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.
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.
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
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
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.