1. Introduction
On October 7th, a tragic event unfolded that shook the foundations of the Israeli-Palestinian conflict. A massacre orchestrated by Hamas claimed the lives of over 1000 individuals, while hundreds more were unfortunate victims of kidnappings. In response, the Israel Defense Forces (IDF) launched a determined effort to suppress Hamas activities and locate the hostages believed to be inside Gaza.
As tensions escalated, a series of hostage negotiations unfolded, drawing global attention. The culmination of these efforts saw a controversial deal materialise at the end of November. This deal involved the release of 50 Israeli hostages in exchange for 150 Hamas terrorists, raising questions about the ethics, consequences, and potential implications of such agreements.
Today we will begin the Discussion, and only touch the surface of the Halachic discussion about Hostage Deals.
Unfortunately... This type of Question was not the first time something like this happened.
1) On June 27, 1976, an Air France airplane on its way from Paris to Israel was hijacked by terrorists. The hijacked plane contained many passengers, including 104 Jews on the way to Israel. The plane landed in Uganda, which is four thousand kilometers from Israel. In Uganda, the terrorists were aided by the Ugandan authorities, who are Jew-haters. There, all passengers were released except for the Jews among them. The hijackers presented an ultimatum, demanding that their comrades, forty terrorists imprisoned in Israel, be released within forty-eight hours, or else they would harm the hostages they were holding.
2) On June 25, 2006, IDF soldier Gilad Shalit was captured by Hamas operatives near the Kerem Shalom crossing along Israel’s border with the Hamas-controlled Gaza Strip. Shalit was held captive for over five years, until October 2011, when Israel and Hamas signed an agreement brokered by Egypt whereby Schalit was returned to Israel in exchange for 1,027 prisoners held by Israel on charges of terrorist activities.
2. How is 'Redeeming Captives' Viewed In The Torah?
(י) פִּדְיוֹן שְׁבוּיִים קוֹדֵם לְפַרְנָסַת עֲנִיִּים וְלִכְסוּתָן. וְאֵין לְךָ מִצְוָה גְּדוֹלָה כְּפִדְיוֹן שְׁבוּיִים שֶׁהַשָּׁבוּי הֲרֵי הוּא בִּכְלַל הָרְעֵבִים וְהַצְּמֵאִים וַעֲרוּמִּים וְעוֹמֵד בְּסַכָּנַת נְפָשׁוֹת. וְהַמַּעֲלִים עֵינָיו מִפִּדְיוֹנוֹ הֲרֵי זֶה עוֹבֵר עַל (דברים טו ז) "לֹא תְאַמֵּץ אֶת לְבָבְךָ וְלֹא תִקְפֹּץ אֶת יָדְךָ" וְעַל (ויקרא יט טז) "לֹא תַעֲמֹד עַל דַּם רֵעֶךָ" וְעַל (ויקרא כה נג) "לֹא יִרְדֶּנּוּ בְּפֶרֶךְ לְעֵינֶיךָ". וּבִטֵּל מִצְוַת (דברים טו ח) (דברים טו יא) "פָתֹחַ תִּפְתַּח אֶת יָדְךָ לוֹ". וּמִצְוַת (ויקרא כה לו) "וְחֵי אָחִיךָ עִמָּךְ". (ויקרא יט יח) "וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ". (משלי כד יא) "וְהַצֵּל לְקֻחִים לַמָּוֶת" וְהַרְבֵּה דְּבָרִים כָּאֵלּוּ. וְאֵין לְךָ מִצְוָה רַבָּה כְּפִדְיוֹן שְׁבוּיִים:
(10) The redemption of captives receives priority over sustaining the poor and providing them with clothing. [Indeed,] there is no greater mitzvah than the redemption of captives
For a captive is among those who are hungry, thirsty, and unclothed and he is in mortal danger (For at any time, his captors may take his life.)
If someone pays no attention to his redemption, he violates the negative commandments:
1) "Do not harden your heart or close your hand",
2)"Do not stand by when the blood of your neighbour is in danger" and
3)"He shall not oppress him with exhausting work in your presence".
