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Is Prisoner Exchange A Jewish Value?

Is Prisoner Exchange A Jewish Value?

Judaism’s take on redeeming prisoners

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Freed Israeli soldier Gilad Shalit hugs his father (left) Noam Shalit at Tel Nof Airbase on October 18, 2011. (Photo: Israeli Defence Force)
Freed Israeli soldier Gilad Shalit hugs his father (left) Noam Shalit at Tel Nof Airbase on October 18, 2011. (Photo: Israeli Defence Force)

Introduction

The recent homecoming of Gilad Shalit provided the Jewish world with a bittersweet mix of universal celebration and contentious dispute. Such debate over redeeming captives is, unfortunately, nothing new to the Jewish experience. Over a period of several thousand years, much Jewish scholarship has been invested in the development of Jewish law (halachah) in this area.

Concerning the Shalit case, Chief Rabbi Yona Metzger opined that “as long as a rabbi or halachic adjudicator does not have all the information laid before him, including Israeli Defense Force and intelligence reports, it is not possible to take a decisive halachic stand (on the issue). Halachah must not be ruled upon based on reports from the Arab media.”

This article, therefore, is not meant to deliver an opinion on the Shalit case, but simply to present some of the halachic discussion that surrounded it and other comparable situations.

Precedent

In 1993, American pilot Michael Durant was captured by Gen. Mohamed Farrah Aidid’s men in Mogadishu, Somalia (the “Black Hawk Down” incident). Former U.S. Ambassador Robert Oakley sent the following message to Aidid:

…I guarantee you we are not going to pay or trade for him in any way, shape or form. So what we’ll decide is that we have to rescue him, and whether we have the right place or the wrong place, there's going to be a fight with your people. The minute the guns start again, all restraint on the U.S. side goes. Just look at the stuff coming in here now. An aircraft carrier, tanks, gunships . . . the works. Once the fighting starts, all this pent-up anger is going to be released. This whole part of the city will be destroyed, men, women, children, camels, cats, dogs, goats, donkeys, everything . . . That would really be tragic for all.

Durant was released unconditionally the next day.1

Initially, this was the Israeli position as well. A strong precedent was set in the “Dawson’s Field hijackings” of September 1970, when five airliners were hijacked by the Popular Front for the Liberation of Palestine (PFLP, one of the groups, second in size only to Fatah, which formed the Palestine Liberation Organization). Jewish passengers were held hostage in Jordan, and their release conditioned on the “release of all of our political prisoners jailed in Israel.”

The Israelis refused to negotiate. Jordan’s King Hussein, incensed by the audacity of the PFLP’s autonomous use of Jordanian territory, declared martial law and set to work crushing the PLO forces in Jordan. A swift Jordanian victory enabled the September 30 deal, in which the hostages were released.

Another case was the Munich Massacre of 1972, in which members of the Israeli Olympic team were taken hostage by Black September, a Palestinian group. Their demand was the release and safe passage to Egypt of 234 Palestinians and non-Arabs jailed in Israel. Israel’s response was immediate and absolute: there would be no negotiation. In that instance, this position of “non-negotiation with terrorists,” which is accepted and maintained by the United States and many other democracies as well, was maintained even at the cost of the eventual murder of all the hostages by the terrorists.

And, of course, one of the greatest moments of heroism for the Jewish people in recent history was Operation Entebbe in the summer of 1976. In that instance, Palestinian terrorists demanded the release of 40 Palestinians held in Israel and 13 other detainees imprisoned in Kenya, France, Switzerland and West Germany. They threatened that if these demands were not met, they would begin to kill hostages within days. Special Israeli Defense Forces (IDF) commandos flew over 2,500 miles to Uganda, under the cover of night, for a rescue operation which took a week of planning, lasted 90 minutes and rescued 102 hostages. The Israelis did not succumb to the terrorists’ demands, and though it cost the life of Yonatan Netanyahu and a few of the hostages killed in the crossfire, this daring raid inspired generations of soldiers to heroism, and instilled fear in the hearts of our enemies, for years to come.

In contrast, Israel has made a large-scale POW swap in order to secure the return of even a small number of captive soldiers. In January 1957, after the Israelis fought the Sinai Campaign, Israel returned to Egypt some 5,000 POWs for one Israeli pilot, Jonathan Etkes.

That exchange involved POWs and negotiations with a legitimate government, not a terrorist group. With the latter, as we have seen, for many decades the Israeli government maintained a policy of non-negotiation.

That policy was first broken in 1979. On April 4, 1978, seven Israeli soldiers crossed the border into Lebanon; four were killed, two escaped, and one soldier was taken by the PLO. It took one year for Israel and the PLO to broker a deal in which they exchanged that one Israeli soldier for 70 “security prisoners”—prisoners accused of terrorist activities.

Six years later, in 1985, Israel released 1,150 security prisoners in exchange for three Israeli soldiers who had been abducted during the first Lebanon War, after negotiations with the Popular Front for the Liberation of Palestine—General Command. Many of the released prisoners went back to their bloody business, becoming the leaders of the first intifada in 1987.

Israel’s current readiness to make prisoner swaps includes even cases where soldiers were returned in body bags. In July 2008, Israel released five Arab terrorists and the bodies of about 200 Arab fighters in exchange for the bodies of two Israeli soldiers, Ehud Goldwasser and Eldad Regev, who were captured and killed in the July 2006 Hezbollah raid that sparked the second Lebanon War that year.

