IN-DEPTH FEATURES
Guidelines to Halochos of Pikuach Nefesh

This discussion of a major new work on the halochos of pikuach nefesh is especially appropriate as we prepare ourselves for the life-and-death decisions of the upcoming days of din. When we see the aspects and ways in which life can hang by a thread, it dramatizes for us the upcoming judgment.

Our discussion includes a rare teshuvoh of HaRav Chaim Kanievsky about the decisions of Israeli military authorities during the Gulf War. Also questions like: Are Jewish soldiers in two enemy armies considered rodfim of each other? Was it permitted to shoot down the two planes before they crashed into the World Trade Center in New York City almost exactly two years ago?

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The Torah World has recently been enriched with the publication of a comprehensive work (400 large pages with warm approbations from Maran HaRav E. M. Shach zt'l, HaRav Shlomoh Zalman Auerbach zt'l, and ylct'a Maran HaRav A.Y.L. Steinman and HaRav Nosson Gestetner) concerning pikuach nefesh. This sefer stresses both a detailed and a broad study and concludes its breakdown through offering the practical halochoh, halochoh lema'aseh. We are bringing to our readers selections from this all-inclusive Torah study regarding the subject of pikuach nefesh.

Solving a Nazi Mystery

"I heard about something that occurred during the Holocaust. The Germans ym'sh permitted a minyan of people to leave the camp so that they could bury a fellow Jew. The Nazis warned against trying to escape and even sent guards to ensure that no one dare run away. Surprisingly after the burial only nine Jews remained instead of the original ten. The tenth person simply vanished, as if the earth had swallowed him up . . . The Germans ym'sh went berserk from anger and amazement that a Jew managed to escape from under their noses. They immediately began brutally hitting the nine remaining Jews to persuade them to reveal the tenth's hiding place. Two of those Jews died from these vicious blows."

What had really happened? Where did the Jew disappear to?

That desperate man had noticed an open grave dug in the earth and swiftly buried himself in it and covered the grave with earth.

The halachic question is whether that Jew who buried himself was obligated to arise from his hiding place after he heard the sounds of the hitting, since the lives of the other Jews were at stake, making it a definite case of pikuach nefesh. Likewise, it is necessary to examine whether someone who knew about his hiding place was permitted to reveal it to the Germans in order to save himself and the others.

This question can be considered from several halachic aspects. The author (in chapter 56) analyzes this occurrence, which was heard after one of the Jews who were beaten there -- a mohel, a real tzaddik and chossid, R' Moshe Dovid Risner zt'l -- suddenly met the "disappeared" Jew who solved for him the many year old mystery. (HaRav Risner right away told him, "I don't have any complaints about how you acted.")

The author cites a source to answer this question from the well- known story about R' Shimon bar Yochai who, together with his son, hid themselves from the Romans although they surely knew the Romans would catch their wives and beat them to force them to reveal where their husbands were to be found (as the gemora in Shabbos 33b relates). This apparently proves that a person is permitted to flee to save his own life even though he directly causes another person to suffer when he is pressured to reveal where that person had fled. Concerning this specific question there are many more details and aspects involved and the author discusses them at length.

Beginning of Death

HaRav Yitzchok Zilberstein, the rov of the Ramat Elchonon area of Bnei Brak cites another occurrence with halachic implications:

Nazis ordered a certain rov in Warsaw to board the "death train" to Trebelinka but he refused. Although he was fully aware that anyone who refused to board the train was immediately shot dead, that rov said he wanted to be zocheh to be buried like a Jew. He knew that if he were shipped to the German crematoria he would never be buried properly. Indeed, he was immediately killed al kiddush Hashem and was zocheh to be buried. HaRav Yitzchok Zilberstein writes at length why it was permitted for him to do so although generally a person is not allowed to prematurely end his life.

HaRav Lorincz writes (in part) that if a harsh death is decreed upon a person he is allowed to request an easier one even though as a result he will die earlier. Accordingly, it seems it is permitted to ask for an earlier death that will allow one to be zocheh to be buried like a Jew, since not having a Jewish burial involves much hardship (see Igros Moshe, Yoreh Deah II:174:4). Indeed the trip itself in the "death train" and later being cremated involved a great deal of hardship. Consequently he was allowed to act passively (through shev ve'al ta'aseh) and refuse to board the train since the yissurim he would have encountered on the "death train" can be reckoned together with the yissurim of his not being buried.

