Introduction
The Right to Life and Limb is the legal right to sustain and protect life and body. However, it means much more than mere continued physical existence. This right allows one to take or to demand actions necessary for the preservation of one’s life and safety. This right has several far-reaching derivates as well, possibly including the right to liberty, self- and state-defense, and euthanasia. These rights are usually interpreted to impose negative responsibilities on other citizens (e.g. one cannot interfere with another’s right to life and limb by actions that will injure or kill him or her); as well as both negative (as above) and positive responsibilities on the state (e.g. basic sustenance and shelter, defense and police, and others). The Constitution, Law, and Justice Committee took up the right to life and limb on January 20th, 2005. Dr. Hillel Sommer of the Interdisciplinary Center in Herzilya, the Committee’s advisor on political rights, led the discussion. He called the right to life and limb the primary right, without which almost no others may be enjoyed.
Right to Life & Limb- Broadly interpreted
Sommer pointed out that the rights to health and to quality of the environment – which we usually classify as social rights – are intimately connected to the right to life and limb. He explained that in many countries in which the rights to health and environment were left out of the constitution, the right to life was interpreted broadly in order to include them. If we do not specify exactly what we mean to do with the rights to health and quality of the environment, he warned, the court has the power to interpret the right to life and limb very broadly, taking the power to shape healthcare and environmental protection out of the hands of the legislator. Eyal Zandberg (Deputy Legal Advisor to the Constitution, Law and Justice Committee) added that the committee is leaning towards including the rights on health and quality of the environment.
Basis for Right to Life & Limb
Sommer explained that the right to life already has a basis in the Basic Law: Human Dignity and Liberty, which refers to the right three times. The first is in Article 1 (Basic Principles), which states that, “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Article 2 (“There shall be no violation of the life, body or dignity of any person as such”) forbids the violation of the right to life, and Article 4 (“All persons are entitled to protection of their life, body and dignity”) actively protects the right. Prior to this law, life and limb were protected by merit of the Jewish traditions and Jewish character of the state. However, Sommer stated, to this day the court has never spelled out the extent of the positive protection of the right to life.
“Sanctity” of life and “Right” to life
MK Eti Livni (Shinui) asked what “sanctity of life” means in Article 1. Sommer could not say exactly what legal ramifications are involved in elevating life from a “right” to a “sanctity.” Sandberg understood it as strengthening the principle, and Aviad Bakshi of Bar Ilan University suggested it removed the privilege that a bearer of a ‘right’ has to relinquish that right (meaning that one cannot relinquish a ‘sanctity.’) Sommer stated that this is a fairly unique formulation; he could think of no other state’s constitution that cited ‘sanctity’ of life. Previous recommendations for constitutions in Israel have included it, and he guessed that the formulation arose from the Jewish tradition, and Zandberg agreed. Professor Daniel Sinclair of the College of Management Academic Studies Law School in Tel-Aviv disagreed; he said that “sanctity of life” is a Christian phrase which appears nowhere in Judaism, but which has a very specific meaning. He explained that “sanctity of life” prevents one from ending it under any circumstances, which is not what we want. He argued the committee should stick to the more Jewish term ‘value,’ and eliminate the phrase “sanctity” from the constitution. Several participants agreed with Sinclair, but others claimed that while “sanctity of life” is not a phrase from the Jewish tradition, it implies the very Jewish notion that life is an uppermost value, almost absolute. MK Livni (Shinui) argued that it is important to figure out what is an inalienable, inescapable value in Judaism, and what has just been collected or snowballed into our traditions over the years. Committee Chair MK Eitan (Likud) then asked, “Do we regard life as an absolute value?” Zandberg claimed that in the Basic Law: Human Dignity and Freedom, Article 1 with its “sanctity of life” functions as declarative text; the operative phrases in articles 2 and 4 are the legal text. MK Eitan argued that there was no need to copy this internal contradiction into our constitution, and asked for a decision on which to adopt; Sandberg continued to claim that you could have a strongly worded declaratory article, and then a more carefully worded article lower down, and the latter would be the legally binding one.
