Ask the Rabbi: Does Halacha permit releasing terrorists to free captives?

The Talmud praises redeeming captives as a great mitzva, superior even to charity, because it liberates a person from the pain of captivity.

Missing yeshiva students (left to right)Naphtali Fraenkel, Gil-ad Shaar and Eyal Yifrach. (photo credit: REUTERS)
Missing yeshiva students (left to right)Naphtali Fraenkel, Gil-ad Shaar and Eyal Yifrach.
(photo credit: REUTERS)
It is my hope and prayer that Gil-Ad, Naftali and Eyal will have safely returned home by the time this column goes to press. Nonetheless, this tragic situation – along with the recent deal to free American soldier Bowe Bergdahl – reminds us of the necessity to establish a principled stance on this question.
The Talmud praises redeeming captives (pidyon shvuyim) as a great mitzva, superior even to charity, because it liberates a person from the emotional (and sometimes physical) pain of captivity. Maimonides lists no less than seven biblical mandates fulfilled by liberating a captive. The Bible further highlights stories about redeeming captives, including Abraham’s rescue of Lot and Moses and David’s (I Samuel 30) liberation of war captives.
Nonetheless, the Sages limited, in the name of tikkun olam (reparation of the world), the sum of the ransom, asserting that one cannot pay more than the person’s market value. 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 lucrative incentives for further kidnappings, thereby forbidding excessive payments even from people with deep pockets.
However, a number of exceptions were made to this rule. While Rabbi Menachem Ha-Meiri contended that one cannot overpay even to redeem themselves, normative Halacha asserted that one can use an unlimited amount of their own money to buy themselves liberty. Despite Maimonides’s protest, similar dispensations were granted for redeeming one’s spouse. While the community can force a wealthy member to pay for the fair-rate redemption of other relatives, it remains forbidden for a person to voluntarily overpay (although the Talmud testifies that some did not follow this stricture).
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. 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 Rottenburg died in prison after refusing to be redeemed for Emperor Rudolph I’s inflated ransom price, fearing that other despots would imprison fellow scholars.
Others contended that the ransom limitations did not apply in cases where the captive’s lives were endangered, as in Yishmael’s case. Nahmanides 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 becomes 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.
Israel has particularly suffered from this dilemma since the 1985 Jibril Deal that released 1,150 prisoners for 3 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. This position was similarly adopted by Rabbi Shlomo Aviner, before the deal to free Gilad Schalit.
Interestingly, when Rabbi Goren later republished his essay, 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 themselves. Rabbi Hayyim David Halevi further asserted that one may justify deals to free captured soldiers, since Israel’s enemies will always continue to kill or capture soldiers.
Scholars who permit such exchanges, however, note they are not mandatory and are subject to various political and military considerations. Following the Schalit deal, the government established a high-profile commission to set policy on these complex dilemmas. It remains crucial to heed these recommendations, which were made in calmer times under careful deliberation.
Yet the latest case raises additional complexities, because it involves citizens – not soldiers – who are mere teenagers. I salute the brave families of the kidnapped teens for refraining from a public campaign that would pressure the government.
While we let the army and government do their difficult tasks, we must continue to pray for the safety of these boys, and the soldiers who seek to rescue them.
The writers teaches at Yeshivat Hakotel, directs the Tikvah Israel Seminars, and is a junior research fellow at the Israel Democracy Institute.