Treating the Oct 7th Terrorist: A Halachic Analysis

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    By Rabbi Yair Hoffman

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    The pelvic surgery happened over the weekend at Tel Aviv Sourasky Medical Center’s Ichilov Hospital. And, yes, there were protests.

    A captured Hamas terrorist who murdered innocent people on Oct. 7 needed pelvic surgery was initially refused treatment. In the past, such procedures occurred within the prison hospital system.  The Tel Aviv hospital initially refused to admit him for treatment, citing the lack of proper prearrangements. After half an hour, the ambulance turned around.

    Ultimately, security officials arranged for the surgery on the suspect over the weekend – per the rotation schedule for hospitals set by the Health Ministry.

    Ichilov Hospital issued the following statement: “Like all hospitals, Ichilov operates according to the directives of the Health Ministry and the government of Israel on this complex issue.”

    What Would Halacha Say on the Matter?

    As in all matters of halacha, the underlying issues need to be properly explored, and we must leave emotion behind. Often, the issues are not so clear-cut, and there are varied opinions among the Poskim.

    The underlying issue is the idea of “Aiva” and its parameters. “Aiva” literally means hate. Halacha tells us that when certain actions on our part would engender an excessive, hate-filled reaction on the part of others, we can and/or must temper or change those actions on our part.

    In Shulchan Aruch (YD 158:1), we find that the idea of Aiva allows us to provide medical care that would save a life of someone that halacha would normally not sanction to provide for that care. Tosfos in Gittin 70a (Rav Shimi Bar Ashi) explains that Rav Shimi possibly cured such a person on account of Aiva. [Imagine that a Nazi leader was shot, for example, in Hitler’s famous Beer Hall Putsch. Would it have been permitted for Jews to provide that Nazi leader with medical care? Normally, halacha would not sanction it, but if it may lead to Aiva, it would be permitted.]

    In Shulchan Aruch (OC 334:26), the Remah rules that if a fire breaks out in a foreign location and a Jew is present, it is permitted to violate Shabbos and put out the fire, so that they not accuse us and the matter would lead to Aiva. Now, while it could be argued that this is considered a melacha sh’aina tzricha l’gufa, it still appears to all as a full-fledged Biblical prohibition.

    Why We Treat Terrorists in General

    Terrorists are murderers of innocent people, and once cured of whatever ails them will probably go out and murder again. Yet, if terrorists are not treated, then other innocents will suffer. Other countries and enemies will refrain from providing treatment to innocent people. Therefore, we are treating them so that mankind in general will benefit.

    When two doctors had the question of treating terrorists posed to Rav Elyashiv, zt’l, he ruled that they should be treated on account of Aiva.  His son-in-law, Rav Chaim Kanievsky zt”l, in a separate incident, seemed to have ruled otherwise.

    A Fascinating Meshech Chochmah

    Regarding the mitzvah of eishes yefas toar, the Meshech Chochmah on Devarim 21:10, asks why it was necessary for the Torah to write the following bolded words in the whole verse, “When you go to war against your enemies and Hashem delivers them into your hands and you take captives, if you notice among the captives a beautiful woman and are attracted to her, you may take her as your wife.” It would have made sense to just write, “When you go to war against your enemies and you take captives!”

    The Meshech Chochmah answers that only when you have completely vanquished the enemy would it be permitted to take a captive woman as a wife. Otherwise, the enemy may also capture your women and they may forcibly marry them against their will if they hear that you had married one of their captive women.

    Not All Aivas Are the Same

    Clearly, not every Aiva is created equally. Rav Moshe Feinstein, YD 1 #184 cites a number of sources where some Aivas would permit Shabbos violation, while others would not. The Chelkas Yaakov YD #168 also differentiates between different times and places in regard to Aiva. How bad is this particular Aiva and will it adversely affect the way innocent people are treated in other countries and places?

    Where Could Aiva Still Affect the Innocent?

    The terrorists who murder and kidnap and stab and kill still have lantzmen who empathize with them in Turkey, Iran and in other areas too. Is it really beyond the pale of our imagination that the Iranians and the Turks would not retaliate against Jews if we refused treatment of injured terrorists? Do they so understand the evils of terrorism that they would refuse retaliation?

    Where Does the Law of Rodaif – Pursuer Come in Here?

    An argument can perhaps be made that the moral high ground that must be taken is to stand up against terror. Terrorists should realize that when they engage in the murder of innocents, they are tacitly giving up their right to be treated in the best of hospitals.

    It must be understood that anytime that there is any doubt whatsoever as to whether there still remains a threat, one must be stringent and ensure that he is eliminated. A terrorist in Maaleh Adumim last year is a case in point. After the terrorist was shot a few times he continued to get up and remained a threat. Thus, if there is any doubt whatsoever – halachically, one must keep shooting.

    In most civilized societies, the law clearly states that a person is allowed to use only as much deadly force as is necessary to neutralize that threat, and no more. If it takes 5 shots to do that, but 6 are fired, that 6th round is excessive force and is not viewed as self-defense. For the first 5, you are safe. The 6th gets you a murder conviction.

    Notwithstanding the illegality of it, that sixth shot does occasionally happen. In the United States, the sixth shot is to avoid lawsuits; In Israel, however, it is to avoid future murders by the stabber in question.

