Does Jewish Law Sanction Torture?
Breger, Marshall, Moment
Last summer's invasion of Lebanon has led to a growing criticism by Israeli settler rabbis of the Israel Defense Forces (IDF) doctrine of tohar haneshek--"purity of arms." This moral code asserts that force should be used only when necessary and "without inflicting unnecessary harm to human life and limb, dignity and property of both soldiers and civilians, with special consideration for the defenseless."
The rabbis seem to feel that this shows too much concern for Palestinian and Lebanese civilians when IDF soldiers are at risk. The Rabbinical Council of America (RCA), the association of modern Orthodox rabbis in America, has echoed these sentiments.
Then, in a broadside against what many thought was the established prohibition against torture, came a controversial article in The Jewish Week by Orthodox Rabbi Michael Broyde, a law professor at Emory University and leader of the Young Israel synagogue in Atlanta. Broyde argued that "there is no logical reason [to assume] that halacha would categorically prohibit duly authorized torture as a method for acquiring information otherwise not available, in order to save lives in the future." Indeed he went so far as to approve the practice of throwing prisoners reluctant to tell all out of airplanes, presumably to encourage others.
There are three approaches to torture: 1) an absolute ban as required by the Geneva Conventions, which laid out the international standards for the humane treatment of prisoners of war and enemy civilians; 2) some kind of principle of proportionality that would permit different degrees of ill treatment depending on the deleterious consequences of doing nothing--the so-called "ticking bomb" justification where failure to extract information would result in failure to discover a bomb set to go off imminently (although in the real world the bomb is rarely ticking); 3) the view that suggests that if the military command states that there is a valid military goal, all rules can be ignored. Or as the old and cynical French aphorism goes, comme la guerre, guerre--when in war, war.
Both the United States and the Israeli Supreme Courts accept the Geneva Conventions' ban on torture, although there is debate on what exactly counts as torture. Even conservatives like U.S. Senator Lindsey Graham oppose softening the Geneva Conventions' ban on torture because doing so would place our own troops at risk. So can it really be that torture is sanctioned, perhaps required, under Jewish law?
Yes, says Broyde. He seems to argue that Jewish law places "no 'real' restrictions on the conduct of a Jewish army during wartime, so long as the actions being performed are all authorized by the command structure of the military in order to fulfill a valid and authorized goal. …