The Shalit Ordeal

On Sunday, June 25, 2006, at 5:40 AM, eight armed men crossed Israel’s southern border with the Gaza Strip through a tunnel near Kerem Shalom. The attackers penetrated about a hundred meters into sovereign Israeli territory. A rocket was fired and grenades were thrown at a tank positioned in the area. The tank was manned by four soldiers, one of whom was Gilad Shalit. The missile hit the rear end of the tank, causing the death of its commander and an additional soldier. One soldier was wounded.

Gilad Shalit, the fourth soldier in the tank, was wounded in the shoulder, and was abducted from the tank to the Gaza Strip.

On Monday, June 26, 2006, Izz ad-Din al-Qassam Brigades, the Popular Resistance Committees (which includes members of Fatah, Islamic Jihad, and Hamas), and a previously unknown group calling itself the Army of Islam, declared they were willing to “provide information” about Gilad in return for the release of all female prisoners, as well as all security prisoners under 18 years old, held in Israeli prisons.

Two days later, Israeli forces entered Khan Yunis to search for Shalit. According to David Siegel, a spokesman at the Israeli embassy in Washington, D.C.:

Israel did everything it could in exhausting all diplomatic options and gave Mahmoud Abbas the opportunity to return the captured Israeli . . . This operation can be terminated immediately, conditioned on the release of Gilad Shalit.

The operation was not successful.

On Saturday, July 1, 2006, the captors demanded an additional 1,000 prisoners be released, including many convicted of deadly terrorist attacks against Israelis (besides all female and young prisoners, as previously demanded), and an end to Israel’s incursions into Gaza.

Two days later they set a 24-hour ultimatum. Hours after the ultimatum was issued, Israel officially rejected the demands, stating that “there will be no negotiations to release prisoners.”

Consequently, Hamas refused requests from the International Committee of the Red Cross to allow the Red Cross to visit Shalit.

On September 30, 2009, Israel announced that it would release 20 female Palestinian detainees and prisoners in exchange for a video proving Shalit was still alive.

The trade took place successfully on October 2. The video, the only contact from Shalit other than three letters written by him and an audio tape released in June 2007, was released to the public at around 4 PM on Israeli television. In the video, Gilad addressed his parents as well as Prime Minister Netanyahu, and reminisced about times he spent with his family. He displayed a newspaper dated Monday, September 14, 2009.

The Israeli public was divided regarding the issue of negotiating the release of Shalit in exchange for a large number of prisoners jailed in Israel. There were two opposing camps.

One camp supported the release of Shalit on Hamas’s conditions, which would include the release of hundreds of prisoners and the deportation of some of them outside the domain of the Palestinian National Authority.

The other camp insisted that Israel do everything in its power to achieve Shalit’s return, but was opposed to the proposed prisoner swap. Many of the voices in Israel against a prisoner swap were families who had lost relatives in terror attacks and were facing the prospect that these perpetrators could go free.

Five years and four months after Shalit’s capture, a deal was reached between Israel and Hamas for his release in exchange for 1,027 prisoners. The first phase was executed on October 18, with Hamas transferring Shalit to Cairo, as the first 447 prisoners were also freed and transferred. As part of the exchange, the prisoners will also be exiled from sovereign Israeli territory. Hundreds of residents in Beituniyeh in the West Bank waved Hamas flags and chanted, “We want a new Gilad Shalit.”

Pidyon Shevuyim—The Obligation of Rescuing Captives

As noted above, rescuing and paying ransom for captives has been a very real part of the Jewish experience from the beginnings of our history. Jewish existence, particularly in the Diaspora, has always been precarious, and Jews were often at the mercy of enemies and rogues who quickly discovered that their Jewish captives were better held for ransom than executed. Jewish communities would maintain funds readily available for redeeming captives of wars, pirates, gold-hungry emperors, feudal landlords and tax collectors.

The earliest recorded precedent involved Abraham’s heroic efforts to rescue his nephew Lot, who was captured during a battle between the Mesopotamian and Canaanite kings, as recorded in Genesis (14:14–16):

When Abraham heard that his kinsman had been captured, he gathered up his disciples and householders, three hundred and eighteen in number, and pursued them to Dan. And he divided himself against them at night, he and his servants, and smote them, and pursued them until Hobah, which is to the left of Damascus. And he restored all the possessions, and also Lot his brother and his possessions he restored, and also the women and the people.

Similarly, we find in Numbers (21:1) that during the young Jewish nation’s journey through the desert,

The Canaanite king of Arad, who lived in the south, heard that Israel had come following the route of the spies, and he waged war against Israel and took from them a captive.

The course of action which followed is described by the following verses (21:2–3):

Israel made a vow to the L‑rd, and said, “If You deliver this people into my hand, I shall consecrate their cities [i.e., I shall consecrate their spoils to Heaven. Rashi]. The L‑rd heard Israel’s voice, and delivered the Canaanite. He [Israel] destroyed them and [consecrated] their cities, and called the place Hormah.