Implications of the term “sanctity of life”
Professor David Heyd (Professor of Philosophy from the Hebrew University) pointed out that a right – even a central, basic, fundamental right – naturally competes with other rights; it is relative, not absolute. He explained that writing the “sanctity of life” elevates it above the status of a right, and will bind the state in issues like self-defense, morality and war, abortions, genetic engineering, euthanasia, and others. He explained that leaving it as a right (which he prefers) both enables us to limit it with other rights, and allows the bearer to relinquish the right. Professor Heyd expressed support for a general, rhetorical and educational proclamation of the fundamental right to life – but no more, and no greater detail. He stated that he would expand on the right to liberty, but not the right to life [The committee held a right to personal freedom debate ten days later] LINK. MK Eti Livni, meanwhile, objected to any language which would limit abortion rights. Hillel Sommer found it interesting that no Catholic countries’ constitutions he could think of mentioned sanctity of life in their constutitions. MK Avraham Ravitz (Yahadut HaTorah)explained thatsanctity is commanded to man with the directive, “sanctify yourself in what is permitted to you;” man is told to rise above the regular daily order. The concept of sanctity at its most literal instructs humanity to do things at a higher spiritual level. There is no phrase “sanctity of life” in the Jewish traditions, Ravitz said; but the fact that even the torah of life comes second to human life establishes life’s sanctity. Still, Ravitz pointed out, the sanctity of life is not absolute – for if it were, how could there be any permission to go to war? “Sanctity of life” is not originally a Jewish phrase, Ravitz concluded, but perhaps we should adopt it. Life must not be forfeit, he said; life must be lived. One is required to live. MK Ravitz returned to the sanctity vs. right to life issue. He argued that leaving aside the halachic requirement, there is an absolute requirement, or responsibility, to live; you can make someone take medicine. MK Eitan added that you could force someone to break a hunger strike while they are in prison or the military. Zandberg made a distinction, saying others have a responsibility for your life, and you have a responsibility for others’, but you don’t have a responsibility to yourself to live. This explains why the authorities may forcibly break a hunger strike in prison. MK Eitan concluded debate on this point by asking the legal advisor to provide several options on this issue in the draft text.
Whom does the right cover?
There are, as is usual for constitutional rights, several possible answers to this question:
Every person
Every person within the territory controlled by the State of Israel
Every citizen
Various proposals for a constitution in Israel have adopted one or another of these options; some distinguish between the negative right (which applies to all), and the positive responsibilities reasonably imposed on the state (which may be limited to citizens). Heyd argued that the right should not be limited in its scope to only certain people. He continued by stating that most constitutions say ‘everyone’ or ‘every person,’ though earlier recommendations for Israel had ‘everyone in the state.’ He then stated that, most courts have interpreted their countries’ ‘everyone’ to mean ‘everyone in our state’ since the constitution only extends as far as the borders.
Several interesting questions arose from this discussion. If the right to life is territorially bounded, for instance, is that relevant to targeted killings? Ravitz asked whether, depending on how we phrase the right, targeted killings would be more constitutionally problematic within Israel than in the territories? Within Israel and the territories than in a third country? Perhaps, he mused, we should not limit the right to life territorially in any way, lest others interpret our language to mean that some people’s blood is cheaper than others’.
Additionally, Sommer asked, does the right to life belong to each individual? Can one decide to relinquish it? What are the implications for suicide, assisted suicide, refusal of medical treatment, and euthanasia?
Death Penalty
Sommer called the death penalty an extremely dynamic issue, but said the trend in recent history has quite clearly been to forbid the death penalty, possibly even in cases of genocide. (In 1977, 16 countries had outlawed the death penalty; 80 countries do so today, including the European Union. 84% of the executions in 2003 took place in China, Iran, the US, and Vietnam). In Israel, there is no death penalty for murder. The punishment does exist, however, for genocide, treason during war, and several other circumstances (although it has been imposed only once since the founding of the state -- see background document).
The options facing the committee are:
Allow death penalty for only certain things – e.g. genocide.
Outlaw the death penalty.
Ignore the death penalty; however, in countries where it has been ignored (South Africa, Hungary), the Supreme Court ruled it unconstitutional based on the right to life. Deputy Committee Legal Advisor Eyal Zandberg added that if the committee wishes the death penalty to remain legal, this is its only recourse – no constitution allows explicitly for the death penalty.
MK Livni asked about the American system and Sommer stated that the only real issue in the federal constitution is cruel and unusual punishment. He then stated that the United States has a history of failure with the death penalty. Executed people have later been proved innocent; and the application of this ultimate punishment is imposed in a highly racist manner. While in Europe the opposition is ideological, in the US the opposition is a result of an experience of failure.
Committee Chairman MK Eitan opposed the death penalty in all situations, calling life imprisonment punishment enough for anyone. MK Eliezer Cohen disagreed, favoring the death penalty for mass murderers; We cannot, he said, allow a Bin Laden or an Eichmann to live.
