September 2006
Hostages and Halacha - Rabbi Kermaier Rabbi Kermaier introduced the topic of Hostages and Halacha by noting Prime Minister Olmert's statement that the State of Israel would not negotiate for release of its captured soldiers but adding that the history of the State is equivocal. In May 1985, the State released 1,150 prisoners in return for three soldiers captured in Lebanon. In November 2003, it released 400 prisoners in return for the remains of three soldiers plus the release of the businessman Elchanan Tannenbaum. While all agree on the ideal of bringing captive soldiers home, when is the price too high?
Priority of Pidyon Shevuyim in the Shulchan Aruch The Shulchan Aruch teaches that redemption of captives takes precedence over all other charitable causes. One may even divert funds raised for another charitable purpose - e.g., if money had been raised to build a synagogue, one may go so far as to sell the building materials already purchased and dedicated to that purpose - in order to fulfill this mitzvah. Elsewhere, the Shulchan Aruch remarks that every delay in redeeming captives when it would be possible to do so is akin to murder. Value and the Seeming Conflict Between the Mishna and the Gemara There is an important qualification, however. The Mishna in Gittin says that one may not pay ransom above the value of the hostage, and that this rule was enacted for the benefit of society. How is "value" calculated? The majority of Rishonim looked to value on the slave market, while others looked to the going rate in the hostage market. The Gemara (Gittin 45a) asked whether the benefit to society discussed in the Mishna was reduction of the burden on the community or deterrence of future kidnapping. The distinction makes a difference, for instance in cases where the hostage has rich parents and the payment of exorbitant ransom will not burden the community. Another Gemara (Gittin 58a) tells the story of R. Yehoshua ben Chananiah, who was told that a Jewish boy had been imprisoned in Rome. He went to the prison and cited a pasuk asking who has given Jacob over for spoil. The boy, answering from the prison, said that God had. R. Yehoshua said he was convinced the boy would become a great rabbinic leader, and he would not leave the spot until he had redeemed him. Eventually, he did so, at great expense. Tosafot tries to understand the story of R. Yehoshua, which seems to contradict the Mishna. Two answers are offered: (1) The Mishna's ceiling on ransom to the value of the hostage is limited to cases where the hostage's life is not in danger. Here, the boy's life was in danger. (2) Since R. Yehoshua identified the boy as a future gadol, he may be redeemed at any price. Two Famous Cases Presenting the Problem Rabbi Kermaier then discussed the lessons of two famous hostage incidents involving gedolim. In 1286, the Maharam of Rothenburg was captured by the Duke of Lombardy. The Jewish community collected a great deal of money to ransom him. The Maharam sent word from prison ordering that the money be returned to the donors and remained in confinement for the seven remaining years of his life. Indeed, his body was not released until more than a decade after his death, when a wealthy individual ransomed the Maharam's remains on condition that they be buried in adjoining plots. This case is cited in contradiction to the second answer in Tosafot. The Maharshal reconciles the cases by saying that the case justified paying the heavy ransom, but the Maharam was stricter on himself than he had to be. (The story is recounted at http://en.wikipedia.org/wiki/Meir_of_Rothenburg.) The second famous hostage incident is more recent. In 1970, Rav Yitzchok Hutner (http://en.wikipedia.org/wiki/Yitzchak_Hutner) of Chaim Berlin was on a plane hijacked to Jordan. The terrorists did not realize whom they had captured. A number of rabbis and wealthy individuals teamed up to raise a ransom. Rav Yaakov Kaminetsky of Torah Vodaas ruled that the money should not be raised. He said that the principle of Tosafot applies in times of peace, but not in Israel's state of constant war, because paying ransom would strengthen the enemy's hand. (In the end, Rav Hutner was released.) Self-Redemption For purposes of halacha, the Shulchan Aruch (Yorah Deah 252:4) cites the Mishna and says that the benefit to society is to discourage hostage-taking, the second reason cited by the Gemara. There is a major proviso: one may redeem himself at any price. This is based on a Gemara in Ketubot, which says that if a man's wife is captured, he must pay ten times the ketubah to redeem her. Tosafot explain that the ordinary limitations do not apply because his wife is deemed as one unit with him, and one may redeem himself at any price. The Shulchan Aruch adds that a talmid chacham or a budding talmid chacham may be redeemed for great sums. Notably, the Shulchan Aruch does not record Tosafot's leniency for cases in which the hostage's life is endangered. Neither does the Rambam, and neither do most poskim, on the theory that to do so would be to have the exception swallow the rule, since most hostages are at risk. Contemporary Prisoner Exchanges in Israel Against this background, what of disproportionate prisoner exchanges in the contemporary State of Israel? Rav Shlomo Goren said such exchanges violated the Mishna. Other authorities, such as Rav Shaul Yisraeli, disagreed. He said that no price was too high. He reasoned that one may buy an insurance policy that a large ransom be paid if he is held hostage. The insurance company may pay the ransom, because it is acting as the agent of the insured, who, as noted, is allowed to redeem himself at any price. Rav Yisraeli viewed the State's obligation in this light. He posited an unwritten agreement between the State and soldiers that the State will use all reasonably available power to redeem captured soldiers, just as it would, say, pay disability for injured soldiers. The State accepted this obligation in return for service in the IDF, and thus the prisoner exchange is tantamount to the captive redeeming himself. Prisoner exchanges pose the risk of releasing terrorists who themselves pose a danger to society. After the Entebbe operation, Rav Ovadiah Yosef ruled that it would have been acceptable to release prisoners in exchange for the hostages, because the released prisoners posed a potential threat to life, while the hostages faced an actual threat to life. Rav Yisraeli's "unwritten agreement" rationale does not seem to apply to a trade for the bodies of decease soldiers, or for the release of a non-combatant like Tannenbaum. In addition, a trade for bodies of soldiers does not find justification in R. Ovadiah Yosef's argument of potential v. actual threat. Thus, Rav Yaakov Ariel, Chief Rabbi of Ramat Gan, ruled that one should not trade prisoners for bodies. Rav Shlomo Zalman Auerbach, z'l, however, permitted such a trade, because of the importance of maintaining IDF morale. Risks Taken to Free Captives What sort of risks may be taken to free captives? The issue was triggered by the recent war in Lebanon (and Gaza), as well as by the Entebbe raid. After Entebbe, Rav Shach said the risk was not appropriate, because one should not put soldiers in harm's way in order to save others. Rav Chaim Shmulevitz had a different view. He was reluctant to accept mazal tov wishes on the birth of his grandson, because he was celebrating the freeing of the Entebbe captives. Rav Ovadiah Yosef said that the Entebbe raid was justified in the manner that a raid on a border town justifies a military response, even on Shabbat. But for a vigorous response, the capture of the hostages (or border town) would be a stepping stone to further attacks. * * *
Rabbi Kermaier concluded by noting that our analytical discussion should not lose sight of the anguish of families of captured soldiers and by offering a tefillah for the release of the current hostages.
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