Friday, January 26, 2007


Our Gemora relates the following incident: Yom Turyanus celebrated the death of Turyanus, a Roman officer who put two Jews - Papus and Lulianus - to death. Before doing so, he mocked them publicly, challenging the Jewish God to intervene on their behalf, as He was reputed to have done on behalf of Chananya, Misha'el and Azariah. Papus and Lulianus responded that they were not deserving of divine intervention, and neither was Turyanus on the level of Nevuhadnezzar to have a miracle take place because of him. They concluded that Hashem probably had made him (Turyanus) the instrument of their death in order to punish him for it. Immediately after their death, messengers from Rome arrived who removed him from his position and cracked his head with clubs. Since this incident occurred on the twelfth of Adar, they declared this day as a minor festival.

Rashi explains that Papus and Lulianus were righteous men. The emperor’s daughter was found murdered and they accused the Jews of committing the crime. The emperor threatened to kill all the Jews unless they could produce the murderer. Papus and Lulianus falsely admitted to the crime and they were the only ones executed by Turyanus.

There is a question discussed in halacha if a person is permitted to volunteer to die in order to save the lives of other people.

Some say that it is even a mitzvah to do so. The Chazon Ish (Yoreh Deah 69) proves the permissibility of this act from the story of Papus and Lulianus), about whom the Gemora (Bava Basra 10b) says that no person is allowed into their exclusive area in Olam HaBa.

However, the reason for this is a dispute among the Poskim. The Chazon Ish (ad. loc.) says that the reason for this is that this is considered primarily an act of saving others and not an act of getting oneself killed. On the other hand, the Binyan Tzion (2:173) states that the reason for this is that since if he does not volunteer he will die in any event, it is permitted.

Bari Veshemacites the above and elaborates on many issues related to this. Here is the entire discussion.
The 9/11 scenario in Halachah
A. Background
Is it permissibile to shoot down a plane full of passengers in the 9/11 (or the Corey Lidle) scenario, where the plane headed for a building with occupants?

The passengers of the plane will certainly die upon impact, and some of the occupants of the building will likely die if the plane is allowed to hit the building. The question is, may one actively deprive the passengers of the plane of Chayei Sha’ah, a short span of life, for the sake of preserving the extended life span of the building occupants.

The place to begin this discussion is the well-known Yerushalmi in the 8th Perek of Masseches Terumos:

"A group of people who were walking on the road and non-Jews accosted them, and said: ‘Give us one of you and we will kill him, and if not, we will kill all of you, even if they will all get killed they should not hand over one soul of Israel. If they designated one like Sheva the son of Bichri [In Shmuel II:20 Sheva ben Bichri is demanded by Yoav, the general of David’s army, for rebelling against the king] they should hand him over and not get killed.

R’ Shimon ben Lakish said: This is only so if he is liable for death, like Sheva ben Bichri.

And R’ Yochanan said: Even though he is not liable for death like Sheva ben Bichri (it is still permissible to hand over the one who was singled out)."

The first Halacha here, that where no particular individual was singled out it is forbidden to hand anyone over, even if they will all die as a result, is recorded in Rambam (Yesodei HaTorah 5:5) and by the Rema (Yoreh De’ah 157:1).

This requires some elucidation. Generally speaking, one is obligated to give up his life rather than murder another, based on a Sevara of מאי חזית דדמא דידך סומק טפי - "Why do you think your blood is redder?", meaning that there is no benefit in killing the other person, since either way a Jew will die, so there is no reason to allow the murder. However, in the case in the Yerushalmi, if they do not hand over one person, they will all die, including the person being handed over, so why do we not allow the handing over of one person to save the others?

The Kesef Mishneh on the Rambam (ad. loc.) explains that the Sevara of Mai Chazis is only necessary when the non-Jew who is asking you to kill has designated another particular Jew to be killed. In this case, however, even without the Sevara of Mai Chazis it is clearly forbidden to hand over one Jew, since there is no way to determine who should be handed over, and we cannot condemn one to death more than any of the others, and therefore they must all die and not hand anyone over.

B. Can one volunteer to die to save the others?
Yes. In fact, it is a Mitzvah to do so. The Chazon Ish (Yoreh Deah 69) proves the permissibility of this act from the story of Papus and Lulianus (who confessed to a crime of murder that they did not commit in order to save the Jews who were under threat - Rashi to Taanis 18b), about whom the Gemara (Bava Basra 10b) says that no person is allowed into their exclusive area in Olam HaBa.

However, the reason for this is a dispute among the Poskim. The Chazon Ish (ad. loc.) says that the reason for this is that this is considered primarily an act of saving others and not an act of getting oneself killed. On the other hand, the Binyan Tzion (2:173) states that the reason for this is that since if he does not volunteer he will die in any event, it is permitted.

(An apparent practical difference would be in a situation where the person who is volunteering has a chance of escaping, where the Chazon Ish would still permit it, whereas the Binyan Tzion would not. This is not the 9/11 scenario, however.)