HaRav Zilberstein points out that his illustrious father-in- law, HaRav Yosef Sholom Eliashiv shlita, rules, "All the more so: boarding the train was the beginning of dying (since many died there), and therefore getting onto the train was an active act of committing suicide. Refusing to board the train was only causing his own death passively."

Is a Jewish German Soldier Trying to Kill a Jewish Russian Soldier a Case of a Rodeif?

Another halachic query is pointed out by Maran HaRav A. Y. L. Steinman.

Let us first present some background for this discussion: Are any two Jews who are trying to kill each other considered rodfim, thus permitting a third person to kill either one (whomever he wishes)? This halachic doubt of R' Shlomoh Eiger is cited in Chidushei R' Akiva Eiger in Kesuvos 33b, and in Ayeles HaShachar on Sanhedrin 72b. HaRav Steinman writes, "I saw that others are uncertain about this."

It at first seems that since both are equal we should not get involved. The rule is: "Whose blood is `redder'?" Only if because of their war between themselves both of them will die, is it possible to argue that it is a mitzvah to kill one of them to save a nefesh of Yisroel so that both do not die.

There is another way of looking at this problem: If both are considered rodfim of each other, the result is that neither is a rodeif since each is trying to kill another person who deserves to die because he is a rodeif.

There is now a vicious cycle here. If we argue that no one is a rodeif, then both are considered rodfim since each is trying to kill another Jew. If both are rodfim then neither is a rodeif as we pointed out above. What is the solution?

The author writes "when I visited Mori VeRabbi" we mentioned this halochoh and he said: "It so happened that a kosher Jew and yorei Shomayim fought during World War I as a German soldier when Germany waged war against Russia. He succeeded in killing a Russian soldier and when the soldier was dying he recited Shema Yisroel, showing that he was Jewish.

"That yorei Shomayim Jew asked Mori VeRabbi how to atone for his inadvertently killing another Jew. Mori VeRabbi answered that he does not need any kaporoh at all, since that other soldier was regarded a rodeif since he wanted to kill him during the war. Although both of them were rodeif each other, nonetheless they were both considered rodfim.

"Many kosher boys served in foreign armies and we have the general rule that kol kovu'a kemechtzoh umechtzoh domi. This implies in our case that you consider as determinant the majority of non- Jews and thus each person remains a sofeik of being Jewish. It is well-known that each army has some Jews. Therefore how can they fight in an army and not be afraid that the person fighting against them is perhaps a Jew? It therefore seems that both are considered rodfim each other and each one is allowed to kill the other because of the halochoh of rodeif. I heard all of this from my father-in-law."

Teshuvos Avnei Shayish discusses this same question of how it is permitted for a Jew serving in a foreign military force to take active part in warfare. He writes this is permitted because of the danger to the klal. If Jewish boys cannot serve as soldiers in foreign armies, non-Jews will hate them, something that causes antisemitism with possible tragic results.

Are People Who Caused Themselves a Misoh Biyedei Shomayim Punishment Considered as Committing Suicide?

An interesting halachic question is found in a note:

Do all those deserving Divine punishment of koreis or death executed through Shomayim, besides the sin itself that made them culpable for that specific punishment, transgress also the sin of taking one's own life? Through this aveiroh he has caused his premature death, Rachmono litzlan.

The Chofetz Chaim ztvk'l writes (Chomas HaDas, ma'amar 3) that when someone sees people unaware of what the Torah warns against, and their ignorance causes them to be culpable of koreis, one should do his utmost to inspire them to teshuvoh. The Torah writes (Vayikra 19:16), "You shall not stand aside while your fellow's blood is shed" and this person who sins is like someone drowning to death in a river.

Accordingly, perhaps when a person commits aveiros that obligate him in koreis or misah biyedei Shomayim he is as if committing suicide. The Ramo (Darkei Moshe, Yoreh Deah 345) says that if those culpable of a death punishment by beis din were pre- warned but explicitly replied that they are going to go through with it anyway, they are considered as committing suicide. If so, perhaps in our case of aveiros culpable with koreis and misah biyedei Shomayim, too.