The right to integrity of body and spirit.
Several proposed constitutions in Israel, as well as some modern constitutions from other countries, refer to the right to integrity of body and spirit. Romania protects the “Right to physical and mental integrity,” and South Africa protects “bodily and psychological integrity.” Germany does so as well.
The right to personal security
This right is usually derived from the right to life, and would serve as the basis for a citizen demanding of the state to protect him from, for instance, a high incidence of crime (violent or theft) in a particular neighborhood, or rocket attacks on a town like Sderot. The committee considered the fact that there are certain crimes the police don’t really pursue, such as car theft. Is this legitimate? Would it be under a new formula imposing a constitutional protection on personal security? Would this change if the police were to decide to stop pursuing domestic violence? Deputy Committee Legal Advisor Eyal Sandberg added that a right to personal security would add a subjective element – personal security is a subjective feeling more broad than the narrow, objective, “right to life and limb.”
Torture and humiliation
The committee considered whether to explicitly outlaw torture and humiliating treatment in the constitution. Several past proposals for a constitution in Israel have included these prohibitions, as well as most international treaties and constitutions (See accompanying background document on the right to life and limb in comparative, international, and Israeli law). This involves both the right to dignity and the right to life and limb; and yet, most other constitutions with both of these rights still explicitly, separately, outlaw torture. MK Eitan made a distinction between harsh punishment and defensive actions. He stated that torturing a prisoner who has information in order to get information to save lives is not like punishing someone by torture. Ora Magen of the Committee Against Torture warned against allowing any kind of torture in the law, because it encourages the systematic torture of any prisoner. She stated that this was our experience in the first intifada; "Almost all prisoners were exposed to some kind of torture, and 80% were then released without indictment. You cast a wide net and catch one or two." Magen did not believe there had ever been a case where someone literally has information about a ticking bomb [The Supreme Court thought otherwise]. "Do I,” she asked, “have the right to torture them all in order to get the information about a ticking bomb from one of them, information I could never get in any other way?" Zandberg pursued the point by asking whether the state should explicitly allow the violation of a constitutional precept in extreme cases, perhaps with a limitation clause. He explained that the Public Committee against Torture won their case in 1999 (Public Committee Against Torture v. State of Israel, HC 5100/94, prohibited the use of physical pressure in interrogations) because there is no limitation clause, a provision saying that a law or act may be performed in contradiction the law if it is for good reason, and subject to stringent limitations. YehuditKarp , former Deputy Attorney-General, warned that it is dangerous to say that issues that do not exist in Israel, such as slavery, need not be legislated. She cited the current trafficking of women. MK Eitan took this argument in another direction, saying we must consider the technological developments of the future, for example, eugenics and implants. He asked if we should we write things that anchor our current life values; perhaps as importantly, he asked, would it even be effective? Yoram Sagui-Sachs of the Movement for Fighting Poverty in Israel asked if in the future, in 50 years, it will be the state or the individual who sits at the center of our minds. He argued that we must guess and shape the constitution accordingly and continued by stating that we think the individual will sit at the center of the individual-state relationship.
What is torture?
Deputy State Attorney for Special Affairs Shai Nitzan explained the United Nations has broadly interpreted the definition of torture to include cases an ordinary person would not call torture; for instance, blindfolding or playing music at a regular volume. Nitzan explained that Israel has always understood torture as international agreements do, as "Ccausing severe pain or suffering;" Israel claims full innocence of this. [Prior to 1999, methods of interrogation included violent shaking, tying detainees in painful positions, tight handcuffs, loud music, and sleep deprivation]. Nitzan said that the word "severe" has been dropped from the definition, and so suddenly everything we do – any kind of discomfort – becomes torture. Magen admitted that perhaps categorizing humiliating treatment as torture could be debated. However she argued that tying people into uncomfortable positions and depriving them of sleep constitute torture. Nitzan gave no proposal regarding the language of the text in constitution but added that we should remember that, as opposed to many other countries, we want to be honest and to act according to our constitution. He reminded the committee that Israel's High Court of Justice made no decision about whether we can or cannot do this morally; it simply said current law forbids some of the GSS’s past interrogation methods. MK Eitan called this a complex problem with two clear options: 1. To ignore these issues in the Constitution 2. To specifically forbid torture and targeted assignations, making any exceptions explicit and specific. MK Eitan asked that both options be drafted and to have the people vote.
