What is the Jewish ethic for exchanging enemy prisoners for a Jewish prisoner if the probability is increased of more Jews being ultimately or indirectly killed?
Thanks so much for your question. This is perhaps one of the most difficult issues facing the State of Israel and the Jewish community at large. Fortunately, the rabbis have discussed this issue at length and have provided us a good framework for this conversation.
In announcing the release of Gilad Shalit and the coinciding release of over one-thousand Palestinian prisoners, Prime Minister Netanyahu quoted the Talmudic dictum “all Israel is responsible for one another” as part of his reasoning. In fact, this teaching is an important lesson in the obligation of Jews to help, aid and assist one another when able.
Additionally, the Talmud speaks directly to the issue of prisoner release and the payment of ransom. Baba Batra notes that the redemption of captives to be among the highest priorities of the organized Jewish community. However, in Gitin we learn that Jewish communities may not pay extraordinary ransoms in order to avoid the impoverishment of the Jewish community through repeated kidnappings. Rabban Gamliel agrees, but notes that the reason for no excessive payment is to ensure that other captives are not mistreated.
In the medieval period, Maimonides and the Shulhan Aruh also question the value of prisoner release. Although they both agree that there is no greater mitzvah than to free the captive, they also question the risk to public security of payment of ransom and determine that the release of captives cannot put the rest of the public at risk.
Certainly there is no easy answer to this question. The fact that Gilad gave up so many years of his life in captivity should make that fact obvious. But we are also a people who pray each morning for God to free the captive and to uplift the fallen. How can we not be part of that piece of God’s creation by freeing those that we can?
The risk is great. Already there are those in the world who have offered rewards for more captured Israelis. And on the Israeli side there are those who are offering rewards for the deaths of released Palestinian prisoners. But although the risk is tremendous it seems to me that the hope of a better world, and a world made better by the presence of a young man who has given so much for his country, is worth any price.
Jews are taught to always seek peace and to pursue peace. We are the eternally optimistic people who strive to maintain a sense of commitment to our values. Although the rabbis debate this issue vigorously, they miss the one point that I find most compelling. The rabbis teach us to preserve life whenever possible. In this case, I believe that Israel had the opportunity to save Gilad Shalit from a lifetime of captivity. I pray that no other Israelis will die at the hands of the released Palestinian prisoners but that question for me is for tomorrow. For today, here was a young man with infinite potential that could be rescued. For an always hopeful people, I believe it was the only option for us.
May the release of this young man be a blessing for the people of Israel, and may his life be a light to our nation and to other nations who pursue peace.
When addressing an issue as emotionally charged as this, we really have to get at the real concerns and address them individually:
1. The commandment to redeem captives
2. The issue of the danger presented by the prisoners being released
3. The emotional impact on the victims of the activities of the perpetrators
The Torah is very clear about our obligation to redeem captives. Leviticus 19:16 says that one should not stand by the blood of your brother, and all Jews are our brothers. The Babylonian Talmud in the tractate of Sanhedrin 37a tells us that "One who saves a life saves the world entire." The Shulhan Arukh (the code of Jewish law) says in Yoreh Deah 252:1 that redeeming a captive takes precedence over giving charity to poor people.
However, there are two limitations that are applicable to this particular case. First off, we should not pay too high of a price to redeem a captive (Sh"A Y.D. 252:4). The idea is if you pay too much of price, you will simply encourage people to continue kidnapping. The limitation addresses the second issue I mentioned. The Shulhan Arukh (Y.D. 252:5) says we are not to release prisoners ever since this will cause our enemies to honor them and to provide them extra protection.
Of course they may be other considerations as well that we might have to take into consideration, so we should really take a look at the specific case involved. In the case of Gilad Shalit, the party holding him captive was Hamas. Whether or not to engage in such an exchange would have to be in light of their perspective as well. For that, we have to look to their sources: the Quran and Sharia law. There is a dialogue recorded between Ibn Qayyim and a rabbi (Source: Guidance to the Uncertain; In Reply to the Jews and the Nazarenes (6/136-137). In this dialogue, Muhammad poses to the rabbi that he must be the elect of G-d since he has enjoyed so much military success. The understanding of this dialogue by Jihadist groups such as Hamas is that military success is proof that their belief system is true and military failure is a theological problem.
The implication as far as the danger aspect really turns out to be a Catch-22: release the prisoners, and Hamas perceives it as a result of divine favor and encourages such activities, especially because the likelihood is that these people will resume their jihadist activities. Don't release them, and the religious obligation falls on the jihadist group to right this wrong militarily (i.e. step up attacks) or be left with a standing theological difficulty.
Of course we cannot forget about the victims and families of the victims as well. The emotional distress they have received from this whole ordeal is unimaginable, though I am certain the Shalit family has greatly suffered as well. This is also besides the fear people now have about their terrorists free to roam the streets again.
I know that HaRav Ovadia Yosef, the greatest Torah scholar of our generation, took a very active role in the Gilad Shalit case. I am not aware if he actually advocated for the deal or was involved in other ways. I do not know if he actually supported the exchange as I have not seen what he has written about the issue. I don't know one quarter of one percent to debate the issue with him if he actually did support the release, but I have not found anything so far that would indicate that we should have done it.
The Jewish tradition has classically held pidyon sh’vuyim, redeeming captives, to be among the highest of its values. In fact, pidyon sh’vuyim has been understood to be so important that Jews are expected to prioritize redeeming captives over other moral actions like giving to charity. And one who has the opportunity to redeem a captive Jew but does not is considered to have violated several biblical commands (Shulhan Arukh, Yoreh De’ah 252:1-2).