As military action is not always an option (or the preferred option), the Talmud and the Midrash tell numerous stories about righteous individuals who engaged in ransoming captives, acting as communal agents and often traveling great distances at the expense of charitable funds which were established expressly for this purpose. In medieval times, it was common for Jewish communities in port cities to sustain a fund to rescue Jews who had been captured by pirates and were being sold as slaves in the market. The practice continued in various forms under various circumstances throughout history, as recorded in the annals of Jewish communities throughout the world.

The commandment, or mitzvah, to redeem captives, known in Hebrew as pidyon shevuyim, is described by Maimonides in his code of Jewish law, the Mishneh Torah:

The redeeming of captives takes precedence over the feeding and clothing of the poor. Indeed there is no religious duty more meritorious than the redeeming of captives, for not only is the captive included in the generality of the hungry, the thirsty, and the naked, but his very life is in jeopardy. He who turns his eyes away from redeeming him, transgresses the commandments: “You shalt not harden your heart, nor shut your hand” (Deuteronomy 15:7); “Neither shall you stand idly by the blood of your neighbor” (Leviticus 19:16); and “He shall not rule with rigor over him in your sight” (Leviticus 25:53). Moreover, he nullifies the commandments: “You shall surely open your hand unto him” (Deuteronomy 15:8); “That your brother may live with you” (Leviticus 25:36), “You shall love your neighbor as yourself” (Leviticus 19:18); “Deliver them that are drawn unto death” (Proverbs 24:11); and many similar admonitions. To sum up, there is no religious duty greater (“mitzvah rabbah”) than the redeeming of captives.2

In the next paragraph, Maimonides explains that the redemption of captives is so important that any money which had been collected, even for a religious purpose, may be diverted to ransom captives, even if it was raised for the purpose of building a synagogue. Even if all the materials had already been bought and prepared for construction, if the need arises, they must be used to redeem a captive. This in contrast to the ruling that synagogue materials should not be sold for any other important fund.

Nevertheless, this too has limits. The sages of the Mishnah (3rd century BCE to 2nd century CE) explicitly state:

Captives should not be ransomed for more than their value, for the sake of the general welfare (in the original Hebrew, tikkun haolam, literally translated as “repair of the world”).3

The Talmud seeks to clarify the purpose of this legislation. Concern for the general welfare, the Talmud points out, could mean one of two things:

  1. To spare the community the burden of excessive ransom, which could lead to its impoverishment;
  2. In order not to give the captors an incentive to take new captives and demand high ransom.4

It is interesting to note that according to the first reasoning, the monetary welfare of the community overrides any concern about the threat of future repercussion. Thus, according to this rationale, if there were no financial burden on the community, the risk of encouraging future abductions would not be a sufficient reason to prohibit overspending.

A practical difference would present itself if an individual were to offer to pay the entire ransom. The concern of burdening the community would not apply, yet the fear of increased captures is not alleviated. The Talmud therefore cites a case where an individual did pay the full ransom himself, which would seem to demonstrate that the only concern was the burden on the community:

The question was raised: Does this general welfare refer to the overwhelming burden which this might impose on the community, or is it to prevent the bandits from increasing their kidnapping activities?

Come and hear: Levi ben Darga ransomed his daughter for thirteen thousand denarii of gold. Said Abaye, “But are you sure that he acted with the consent of the sages? Perhaps he acted against the will of the sages?”5

Abaye’s response is that we have no reason to believe that the Jewish religious and communal leaders were happy with Levi ben Darga paying this ransom. The question concerning the reasoning for this limit would appear to be left unresolved.

Despite this limit placed on the amount to be paid for ransom, the following story is recounted several pages later in the Talmud, in telling of the suffering of the Jewish people at the hands of the Romans:

Rabbi Joshua ben Hannanya once happened to go to the great city of Rome, and he was told there that there was in the prison a child with beautiful eyes, a handsome face, and curly hair arranged in locks. He went and stood at the doorway of the prison and quoted (from the prophet Isaiah 42:24), “Who subjected Jacob to plunder and Israel to spoilers?” The child answered (with the conclusion of that verse in Isaiah), “Is it not the L‑rd, He against whom we have sinned and in whose ways they would not walk, neither were they obedient to his Torah.”

[Rabbi Joshua] said: “I feel sure that this one will be a teacher in Israel. I swear that I will not budge from here before I ransom him, whatever price may be demanded.” It is reported that he did not leave the spot before he had ransomed him at a high figure, nor did many days pass before he became a teacher in Israel. Who was he? None other than Rabbi Ishmael ben Elisha [one of the greatest Mishnaic sages].6

The immediate difficulty with this story is that the above-quoted Mishnah ruled that one may not redeem a captive for more than his worth. How, then, could Rabbi Joshua pay this clearly exorbitant ransom?

In their commentary to that story, the Tosafot (an anthology of opinions and debates of medieval Jewish European scholars, printed on the margins of the standard printed Talmud) provides several distinctions between this story and the more common case in which the Mishnaic limit would apply. One such important distinction is that an excessive ransom may be paid if the captive’s life is at stake. As this was true of this child, Rabbi Joshua was in fact bound to redeem him even for more than his value.