Protection of offenders
Professor Michael Wygoda (Jewish Law Department, Ministry of Justice) stated that the torture case relied on the assumption that the right to the protection of life belongs even to a murderer currently engaged in the act. Wygoda argued that this is not the "Jewish way," and explained that according to Jewish law, even a murderer has the right to protection of his life – but only after the fact, that is to say, he has the right to a fair trial. However, a person engaged in an attempt on someone’s life has no rights. Wyogda argued that in protecting rights, the court has inappropriately gone one step too far, protecting a person who laid a bomb and knows where it is. MK Eitan and Wygoda both stated, however, that if we do allow some kind of action against people involved in perpetrating acts of terror, we should require the minimum action required to stop them, rather than simply negating all of their rights as is convenient.
The right to life during a state of emergency
Some constitutions specifically protect the right to life during a state of emergency. Croatia’s constitution is most extreme: “Not even,” it reads, “in the case of an immediate threat to the existence of the State may restrictions be imposed on the application of the provisions of this Constitution concerning the right to life, prohibition of torture, cruel or degrading treatment or punishment, on the legal definitions of penal offenses and punishments, or on freedom of thought, conscience and religion.” (Article 17(3)). South Africa creates an ordered lists of rights during a state of emergency, and establishes that the right to life is fully protected even in such a case. The alternative to a parallel approach is to include violations to the right to life and its affiliated rights under the umbrella of the general limitations clause, with whatever stipulations it may provide for states of emergency.
Targeted Killings
MK Eitan called targeted assassinations a military tactic currently employed to protect the lives of Israelis, and saw no place for it in the constitutional debate. Dr. Sommer agreed, calling it a temporary, war-context measure. Ora Magen of the Public Committee Against Torture took a pragmatic view, saying in many cases of targeted assassinations Israel could simply have arrested the individuals. MK Eitan responded with a theoretical question about a totally clean assassination with no bystanders killed. He argued that a law is necessary for targeted assignations, that it is part and parcel of the right of the state to defend its citizens. Sommer argued that the constitution should not deal with these details. Deputy State Attorney for Special Affairs Shai Nitzan and Sommer discussed international accords that Israel is signatory to which might bind us to certain principals about targeted assignations and/or torture. It was generally agreed that the 4th Geneva Convention is not the most relevant document – it is a highly specific document that refers to very narrow circumstances. There are others.** MK Cohen referred participants to what he called the “Draconian US PATRIOT act” for comparison. Magen pointed out, however, that the PATRIOT act must be seen along with recent American court rulings interpreting and limiting the act.
International Norms of War
Deputy State Attorney Shai Nitzan cited an advisory opinion in The Hague that claimed there is no war or armed conflict between Israel and the Palestinians. In this way it eliminated Israel's right (according to international agreements) to kill its enemies in self-defense. With this Nitzan dismissed the legitimacy of the Hague ruling. What right then, asked Nitzan, does one have to kill during war? He explained that international law has certain rules about times of war, include the notion that one can kill an enemy soldier, even if he does not constitute an immediate threat to your life. He said this is the same rule we use for targeted assignations, "If there is a terrorist, an enemy, even if he is not aiming the rifle at us this second, we have a right to kill him as an enemy combatant in a war against Israel. That is the status quo in the Israeli Supreme Court," he said. A question that came up 2 years ago in the High Court of Justice (Public Committee Against Torture v. State of Israel HC 769/02, decision pending) was a question of means and tools. Like most countries, Nitzan explained, Israel relies on international traditions to justify killing enemies in war. While there is no specific document that says a state may kill its enemies during war, all countries recognize this to be legal under international law by common understanding.
The Court's Role in Guiding the State During War
Nitzan asked what the Supreme Court's place is in this question. "Should the court be deciding what ammunition and weaponry the army uses,” he asked? “Should they really get involved in military strategy?" MK Eitan responded, "Let's not kid ourselves, the court intervenes in these things all the time." Nitzan said the court is not consistent as there are 14 judges with different views. Additionally, both Nitzan and MK Eitan referred implicitly to the fact that Chief Justice Aharon Barak decides which justices sit on which cases.