And he has negated the observance of the positive commandments:
1) "You shall certainly open up your hand to him"
1) "You shall certainly open up your hand to him"
2) "And your brother shall live with you",
3)"Love your neighbour as yourself" ,
4)"Save those who are taken for death", and many other decrees of this nature.
There is no mitzvah as great as the redemption of captives.
Question: According to this, Do you think there would be a limit to what one should do to redeem captives?
If we were just to leave it here.. It would seem that there is almost no limit to what you should do to Redeem a Captive... Every means possible to save them.
3) Limit to Redeeming Captives
מַתְנִי׳ אֵין פּוֹדִין אֶת הַשְּׁבוּיִין יָתֵר עַל כְּדֵי דְּמֵיהֶן, מִפְּנֵי תִּיקּוּן הָעוֹלָם.
MISHNA:The captives are not redeemed for more than their actual monetary value, for the betterment of the world
Question:What do you think it means מִפְּנֵי תִּיקּוּן הָעוֹלָם?
גְּמָ׳ אִיבַּעְיָא לְהוּ: הַאי ״מִפְּנֵי תִּיקּוּן הָעוֹלָם״ – מִשּׁוּם דּוּחְקָא דְצִבּוּרָא הוּא, אוֹ דִילְמָא מִשּׁוּם דְּלָא לִגְרְבוּ וְלַיְיתוֹ טְפֵי?
GEMARA:
A dilemma was raised before the Sages: With regard to this expression: For the betterment of the world, is it due to either
1) The financial pressure of the community? Is the concern that the increase in price will lead to the community assuming financial pressures it will not be able to manage? Or perhaps
2) Is it that paying exorbitant amounts will only encourage future kidnappings?, as they will see that it is not worthwhile for them to take Jews captive?
Question:What could be a practical difference between these two cases?
What about if one had a rich family member?
The Gemora says there would be a difference in a case of a prisoner whos family had the Financial ability to pay the exorbitant amounts being demanded.. I.e.
Reason 1) Not allowed because of financial strains on the community - It would seem that then paying an exorbitant amount would be allowed, as there would be no financial burden on the community
But...
Reason 2) Not allowed because of potential encouragement for future Kidnapping, then paying an exorbitant ransom would not be permitted, regardless of the family financial position, as it has to do purely of future consequences
What is the bottom Line - I.e. What do we say the reason is that one is not permitted to pay 'more than their value'?
אֵין פּוֹדִין אֶת הַשְּׁבוּיִים בְּיֶתֶר עַל דְּמֵיהֶן מִפְּנֵי תִּקּוּן הָעוֹלָם. שֶׁלֹּא יִהְיוּ הָאוֹיְבִים רוֹדְפִין אַחֲרֵיהֶם לִשְׁבּוֹתָם.
We do not redeem captives for more than Their worth for the benefit of the world at large, i.e., so that enemies will not pursue people to hold them captive.
(ד) אין פודין השבויים יותר מכדי דמיהם מפני תיקון העולם שלא יהיו האויבים מוסרים עצמם עליהם לשבותם
(4) Captives are not to be ransomed at an unreasonable cost, for the safety of society; otherwise, the enemies would exert every effort to capture victims.
Question: How does this Halachic ruling impact our topic?
It would seem that even if the community had the financial means to release the captives, and that Israeli society would be happy to except the burdens of the consequences, it would still be fordidden to do such a negotiation.
3) Can we ever go past this Limit?
Question: Do you think there ever could be a time that one could go above this limit?
The Gemora tells Two different stories of Individuals paying absobrment amounts of money to release their loved ones
תָּא שְׁמַע: דְּלֵוִי בַּר דַּרְגָּא פַּרְקַהּ לִבְרַתֵּיהּ בִּתְלֵיסַר אַלְפֵי דִּינְרֵי זָהָב.