But a distinction can be made. Perhaps causing oneself to be culpable for Divine punishments does not fit into the category of committing suicide, as for someone who causes himself to be put to death by beis din. Although by saving another Jew from Divine punishment, one fulfills the mitzvah of, "You shall not stand aside while your fellow's blood is shed," that still does not necessarily mean that the person performing that aveiroh is equal to throwing oneself into a river.

Teshuvos from HaRav Chaim Kanievsky

We will quote four halachic queries among the dozens from HaRav Chaim Kanievsky that are found in Mishnas Pikuach Nefesh--He'ir Yosef.

Question

I heard that once during the Holocaust many Jews hid themselves deep in a bunker. Many Germans came to the area to search for Jews, and suddenly a baby who was together with other Jews in the bunker started crying. If the child continued crying they would all be found and the Germans would kill them. Was it permitted to kill that child because he had a halochoh of being a rodeif, or possibly this was a case of "from Heaven you are being pursued" as the sugya in Sanhedrin 72b teaches us, and is not considered a rodeif?

Answer

It is reasonable that it is permissible to kill the baby since a mule can also be considered a rodeif (see Rambam at the end of Hilchos Chovel where this can be inferred).

The author points out that in Divrei Renonoh (written by the Shach's rebbe) this type of query is mentioned. That sefer writes, "It is quite natural for a child to cry when hungry, and it is relevant also here what the gemora teaches us that `from Heaven you are being pursued' and therefore he is not a rodeif."

Question

According to the halochoh of a "thief discovered while tunneling in one's house" (habo bamachteres) (see Shemos 22:1) it is permitted to kill the thief even on Shabbos. The question is whether the heter to be mechallel Shabbos refers only to what is needed in killing the thief or also to doing whatever needed to save his money. For instance: (1) Is the person being robbed on Shabbos allowed to quench a lit candle so the house will be dark and the thief will not be able to carry out his planned theft? (2) Is it allowed for the person being robbed to dig a hole, hide his money inside it and cover it up, so that the thief will not find it? (3) Is it allowed to photograph the thief so that later the police will be able to apprehend him and in that way the robbed person will get his money back? If he can photograph him he will not feel that he will have to confront him in the middle of the theft, which is what makes the incident pikuach nefesh.

Answer

Apparently we only find a heter to kill him but with regard to the third question, perhaps that is considered as killing him.

The author summarizes the halachic conclusions that HaRav Chaim Kanievsky's opinion is that "a thief discovered while tunneling in one's house" is not a real case of pikuach nefesh but is a gezeiras hakosuv that even such a case is considered pikuach nefesh. This gezeiras hakosuv is only explicitly applied to confronting a thief and stopping him physically and not in other ways to save one's money. (In the third case, however, it is possible that this is also considered fighting with the thief since through photographing him he will later be arrested). What HaRav C. Kanievsky writes is teaching us salient rules about these halochos of pikuach nefesh.

However in the Minchas Shlomoh (7:2), the author writes, "In whatever way the one being pursued (i.e., the person being robbed) can be saved from giving his money, he is permitted to be mechallel Shabbos. Consequently, it is permitted to extinguish a candle or to dig a hole and hide the money on Shabbos. (In Siman 42 Rav Lorincz writes at length about this basic difference of opinion).

Question

As is well known, during the Gulf War when all the heads of the country and security experts demanded that the citizens of Eretz Yisroel prepare sealed rooms and wear gas masks to protect themselves from an anticipated gas attack, HaRav Chaim Kanievsky told people not to do anything of the sort since he has a tradition handed down from the Chazon Ish ztvk'l that nothing bad will happen to Bnei Brak, the city of Torah.

At the end, it seems that HaRav Kanievsky was right (and all the room sealing and mask wearing was worthless). At that time however, all of the experts, without exception, claimed that great danger chas vesholom was close at hand. A well-known rule concerning pikuach nefesh is that we take into consideration what doctors or other experts in the field tell us. If so, how did the Rov advise others not to seal rooms or put on gas masks? With regard to matters of pikuach nefesh, can we rely on ruach hakodesh or a promise of a tzaddik?

