Ransoming Captive Jews
An important commandment calls for the redemption of Jewish prisoners, but how far should this mitzvah be taken?
8) Rabbi Shlomo Luria (Poland, 1510-1574) also testifies in his Yam Shel Shlomo (to Gittin 4:6) that the Jews of Togarma (Turkey) in his day redeem captives for far more that they are worth, "since they are willing to overlook the financial burden on the community."
Thus, to summarize, the Mishnah in Gittin says one may not redeem captives for more than their value, and this law was codified by all the standard codes of Jewish law. But in practice, many talmudic Sages and medieval rabbis found ways to circumvent that Mishnah by interpretation or by creating exceptions to the rule.
Since 1971, many rabbis have written responsa or halakhic articles about our current dilemma. Most have ruled that Israel may not exchange hundreds or thousands of terrorists for a few Israeli soldiers. We shall summarize the opinions of Rabbi Shlomo Goren, who was against such exchanges, and of Rabbi Hayyim David Halevi, who justified Israel's actions in 1985 after the fact.
Rabbi Goren [former chief rabbi of the Israel Defense Forces and later of the State of Israel] says that we must learn the law from the Mishnah in Gittin that we do not pay more than their value. It is true that Tosafot in Gittin 58a said that when there is danger to the captive we may indeed pay more than the captive is worth. But Ramban (Spain, 1195-1270) and Rashba (Spain, 1235-1310) disagree. Furthermore, all captivity in ancient times was dangerous (see Bava Batra 8b quoted above), and the Mishnah nonetheless ruled that one does not pay more than the captive's value because this will encourage the kidnappers to kidnap more Jews and endanger the public.
He adds that the safety of one or a few Jews in captivity does not take precedence over the safety of the entire public. In addition, he agrees with the Radbaz, and not R. Yosef Karo, that a person does not have to put himself in possible danger in order to save his fellow Jew from definite danger.
Finally, in our case, freeing hundreds or thousands of terrorists definitely endangers the public because they will all be free to attack Israel and to take more hostages. Therefore, everything Israel did is against the halakhah of the Mishnah and the legal authorities and against the security of the Jewish people in Israel and the Diaspora, says Rabbi Goren.
Rabbi Hayyim David Halevi, who was Chief Rabbi of Tel Aviv, admits that Rabbi Goren's ruling, based on Gittin and on the rulings of leading authorities, is "clear and correct." Nonetheless, he disagrees with Rabbi Goren. All of the sources quoted deal with robbers who kidnap people for money, but we are dealing with a war based on Palestinian nationalism. They will continue to kidnap Jews regardless of what we do, so the price we pay for captives is not a factor and does not increase terror.
In our case, we need halakhic innovation just as R. Yehoshua innovated that one may pay excessive ransom for a Sage and just as Tosafot innovated that the Mishnah doesn't apply after the Destruction. The Radbaz too innovated a lenient approach as we saw above. The Government of Israel decided that if an Israeli soldier sees that the State will not redeem Israeli soldiers for a high price, he or she will prefer retreat to capture. This too can be considered a halakhic innovation. Therefore, Rabbi Halevi does not think that the State of Israel acted against Jewish law in exchanging 1150 terrorists for 3 Israeli soldiers.
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