Others explain that this story took place in the period immediately after the destruction of the Temple, as the Jews were being exiled and were completely subdued to the Romans. Therefore, freeing this child could not make the situation any worse, as the entire nation was at their mercy, and were essentially in captivity already.7

The Shulchan Aruch, the highly authoritative code of Jewish law authored in the 16th century by Rabbi Joseph Caro, rules:

We do not redeem captives for more than their worth, for the benefit of the world at large—meaning, so that enemies will not pursue people to hold them captive. However, to redeem one’s own self, one may pay as much as he so wishes.8

The Shulchan Aruch makes no mention of the distinction drawn by Tosafot. It accepts the concern of motivating further terror as the primary reason to limit the obligation of redeeming captives to an amount not exceeding the captive’s actual value, and makes no mention of the immediate financial burden.

Value

How is a captive’s value and exchange rate defined? The Mishnah simply states, “for more than his value.” Most understand this to be referring to a person’s value on the slave market.9 Some, however, understand the Mishnah to be referring to the “going rate” for hostages in the general population.10 In other words, looking at the international community, how much a non-Jewish community or country would be charged for one of theirs if he is taken captive.

Contemporary international precedent does exist. For example, in July 1969 Britain exchanged Morris and Lona Cohen for Gerald Brooke, a British subject held in the Soviet Union. Other notable examples included Soviet spy Rudolf Abel for U2 pilot Gary Powers, and Gordon Lonsdale for Greville Wynne.

While paying the “going rate” would not stop all future kidnappings, it would ensure that Jews are not more of a target than anyone else. Somali pirates, for example, are not picky about the nationality of the ships they hijack.

An Important Historical Precedent

Rabbi Meir of Rothenburg was considered the most outstanding Jewish sage in Europe in his generation. In 1286, at the age of seventy, he was taken captive by King Rudolph I of Germany, and held for a ransom of 20,000 marks, an astronomical sum in those days.

Almost all of the rabbis and leaders of the European Jewish communities in that generation were students of Rabbi Meir, known as Maharam. He authored thousands of halachic responsa, as well as the Tosafot commentary to the Talmudic tractate Yoma. The most famous of his students was Rabbi Asher ben Yechiel, known as Rosh, whose rulings are cited extensively in the Shulchan Aruch.

It was precisely because the Maharam was so important a figure that Rudolph hoped to extort a huge ransom from the Jewish community. Indeed, the emperor’s evil scheme nearly succeeded: Maharam’s students and admirers were prepared to raise the sum necessary to free their master.

Their reasoning was based on the story cited above, concerning Rabbi Joshua’s rescue of the young child who became Rabbi Ishmael “at whatever price may be demanded.” Earlier we cited one justification, provided by the Tosafot, for the terms of that rescue—that this was a matter of saving a life. A second justification provided by Tosafot is that due to the unparalleled scholarship of this child, which Rabbi Joshua already sensed, he was permitted to pay the inflated ransom.

The students of Maharam felt similarly: although the law forbids paying more for a captive than the accustomed amount, when the captive at hand is the leading Jewish scholar of the generation, and the entire community is in need of him and his wisdom, it is permissible to pay any fee.

Maharam himself, however, rejected this rationale, as he felt that this would lead to the capture of other Torah leaders. As explained by the 16th-century halachist Rabbi Shlomo Luria, Maharam feared that his ransom would lead to a much greater threat to the continuity of Judaism, should all the Jewish scholars be made easy bait for ransom to a point where the community would not have the money to ransom them, ultimately leaving them without any leadership at all.11

Rabbi Meir died, seven years later, in captivity in the fortress of Ensisheim.

The tragic saga of his imprisonment came to a close when his body was ransomed, 14 years after his death, by Alexander ben Shlomo (Susskind) Wimpfen, who was subsequently laid to rest at his side.

Where the Captive’s Life Is Threatened

Returning to the Talmudic story about the ransom of the young child, we mentioned that Tosafot suggested that if the captive’s life is in danger, it is permissible to pay more than the regular value.

This view, however, is not held unanimously among Talmudic commentators. Nachmanides, for one, rejects this distinction because of the obvious question: isn’t every captive essentially at risk of his life? Earlier we cited Maimonides, who writes, “For not only is the captive included in the generality of the hungry, the thirsty, and the naked, but his very life is in jeopardy.” Yet Maimonides nevertheless concludes (as does the Mishnah) that the captive must nevertheless not be redeemed for more than his value.

In defense of this answer of Tosafot, some explain that although every captive’s life is at risk, the restriction on paying more than the captive’s value applies only to instances where it is clear that the captors have no interest in taking the life of the captive, and that their motives are primarily monetary. In such a case we have good reason to assume that they will ultimately release the captive or lower the ransom, and we therefore do not comply with their demands.12 In the case of the Jewish child in captivity, the Roman enemy would have been just as happy to kill him, creating an imminent threat to his life, and therefore bargaining or waiting it out was not an option.

Hence, if we assume that the life of the captive is at risk, any price could be paid for his release according to this approach.

The objection has been raised: On the contrary, wouldn’t such a distinction only make matters worse? If, when the captors threaten the captive’s life, they are successful at extracting exorbitant funds, this will merely motivate them to also threaten future captives’ lives!

The answer to this question lies in the Talmudic discussion which we mentioned earlier regarding the two possible rationales for the limit placed on the amount of ransom: one, the financial burden that this places on the community; the other, the risk that this will provide an incentive for future abductions. We pointed out that according to the first rationale, the risk of encouraging future abductions would in itself not be a sufficient reason to prohibit overspending.