Answer

It was plain, ordinary common sense that the foreseen danger was ridiculous.

Discussion

HaRav Lorincz points out that HaRav Chaim Berlin zt'l writes in a teshuvoh that when two doctors opine that the patient is dangerously sick but one doctor says that there is no danger, then even that doctor, whose opinion is that the patient is not dangerously sick, is obliged to profane the Shabbos. Doctors' opinions, although immensely valuable, are only estimations of a person's health and are not something 100 percent certain. They must therefore heed the majority view that the patient is in danger.

Accordingly, even the doctor whose opinion is that the patient is not in danger must warn the patient that he must be mechalel Shabbos in order not to endanger his health, and obey what the other doctors instruct him.

We must therefore understand how HaRav Chaim Kanievsky could rule not to do anything to protect oneself during the Gulf War. Although that was his personal opinion, he knew that in the opinion of all the experts in the field and other morei horo'oh this was a situation of real pikuach nefesh and it was definitely necessary to prepare sealed rooms. He was, apparently, obligated to tell people, "Although my opinion is that no danger is anticipated, you are obligated to follow the majority opinion and prepare yourselves against any danger."

It seems that it was so clear to him that the danger from the Gulf War was absolutely zero that it wasn't a question of estimating danger but rather one of knowing what the reality is. Accordingly, HaRav Kanievsky instructed tens of thousands of Jews living in Eretz Yisroel not to act according to the accepted opinion (in Siman 10 Os 10 the author develops at length different aspects to answer this difficulty).

Son-in-law of Chofetz Chaim--About One Word in Mishnah Berurah

The Mishnah Berurah 328:31 writes that if a person is forced to transgress one of the three cardinal sins about which a person is obligated to sacrifice his life (yeihoreig ve'al ya'avor) and another person is sure that the first will carry out that halochoh "perhaps it is permitted to be mechalel Shabbos to save him."

The "perhaps" written by the Mishnah Berurah teaches us a salient principle about Hashem's desire for us:

This psak of the Chofetz Chaim seems incomprehensible. Since we all know that pikuach nefesh defers all aveiros of the Torah, what could possibly be the halachic question about saving that Jew? Certainly it should be permitted!

HaRav Lorincz discusses this question in the introduction to his sefer and cites the Avnei Shayish who raises this amazing point in his sefer. He answers: "When I met [Maran the Chofetz Chaim's] son-in-law, HaRav Tzvi Levenson zt'l, he replied that since in such a situation the Torah obligates a person to sacrifice himself in order not to transgress these particular aveiros, it is quite possible that in such a case the Torah did not care about his losing his life and it is not justifiable to be mechalel Shabbos to save him."

We have here two sides of the coin: one consideration is the posuk, "You shall live with them" (Vayikra 18:5) which permits a Jew to do everything to save another Jew's life. On the other hand, a person obligated to sacrifice himself not to transgress these three cardinal sins, is not considered losing his life. On the contrary, he is fulfilling a salient aim in life, for which R' Akiva waited his whole life to fulfill.

Along these lines, HaRav Lorincz explains the Shloh's opinion that one recites a brochoh before performing the mitzvah of being moseir nefesh when necessary. We do not find that we recite a brochoh for a mitzvah that we do not need to seek to fulfill, and that includes the mitzvah of dying for kiddush Hashem (even though R' Akiva wanted to fulfill it). The author cites the opinion of the Maharam Shick that HaKodosh Boruch Hu does not want us to recite a brochoh on being moseir nefesh since Chazal write, "My legions are drowning in the sea and you want to say a shirah? (Shemos Rabba 23)" However the Shloh is of the opinion that when fulfilling the mitzvah of mesirus nefesh for kiddush Hashem one is not "drowning" but, on the contrary, one is "ascending."

At the beginning of the sefer the author cites an exceptional article called, "Yisgadeil Veyiskadeish Shemeih Rabboh" that HaRav Michel Yehuda Lefkovetz looked over three times, and praised highly. The article discusses what is the Torah hashkofoh about Divine justice and His Hashgochoh during the terrible Holocaust.

