: Self defence is the use of legitimate force against an illegitimate force. When one kills by necessity, one is operating against a legitimate force, in other words one is killing completely innocent people, in order to save a greater number of people. This is also known as the doctrine of “the lesser of two evils.” This is a subject which has occupied lawyers, moralists and religious leaders from time immemorial.
The innocent must unfortunately suffer
In March 1841, a ship set sail from England to the United States carrying a crew and passengers. After just over a month at sea it struck an iceberg and rapidly began to fill with water. Some of the passengers and crew succeeded in getting into an emergency boat. A few days later the weather changed and this emergency boat began to sink. The captain therefore gave an order to throw almost all the male passengers overboard. Soon afterwards the boat was sighted and the survivors rescued.[365]
Holmes a member of the crew was put on trial. The grand jury had refused to indict him for murder and so he was put on trial for manslaughter. Judge Baldwin directed the jury that Holmes’ act was illegal for the following two reasons. Firstly, passengers take priority in being saved over the crew, and secondly the people to be thrown overboard should have been chosen by lot and not specifically chosen by Holmes. Had the people to be thrown overboard been chosen by lot, Holmes would not have been found guilty. Although found guilty of the killing of all these people. Holmes was given only a nominal prison sentence of six months.[366]
Another case, which on the face of it seems similar, but is in fact very different, was that of Dudley and Stephens. These two men were cast away in a storm on the high seas together with a boy aged about 17. After a week without food and five days without water, they killed the boy and ate his flesh and drank his blood. A few days later they were rescued and were put on trial for murder and found guilty. The reason for their being found guilty was that they killed somebody else in order to save their own lives. As the judges stated in their judgment: “The prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed... the weakest, the youngest, the most unresisting, was chosen...” Although initially they were sentenced to death, this was commuted to a nominal six months in jail.[367]
We shall now give two scenarios more relevant to the Israeli scene:
Scenario 1: A large explosive charge has been placed in a crowded market and could possibly explode at any second. Hundreds could easily be killed by it. A person in the market sees it, and, endangering himself even further, picks it up and throws it far away into a side street where there are only a few people. He knows that there are a few people there and that they will surely be killed when it imminently explodes. This in fact happens. By his actions hundreds of lives have been saved. However, the few people in the side street are now killed; had the explosive charge not been picked up and disposed of by being thrown in their direction, they would not have been harmed.
Scenario 2: A building is on fire and the inhabitants are rushing to escape along a very narrow strip which has not yet caught fire but is likely to within seconds. A man finds himself behind a woman and they are both rushing to get out. In the hope of expediting his own escape from the building, the man pushes the woman to the side where there are already flames, knowing that as a result of this pushing she will fall into the flames and be burnt to death. He himself succeeds in escaping from the building.
The first scenario would be similar but not identical to the Holmes case, had the people thrown overboard been chosen by lot. The second scenario is similar to the Dudley and Stephens case. The man who pushed the woman considered his life more important than hers.
Everyone prays that they will not find themselves in the situation of Holmes, Dudley and Stephens or the men in the above two scenarios and have to kill innocent people in order to save others. But in life such situations do arise and legislatures, courts and leading textbooks on criminal law do indeed discuss this question. This is known as “killing due to necessity.”
The amendment of 1992 to the Israel Penal Law has a subsection, 22A(A), dealing with this subject. It reads: “A person is not criminally responsible for an act or omission that was immediately necessary to prevent a danger of grievous harm to his life, liberty, body or property, or that of another person, arising from a given set of circumstances...”[368] However there is also a clause which states “The provisions of subsection [22A]A shall not apply if the act caused the death of a person.”[369]
This clause regarding causing the death of a person did not appear in the draft bill[370] nor was it inserted by the Knesset Law Committee who made a detailed consideration of this bill. The amendment was proposed[371] and accepted[372] during the second reading of this bill in the Knesset by Yitzchak Levi, a member of the National Religious Party.
As a result of this clause, a person who saved hundreds of lives but killed a few other persons (or even just one person) by throwing an explosive charge out of a crowded market place into an almost empty side street might find himself with a criminal charge of killing and have no legal defence![373]
This dilemma is discussed by Professor Enker and Dr. Kanai. They are very critical of the poor wording of this clause. They consider that the courts could decide that the intention of the legislature was that this clause be limited to a person who kills somebody else to save himself, but a person who killed in the course of saving a large number of people would be justified in his actions.[374] In fact reading the speech made by Yitzchak Levi in the Knesset when he introduced his amendment confirms that this was his intention.
In the 1994 Penal Code, which came into effect in August 1995 this clause re causing the death of a person whilst acting by virtue of necessity does not appear.[375] We have already seen above that in the case of an act being performed before this act came into force but the court ruling being given afterwards, then the law more favourable to the accused applies.