Accordingly, it could be explained that the distinction made by Tosafot, allowing the redemption of captives who are in immediate risk of their lives for more than their value despite the future risk that this poses, would be in line with the first reasoning given by the Talmud, according to which a future risk is not sufficient reason not to save the captive from immediate suffering.13 However this is not the ruling of Shulchan Aruch.

In sum, this debate plays a crucial role in the discussion of the prisoner exchange for a captive Israeli soldier, presenting us with three sides to the argument:

  1. According to some, no distinction is made, even if the captive’s life is at stake. The price cap remains because of the future threat that this poses for everyone else.
  2. Others accept the distinction made in life-threatening situations, but say this only applies where there is an immediate risk to the captive’s life, and where the motive for his abduction is not merely ransom—which itself leads to another debate:
    1. During the captivity of Gilad Shalit, for example, some insisted (based on reports by the Arab media about his condition) that Israel’s enemies are merely using the soldier as a bargaining chip, and have no actual interest in killing him. If this were true, then the price limit still remains.
    2. Others point to the apparent glee that these enemies have in killing Jews as proof that the threat to his life is imminent, for which there is no price too steep to pay (according to this distinction made by Tosafot).

Redeeming Oneself

We read earlier the ruling of Shulchan Aruch that one may redeem himself at any price. What is the source of this exception to the rule? Why should this not be restricted out of concern that it will be a motivation for future kidnappings?

At the beginning of this discussion, we mentioned that the Talmud suggests a possibility that the restriction was made to spare the community the burden of excessive ransom. According to this, one would be allowed to pay his or her own ransom, as this would not burden the community. However, as we pointed out, Shulchan Aruch accepts the concern of motivating further terror as the primary reason for the price limit, and makes no mention of the financial burden on the community. It follows that paying one’s own ransom does not alleviate the primary concern. How, then, could he rule that one is permitted to redeem himself at the risk of others?

The source for this is an opinion mentioned in the Talmud regarding the monetary obligations of a husband towards his wife, one of these being to redeem her from captivity. One opinion in the Talmud states that, like every other captive, she may not be redeemed by her husband for more than her value. The dissenting opinion, however, is that not only can she be redeemed for more than her value, but the first time that she is taken captive, her husband is obligated to pay even ten times her value:

Our Rabbis taught: [If a woman] was taken captive, and a demand was made upon her husband for as much as ten times her value, he must ransom her the first time.14Subsequently, however, he ransoms her only if he desires to do so, but need not ransom her if he does not wish to do so. Rabbi Shimon ben Gamliel ruled: Captives must not be ransomed for more than their value, for the sake of the general welfare.15

What is the justification of the opinion allowing—and requiring—one to pay excessive ransom for his wife, despite the risk of future kidnappings that this poses in the community? Here, too, Tosafot makes a distinction, and explains that the sages who instituted the price cap cannot limit the natural human instinct of self-preservation. Quoting Job 2:4, Tosafot declares, “Whatever a person has, he will give for his life!” And in a lesson on the appropriate attitude toward a spouse, they conclude that one’s wife is like one’s own self, and just as one cannot be stopped from saving himself, he cannot be stopped from saving his wife.16

Though Shulchan Aruch rules according to Rabbi Shimon ben Gamliel—that even for one’s wife, one may not overpay—the logic of not considering a future communal risk when saving your own skin still applies. Therefore, Shulchan Aruch permits one to redeem himself at any cost.

Israel’s Self-Preservation

In an original application of Talmudic logic, Rabbi Shaul Yisraeli (1910–1995), an influential figure of the Religious Zionist movement and a member of the supreme rabbinical court in Jerusalem, explained that the Israeli government’s interest in saving a soldier is the equivalent of a person’s own instinct of self-preservation, in which case the limit imposed by the Mishnah would not apply, as we have just explained. This is because if the government will not completely extend itself to guarantee the rescue of a captive soldier, this will destroy the morale of the army and the nationalism of the entire Israeli population. Thus, he ruled that, if one can spend all at his disposal to save his own skin, the Israeli government could do so to maintain a dedicated defense force.

Detractors argue that while it may be true that the nation’s redemption of the soldier would be saving its very own “life,” the price demanded by the captors—the release of prisoners who are considered a serious threat to the nation’s security, and were captured through daring missions of Israeli operatives—makes this case different for two reasons:

One, they argue that releasing those who masterminded and orchestrated the actual murder of Jews would be devastating and demoralizing for the entire people, thus being in itself suicidal for Israeli security—just the opposite of what it is trying to accomplish. Moreover, they argue that as those who are being released are trained and passionate murderers of Jews, releasing them would be directly threatening the lives of other Israelis, creating a situation where you are saving the “nation” by freeing the soldier, but at the same time killing the “people” by releasing terrorists.

Members of the IDF themselves have pointed to the increased risk to border patrol assignees, as well as decreased morale among those engaged in capturing terrorists—with the knowledge that these terrorists will likely be released within a matter of years.