Yet despite the passion the tradition displays for redeeming captives, pidyon sh’vuyim is not always so simple. As my teacher, Rabbi Bradley Shavit Artson, warns, “beware those who assume that religion can obviate reason and make obvious the complicated.” Redeeming captives often calls for a complex discussion about many conflicting values.
The rabbis of the Talmud were not blind to this. In fact, they warned that the Jewish community must not redeem captives for “more than they are worth” for fear that enemies will see capturing Jews as a lucrative activity and be encouraged to do more kidnappings (Babylonian Talmud, Gittin 45a; Maimonides, Laws of Gifts to the Poor, 8:12). Additionally, a Jew is not permitted to knowingly endanger one person’s life, even if it is for the sake of saving the life of another (Babylonian Talmud, Bava Metzi’a 62a); thus, one is forbidden to redeem a captive if doing so would put his own life or another person’s life in danger.
Of course, it is necessary to point out that these exceptions to the general rule are not without their own ambiguities. For instance, none of the Jewish legal literature gives a precise definition of how to determine the “worth” of captives. Thank God, it is not as if there is a large market (or a Kelley’s Blue Book) for kidnapped Jews that can give one a sense of the “fair” price. In the recent case of kidnapped Israeli soldier Gilad Shalit, for example, how would one go about determining whether the release of over 1,000 Palestinian prisoners was too high a price?
Additionally, the Jewish legal tradition offers many ways to bypass the rule of not paying excessive amounts for Jewish captives. For example, if the captive is a promising student of Torah, or if the captive has the capacity to become an important figure in the Jewish community, he or she can be redeemed for more than what would be considered normal (Shulhan Arukh Yoreh De’ah 252:4). And several important authorities (including the 17th Century Polish luminary Rabbi Joel Sirkes, commonly known as the “BaKh”), disagree altogether with the directive against redeeming captives for excessive amounts (Siftei Kohen Yoreh De’ah 252:4).
Finally, the issue of endangering others in the service of redeeming captives is very complicated in the context of a protracted conflict with a particular enemy – as was the case with Shalit. To be sure, it was frightening to hear some of the Palestinian prisoners released as part of that exchange call for more attacks against innocent Israeli civilians, especially since many of them have participated in those attacks in the past. On the other hand, the lives of Israeli civilians are under constant threat as it is; it is difficult to know with certainty whether the release of those particular prisoners make Israeli civilians less safe than they were before the exchange. And all this must be weighed against the backdrop of the clear and present danger to the life of the captive; and Jews must go to (almost) any length to save a life (Maimonides, Laws of Shabbat 2:16).
This consideration, by the way, is not separate from the questions about the costs of redeeming captives. Again, following the Shalit deal, it was terrifying to hear some Palestinians call for more kidnappings as a means of obtaining the freedom of thousands of other Palestinians or as a means of securing concessions in future peace negotiations. But how much of that talk is cause for legitimate concern and how much is mere inflammatory rhetoric? Once again, it is hard to know whether those Palestinians who oppose the State of Israel would have avoided kidnapping Israelis in the future if capturing Shalit turned out not to be as lucrative as they had hoped. The evidence suggests that so long as the conflict between the Israelis and Palestinians remains unresolved, Palestinians opposed to Israel need no additional motivation to kidnap or otherwise harm Israelis.
In short, there is not one “Jewish ethic” at play in cases like these, but a difficult conversation between several Jewish ethical ideals, human compassion, and a complicated, often unpredictable, reality on the ground. Let us hope that the day is soon at hand when we no longer have to worry about making such decisions, and let us do everything we can to expedite that day.
I wish first to commend the outstanding responses of my colleagues above; and to observe that many have written eloquently about Gilad Shalit’s recent return in a manner directly responsive to this question. See, for example, Rabbi Jason Miller's recent column.
Perhaps the most fundamental response I can offer is that given by Rabbi Joseph Potasnik in a drasha (teaching) he shared with the New York Board of Rabbis on the occasion of Shalit’s return last month: “Sometimes in life, the answer to a complex question may be ‘I don’t know.’”
Rabbi Potasnik goes on to discuss the tension between the heart and the spine, emotion vs. reason and strength, in such matters. Our tradition can be interpreted either way. How can any human judge ever be equal to the task of setting a value on one life over another, or others? And yet, we are forced into such terrible decisions all too often.
I can’t help thinking of the extremely current debate raging in Mississippi, where I live, over Initiative 26, the “personhood” amendment. If this dangerous initiative passes, our state constitution will grant the same legal status to all life from the moment of fertilization. Regardless of how you feel about abortion or what you think about this amendment, it clearly flies in the face of Jewish teaching, which does value people differently depending on age, gender, profession, etc.
Notwithstanding we might not personally accept all of these as legitimate criteria for the value of a life, the principle remains, in the question before us today as in the question of reproductive choice: sometimes it is a forced choice. We are then permitted—no, obligated—to value some lives differently than others. Jewish tradition also grants us a lot of extra-legal latitude when making one of these really tough moral decisions, as others have shown.
Most of the time in such cases, I think the only truly appropriate response the rest of us can make to someone else’s decision is, “thank God I’m not the one who had to make that choice.”
In this case, I echo what Rabbi Greene has to say about the possibility (or even probability) of future Jewish deaths due to the redemption of one Jewish prisoner: that is a question for tomorrow. Today we chose to save a life.
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