The Gemara suggests: Come and hear an answer based on the fact that Levi bar Darga redeemed his daughter who was taken captive with thirteen thousand gold dinars (Which is well over the market value)
תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּרַבִּי יְהוֹשֻׁעַ בֶּן חֲנַנְיָה שֶׁהָלַךְ לִכְרַךְ גָּדוֹל שֶׁבְּרוֹמִי, אָמְרוּ לוֹ: תִּינוֹק אֶחָד יֵשׁ בְּבֵית הָאֲסוּרִים, יְפֵה עֵינַיִם וְטוֹב רוֹאִי וּקְווּצּוֹתָיו סְדוּרוֹת לוֹ תַּלְתַּלִּים. הָלַךְ וְעָמַד עַל פֶּתַח בֵּית הָאֲסוּרִים, אָמַר: ״מִי נָתַן לִמְשִׁיסָּה יַעֲקֹב וְיִשְׂרָאֵל לְבוֹזְזִים״? עָנָה אוֹתוֹ תִּינוֹק וְאָמַר: ״הֲלֹא יהוה זוּ חָטָאנוּ לוֹ וְלֹא אָבוּ בִדְרָכָיו הָלוֹךְ וְלֹא שָׁמְעוּ בְּתוֹרָתוֹ״.
אָמַר: מוּבְטְחַנִי בּוֹ שֶׁמּוֹרֶה הוֹרָאָה בְּיִשְׂרָאֵל, הָעֲבוֹדָה! שֶׁאֵינִי זָז מִכָּאן עַד שֶׁאֶפְדֶּנּוּ בְּכׇל מָמוֹן שֶׁפּוֹסְקִין עָלָיו. אָמְרוּ: לֹא זָז מִשָּׁם עַד שֶׁפְּדָאוֹ בְּמָמוֹן הַרְבֵּה, וְלֹא הָיוּ יָמִים מוּעָטִין עַד שֶׁהוֹרָה הוֹרָאָה בְּיִשְׂרָאֵל. וּמַנּוּ? רַבִּי יִשְׁמָעֵאל בֶּן אֱלִישָׁע.
The Sages taught another baraita: There was an incident involving Rabbi Yehoshua ben Ḥananya who once went to the great city of Rome, where they said to him: There is a child in prison with beautiful eyes and an attractive appearance, and his curly hair is arranged in locks. Rabbi Yehoshua went and stood by the entrance to the prison. He said, as if speaking to himself: “Who gave Jacob for a spoil, and Israel to the robbers?”. That child answered by reciting the continuation of the verse: “Did not the Lord, He against Whom we have sinned, and in Whose ways they would not walk, neither were they obedient to His law?”
Rabbi Yehoshua said: I am certain that, if given the opportunity, this child will issue halakhic rulings in Israel, as he is already exceedingly wise. He said: I take an oath by the Temple service that I will not move from here until I ransom him for whatever sum of money they set for him. They said that he did not move from there until he ransomed him for a great sum of money, and not even a few days had passed when this child then issued halakhic rulings in Israel.
How could it possible to do this? Isn't this going against Halacha?
Tosofot (A commentary on the Gemora) Gives 3 different reasons from both these stories
כל ממון שפוסקין עליו - כי איכא סכנת נפשות פודין שבויין יותר על כדי דמיהן כדאמרינן בפרק השולח (לעיל גיטין דף מד.) גבי מוכר עצמו ואת בניו לעובדי כוכבים כ"ש הכא דאיכא קטלא אי נמי משום דמופלג בחכמה היה:
[Tosfot quotes the Gemara:] "for whatever [amount of] money that they demand."
1) He was legally allowed to do this because where there is a threat to life, we redeem the captives for more than their value.
1) He was legally allowed to do this because where there is a threat to life, we redeem the captives for more than their value.
2) Alternatively, [he was allowed to redeem the baby for more than its worth] because [it possessed] great wisdom.
דלא ליגרבו ולייתו - והא דתניא בפ' נערה (כתובות נב.) נשבית והיו מבקשין ממנה עד עשרה בדמיה פעם ראשון פודה שאני אשתו דהויא כגופו יותר מבתו דהכא ועל עצמו לא תיקנו שלא יתן כל אשר לו בעד נפשו ור' יהושע בן חנניא דפרקיה לההוא תינוק בממון הרבה בהניזקין (לקמן גיטין דף נח.) לפי שהיה מופלג בחכמה אי נמי בשעת חורבן הבית לא שייך דלא ליגרבו:
(Why was he allowed to be redeemed over market value?)