Indeed, during the Dawson Fields hijackings mentioned above, Rabbi Yehuda Gershuni was one significant authority who, in an extensive responsum, justified the Israeli stance of non-negotiation. His principal argument was that releasing terrorists would undermine law and order in Israel. He pointed to the civil war described in the biblical book of Judges, where the other tribes went to war with the tribe of Benjamin in order to preserve a state of moral law and order in society. From this, he said, we see that one must risk one’s life for the sake of saving society from the threat of lawlessness. The very concept of terrorism is itself just that—an attack on the stability of society. Therefore, he ruled, we must not release terrorists even when human life is at stake.17

At the time of the first precedent of a negotiated prisoner swap in 1979, where 70 terrorists were released in return for a single surviving captive Israeli soldier (as described above), the Rebbe, Rabbi Menachem Mendel Schneerson, of righteous memory, spoke out in vociferous protest.18 In terms of strict halachah, he stated, there is room to argue that the Mishnah’s limit does not apply when it comes to saving a life. Halachah and the saving of life, however, were not the issues of concern in this case.

The Rebbe pointed out that the only motive possible for such a move was a concern for international opinion. To render national security secondary to international opinion is a perilous road for any nation. In this regard, the Rebbe declared, “even a child understands that pleasing the President in Washington or in Egypt is not a consideration when it comes to national security.”

Indeed, the very act of negotiation with terrorists endangers the people in Israel, as it provides legitimacy to terrorism and sanction to its tactics, “giving terror a seat at the table.”

Over half of the 70 prisoners released in the 1979 swap were known to be committed terrorists. This in itself poised a threat to national security. The principal threat, however, was the precedent being set. Until this point, Israel had set non-negotiation with terrorists as a red line—even at the cost of human lives. By crossing that line, the Rebbe said, the Israelis were sending a strong message to their enemies that they really have no red lines—that if you push hard enough and long enough, you can get whatever you want.

The Rebbe also pointed out that this was not a case of “perhaps they may be encouraged to do more.” There was no “perhaps.” The terrorists openly declared that they intended on committing more abductions in the future—based on this encouragement.

Hence, what one side views as self-preservation, the other sees as reckless.

Which Is the Imminent Threat?

This final point, about the threat that freed terrorists pose to the people, also challenges an earlier point that we raised. We mentioned that some insist that a captive Israeli soldier must be redeemed at any cost, employing the ruling of Tosafot that in the face of imminent threat to life there is no limit placed on the ransom that we are permitted to pay to release a captive, despite the risk of future abductions that this poses.

One explanation given for this is that we do not worry about possible future consequences when a Jew’s life is presently in certain danger.19 This is a fundamental issue of triage in halachah: if there is one person’s life that you can save right now, although other lives are put at risk by your activities, many halachic authorities rule that you deal with the life at hand. Thus, assuming that the soldier’s life is at imminent risk, some argued that any deal negotiating his release is acceptable, even if releasing a terrorist poses a future risk to the people.

Others maintain, however, that releasing a terrorist is not a future risk, but rather a direct and imminent threat to the lives of others. Experience has shown that many of the terrorists who have been released by Israel in past deals simply returned to their terrorist activities, murdering more Israelis. Thus, as a result of receiving one Israeli hostage, scores of other Israelis have been murdered. What’s more, as a result of the government’s willingness to free large numbers of prisoners for one or two Israeli hostages, the terrorists have less reason to fear, for they figure that even if they do get caught, they most likely will be freed eventually in a prisoner-exchange deal.

This school therefore considers the threat to the people to be just as imminent as the threat to the captive soldier’s life. Consequently, the very requirement to save lives at all costs requires that terrorists not be released in a bid to save the captive soldier’s life.

Even if the two threats are not equally imminent, the fact that war is permitted for the sake of defending the people is brought as proof that the life of the individual soldier can be put under direct fire in order to protect the nation at large.

On the other hand, others point to the rules of war as proof of the opposite position: Just as one may put his own life at risk during battle to save another soldier, even in a situation which normally would not be permitted by the Torah, so may the country put all lives at risk for the sake of a threatened soldier. The difficulties with this position seem obvious.

Nevertheless, as one authoritative rabbi has noted, at the end of a war, when a final ceasefire agreement is reached between the sides, it is permissible for Israel to release all of the enemy prisoners in its possession in return for all of our own captives being held by the enemy—even if we have taken many captives. The reason for this is that such exchanges are recognized as accepted practice at the end of a war, and therefore are not considered acts of extortion.20

Summary

In support of the prisoner exchange, the following halachic justifications are given:

  1. When the captive’s life is at risk, according to some opinions, the restriction is waived.
  2. Returning the captive soldier is self-preservation for the Israeli military, and one may save himself at all costs.

Those who oppose such a deal argue that:

  1. Not all are in agreement that the restriction is to be waived when there is a threat to a captive’s life.
  2. According to some, the abductors are merely holding him for “ransom,” and therefore may drop their demands.

Others accept the first view, due to a belief that the captive’s life is directly threatened, but disagree with the release of terrorists because:

  1. Releasing a terrorist creates an imminent threat to the lives of everyone else.
  2. Releasing a terrorist destroys the morale of the people, particularly the families of the terror victims, consequently being suicidal.
  3. Releasing a terrorist grants validity to terrorism as a means to achieve political goals.

Regardless of the halachic and political debate, we joyously welcome back home our Gilad, who has become the child of every Jewish family. May his health be entirely restored, and may the Jewish people know no harm any more. We pray for the day when every single member of our people is brought to our true home, the holy land of Israel.