C. Can we assume that the passengers on the plane would willingly volunteer, and shoot down the plane?

In a Sefer called Mishnas Pikuach Nefesh [by R’ Yosef Aryeh Lorincz, Bnei Brak 5763] (Simman 50), the author (when discussing this 9/11 scenario) assumes that there is an Anan Sahadei - a clearly valid assumption - that the passengers would be willing to give up their lives in this scenario, and it should be allowed.

However, he points out that usually there are minors (below Bar Mitzvah) on the plane, and for them the Anan Sahadei will not help (I assume, since they cannot waive their own lives, and we
cannot do it for them).

Additionally, in the Sefer B’Chol Nafsh’cha (10:(32)) the author is not sure whether one can volunteer to be actively killed by a Jew to save the many. (He says that from the Yam Shel Shlomo to Bava Kama (8:59) it would seem that is allowed, based on what he writes regarding Shaul HaMelech committing suicide, but it still requires more thought).

D. What is the Halachah in the dispute between R’ Yochanan and Reish Lakish?

When the non-Jews do designate someone to be killed, who is not liable for the death penalty, may he be handed over?

This is a Machlokes Rishonim. The Rambam (ad. loc.) says that they may not hand over the Jew who has been singled out, in accordance with the position of Reish Lakish, whereas many other Rishonim decide the Halachah in accordance with R’ Yochanan [The Beis Yosef (Yoreh Deah 157) quoting the Rash to the Mishnah in Terumos and the Ran to Yoma 82a; Bach understanding of Semag (Lavin 165) and Semak (78); Issur V’Hetter HeAroch (Klal 59).]

The Rema (Yoreh Deah ad loc) brings both opinions.

The Bach and Taz (157:7) decide the Halachah in accordance with the Rambam.

However, in Teshuvos Rema (11) he holds that the primary opinion is like Rabbi Yochanan. This is also the position of the Shaar Efraim (72), Tiferes Yisrael (Mishna Terumos 8:12) and the Chazon Ish (ad. loc.) say that the Halachah is in accordance with Rabbi Yochanan.

Most authorities hold that Rabbi Yochanan’s position is only true if the one who is singled out will certainly die in any event.

E. What is the rationale for R’ Yochanan’s position?
This is a further dispute. From many Rishonim (Kesef Mishneh ad loc., Rashi to Sanhedrin 74b s.v. Yatza, Ran (Yoma 4a in the Rif folio), Ritva and Maharam Chalawa to Pesachim 25) it seems that the reason for R’ Yochanan’s position is that the Sevara of the Kesef Mishneh quoted above for the prohibition of handing one of the people over is no longer applicable. Since the one who has been singled out is going to die anyhow, there is no reason why he should not be handed over to spare the others.

However, the Maharam Shick (Yoreh Deah 155), the Chazon Ish (ad loc) and Igros Moshe (Yoreh Deah 2:60) all say that the reason why he may be handed over is because, after he has been singled out, he has the status of a Rodef. [However, the Igros Moshe there does end up proving that the Ran and the Rash hold of the first reason as above.]

F. Does this hold true even at the expense of the condemned’s Chayei Sha’ah?
Yes. This is clear from the Chazon Ish and the Igros Moshe. R’ Moshe explains that the reason for this is because whatever time there is in excess of that Chayei Sha’ah which they are depriving that person of, only he is a Rodef on the others, but they are not a Rodef on him for that time span, since he will not have that time to live in any event.

Presumably, according to the first reason mentioned in the Rishonim as well, there is still reason enough to hand the one who is singled out over the others, since his lifespan is inevitably limited to Chayei Sha’ah.

[Although the Yad Avraham on the margin to the Shulchan Aruch seems to disagree, the Sefer B’Chol Nafsh’cha says that that position is in accordance with Reish Lakish].

G. Can we extrapolate from the Hetter to hand over the person, that it allowed to actively kill him to save the others?
The Meiri (Sanhedrin 72b s.v Zeh) as well as the Arugos HaBosem (brought in the Hagaha to the Mordechai (end of Perek Arba Misos) say that, while one may hand over the Jew to a non-Jew, one may not actively kill the Jew.

However, the Sefer B’Chol Nafsh’cha says that this is not implied by the simple reading of the other Rishonim (since the logic used should apply to direct murder as well).

If we were to decide the Halachah in accordance with the position of Rabbi Yochanan, then, it would seem that it is permissible to shoot down the plane, since they will die in any event, and the occupants of the building will be saved as a result.

However, we cannot simply discount the weighty position of the Rambam on this issue, as there are major Acharonim who decide the Halachah like him, as above.

