Does Halacha mandate releasing hundreds of terrorists to free captured soldiers?
By SHLOMO BRODYGilad Schalit 248.88(photo credit: Courtesy)Does Halacha mandate releasing hundreds of terrorists to free captured soldiers? - A.L., Nahariya
The dilemma over what price to pay for redeeming captives has, alas, engaged the Jewish people since antiquity. The capture of soldiers like Gilad Schalit and the demand to release terrorists only further complicates this quandary. I will try to present the debate's parameters, without giving an opinion, in hope that clarity of the issues can aid public dialogue.
The Talmud praises redeeming captives (pidyon shevuyim) as a great mitzva, superior even to charity because it liberates a person from the emotional (and sometimes physical) pain of captivity (Bava Batra 8a-b). Consequently, Jewish law allows communal leaders to reallocate money dedicated to different causes, like synagogue building funds, toward collecting ransom money, with some going so far as to permit selling Torah scrolls to raise money (Tosafot). Maimonides lists no less than seven biblical mandates fulfilled by liberating a captive (Matanot Le'ani'im 8:10), while Rabbi Joseph Kolon conversely compares one who needlessly delays in freeing a captive to a murderer (YD 252:3). The Bible further highlights stories about redeeming captives, including Abraham's rescue of Lot (Genesis 14) and Moses's (Numbers 20) and David's (I Samuel 30) liberation of war captives.
Nonetheless, the sages limited, in the name of tikkun olam (repairing the world), the sum of the ransom, asserting that one cannot pay more than the person's market value (Gitin 45a). Some believed that this decree aimed to limit the financial burden on the community, thereby allowing a wealthy individual or community to voluntarily pay an exorbitant sum to free a captive. Most medieval commentators, followed by Rabbi Yosef Karo, adopted an alternative talmudic explanation that these limits prevent providing lucrative incentives for further kidnappings, thereby forbidding excessive payments even from people with deep pockets (YD 252:4).
However, a number of exceptions were made to this rule. While Rabbi Menahem Hameiri contended that one cannot overpay even to redeem himself, normative Halacha asserted that one can use an unlimited amount of his own money to buy himself liberty. Despite Maimonides's protest (Hilchot Ishut 14:19), similar dispensations were granted for redeeming one's spouse (Tosafot Ketubot 52a). Indeed, part of the marital contract ordains that men must redeem their wives, with Halacha further ruling that, in general, communities should give preference to freeing female captives to prevent ignoble acts against them (Horayot 13a). While the community can force a wealthy member to pay for the fair-rate redemption of his other relatives (YD 252:11-12), it remains forbidden for a person to voluntarily overpay, although the Talmud testifies that some did not follow this stricture (Gitin 45a).
The Talmud further relates that after the Roman conquest, Rabbi Yehoshua ben Hanania redeemed for an exorbitant price a promising youth who grew into the great sage Rabbi Yishmael. Some medieval authorities explained that given the preponderance of wartime captives, it remained futile to try to prevent future kidnappings, which inevitably happen in such periods (Tosafot Gitin 45a). As such, some believe that the sages' rules do not apply to contemporary prisoner swaps following wars, especially since these exchanges follow conventional protocols.
A more controversial interpretation asserted that one may redeem scholars for inflated sums, since their value to the community is immeasurable and irreplaceable. In one celebrated incident, Rabbi Meir of Rothenburg (Germany, 13th century) died in prison after refusing to be redeemed for Emperor Rudolph I's inflated ransom demand, fearing that other despots would imprison fellow scholars (Yam Shel Shlomo Gitin 4:66).
Others contended that the ransom limitations did not apply in cases where the captive's lives are endangered, as in Yishmael's case (Tosafot Gitin 58a). Nahmanides (Gitin 45a) and others disputed this interpretation, contending that one cannot save the captive's life by threatening the lives of future captives. By the 16th century, however, it remains clear that Jewish communities throughout the world created special funds to redeem as many captives as possible, fearing for both their lives and the future of the nation (Shu"t Radbaz 1:40).
Israel has particularly suffered from this dilemma, which culminated in the 1985 "Jibril deal" that released 1150 prisoners for three living soldiers captured during the First Lebanon War. At the time, Rabbi Shlomo Goren vociferously criticized the deal for endangering soldiers by providing incentives for future kidnappings. He further warned of the prisoners returning to terror, fears borne out by Ahmed Yassin (future head of Hamas assassinated by Israel in 2004) and other released terrorists later engaging in massive terrorist activities. When Goren later republished his essay, however, he concluded like Rabbi Shaul Yisraeli, who believed that the government must take full responsibility for its soldiers, deeming it analogous to someone paying an exorbitant price to redeem himself. Which position is right? Perhaps both, and hence the continuing debate.
The writer, on-line editor of Tradition, teaches at Yeshivat Hakotel and is pursuing a doctorate in Jewish philosophy at the Hebrew University.Submit a question to JPostRabbi@yahoo.com
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