With the current hostage deal taking place between the Israeli government and Hamas, where civilians are being exchanged for terrorists, does this scenario fall under the traditional scope of Pidyon Shevuyim, or does it represent a new situation with different halachic considerations?
By Rabbi Chaim Hillel Raskin
At what cost may we redeem captives?
Pidyon shevuyim, redeeming captives, is one of the greatest mitzvos in the Torah. Doing so fulfills many positive mitzvos (since captivity can be worse than death), and ignoring a captive’s plight transgresses multiple aveiros. If needed, a sefer Torah may be sold to raise money for redeeming captives.1
Still, the Gemara teaches that we may not redeem captives for exorbitant prices — “more than their value” — for the sake of tikun ha’olam, an establishment for public good. The Gemara explains it in two ways: (1) To avoid excessive financial pressure on the community or (2) not to incentivize the captors to kidnap again for even higher ransoms.2
From the perspective of the first issue, relatives or friends of the captives would be allowed to pay the exorbitant price on their own without burdening the community. Indeed, the Bach records a practice to pay more for the captives when there are volunteer donors.3 This is especially so for an outstanding Torah scholar whose release will uplift the general spirit of the Jewish nation.4
Yet, the concern that paying an exorbitant ransom would bring further threats to the Jewish community applies no matter who pays it. For this reason, the Radvaz, Rambam, and Shulchan Aruch prohibit doing so, even when the financial burden is not placed on the community.5 Still, some allow the captive to be redeemed from his own funds for “self-preservation,” and others allow (and therefore obligate) a husband to redeem his wife at all costs, since she is considered like himself.6
When the captive’s life is endangered some say this allows redeeming at any cost.7 Others counter, however, that every captive is inherently in danger, and still the Mishna prohibits paying above their value.8 A child in captivity who may be raised as a non-Jew is another possible exception.9
Despite these leniencies, the Maharam of Rotenberg famously refused to be released for an exorbitant ransom and passed away in captivity, since he feared that it would lead to other rabbonim and community leaders being targeted.
Is it permissible to free hostages by releasing terrorists?
Halacha highlights the importance of redeeming captives but, at the same time, prohibits paying “above their value”. How does this translate when discussing prisoner exchanges?
Some acharonim hold that the limit in these cases follows what other countries offer for such “transactions” based on historical precedents. Based on this, it would be permitted to perform a prisoner swap after the conclusion of a war when the accepted custom is to do so, even if the number of prisoners doesn’t match. Other poskim, however, contend that the fair price tag remains one-for-one, and anything beyond that is against halacha.10
Soldiers, some poskim claim, have a different status for this halacha, and their ransom isn’t capped. Since the country sent them to war, they have complete responsibility for them, unlike a regular hostage scenario where the community doesn’t have full responsibility for the captives.11 Furthermore, just as one may redeem himself for any price, the same should apply if one commits in contract with someone else, as a country does with its soldiers.12
However, releasing terrorists or even carrying out such negotiations is problematic. It is proven historically that many of the freed terrorists return to terror. Moreover, it is perceived as a weakness, and it encourages terrorists to commit terror attacks, thinking that they will ultimately be freed.13
14In 5739 (1979), the Rebbe strongly protested a prisoner swap when over 70 Arab prisoners – including over 30 convicted terrorists – were exchanged for one Israeli soldier, when not long before, America and Russia had swapped five for two! Though a Jewish life has infinite worth, the Rebbe explained, they could have obtained the same soldier for many fewer Arabs. Furthermore, this crossed the red line of negotiating with terrorists who openly said they would continue their terrorism. The Rebbe called it a weakness and a diplomatic move to win favor in the eyes of the Americans and Arabs.15 Moreover, said the Rebbe, putting terrorists in prison to begin with, rather than executing them, was a big mistake, since it invited pressure to release them at some point.
In conclusion, releasing prisoners in exchange for hostages introduces new angles that aren’t dealt with in the Gemara’s discussion on ransoming captives. These decisions must be weighed by experts on security and terrorism to determine which option will cause fewer Jews to be harmed and that is the correct route to take.16
In situations where it is determined that the release of prisoners would result in an increased risk (as in this case, which, Chas VeSholom, heightens the danger to the Jewish people residing in Eretz Yisroel), such actions are completely prohibited according to halacha. Moreover, the argument that the danger is not immediate has been refuted many times, as terrorists often begin planning their next attack even before their release, and the release itself emboldens acts of terror.
Therefore, anyone for whom halacha is their guiding light is obligated to do everything within their power to prevent such agreements.
- בבא בתרא ח ע”ב. רמב”ם הלכות מתנות אביונים פ”ח ה”י. ש”ך יו”ד סי’ רנ”ב סק”א וט”ז שם סק”ב.
↩︎ - גיטין מ”ה ע”ב. רמב”ם שם הי”ב. שו”ע יו”ד סי’ רנ”ב ס”ד.
↩︎ - ב”ח יו”ד סי’ רנ”ב.
↩︎ - יש”ש גיטין פ”ד אות ס”ו.
↩︎ - רדב”ז על הרמב”ם בל’ י”ב. ויש לציין שלכה”פ מצד שב ואל תעשה, וראה שם סו”ד ויש חולקים. ויש לעיין על מה כוונתו. ↩︎
- ראה חוות יאיר סי’ רי”ג, רמב”ן ומאירי גיטין מה ע”א. וראה שו”ע אבה”ע סי’ ע”ח ס”ב.
↩︎ - ראה תוס’ גיטין נח ע”א. ד”ה כל ממון
↩︎ - ראה פת”ש יו”ד סי’ רנ”ב על ס”ד.
↩︎ - שו”ת רדב”ז ח”א סי’ מ.
↩︎ - ראה “פעולה צבאית להציל בני ערובה” באור המזרח חכ”ח ע’ 44, תחומין ח”ד ע’ 108, ומנגד תורת המדינה ע’ 435.
↩︎ - תורת המלחמה 435/6.
↩︎ - ראה שו”ת חוות בנימין ח”א סי’ ט”ז (בפשטות יש לדון על סברה זו וצ”ע).
↩︎ - ראה יביע אומר ח”י חו”מ סי’ ו’, ומנגד ראה פניני הלכה העם והארץ פ”ז ס”ח.
↩︎ - יחידות מר צבי כספי – כפר חב”ד גליון 635.
↩︎ - שיחת פ’ במדבר תשל”ט – שיחו”ק תשל”ט ע’ 730 ואילך.
↩︎ - ראה תחומין ח”ל ע’ 95 והלאה.
↩︎
Discussion
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