By Rabbi Shlomo Cohen
The war in Syria and uprisings in other parts of the world have uprooted thousands of families from their homes. Many of these refugees would face certain death if they were to stay in their countries. Some countries are willing to open their borders to these refugees, giving them safety and a chance to start a new life.
This is certainly a humanitarian issue which it is difficult to argue with, especially by us, the Jewish people, who only a generation ago, after the Holocaust, were ourselves refugees. However, the problem with the open border approach is that due to the rise of terror in Islamic countries, and the blind hate that drives them, countries are rightly worried that amongst these refugees may be terrorists whose intentions are to gain access to other countries in order to carry out attacks on civilians.
In this article we will examine how the halacha approaches this question. In order to do so, we must first define the question.
Vadai (Certainty) vs. Safek
A refugee from Syria may face certain death if he remains there and therefore wishes to enter our country. We, however, are concerned that he may be either an actual terrorist or one in the making and therefore a threat to national security.
If we presume that it is definite that the refugee will be killed if returned to his country, while a safek (doubt) as to whether he will engage in terrorist activity in our country, we have before us a question of whether we are obligated to risk our lives to save someone else from certain death.
The Talmud Yerushalmi (Terumos 8) relates that Reish Lakish risked his life to save Rav Ami from certain death when the latter was taken captive by bandits and all others had given up hope of him getting away alive. The Bais Yosef (Choshen Mishpat 426) proves from here that the opinion of the Talmud Yerushalmi is that one is obligated to risk his life to save his fellow from certain death.
However, the Shulchan Aruch (Choshen Mishpat 426:1) omits this opinion of the Yerushalmi, as the Talmud Bavli does not agree, and the Rishonim (Rosh, Rif and Rambam), when defining the obligation of a Jew to save his fellow from a life endangering situation, do not mention the opinion of the Yerushalmi at all, and do not include such a situation in the prohibition of standing by while the blood of your fellow is spilt (lo ta’amod al dam re’echa).
The Gemara of Chayecha Kodmin
The Chavos Yair (146) suggests that the Talmud Bavli agrees with this principle from the following case. The Talmud (Baba Metzia 62a) writes in the name of Rabbi Akiva that in a situation where two Jews are walking through the desert, but only one of them has water, and if he were to share it there is not enough for both of them to survive, whereas if the one with the water does not share it with his fellow traveler, he will survive and get to the nearest town alive, while his companion will not, that he may keep the water for himself, even though his fellow traveler will definitely not survive.
The Chavos Yair deduces that this applies only where it is certain that they cannot both survive. Where it is not, there is an obligation to share the water, even though this may endanger his life. From here it would seem that the Talmud Bavli too agrees that one must risk his life to save another from certain death.
Despite the opinion of the Chavos Yair, since the Shulchan Aruch disagrees, as explained above, one could not be obligated to do so.
The Radbaz (vol 3 ch.627) paskens clearly that in such a case, there is no obligation to risk one’s life, and one who does so has not transgressed the prohibition of standing aside while the blood of your fellow is being spilt.
The Radbaz, however, continues that despite the above, in any particular situation the degree of risk involved must be carefully measured, to see if it is really a risk that needs to be taken into consideration, and how much weight it should be given.
Other Types of Losses
He continues that there are certainly cases where the risk should be taken, and the interest of your fellow Jew put before your own.
He cites as a source for this the gemara in Baba Metzia (33a) that where one can save either his father’s lost property or his own, the halacha is that he may save his own, as he comes first. (So too, if on the way to work you see someone in distress, but if you are late for work you will lose money, you are not obligated to help them, as here too, you come first.) Nevertheless, the gemara continues, while you are allowed to put your interests first, one who continually does so will in the end come to need the favors of others. This is because such a person is not prepared to do acts of kindness, which are, by their very nature, putting the interests of another before your own.
While it may not be an obligation to accept refugees who face certain danger if returned to their countries, as maybe they will endanger our national security, it would certainly be an act of kindness and compassion to do so, after thorough screening to reduce the risk to its minimal level possible.
While it could be argued that all of the above only applies to a fellow Jew, we find in many places – for example, with regard to the giving of charity (in order to promote peace, charity should be given to a gentile too) and the returning of lost property (even though there is no obligation, one should do so as a Kiddush Hashem will result) – that while the actual halacha may be different in relation to a gentile, where a Kiddush Hashem and the promotion of peace will result, no differentiation should be made.
Certainly, having a compassionate policy on immigration towards those fleeing war zones is a Kiddush Hashem and one which the halacha would, in my opinion, encourage, after thorough screening to reduce the risk of terrorists sneaking in to a minimum.
BAIS HAVAAD HALACHA CENTER