Jewish Law and Abortion
Sommer brought up the question of when the right to life begins. The committee began with a Jewish law approach to the question of when a person becomes a person. Sinclair claimed that in the abortion debate, life is always marked by the moment of birth – before then the mother’s life takes precedence; another opinion is that the biological soul starts at the moment of conception, but the human soul is only established with intellectual capacity when the child can say “amen” after a blessing. He continued by stating that, as far as abortion goes: danger to the mother’s life trumps all, and one can abort anytime during the pregnancy. However, in the absence of a threat to the mother’s life, there is a range of opinions. Considerations, Sinclair explained, include the psychological health of the woman, the health of baby (Tay-Sachs, etc), the “legitimacy of the baby” (e.g. the result of rape, which gets categorized under woman’s psychological well-being). He continued by stating that there are, however, some halachists who follow Maimonides and argue that the only justification for an abortion is actual threat to the mother’s life, as if the fetus were an actual rodef (someone perusing the mother’s life). [However most do not agree with this position]. Sommer concluded by stating that Israel is not the Czech republic or Ireland, where fetuses have rights; it is not even like the US where this is a major a social issue. Ravitz stated that there is no Jewish law approach that says the fetus has no status. The question is whether their rights and biological existence are independent or are derived from, and tied to, the mother. He said that in any case we see the fetus as something that exists. He admitted some ambiguity in the definition; we are eliminating a life when we abort a fetus, but the mother’s life is more important. About that, he concluded, there is no debate in the Jewish law sources, and on that Judaism is quite different from, say, Catholicism, where the fetus should live at the expense of the mother. Yaacov Shapira of the Attorney-General’s office added to Ravitz’s thought, saying that the charge against one who performs an illegal abortion is not murder according to Jewish law. Sommer reminded the committee of all the constitutional phrases and implications on right to life that would favor pro-choice or pro-life abortion stances. He stated that we can choose one of them, or we can leave it vague, leaving it to the legislator. Sinclair opined that perhaps the major lesson learned from the American constitutional history, particularly as regards Roe v. Wade, is that it is best to leave issues that are at the center of tense public moral and religious debate out of the constitution, leaving them to the regular legislative and judicial process. The constitutional definition should be highly general, and even defining the right to life as a fundamental, constitutional right makes it symbolic. In the US this eventually came to be interpreted to mean that one cannot put too great an obstacle before a woman who wants an abortion.
Right to Life and Euthanasia
Sinclair admired the Canadian formulation of the right to life which relies on fundamental justice: “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice .”He also referred to the Rodriguez euthanasia case in Canada, where the court dealt with the issue of how to balance the sanctity of life with the need for human justice. [In 1991, Sue Rodriguez was diagnosed with ALS (amyotrophic lateral sclerosis, also known as Lou Gehrig's disease), a disease guaranteed eventually to rob her of all motor ability, leaving her healthy, alert mind trapped in the shell of a body unable to move, eat, or breathe without a machine. Rodriguez saw no dignity in such a life. She preferred to take her own life before reaching this final state, but wanted a physician present in case something went wrong, and she needed help dying. The Supreme Court of Canada dismissed Sue Rodriguez’s appeal in a five-to-four decision. The majority concluded that, given concerns over potential abuse and the difficulty of creating appropriate safeguards, the blanket prohibition on assisted suicide is "not arbitrary or unfair" and should therefore be upheld. However, the four dissenting judges concluded in separate rulings that the prohibition against suicide violates several rights protected by the Canadian Charter of Rights and Freedoms: the right to security of the person, which protects the dignity and privacy of individuals with respect to decisions concerning their own body; and the right to equal treatment under the law, because the prohibition prevents persons physically unable to end their lives without assistance from choosing an option that is available to other members of the public.] Sinclair compares this to Israeli law. Article 15(2) of the patients’ rights law of 1996** states that, if doctors say a treatment is necessary for a patient’s survival, and the hospital’s ethics board agrees, the treatment can be given even against the patient’s wishes.
Personal Security
Aviad Bakshi discussed the difference between positive and negative rights. He asked if positive rights to personal security would place the Supreme Court as arbiter in issues of national defense. Should the Court be involved in establishing the order of priorities in defense expenditures, he asked? Shouldn’t we keep the court from making strategic war decisions? He recommended an alternative formula: “No person’s personal security shall be violated. Every person has the right that the state take care of his or her defense and personal security according to its methods and according to its [financial] considerations.” This is unilateral and total in the first instance – the negative. But the positive formulation prevents the court from deciding details, and leaves the ‘how’ and order of priorities to the state. Bakshi then discussed the way this distinction would play out on the ground. In particular, he talked about its implications for the separation barrier. Where, in this case, can the court be involved, and where not? Would there be a distinction between the legitimacy of a court rulin on the existence of the barrier, and a ruling on its placement? He argued that the state must respond positively to individual complaints on personal security. These will ordinarily not be direct claims – i.e., “The state harmed me” – but rather, “The state did not do enough to protect me.” Bakshi’s issues were classified as general questions on judicial review and relegated to later debates.
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