The Case for Israel’s Prisoner Exchanges
A Column from “A Modern Orthodox Life.”
by Emanuel Rackman
Is Israel acting wisely when it releases hundreds of enemies murderers, terrorists and saboteurs in exchange for a few of her own soldiers, dead or alive? Furthermore, should Israel not restore the death penalty for those whose release may one day be sought by her enemies? Does she not encourage continuing extortion by keeping alive those for whom the extortion is effected?
I know that millions of Jews are wrestling with these questions and perhaps millions of non-Jews as well. Alas, there are no black-and-white answers, only gray ones. But the legal literature of Judaism speaks to us on these issues, as it does with respect to almost everything else.
First, it should be made known that the mitzvah to redeem those of our brethren who have been taken captive is one of the greatest. The Talmud (Bava Basra 8b) so states, and Maimonides expands upon it and adds that “there is no mitzvah that is more important.” A captive is in constant danger, and everything must be done to set him free. (Ramban Hilchot Matnot Ani m 8; 10) Yet at what price?
A thousand years before Maimonides, Jewish authorities ruled that the ransom paid must not exceed the price that would be paid for the captive were he to be sold as a slave. If this limitation were not imposed, those who take Jews as hostages would invariably bankrupt the Jewish community. They would fix ransoms that had no connection with the worth of the captive to anyone other than Jews, and Jews would give all they had to save a coreligionist.
The question was raised whether individual Jews, as distinguished from communities, could pay more than the economic value of the captive. The answer was that they could not. The only exceptions were husbands who were legally obligated by their marriage contracts to redeem their spouses if kidnapped.
Nonetheless, the limitations were not universally respected. The Talmud tells of one rabbi who ignored it to redeem a child whose ultimate promise as a leader in Israel impressed him enormously. (Gittin 58a) Yet one famous rabbi in the Middle Ages refused to let the Jewish community pay the ransom for his release and he died in captivity. (Maharam of Rothenburg) He knew that if he acted otherwise, Christian brigands would repeat the practice again and again kidnap the rabbi and extort from Jews massive sums to obtain his release.
Yet even this precedent did not deter Jews from overpaying for individuals taken captive. It was not easy to justify this breach of Jewish law. In one instance the rabbi expounded the law but said that in that case the Jews should pay more than the hostage was worth. The reason was not that the hostage was so dear to the Jewish community; he was a villain. In the hands of his captors, however, he would convert to Islam and be a source of greater trouble to Jews than if he were restored to his people where he could be watched more readily.
In the 16th century, another rabbi did not seek a pretext for his breach of Jewish law and he permitted the payment of a ransom in excess of what the law allowed. Jews were simply too kind to permit a coreligionist to languish in the hands of captors. Thus, the Jewish heart prevailed over Jewish law. Can this also be said of the behavior of Israel’ s government in her negotiations with her Arab enemies?
And what about Jewish law and the resort to capital punishment for terrorists to prevent their release by extortions? It is well known that despite the general disapproval of capital punishment in Jewish law, its use in the case of terrorists is not only permitted but highly recommended in Jewish sources.
In the Middle Ages, Jews permitted the execution of fellow Jews who were informers on the theory that they presented a constant danger to their people; they were from a legal point of view rodfim pursuers and one may kill a pursuer in self-defense. Certainly terrorists are in that category. They are always a threat to humanity. Yet here too Israel is not applying the death penalty, though Jewish law would be very permissive with respect to it. Popular opinion does not support the government on this issue.
But the government is not changing its position.
First, it argues that terrorists especially are not deterred from committing their nefarious deeds by the threat of capital punishment. Second, Israel is too much a respecter of the sanctity of human life to change its time-honored aversion to the death-penalty. Third, the enemy would retaliate and kill Jewish prisoners of war, in violation of international law. And fourth, Israel wants to be able to negotiate for exchanges, even though Israel pays exorbitantly for it. She still wants to have something to exchange, and for that purpose live enemies are better than dead ones.
I can readily appreciate the ambivalence of so many Jews with respect to the issues. Yet for me the most compelling consideration in justifying the two breaches of Jewish law I have described is Israel’ s obligation to her soldiers.
Israeli soldiers are assured that there is no price so high that Jews will not pay it to redeem them if they are taken prisoner. This is an important factor for the morale of the Fighting man. If he is killed, even his remains will be brought home for burial. And if he is captured no stone will be unturned to achieve his freedom. This obligation the government must fulfill. And this obligation, from the point of view of Jewish law, is more to be respected than the legal limit on the price paid to redeem captives or the propriety of capital punishment for terrorists.
The decision is not an easy one. But important moral decisions rarely are.