Footnotes
1.

Nate Hardcastle and Clint Willis, American Soldier: Stories of Special Forces from Iraq to Afghanistan (Cambridge, Mass.: Da Capo Press, 2002), 86; Mark Bowden, Black Hawk Down (Berkeley, Calif.: Atlantic Monthly Press, 1999), 402.

2.

Mishneh Torah, Laws of Gifts to the Poor 8:10.

3.

Talmud, Gittin 45a.

4.

Ibid.

5.

Ibid.

6.

Ibid. 58a.

7.

See Tosafot, and commentary of R. Menachem Meiri (13th century, Perpignan, France), to Gittin 45a.

8.

Shulchan Aruch, Yoreh De’ah 252:4.

9.

Rabbi Shlomo Yitzchaki, known as Rashi, commentary to Talmud, Ketubot 52b, s.v. “Trei Kulei.”

10.

Rabbi Avrohom Tzvi Hirsch ben Yaakov Eisenstadt, Pitchei Teshuvah commentary to Shulchan Aruch, Yoreh De’ah 252:5; Rabbi David ibn Zimra (Radvaz), responsa, vol. 1, no. 40.

11.

Yam Shel Shlomo, Gittin 4:66.

12.

See Meiri’s commentary to Gittin 45a.

13.

This answer is given by the 17th-century Rabbi Yechezkel Katzenellenbogen, in his book of responsa titled Knesset Yechezkel, no. 38. One of the eminent rabbis of his time, Rabbi Katzenellenbogen was born in 1668 in Brisk (Brest-Litovsk, in present-day Belarus), and served as presiding judge and head of the yeshivah (advanced rabbinical school) for the Kedainiai and Birzai districts of Lithuania. Before that he was the rabbi of Zhetel (Dziatlava), Belarus. From 1713 he was presiding judge of the tripartite community of Altona-Hamburg-Wandsbek, in Germany, until his death on 23 Tamuz 5509 (1749).

14.

Some explain this to mean that it is his financial duty to ransom her no more than once. If she is taken captive a second time, he can give a divorce, and redeem her out of her ketubah money.
(The ketubah is the wedding contract which states the husband’s various obligations to his wife. The focal point of the document is the financial compensation due to the wife in the event of the marriage’s dissolution through divorce or widowhood.)
Others opine that he is responsible to redeem her from his own pocket indefinitely, but not for an exorbitant price after the first time. If, however, the ransom demanded is not higher than her value, he must pay it.

15.

Talmud, Ketubot 52a.

16.

Tosafot, ad loc. and in their commentary to Gittin 45a.

17.

HaDarom, Nisan 5731. Cited by Rabbi David Bleich, Contemporary Halakhic Problems, vol. 1 (New York: Ktav Publishing House, 1977), 18.

18.

Talk of May 26, 1979 (Shabbat Parshat Bamidbar 5739).

19.

This idea is itself subject to great debate. See: R. Joseph Caro, Kesef Mishneh commentary to Mishneh Torah, Laws of Murder and the Preservation of Life 1:14; R. Schneur Zalman of Liadi, Shulchan Aruch Harav, Laws of Damages to Body and Soul 7; R. Meir Simchah of Dvinsk, Or Same’ach commentary to Mishneh Torah, Laws of Murder 7:8; R. Shlomo Yosef Zevin, L’or Hahalachah, section “HaMilchamah.”

20.

Rabbi Avraham Kilav, “Releasing Terrorists,” in Crossroads: Halacha and the Modern World, vol. 1 (Gush Etzion, Israel: Zomet Institute, 1987), 201–210.

Rabbi Baruch S. Davidson is a writer who lives with his family in Brooklyn, N.Y.
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Ms. Kelly Leeba Kinseth November 15, 2011

Thank you Rabbi Davidson for the research and work that went into writing this article. I appreciate that you covered every possible scenario that the events of ransoming captives could have presented.

I cried with tears of joy when Gilad Shalit was released. I wept for the pain that he, his mother and father had endured. I also shed many tears for my friends who live in Israel. They are now fearful and worry that even more terror attacks and kidnappings will occur.

Again, thank you for your fair and impartial rendering of the law and facts that surround redeeming captives. Reply

Randy Los Angeles, CA November 10, 2011

Ambivalence Thank you for a great and exhaustive article, Rabbi. Gilad Shalit's release in exchange for however-many-hundreds of terrorists fills me with ambivalence. I guess it shows how much each side values life, the going exchange rate being about 1:1000. Reply

William Ganz Miami Beach, FK November 10, 2011

Gilad Shalit release must not lead to more terrori Terrorists should not be ignored, but Gilad Shalit represents a national Israel policy that no soldier will not be saved. Once this decision is made to save him we must act to stop further terrorism.

Israel can hold off returning additional promised prisoners if terrorism continues with more rocket attacks. Also, Israel must act with more force for any addional terrorist attacks. For example bombing the homes of the Terrorist leaders when killings occur.