    RAV MOSHE FEINSTEIN’S VIEW

    In 1982, this author posed a related question in writing to Rav Moshe Feinstein zatzal.

    The question was whether to be halachically branded a rodaif, does the person have to be imminently pursuing killing someone? Or does a past history of doing so combined with current statements also render him a rodaif?

    Rav Feinstein’s written response was that technically he would be considered a rodaif but there are three caveats: 1] One may not violate Dina D’Malchusa Dina, the law of the land 2] No harm, or possibility of harm can come to other citizens as a result of that course of action and a third caveat as well. Rav Feinstein concluded that since it was impossible to fulfill these three caveats, it makes no difference practically whether they are officially branded a Rodaif or not.

    SANHEDRIN GEMORAH

    There is a further related issue found in the Gemorah in Sanhedrin (74a) : “Haba lehorgecha hashkaim l’hargo – One who comes to kill you – arise earlier and kill him.”

    This passage in Sanhedrin, however, begs a number of questions:

    • Is this dictum considered to be halacha? Or is it merely good advice?
    • Is it obligatory or is it optional?
    • Is there a difference between this concept and the concept of a Rodaif – a pursuer?
    • Also, what is the exact source for this dictum? Usually the Talmud appends a verse to a dictum such as this one, and yet here there isn’t one.

    The Midrash Tanchuma (Parshas Pinchas 3) indicates that source of Haba lehorgecha emanates from the verse in BaMidbar (25:17) regarding the Midianites where it says, “Tzror es haMidyanim vehikisem osam – Afflict the Midianites and strike them.” It seems from the Midrash Tanchuma that this is obligatory and not voluntary, since it is a verse in the Torah.

    DEBATE BETWEEN RAV HALPERIN AND FORMER CHIEF RABBI OF TEL AVIV

    Rav Yitzchok Halperin in his Maaseh Choshaiv (Vol. III p.141) writes that it is, in fact, not obligatory but optional. He does not mention Tzror es HaMidyanim as a source, however.

    The former Chief Rabbi of Tel Aviv in his Assei Lecha Rav (Vol. IV p.35) follows the view that it is obligatory but qualifies the idea of it being obligatory as only when there is certainty that the enemy will attack. He distinguishes between the obligation of seeing a Rodaif in pursuit of his victim and the law of “One who comes to kill you.”

    His distinction is that the latter only applies when it is definite that he will try to kill you. In such an instance, there would be an obligation to kill him.

    QUESTION FROM SHMUEL ALEPH

    We do find, however, that in Shmuel I (Chapter 24), King Shaul was in pursuit of the future King David, and would have killed him. Dovid, however, spared Shaul – only cutting his clothing. Certainly, Shaul would have killed him – why then did Dovid spare him, according to the Tel Aviv Chief Rabbi? He should have been obligated to kill him!

    HaRav Boruch Dov Povarsky zatzal, in his Shiurim on Sanhedrin cites the Gemorah in Sanhedrin (74a) that the law in regard to a Rodaif is only if it is impossible to stop him in another manner. There is therefore an essential difference between the law of Rodaif and the law of HaBa L’horgecha. If someone is coming to kill you, then you may kill him without worry about stopping him in some other manner, and you are completely exempt. The law of Rodaif, however, limits an observer in killing the pursuer in a number of ways. If he could have stopped him in some other way then he might, in fact, be liable.

    The Minchas Asher (Shmos #39) in trying to resolve the question on King David suggests another caveat to the laws of Haba lehargecha, even according to the opinion that it is obligatory. He writes that it is only obligatory to kill him if it is during the actual time when he is trying to kill you. If it is not during this time–then this is optional. The suggestion is somewhat perplexing because all cases of “waking up early to kill him” perforce deal with a case where it is not during the actual time. The “obligatory” nature of it would thus never be practically relevant according to the Minchas Asher.

    NEW ANSWER

    This author would like to propose an altogether different caveat. The laws of “waking up early to kill him” might be limited by another factor. That factor is the following question: What are the ultimate repercussions of killing this person? If Dovid HaMelech killed Shaul the King, the repercussions would reverberate in Jewish history for thousands of years. That being the case, it would not be obligatory but would be optional.

    Our question might be limited by this factor too. What are the ultimate repercussions of killing this stabber? If it may be too devastating then the normally obligatory nature of “arise early and kill him:” changes and becomes optional or in our case, forbidden because of the Law of the Land is the Law.

    Rav Yitzchok Zilberstein relates (Shiurei Torah L’Rofim Siman 289) a story that may impact the question as well.  He relates a story from the Beis HaLevi. The issue of reinstituting the Korban Pesach had come up. The Beis HaLevi explained that he could probably find a halachic solution to all the outstanding halachic issues, however, to the hate that will cause Muslims to feel toward Jews who would now be sacrificing once again on Har Habayis, and the subsequent violence done to Jews — to that – he can find no heter!

    May Hashem remove the rotzchim and bring us yeshuos and nechamos!

    The author can be reached at [email protected]


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    3 Comments
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    lazy-boy
    lazy-boy
    1 month ago

    terrorists are chiyav meisah, must be put to death according to the Torah.