This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
In parshas Masei the Torah discusses the halachos regarding when one person accidentally kills another. The Torah says that a relative of the victim (goel hadam) may avenge the death of his relative by killing the murderer who acted accidentally. According to the Torah, the perpetrator must go to one of the arei miklat (city of refuge). While in the ir miklat the goel hadam may not kill the murderer who acted accidentally. If he does kill him while he was in the ir miklat, he will be liable for murder.
The Gemara in Makkos 11b draws from a pasuk in this week’s parshah, “asher nas shamah, v’yashav bah – he should run there and dwell there,” that an accidental murderer must remain in the ir miklat forever; even if klal Yisrael needs him, he may not leave. The Mishnah says that even if he is someone like Yoav ben Tziruya, a general in the army, he may not leave the ir miklat to fight a battle for klal Yisrael.
The Acharonim are bothered by this halacha. They point out that pikuach nefesh is generally docheh (takes precedence) over all other mitzvos. Why then is the pikuach nefesh of all of klal Yisrael not docheh the mitzvah of remaining in the ir miklat?
The Ohr Somayach (Hilchos Rotzeach 7:8) suggests that the reason why the accidental murderer should not leave the ir miklat, even for the pikuach nefesh of all of klal Yisrael, is because as soon as he leaves the city the goel hadam may kill him. One is not obligated to risk his own life in order to save someone else’s life. Therefore the accidental murderer should not leave under any circumstance.
However, this answer only fits according to those who opine that one is not required to save another person when his action possibly puts his life in danger. The Hagaos Maimanis (Hilchos Rotzeach 1:14) quotes a Yerushalmi that says that one is required to save another person who is definitely in danger of losing his life, even if by doing so he is putting his own life at risk. The Beis Yosef (Choshen Mishpat 426) explains that since one person’s life is in certain danger, that fact precedes the possibility that another person’s life is in danger. According to this opinion, this question remains: Why can the accidental murderer not leave to save another person’s life? After all, it is not assured that he will be forfeiting his life by leaving the city. Thus, according to this opinion, he should be obligated to leave.
Others suggest that although it is not certain that the goel hadam will kill the accidental murderer if he leaves the ir miklat, nevertheless when he leaves he attains the status of a gavra kiteila (dead man). If someone else kills him, that person will not be liable for murder, for he killed someone who was already considered dead. A person is not required to place himself in a situation whereby he considered killing a gavra kiteila in order to save another person’s life.
The Cheshek Shlomo, in Makkos, asks another question on the halacha that an accidental murderer cannot leave the ir miklat under any circumstance. He says that the implication is that he may not leave, even to eat the Korban Pesach. If one does not eat the Korban Pesach he is liable for kareis. Why does the assei of eating the Korban Pesach, which has the punishment of kareis if not eaten, not doche the mitzvah of remaining in the ir miklat?
According to the Ohr Somayach that explains that the reason why the accidental murderer may not leave the ir miklat is because this action endangers his life, we can answer this question as well. There is a mitzvah of v’chai bahem v’lo she’yamus bahem (we should live by the mitzvos and not endanger our lives by performing the mitzvos). Since by leaving the ir miklat the accidental murderer will be endangering his life, he is not required to perform the mitzvah of eating from the Korban Pesach.
Perhaps we can extend this answer to explain the opinion that one must enter into a safek sakanas nefashos – which is certain danger – in order to save another person’s life. For this opinion only posited that one must enter a safek life-threatening situation in order to save another person’s life. It was not said that they do not consider a safek life-threatening situation to not indeed be safek life- threatening. Consequently, even the Yerushalmi would agree that one should not put himself into a safek life threatening situation in order to perform a mitzvah – even if the mitzvah has a punishment of kareis if not performed. Therefore, an accidental murderer would not leave the ir miklat – even to perform a mitzvah (such as eating the Korban Pesach) that has kareis attached to it.