Wednesday, July 23, 2008

Prisoner Transfers in Jewish Law

Someone asked me on Shabbos what halakhah has to say about the recent prisoner transfer in Israel, in which five Arab prisoners -- some of them very dangerous -- and the bodies of 200 Arab terrorists were exchanged for the bodies of two dead Israeli soldiers. The answer might seem straightforward but I'm not sure that it is.

The Mishnah (Gittin 45a) states that we do not redeem captives for more than their "value" because of "tikkun ha-olam", which Neusner translates as "for the good of the world". The Gemara has two opinions about what this reason means: either because that could lead to the bankrupting of communities when they are forced to pay exorbitant amounts to free captives or because it will increase the frequency of kidnappings by making it an extremely lucrative crime. The Rambam (Mishneh Torah, Hilkhos Matenos Aniyim 8:12) and Shulchan Arukh (Yoreh De'ah 252:4) adopt the latter reason.

Click here to read moreThere are a few exceptions to this rule, such as when redeeming yourself or your wife (Tosafos, Gittin 45a sv. de-lo), a great scholar (Tosafos, Gittin 58a sv. kol) or the captives are in mortal danger (ibid.). This last exception is hotly debated -- see Pischei Teshuvah (YD 252:4). Tosafos (Gittin 45a sv. de-lo) also add a provocative exception: This rule does not apply after the destruction of the Temple because paying a ransom will not impact future kidnappings.

A recent application of this principle was the 1970 hijacking of two TWA airplanes (link) on one of which R. Yitzchak Hutner was a passenger. It seems that some of R. Hutner's students were prepared to gather a large sum of money to pay the hijackers (via the US government) for his personal release. R. Yaakov Kamenetsky was asked whether this was allowed and he responded in the negative, for a reason explained below.

Since the incident in 1970, many articles have been written on this subject, attempting to apply this halakhic discussion to the contemporary situation. I think it is important to note that the talmudic rule is based on logic and not any biblical or rabbinic legislation, which allows for greater latitude in incorporating other logical considerations. Here is a brief review of some prominent opinions:

1. R. Yehudah Gershuni ("Pidyon Shevuyim Le-Or Ha-Halakhah" in Ha-Darom, Nissan 5731, cited in R. J. David Bleich, Contemporary Halakhic Problems, vol. 1 pp. 18-20) states that there is an additional concern in today's prisoner transfers: The prisoners to be transferred openly plan on murdering civilians upon release. R. Gershuni argues that this consideration overrides any potential permission to redeem the Jewish captives through a prisoner transfer. The life-threatening danger to the captives does not override the danger to the public of releasing murderous terrorists.

2. R. Ovadiah Yosef (cited here by R. Yaakov Kermaier), writing in regard to the 1976 Entebbe hostages crisis, disagrees with this analysis. The danger to the captives is certain while the danger of release to the public is uncertain. The certain danger takes precedence over the uncertain, so an exchange is allowed.

3. R. Chaim David Halevi (Aseh Lekha Rav 7:53) argues that the entire halakhic discussion is predicated on a situation in which transfers can encourage or discourage future kidnappings. However, in today's war, this is not the case. The enemy will continue kidnapping Israelis regardless of whether prisoners are exchanged (see the view of Tosafos about the destruction of the Temple, cited above). Therefore, such an exchange should be allowed.

4. R. Ya'akov Kamenetsky (cited by R. Hershel Schachter, Be-Ikvei Ha-Tzon, p. 206; note that this is not mentioned in Emes Le-Ya'akov on Shulchan Arukh despite the many oral rulings mentioned in the footnotes to the book) utilized a similar approach but arrived at the exact opposite conclusion. He ruled that since we are at war, any large ransom (even just money) will strengthen the enemy and is therefore forbidden.

5. R. Shlomo Goren (Toras Ha-Medinah, pp. 434-436) agrees with R. Kamenetsky's approach but adds a mitigating consideration: Because the captive soldiers were acting as agents of the Israeli government, the government is obligated to do whatever is necessary to free them.

6. R. Shaul Yisraeli (Torah She-Be'al Peh 17 [5735] which I think was republished in Chavos Binyamin vol. 1 and is cited by R. Kermaier) argues similarly that there is an unwritten agreement between soldiers and the Israeli government that the government will use all reasonable means to release captive soldiers. This contractual agreement overrides the halakhic concerns that are normally in play in ransom situations, in that it is as if the captives are redeeming themselves through a previously appointed messenger.

These positions of R. Goren and R. Yisraeli are significant in that the theories presented also support the transfer of prisoners in exchange for the bodies of dead Israeli soldiers (R. Yaakov Kermaier says that it does not, but I am not sure why). R. Shlomo Zalman Auerbach (cited by R. Kermaier) also permitted such an exchange because of its impact on soldier morale.

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