1) For he was exceedingly bright, or
2) Because because it was during the time of the destruction of the Beis Hamikdash (I.e. irrespective of what you do, enimies will continue trying to harm / capture Jews - despite whatever you do)
Questions:
1) According to Tosofos, What are 3 potential reasons that one could pay a higher value than their market value?
2) What are the implications of Tosfos’s answer for the current Israeli captives, who are being held captive by Hamas?
1) What are the 3 reasons?
1) Posesses Incredible Torah Knowledge
2) During times of the Destruction of the Beis Hamikdash
3) If he is in a Life threatning situation
2) In light of this approach by Tosfos, it would appear that an Israeli prisoner may be ransomed from terrorists at any price, because his life is in danger. However, not all halachic authorities accept the distinction made by Tosfos between life-threatening situations and other cases.
Pischei Teshuva cites several Responsa from later halachic authorities who do not allow the redemption of prisoners even in life-threatening situations. He notes that Tosfos’s distinction between life-threatening situations and others presumes that paying exorbitant sums is forbidden because of the financial strain it imposes upon the community. From this perspective, it stands to reason that when a captive’s life is in danger, the community is required to do whatever it takes to rescue him. But if we assume that the Sages forbade paying such sums in order to avoid incentivizing future abductions, then one may not redeem captives even if the prisoner’s life is in danger, as rescuing his life does not warrant Jeopardizing the lives of others in the community by encouraging further kidnappings.
Since the normative Halachah cited in Shulchan Aruch explicitly favors the approach of concern for encouraging kidnappings, we must conclude that Tosfos’s view is not accepted as normative halachah.
5. Money vs Prisoner Exchange? Does it make a difference?
Question: Do you think there is a difference between Monetary Exhchange vs Monetary Exchange? What factors should be taken into cosnideration?
All of the above sources discuss cases of redeeming captives in exchange for money; redeeming them in exchange for imprisoned terrorists introduces a whole new set of issues.
As we have seen, The main mastermind behind the October 7th Attack was Yahwya Sinwar, who has actually one of the prisoners exchanged during the Gilad Shalit Exchange 2011. We can see that it is pretty clear that these convicted terrorists can (and haved) posed significant danger to Israeli civilisation.
Therefore we need to see if such a dangerous exchange can be performed, even if we hold like previous opinions that say one is permited to do anything in their power Finacially to redeem captives.
רוצח גופיה מנא לן סברא הוא דההוא דאתא לקמיה דרבה ואמר ליה אמר לי מרי דוראי זיל קטליה לפלניא ואי לא קטלינא לך אמר ליה לקטלוך ולא תיקטול מי יימר דדמא דידך סומק טפי דילמא דמא דהוא גברא סומק טפי
The Gemara asks: From where do we derive this halakha with regard to a murderer himself, that one must allow himself to be killed rather than commit murder? The Gemara answers: It is based on logical reasoning that one life is not preferable to another.
The Gemara relates an incident to demonstrate this: As when a certain person came before Rabba and said to him: The lord of my place, a local official, said to me: Go kill so-and-so, and if not I will kill you, what shall I do? Rabba said to him: It is preferable that he should kill you and you should not kill. Who is to say that your blood is redder than his, that your life is worth more than the one he wants you to kill? Perhaps that man’s blood is redder.
This logical reasoning is the basis for the halakha that one may not save his own life by killing another.
Question: How does this Gemora impact our potential halachic decision about the release of dangerous terrorists (and potenitally harm other Jewish lives) to save current Jewish hostages?
