Bringing Gilad Home: Halakhic Perspectives
The saga of Gilad Shalit’s capture, captivity, and release has captivated the Jewish people for over five years. In the week between the announcement of a prisoner-swap deal and Gilad’s eventual release, Israel was submerged in an intense and emotionally charged public debate about the positives and negatives of the exchange. In this essay, I would like to survey some of the particular factors and broader perspectives that posekim over the years have raised and discussed when weighing in on such issues.
In a letter that was publicized just two days prior to the prisoner exchange,1 R. Dov Lior, the rabbi of Kiryat Arba and Hevron, expressed his reservations with the deal. He contended that it would violate two very straightforward halakhot – one found in the laws regulating the ransoming of captives and a second concerning preservation of life. Let us analyze each claim separately.
The first issue begins with the commandment of pidyon shevuyim (redeeming captives) and its relatively high standing in the hierarchy of the halakhic totem pole. The Gemara relates that a noblewoman once donated money to the Jewish community, but earmarked it for an “important religious precept.”2,3 After deliberating for some time, R. Yosef decided to use the money to redeem captives. The Gemara explains that while, generally, even one who is enduring a difficult time is beset by but a single form of suffering such as hunger or sickness, the plight of a captive “includes the sufferings of all.” Additional evidence for the importance of redeeming captives emerges from Tosafot, who assert that, while it is normally prohibited for a community to sell a sefer Torah to raise money for any cause, the ransoming of captives is an exception.4 In fact, Rambam counts no fewer than seven mitsvot that are violated by not redeeming captives.5
However, the Mishnah in Gittin records that a later Rabbinic enactment prohibited the ransoming of captives “for more than their value,” in order to preserve “the good order of the world.”6 The Gemara raises two possibilities as to the nature of this communal benefit: either to not impoverish the community for the sake of an individual, or to not encourage future kidnappings. Rashi notes that a practical difference would emerge between these two suggestions in the event that the captive has a wealthy relative or friend who is willing and able to bear the financial burden.7 While the impoverishment of the community is avoided, the captors will walk away with their aims achieved and will therefore be motivated to continue their dastardly deeds. It is interesting to note that despite the Gemara’s lack of resolution, both Rambam8 and Shulhan Arukh9 quote the second reason and therefore prohibit even individuals from volunteering the entire ransom fee.
In regard to the current prisoner exchange, R. Lior argued that the ratio of a single Israeli soldier to 1,027 Palestinian prisoners seems to be quite clearly “more than their value.”10 Therefore, implementing the prisoner exchange would constitute an unequivocal violation of the Mishnah.
However, a variety of theories developed by halakhic authorities identify factors present in the contemporary form of prisoner exchanges that might allow a circumvention of the Mishnah’s rule.
One method, developed by R. Sha’ul Yisra’eli,11 a Religious Zionist halakhic authority of the last generation, makes use of an exceptional circumstance already mentioned in Shulhan Arukh. While both the community and a separate individual person are prohibited from succumbing to extortion, if the captive himself has the financial means to pay his own ransom, he is allowed to redeem himself. R. Yisra’eli argued that a similar allowance is applicable in regard to a country. However, as opposed to an individual person, for whom the definition of “oneself” is quite limited, the entity of the country is defined as anyone who is currently in its service.12 Therefore, anyone who is taken captive while being employed by the government, such as a soldier, is outside the purview of the rabbinic enactment against submitting to extortion.
A different approach was taken by R. Ovadiah Yosef.13 He noted that, despite there being no mention of this in Shulhan Arukh, there exists a group of Rishonim and Aharonim that limit the Mishnah’s ruling to scenarios in which there is no danger to the captive’s life. They therefore conclude that when the captors are known murderers and pose a threat to the captive’s life, he can be redeemed even for an exorbitant sum. After concluding that this is indeed the majority view, R. Ovadiah ruled accordingly, thereby neutralizing the Mishnah in the case of captives of terrorists.14
However, even if the Mishnah’s rabbinic enactment is to be sidestepped, R. Lior called attention to a still more basic and fundamental issue. The release of seasoned murderers and incorrigible terrorists who have unabashedly vowed to return to terror upon their release puts the entire community at risk. Unfortunately, in the past, innocent lives were taken by released terrorists – why should the blood of a single Israeli soldier be considered “redder” than the blood of those potential future victims?15
Regarding this issue, as well, many different approaches were developed. R. Ovadiah Yosef argued that in conflicts between the alleviation of an immediate threat to a single person on the one hand and avoidance of future potential danger to even more people on the other, the Halakhah gives more weight to the immediate danger.16 As a model for the relative disregard of future danger, he quotes the responsum of R. Yehezkel Landau that disallows autopsies that will aid medical researchers in finding a cure for a fatal sickness if there is no person diagnosed with that condition “in front of us.”17
Up until this juncture we have analyzed our scenario from the vantage point of an ordinary halakhic issue; namely, by looking for paradigms in the Gemara and Shulhan Arukh, and testing how similar or different they are from the case at hand. However, there is another school of thought among the posekim that sees such discussions as irrelevant and as obscuring what should be the major point of focus.