If additional Jews are kidnapped we must make the leaders know that their family will be held responsible and their homes will be bombed. The PLO was forced out of Jordan by the fear for their families' survival. Hamas terrorism can only be stopped if the leaders know that they are jeopardizing their fmailies life as well as their own lives. Reply

Ruth S.Tobin San diego, Ca via lubavitchliverpool.com November 9, 2011

Gilad Shalit Very informative article, especially as I teach Hebrew/Jewish studies with 6th/7th graders here in San Diego.
I am proud to be Jewish as this demonstrates our understanding of how precious life is. Gilad is a son, a mother's child a Jewish man a soldier for his country. We as Jewish people have empathy and understand how precious one life is, we feel Gilad as our own for as Jews we are united and connected. We are the better people for being strong enough to release these people and for not killing. They can live with hatred and yet we still live with love and G-d. Thank you for making me according to your will AMEN Reply

Aleksandra New York, NY November 9, 2011

G-d bless you, Rabbi, what an inspiring article! I can feel it in my heart that the motive of the Israeli government is self-preservation. Not the logical preservation of the nation, but the instinct that every IDF soldier is “me”. There are examples of heroic people not following their natural instinct, like Maharam in the article, or Abraham in Akeida; however, we cannot demand even from a government that they raise above their human nature.

Also, I agree with the comment of Mathew Clark. The release of 1000 just adds to 10,000 or 20,000 of general public in Gasa who sadly support terrorism.

Thank you Rabbi Reply

Rachel Garber Phila , PA USA November 9, 2011

What a conumdrum This is an interesting and well reaserched article, and as well as informative of historical precident. I can't imagine what Gilad's family went through during his captivity. That said, it distressed me very much to see the number of terrorists that were released to secure his return. It was interesting, and not surprising that someone from the Arab community (I refuse to call them Palestinains, they lost that right when the Arab League voted unanymously in 1947 against the UN partition plan) called for more kidnappings. I understand the value of every life however, I wonder how the families of terror vicitms feel abt all those prisoners exchanged for one life. I would be curious, though probably will never know, how Gilad feels about his release. I what his opinion is of negociating with terrorists. Reply

ruth housman marshfield hills, ma November 8, 2011

Gilad Shalit It's clear much research went into this article.
We are left with conundrums in life, namely the weighting of what is right, constantly, as we are assaulted with ethical dilemmas all the days of our life. Look at any newspaper.

I feel we need to weight the pros and cons and sometimes it is a very difficult, painful decisions we are making, as in this case, it seems the release of many known terrorists with blood on their hands, could create, as it does, a precedent for more of the same.

On the other hand, there is this inchoate notion of the quality of mercy, of what we do, in raising the bar, in realizing this could happen, but in holding the life of one Jewish man, as representative of Israel, our entire community. The notion of all is ONE.

It's a lesson, a profound lesson in what we also hold important, this one life, as representative of the love of all the lives and it is a sacrifice, as we know, the possible consequences.

G_d raises the bar.

The angst of uncertainty. Reply

Esther Liba NJ November 8, 2011

Gilad Shalit's Release Rabbi Davidson, yashir ko'ach on a well-researched and very informative article.

I think Gilad's release also demonstrated how valuable each and every soldier is to the IDF. Surely this knowledge would boost the morale of Israel's soldiers, since they are similarly regarded and valued.

As for the released terrorists resuming their evil activities, we must demand of G-d A-mighty that He intervene on behalf of His chosen people.

Surely the time for our Redemption has come. Reply

Matthew Clark St. Paul, MN/USA November 7, 2011

Is the risk increased or not? Thank you Rabbi Davidson. It is always a pleasure to read your work.
It is a sad commentary on the situation every Israeli lives in that the security establishment was able to look at the deal on the table to secure Gilad Shalit and determine that the release of hundreds of terrorists with blood on their hands would not make a significant difference in the security of the Israeli public.
The deal implicitly recognized that those released do not possess any unique abilites or inclinations to evil. For all that the individuals within the pool may have changed somewhat, there is no evil the Arabs of Gaza can do today that they could not last month.
Terrorists and those who support them are evil. They need no encouragement; they do not respond to anything Israel does or does not do. Their actions should be taken as a given and dealt with accordingly. We must not mistake their purposes, or suppose their motivations are akin to our own.
G-d's blessings to Sgt. Shalit and his family. Reply

izzy pa November 7, 2011

a lot of research ... thank you Rabbi for the tremendous effort you put in for this article. Reply

Anonymous brooklyn, ny November 5, 2011

wow what an informative article, much research that must have gone into this. Reply

Anonymous Israel November 5, 2011

simple A DEFINITE COMES BEFORE A DOUBT He definitely would have died in jail and while yes it is likely the freed will return to their evil ways, it still remains a doubt.

Furthermore, now we have him home, it's much easier to attack out enemies when they shoot missiles at Sderot and Ashdod than before.

I rest my case. Reply

Rabbi Laine November 4, 2011

Well done This was a very informative and well writtten article.

An enormous amount of research went into this.

Thanks
Reply

Carmen November 4, 2011

Oy... Release or not release,this is the question...

The question of Gilad is not a question of that precise moment but a question about the political/military/moral stand of Israel as a whole since its inception as a country some 60 years ago.

This is * the* question. Gilad's affair was just a consequence.

In his case, I believe, Deuteronomy, Leviticus, Proverbs' stands are more fit, because they go objectively to the point,and in cases as we have just been watching, what matters is objectivity, common sense and moreover, correct, honest and faithful Principles to be applied.

That's only what matters. Reply

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