Does Halacha support the Gilad Schalit exchange?

By SHLOMO BRODY
November 4, 2011 16:57

Captive-taking was a common phenomenon in antiquity, and the Talmud stresses that redeeming captives is a great mitzva.

4 minute read.



Hamas escorts Gilad Schalit out of captivity

Schalit with Hamas 311 R. (photo credit: Reuters)

While we have discussed prisoner exchanges in previous columns, the recent deal with Hamas to secure Gilad Schalit’s freedom, along with the previous deal with Hezbollah to return the bodies of Ehud Goldwasser and Eldad Regev, calls for renewed discussion of state policy. Even as we rejoice over Schalit’s safe return, we must calmly and collectively establish a balanced approach to an issue that has plagued Israel for decades.

Captive-taking was a common phenomenon in antiquity, and the Talmud stresses that redeeming captives is a great mitzva (Bava Batra 8a). Nonetheless, the Sages placed limitations on the ransom, asserting that one could not pay more than the person’s value (Gittin 45a) on the slave market, where many captives were sold. Some believed that this decree only aimed to limit the financial burden on the community, thereby entitling a wealthy individual or community to voluntarily pay an exorbitant sum. However, most scholars asserted that these limits prevented providing lucrative incentives for further kidnappings, thereby forbidding excessive payments even from the wealthy (YD 252:4). According to this logic, one might conclude that prisoner exchanges must follow the regular protocols of war, which include the release of all POWs following a cease-fire, or equitable exchanges between hostile parties, as is often the case with spies.

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Despite this rule, the Talmud recalls several instances of captives being redeemed for excessive value, including one case in which a family acted against the rabbinic stricture (Gittin 45a). This case highlights that while families will understandably do all that they can to save their loved ones, such actions may remain illegitimate from a communal perspective. This, to my mind, is a fundamental of all policymaking in this realm: Leaders must use their intelligence to set fair policy, and not become overly caught up with the emotional trauma of the situation.

The Schalit, Regev and Goldwasser families do not deserve condemnation for their campaigns, even as there are those who argue that it led to higher ransom demands. Yet it remains the responsibility of government leaders (and the media) to avoid populism and dictate smart policy, whatever those conclusions might be.

In any case, some talmudic commentators contended that the “fair market value” rule does not apply in times of war. Given the preponderance of wartime captives, they claimed, it remained futile to try to prevent future kidnappings, which would inevitably happen in such periods (Tosafot Gittin 45a).

Based on this logic, Rabbi Haim David Halevi (d. 1998) asserted that one may justify deals to free captured soldiers, since Israel’s enemies will always continue to kill or capture soldiers (Aseh Lecha Rav 7:53). Others retorted that under current circumstances, such a policy would only encourage future kidnappings and strengthen terrorist groups.

Indeed, one might argue that Regev and Goldwasser are dead because Hezbollah wanted to accrue the same emboldening benefits that it received from previous kidnappings.

Others contended that the Talmudic rule does not apply when the captive’s life is endangered (Tosafot Gittin 58a). The historical practice of many Jewish communities was to pay excessive prices to save the lives of endangered captives, even as this dispensation remained fiercely debated (Pit’hei Teshuva YD 252:4). The contemporary situation, however, presents a competing claim, since the ransom fee is not money, but freeing terrorists who may threaten other lives.

Rabbi Ovadia Yosef contends that we must give priority to the life of a soldier, who is endangered in his service on behalf of the state, over the uncertain threat to the larger public. This position was supported by the assessment of the current Shin Bet (Israel Security Agency) director, who believes that Israel will remain under a similar security threat, irrespective of an additional group of terrorists on the street.

Rabbi Shlomo Aviner, on the other hand, argues that previous experience shows that freed terrorists will definitively return to killing many more Israelis; instead of capitulating to such demands, we must use military solutions to free captured soldiers.

This position was supported by previous military intelligence chiefs who fiercely oppose such exchanges. They believe that while the army should never leave soldiers behind on the battlefield, the government cannot pay any price to bring them home from captivity.

Without taking a stand on the Schalit exchange, I believe it remains much more difficult to justify freeing terrorists to redeem the corpses of soldiers who have been killed. Some scholars have previously contended that it remains essential for the fighting morale for soldiers to know that the government will never leave them behind, dead or alive. Yet given the potential danger to Jewish lives, I humbly submit that it remains wiser to honor those dead soldiers by remembering them among the countless martyrs throughout Jewish history who did not receive a proper burial.

The author, online editor of Tradition and its blog, Text & Texture (text.rcarabbis.org), teaches at Yeshivat Hakotel.


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