From all the sources provided, Nowhere does it say it mention a community's obligation to endanger themselves for the sake of releasing the hostages. It would seem that logic of the above Gemora applies to our case to, who says that the blood of the hostages are "redder" than anyone else's, and then such an exchange would not be acceptable
6. What do Modern Day Poskim (Rabbinical Figures say)
Based on all the Relevent Information there are many different opinions about such deal should be permitted or not:
In Support of such a Hostage Deal
The below opinions were Responsa regarding the "Operation Entebbe"
Rav Ovadya, Yabia Omer (Vol. 10, CM 6)
Under these circumstances, freeing terrorists for hostages is permitted since the danger to the hostages who face imminent execution is certain and immediate (ודאי סכנה), while the danger to others as a result of the release of terrorists is merely doubtful (ספק סכנה).
ר' שאול ישראלי, חוות בנימין, כרך א, סימן טז:
לא קיימת שום הגבלה בפדיון השבויים ואעפ"י שקיים החשש "דלא ליגררו ולייתי", אין דוחים ודאי סכנה מפני ספק סכנה.
Rav Shaul Yisraeli, Chavat Binyamin, Section 16:9:
In every situation of a tangible danger no restriction was established for the redemption of captives, and even though we established a concern for "not encouraging [the captors] to kidnap", we do not ignore a certain danger because of an uncertain danger.
הרב יובל שרלו, אתיקה יהודית (כה): שחרור שבויים
ההשפעה המוראלית על הצבא עלולה להיות משמעותית ביותר. בשעה שיידע חייל כי לא נעשה הכל כדי לשחררו - כולל נכונות לשחרר רוצחים בתמורה להשבתו - תיפגע המוטיבציה שלו להילחם.
R' Yuval Sherlow, Jewish Ethics (25): Redeeming Captives
The impact on the morale of the army could be significant. Once a soldier knows that [the state] will not do everything it can to free him - including a willingness to release murderers in exchange for his freedom - it will diminish his motivation to fight.
Against Hostage Deal
Rabbi Avraham Yitzchak HaLevi Kilav, Techumim 4 (1983)
Furthermore, it seems that nowadays, when terrorists declare their desire to kidnap and murder Jews and, in fact, act upon these declarations without any compassion for the victims whether me, women or children, that releasing terrorists is actual danger and is therefore forbidden. This is true even according to those who maintain that [the prohibition] is based on “the burden imposed on the community”, since the danger [here] is tangible and arises immediately upon their release.
It therefore seems that it is forbidden to release terrorists and murderers in exchange for captives, not just an exchange of many [terrorists for one [Jew], but even one for one, because of the future danger.
R' Kilav, "Releasing Terrorists," in Crossroads: Halacha and the Modern World, vol. 1 (Gush Etzion, Israel: Zomet Institute, 1987), 201-210
If the prohibition is based on the need to discourage future abductions, it will be prohibited to release terrorists, as experience has shown that this will surely encourage more abductions in the future.
Rav Tzvi Schachter, "The boundaries of the state and its wars", Beikvei HaTzon, pp. 206-208
At the end of the Summer in 5730 [1970], Arab terrorists seized two planes filled with Jewish tourists returning from Israel to America, and took them to Jordan, and threatened to kill them all. And amongst the captives was the Gaon HaRav Yitzchak Hutner (of blessed memory), the head of the Yeshiva Rabbeinu Chaim Berlin (in the United States). And so the rich students to collect several million dollars outside the United Statesto hand over this fortune to the Arab terrorists on condition that they release the Rabbi...And [according to] what Tosfot writes there ... [in the case of] a captive who [possesses] great wisdom, it is permissible to redeem them for more than their worth.
And there were some Rabbis who thought that this law was applicable to HaRav Yitzchak Hutner as a great scholar, and that he should therefore be redeemed for more than his worth.
But HaRav Yaacov Kaminetzky argued that this law was not applicable at all [in this case]. [This was because the laws regarding] the redemption of captives are only [applicable] at a time of peace, but at a time of war it is impossible to say that we are obligated to stop fighting on condition that we redeem the prisoners with money...
[Rather, one cannot redeem captives in this situation] because then we would be helping our enemies in the middle of the war, since this large monetary gift to our enemies would allow them to further strengthen their position in the war.