Minhat Hinnukh noted an internal conflict in the halakhic system between the generally paramount importance of the preservation of one life and the command to wage obligatory wars when perforce soldier’s lives are at danger.18 He tersely concludes that, in the context of war, the regular prohibition against endangering one’s life is waived, but does not elaborate or clarify this important but cryptic contention. One way of formulating war’s uniqueness can be gleaned from a responsum of R. A.Y. Kook, which states that, when dealing with communal issues like war, the entity upon which we focus is not the individual, but the community as a whole.19 Therefore, whatever is best for the community is what carries the day, even if individuals might find themselves in situations that would otherwise be prohibited.
A responsum of R. Eliezer Waldenberg illustrates this notion in a very vivid fashion: Imagine that, during a battle, an Israeli soldier is wounded on the field between the two fighting armies, while his comrades remain in a safe location.20 If this wounded soldier is to remain untreated, exposed and defenseless, he will almost certainly die from his wounds or enemy fire. Are the other soldiers obligated to expose themselves and put themselves at increased risk in order to save their wounded comrade? R. Waldenberg begins to address this terrible dilemma by outlining the halakhic parameters of putting oneself into a dangerous situation to save someone currently in a high level of danger. He concludes, based on these rules, that the soldiers are not obligated and might even be prohibited from risking their lives to save their comrade. However, at this point of his analysis he changes the tone of the argument. He notes that, in a wartime situation, R. Kook’s assertion that the needs of the community eclipse the needs of the individual comes to the fore, and we must therefore ask what is better for the army as a whole. If the army will be more efficient in its task of defending the people if each solder knows that, no matter what happens, he will not be abandoned in battle, then a rescue operation must be attempted.
Under the assumption that the kidnapping of Gilad Shalit was part of an ongoing war with Hamas and not an isolated event, the same rules should apply in this situation. Instead of determining whether or not the current prisoner exchange is under the rubric of the prohibition against ransoming prisoners by capitulating to extortion and the like, this approach demonstrates that the more fundamental issue is whether the deal will help or hurt the State of Israel in its war against Hamas. In this regard, the Halakhah would consider the same factors as a national security advisor.
Even with this reframed question, posekim, like security experts, have been split on this issue. In a similar vein to R. Waldenberg’s ruling on the issue of rescue operations, some look to the morale of the army as matter of utmost importance. One proponent of this view is R. She’ar Yashuv Cohen, the Chief Rabbi of Haifa who was taken captive by the Jordanian army in 1948 while defending the Old City of Jerusalem.21 He argues that, though at the end of the day it is up to security experts to determine what is best for the country, in his mind, the increase in the morale of the soldiers who know that their comrades and country will not abandon them should be a major factor.
The flipside is just as intuitive. In 1970, R. Yitzchok Hutner was on an airplane hijacked by Black September terrorists and held hostage. A movement arose amongst American Jews to enter separate negotiations with the terrorists in order to ransom R. Hutner at all costs, as it is permitted for Jews to redeem a great Torah leader at all costs.22 At the time, R. Yaakov Kaminetsky opposed these efforts and argued that “the mitzvah of ransoming captives only applies in peacetime, but surely not during hostilities, when the delivery of ransom money to the enemy would strengthen their position.”23 Certainly, the same argument can be applied to freeing terrorist prisoners.
In addition to the sphere of regular halakhic categories and the communal security sphere that we enter when dealing with war, some have argued that the State of Israel must approach this issue from a third and even broader perspective. In an article dealing with prisoner exchanges, R. Yehudah Gershuni, a student of R. Kook and a prolific writer in halakhic issues of the modern Jewish State, professed an admittedly original idea: Just as the Minhat Hinnukh argued that war trumps the usual concern for the preservation of human life, so too “to uphold law and justice, there is an obligation on each individual from the community to give up his life.”24 As a precedent, he pointed to the civil war between the tribe of Binyamin and the rest of Israel,25 which R. Yaakov Emden had justified by asserting that each side “thought that justice was with them.”26 R. Gershuni argued that “keeping the law is from the very essence of the existence of a country,” and that upholding the legal system can be equated with soldiers fighting for the country’s physical security. Therefore, he concluded, freeing murderous terrorists who have been sentenced by the legal system to life imprisonment is itself considered endangering the state – a force that eclipses all other opposing factors, including the life of the captive.
Others have argued, also on the basis of the unique perspective of the State of Israel, that succumbing to terrorists’ demands is a violation of the most central halakhic principle: kiddush ha-Shem. Because of Am Yisrael’s status as God’s chosen nation and its unique relationship with Him, R. Lior27 and R. Yisra’eli28 view Israel’s position vis-à-vis its enemies as a reflection of the standing of God in the world. Therefore, capitulation to the demands of terrorists, which lowers the stature of Am Yisrael, constitutes a desecration of God’s name. We are obligated to avoid such a situation at all costs.