The question of “killing by necessity” has also been discussed by a number of legal scholars. In fact this matter transcends legal principles and includes moral and ethical considerations.[376]
In their book on “Criminal Law,” Professor Rollin Perkins and Professor Ronald Boyce give the following example: “Assume the pilot of a large ship, with hundreds on board, is faced with a sudden emergency in which he must either swerve suddenly to the right or wreck the vessel with great loss of life. But to make this turn he will run down a man in a rowboat, which will no doubt mean his death. Obviously the pilot must do what is necessary to save his ship in such a situation, and he will do this without criminal guilt. He will intentionally kill the rower and thereby save his own life, but that is a small part of the whole picture. He will not make a choice between himself and the man in the boat; he will make a choice between hundreds of lives and one life - and the choice he makes is morally required. The large number is not required for the result, but is given for emphasis.”[377] They also state that an act which is bound to kill one, but avoids killing two is morally right and is without any suggestion of criminal guilt.[378]
The Commentary on the “Model Penal Code” gives an example as follows: A person “makes a breach in a dike, knowing that it will inundate a farm, but taking the only course available to save a whole town. If he is charged with homicide of the inhabitants of the farm house, he can rightly point out that the object of the law of homicide is to save life, and that by his conduct he has effected a net saving of innocent lives. The life of every individual must be taken in such a case to be of equal value and the numerical preponderance in the lives saved compared to those sacrificed surely should establish legal justification for the act.”[379] On this the legal scholar Glanville Williams adds: “Even the law of murder must yield to the compulsion of events.”[380]
The view of Jewish Religious Law on this type of situation is given by one of the leading religious authorities of the first half of the 20th century, Rabbi Avraham Yeshayahu Karelitz, popularly known as the “Chazon Ish”. He writes: “A person sees an arrow on its way to kill a number of people; he is able to divert it to a different direction, such that only one person will be killed.... If he does nothing, many people will be killed, but this individual will remain alive.... Since on the one side, many persons will be killed, and on the other just one, it may be that we should strive to reduce the loss of life as much as possible.”[381]
What about acting by virtue of necessity in order to prevent a calamity hours or even days later. On this question, Professor Robinson gives the following example: “Suppose a ship’s crew discovers a slow leak soon after leaving port. The captain unreasonably refuses to return to shore. The crew must mutiny in order to save themselves and the passengers. If the leak would not pose an actual danger of capsizing the vessel for two days, should the crew be forced to wait until the danger is imminent, even though the disabled ship will be too far out to sea to reach shore when it is? Or should they be able to act before it is too late, even though it may be several days before the danger of capsizing is present?”[382]
Professor Robinson considers the case where the particular country’s statutes speak of it being “immediately necessary” to act, This is indeed the language of the Israel Penal Law of both 1992 and 1994. He states in connection with this example that the ship’s crew “could argue that as soon as they discovered the leak, it was immediately necessary to act, even though the danger of capsizing was not yet imminent.”[383] One should note that since the danger of capsizing is two days away, the crew could delay their mutiny until the second day at sea, since there would still be time to bring the ship safely back to port. It is also possible that during this first day, the captain might have a change of heart and himself decide to return to port. Yet despite all this, Professor Robinson argued that the crew could mutiny immediately.
The Landau Report (under the chairmanship of a former President of Israel’s Supreme Court, Judge Moshe Landau) discusses Professor Robinson’s analysis and comes to the conclusion that immediacy is not required when acting as a result of necessity.[384]
On this subject, the Missouri legislature wrote that imminence “does not depend solely on the interval of time.”[385]
Let us now look at the following scenario which involves the killing of people:
A person is driving a train with hundreds of passengers. The brakes suddenly fail and the only way to stop the train is to drive on until all the fuel is used up; in this case about an hour’s drive. The driver then hears over the radio that a bridge over a river that this train is due to cross about 50 minutes later has collapsed. The train will thus plunge into the river, and as a result a large number of the passengers are sure to be killed or injured.
A few minutes further along the line, there is a side line to which the driver can turn, and it is possible to drive along this side line for over an hour. However before turning on to this side line, the driver sees people sitting on it. He has no time to shout at them to move.
Despite this, the driver turns on to this side line and almost immediately kills the people sitting on it. The train continues on this side line for about an hour until the fuel is used up and it thus comes to a halt.
By his action the driver has almost immediately killed a handful of people sitting on this side line, in order to save the lives of tens or even hundreds of passengers nearly an hour later.
It would seem from what has been said above, that the driver is not guilty of any criminal offence.
It is not a criminal act to kill a completely innocent person or persons in order to save a greater number of lives. This is so even if one knows full well from the outset that one’s actions will inevitably result in the deaths of the innocent persons.