H. Are there Hetterim even if we were to decide the Halachah in accordance with Reish Lakish?

a) There are positions in the Acharonim (Lechem Mishneh to Rambam ad loc., Tosefes Yom HaKippurim (Yoma 82) who hold that even Reish Lakish would only argue if there is some slim chance that the person singled out will escape. But if there is no chance at all, he would agree that he should be handed over.

b) The Chazon Ish (ad loc) discusses the following scenario:
"We must delve into a case where one sees an arrow about to kill many people, and he can divert it to a different side, where it will kill only one person on another side, and those on this side will be saved, and if he were to do nothing, the many will die and the one will live. It is possible that this is not the same as the case of handing over someone to be killed, since that handing over is a cruel act of killing someone, and in this act there is no salvation of others in the inherent nature of the act, it is only that the particular circumstance caused that this act will bring about salvation to others, so the saving of the others hinges on the handing over of a Jewish soul.

However, in the diversion of the arrow from one side to the other, there is essentially an act of salvation, and it is not connected at all to the killing of the individual on the other side, rather it is only now, in this circumstance, that there is another Jew on the other side. And since on this side many Jews will die, and on the other side only one, it is possible that we must make every effort to reduce the loss of Jewish life to whatever extent possible. After all, Lulianus and Papus were killed to save the Jews, as Rashi writes to Taanis 18b, and they say that no person can stand in their section.

However, here may be worse since he is actively killing, and we only find that we may hand over Jews, but to kill with one’s hands, perhaps we do not do so, and that which they killed Sheva ben Bichri was because he was a rebel against the king. But, this requires more delving into.

So, the Chazon Ish has a doubt whether one may do an act which is primarily one of salvation, which will actively kill an individual, to save the multitudes. It seems that the accepted position by the Sefarim on the topic is that the Chazon Ish permits this. [The Sefer B’Chol Nafshecha seems to understand that this case of the Chazon Ish is not really direct killing. He holds that the Chazon Ish’s doubt is only in real active murder, like swerving a car away from the many to run over an individual. Though I do not see how that fits into the language of the Chazon Ish.]

In the Sefer "Chashukei Chemed", which is a collection of Psakim by R’ Yitzchak Zilberstein Shlit"a of Bnei Brak in order of the Dapim on Pesachim, brings from the preface of the Pnei Yehoshua to his novellae on Shas, that he had vowed to dedicate his life to delving in to the depths of the Torah, after he was trapped under some collapsed buildings, and many came to save, "And those that they killed by their trampling (in the area) were even more than those who had originally died, although there was no way out of this, since their intent was to save and remove the rubble."

Rav Zilberstein understands that the Pnei Yehoshua is approving of what they did. (It seems to me that the language of the Pnei Yehoshua implies that the Hetter is because - if they don’t do this they would all die anyhow, in addition to this being an act with the intent of saving. This would be a parallel to the 9/11 scenario. Though it is not clear in the Pnei Yehoshua whether he would hold this to be true even according to Resh Lakish, nevertheless, in the final analysis, he says it is allowed).

I. Is shooting down the plane primarily an act of saving or of killing?
One could perhaps distinguish between that Pnei Yehoshua and the 9/11 scenario, wherein in the Pnei Yehoshua’s case they were not actually doing acts of killing, they were only inadvertently shifting debris that caused people to die.

Rav Chaim Kanievsky Shlit"a, quoted in the Sefer Mishnas Pikuach Nefesh, says that he is unsure whether this should be considered an act of killing or of salvation.

J. Is a situation of war different?
In the Sefer Mishnas Pikuach Nefesh, the author raises the concern that if we were to conclude that it is impermissible to shoot down the plane, we would be in a terrible quandary. Our enemies could take a few Jews from their countries, put them on a plane (with a nuclear bomb!) drop it on the concentration of the Jews!

He therefore says that in the context of war, the rules are different. Here, everyone must fight and be willing to sacrifice his life to save the multitiudes from the enemy, and therefore it is allowed to down the plane although we are killing Jewish passengers.

This would even be true if there were children on the plane who are not obligated to fight against the enemy, since that is the Halachah, that in war we sacrifice the few to save the many.

And, so, a plane hijacked by terrorists would come under the rubric of war, and would be permissible, especially in light of Rav Yaakov Kamenetzky’s position on the impermissibility of ransoming the kidnapped Rav Hutner, on a hijacked plane, at the time, due to Israel being engaged in a war with the Arabs since ‘48.

[What would be in a case where one is not sure whether a terrorist attack is being perpetrated, like initially on 9/11, or in the Corey Lidle case, is an interesting question]

K. Conclusion:
We have a number of Tzedadim that would allow for downing the plane:
1) If all the occupants are adults, based on an assumed volunteering to save the multitudes.
2) If we hold like the many Rishonim who hold like Rabbi Yochanan, as some Acharonim aver, it would likely be allowed.
3) Even according to the Rambam and Resh Lakish, if it is clear that they will all die if nothing is done, some Acharonim say that it is allowed.
4) This may constitute primarily an act of salvation, with the killing being a side-effect, which is probably allowed according to the Chazon Ish.
5) In the context of war, this would certainly be permissible.