It is very enlightening to compare the factors raised by various poskim to those that were mentioned by government officials and in the Israeli public discussion. In Prime Minister Netanyahu’s emotional speech following his embrace with Gilad Shalit, he eloquently expressed the difficulty of his decision and the factors that led him to ultimately sign off on the deal:
It entailed a very difficult decision. I saw the need to return home someone whom the State of Israel had sent to the battlefield. As an IDF soldier and commander, I went out on dangerous missions many times. But I always knew that if I or one of my comrades fell captive, the Government of Israel would do its utmost to return us home, and as Prime Minister, I have now carried this out.29
In this remark, the factor that Netanyahu raised seems parallel that of R. Yisra’eli; namely, that the government and its soldiers are entangled into a single entity. However, as the prime minister’s speech continued, this notion of the government’s responsibility for its soldiers was expanded to a more general point. It illustrated an emotion apparently viscerally felt by the 80% of the Israeli public who supported the lopsided exchange – mutual responsibility stemming from a sense of unity and brotherhood. In a heartening and enlightening article from Ynetnews, Gili Gurel noted the difficulty that foreign media had in trying to explain Israel’s sense of solidarity that motivated its support for the exchange.30 Ethan Bronner conveyed this solidarity in The New York Times by explaining, “the notion of the stranger is remote.”31
At the end of the day, after the halakhic evidence is scrutinized, weighed, and discussed, perhaps the most powerful and inspiring lesson is the one taught to us by the masses of Am Yisrael – that after all of the rifts and divisions of which we are all too painfully aware, in our heart of hearts we are all brothers. To conclude, I will simply quote the eloquent closing of the prime minister’s address:
Citizens of Israel, in recent days, we have all seen national unity such as we have not seen in a long time. Unity is the source of Israel’s strength, now and in the future. Today, we all rejoice in Gilad Shalit’s return home to our free country, the State of Israel. Tomorrow evening, we will celebrate Simchat Torah. This coming Sabbath, we will read in synagogues, as the weekly portion from the prophets, the words of the prophet Isaiah (42:7): ‘To bring out the prisoners from the dungeon, and them that sit in darkness out of the prison-house.’ Today, I can say, on behalf of all Israelis, in the spirit of the eternal values of the Jewish People: “Your children shall return to their own border [Jeremiah 31:17].” Am Yisrael Chai! [The People of Israel live!]
Yosef Bronstein is a member of the Bella and Harry Wexner Kollel Elyon of RIETS, and is an alumnus of YC.
1 Text of letter available online through Lada’at (The First Haredi Portal), October 16, 2011, at www.ladaat.net.
2 Bava Batra 8a.
3 Translation from Soncino Babylonian Talmud, available at www.halakhah.com.
4 Tosafot ad loc., s.v. “Pidyon shevuyim.”
5 Mattenot Aniyyim 8:10.
7 Ad loc., s.v. “O dilma.”
8 Ibid. 8:12.
9 Yoreh De’ah 252:4.
10 In regard to the means determining the “value” of the prisoners, Pithei Teshuvah, Yoreh De’ah 252:5 quotes a dispute over whether it follows the slave market value, or what is common in the general world for prisoner exchanges.
11 Havot Binyamin 16, p. 123. However, despite his neutralization of the Mishnah, R. Yisra’eli is against negotiating with terrorists for other reasons. See Ibid. 17.
12 See Rema, Yoreh De’ah 252:4 regarding whether one’s spouse is included in this exception.
13 Torah she-be-al Peh 19, p. 30-37.
14 It is important to note that R. Ovadiah was writing in the context of Entebbe in 1976, when a death sentence hung over the heads of the captives.
15 Cf. Sanhedrin 74a
16 R. Yosef, Ibid. 9-30.
17 Teshuvot Noda be-Yehudah Tinyana, helek Yoreh De’ah, 210.
18 Mitsvah 425.
19 Mishpat Kohen 143.
20 Tsits Eliezer 13:100.
21 Recording of remarks available online through Arutz Me’ir, November 10, 2009, at www.meirtv.co.il.
22 Shulhan Arukh, Yoreh De’ah 252:4.
23 Quote from R. Hershel Schachter, Journal of Halacha and Contemporary Society 16, p. 74. In addition, see R. Alfred Cohen, “Ransom or Exchange of Prisoners,” Ibid. 46, p. 72, who quotes both R. Yaakov Kaminetsky and the above ruling of R. Waldenberg in the context of prisoner exchanges.
24 Ha-Darom 33, p. 33-35.
25 Shofetim 19-21.
26 Ha-Darom, Ibid.
27 See note i above.
28 See note xii above.
29 Translated transcript available online in the English webpage of the Prime Minister’s Office, October 18, 2011, at www.pmo.gov.il/PMOEng.
30 Gili Gurel, “The Shalit deal through foreign eyes,” Ynet News Online Edition, October 18, 2011.
31 “A Yearning for Solidarity Tangles Public Life,” The New York Times Online Edition, October 15, 2011, available at www.nytimes.com.