!!!!!!!!!!! BOX BOX BOX

Shooting Down Planes

The question about shooting down the two passenger airplanes before they crashed into the Twin Towers in Manhattan was discussed in many botei midrash throughout the world. HaRav Chaim Kanievsky was asked about this (in a teshuvoh cited in the sefer) and he writes, "I also was doubtful about this."

In this sefer this uncertainty is broadened to include several new halachic aspects. For instance, can we claim that an anan sahadi (lit. we are certain, i.e., it is a certainty) exists that the passengers are willing to forgo their chaiyeh sho'oh in order to save thousands of those who will die because of the plane's crashing into the building? Furthermore, even if we are certain and this is anan sahadi, we must rely on what Maran R' Moshe Feinstein zt'l rules in Igros Moshe that it is permitted for an individual to sacrifice himself to save many other people.

Another halochoh that we must consider is whether such a terrorist attack is considered like a war, in which each person is obligated to sacrifice himself for the public-at- large (and then the rules of the halochoh of pikuach nefesh change).

Still another subject to be analyzed, and actually the main point, is based on a new type of reasoning. Anyone who prevents saving any other person is considered a rodeif (not only the rodeif himself is a rodeif but also the one preventing the person being pursued from being saved). This reasoning is mentioned in the teshuvos of the Maharshdam and also in Darkei Shmuel of HaRav Shmuel Auerbach. If so, even if we decide that no halachic possibility exists to down the planes because of the passengers' chayei sho'oh, the result is that the passengers are preventing those living in the buildings from being saved because of their chayei sho'oh. The obvious question that now arises is whether in such a situation we can consider them as rodfim (although they are anusim--forced to do so) and do away with their chayei sho'oh? (See at length Siman 50).

The question of pikuach nefesh in moments of doubt is a burning issue in Eretz Yisroel, Rachmono litzlan. Not long ago near Hebron two Jews were mistakenly killed when security forces were trying to prevent a mass slaughter by terrorists and mistakenly thought the two were terrorists.

What should be done in such a moment when we are doubtful, when we notice a person whom we suspect is a terrorist standing in a public place, but we are not a hundred percent positive he is a terrorist? It is quite possible that nonetheless he is an innocent person.

Let us present some different sides of this question. In this context we do not have the resources to fully lay out the questions, but we just want to give an idea of the complex problems that such decisions involve.

One problem is about the exact doubt in identification. If the suspicious person is certainly a resident of the territories then the possible pikuach nefesh for such a person is pushed aside by the pikuach nefesh of a Yisroel. But if that person is perhaps a regular Israeli himself, the reasoning of why do you presume one person's blood is redder than the other, i.e., what makes you better than the other person, is appropriate. Since it is only a possibility that he is a rodeif it is impossible to kill him. If common logic tends (there is a rove of reasoning, i.e., it is more logical) to suggest that this person is a suicide bomber (but perhaps he is an Israeli) and if he commits suicide many will die because of him, perhaps we follow the rove (and the ruling that concerning pikuach nefesh we do not follow the rove is irrelevant to our discussion, since anyway we are dealing with a pikuach nefesh of others).

An additional question is that even when we are sure he is a suicide bomber and therefore we should immediately kill him to save the lives of many Jews, but as a result a few Jews around him will, Rachmono litzlan, die, are we still allowed to kill him?

No heter exists to kill a few in order to save many. A well- known Tosefta writes, "When an akum says to a Yisroel, `Hand over one of you and if not we will kill you all,' it is forbidden to hand anyone over. On the other hand, Maran the Chazon Ish zt'l writes, that it is permitted to divert the path of an arrow on its way to kill many people, although as a result one person, another person, will die. We are allowed to do that since he is performing an act of "saving" and not an act of "killing." Perhaps this is related to our question too?

It is important to stress that the above is only a small, limited part of the give-and-take presented in each subject. Many lengthy chapters are devoted to the sugyos: "But you shall greatly beware for your souls" (Devorim 4:15), "You shall live with them" (Vayikra 18:5), the prohibition for someone to put himself in a dangerous situation, someone committing theft through tunneling into another's house, "You shall not stand aside while your fellow's blood is shed" (Vayikra 19:16), and what Yonah Hanovi said (Yonah 1:12), "Pick me up and toss me into the sea," and the story about Pinchas and others.