapped but still alive. There was a larger group who remained alive on lower floors and a smaller group who remained alive on the upper floors. Israeli experts were faced with the dilemma of choosing to save the smaller groups on the upper floors and then not reaching the victims on the lower floors in time to save them. Alternatively, they could destroy the upper floors (and thereby killing those trapped there) and be able to reach those on the lower floor in time to save them. The Israel police asked Rav Yisraeli his opinion and he ruled (Techumin 4:143) “It is absolutely forbidden to save even the many and the prominent, when saving them requires the killing (even the indirect killing) of someone who otherwise would not be killed”. The Israeli police saved the few on the top floor but sadly were not able to reach those on the bottom floor in time to save their lives.

Thus, Rav Yisraeli does not accept the Chazon Ish’s suggestion to kill the few to save the many. However, the passengers on Flight 93 might differ since they were destined to die shortly unlike the victims on the upper floors who had the very reasonable possibility of being saved. On the other hand, one could argue that there was a possibility that the passengers might have succeeded in overpowering the terrorists and thus they were not in a situation were they would definitely would have been killed.

Rav Itamar Warhaftig (Techumin 4:151), in discussing the Tyre building collapse and rescue, raises the possibility of killing the small group if they consented to sacrifice their lives to save the larger group. This is a significant step beyond Lulinus and Papus and even Roi Klein as Rav Warhaftig raises the possibility of permission for a third party to kill a small group to save the larger if the members of the small group consent to such action.

Wartime Government Killing of Civilians to Save the Nation

Even if one were to prohibit killing the few to save the many in ordinary circumstances, the government may be permitted to do so in time of war if it deems it necessary for the nation’s defense. The Gemara (Shevuot 35b) sanctions a king killing one sixth of the population during wartime (see Tosafot ad. loc. s.v. DeKatla). We see that leaders may kill a small segment of the population in order to preserve the population at large. On this basis, governments are permitted to endanger the lives of citizens and send them to battle to save the nation. We argue (Gray Matter 3:211-223) that this is a basis to permit killing enemy civilians to save one’s own nation if there is no other viable option in a legitimate war (such as the American atomic bombing of Hiroshima).

Similarly, it may be permissible for the government to down an airliner controlled by terrorists in order to defend the country during the war of terrorism, which is very much defined as a war (as explained in Gray Matter 3:218-219). Of course there is serious concern for the proverbial “slippery slope” if permission is issued to kill the few for the sake of the many. Such license could potentially degenerate into terrible abuses. Nonetheless, Halachah might permit a government to kill the few to spare the many in extremely rare circumstances provided that appropriate checks and balances are in place (such as a very powerful and independent review board to conduct a thorough investigation after any such incident occurs) to prevent abuse of such permission.

Conclusion

The question of killing the few to save the many is one of the most difficult and momentous decision human beings must ever make. Rav Bleich’s conclusion that it is categorically forbidden, is debatable. On the other hand, the issue remains unresolved and a panel of leading Poskim is required to resolve such a terrible dilemma. We must always bear in mind the Rambam’s teaching (Hilchot Rotzei’ach 4:9) that Hashem punishes those who murder more severely than anyone other sin. May Hashem spare humanity from ever having to make such a decision. Hashem Oz LeAamo Yitein Hashem Yevareich Et Amo BaShalom.

[1] When mentioning Lulinus and Papus I feel compelled to relate the story of Mr. Alex Landau, my neighbor in Brooklyn, New York for twenty-five years. Towards the end of World War II, Mr. Landau was being transported by the Nazis on a cattle car together with a trainload of other Jews. There was no air or ventilation and a few passengers tried to make a hole in the train to allow some air to enter. The Nazis noticed and threatened to murder every Jewish passenger on the entire train, if those responsible did not acknowledge their actions. The “culprits” did not admit their actions and as the Nazis were about to murder the passengers, Mr. Landau declared to the evil Nazis that he was the one who tried to make the hole. The Nazis spared the passengers and took Mr. Landau outside the train. Due to Hashem’s intervention, Mr. Landau was beaten severely but his life was spared. I recounted this event when I delivered the Hespeid (eulogy) at Mr. Landau’s funeral in 1995 and I specifically mentioned the analogy to Lulinus and Papus. His elderly friends nodded in approval throughout my entire recounting of Mr. Landau’s heroism