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The Price of Prisoner Exchanges

It is a great mitzvah to redeem captives, and it takes precedence over all other forms of charity * It is forbidden to pay an excessive price for redeeming captives * There is a disagreement amongst halachic authorities when the kidnappers threaten to kill the victim * When it comes to war with the enemies of Israel, it is forbidden to capitulate to any extortion on their part * One should not pay more for the release of a captive than the agreed upon rate, which is one person in exchange for another * Great efforts must be made to release all captives, but it is forbidden to do so at the cost of endangering the lives of thousands of soldiers and civilians 

A difficult question faces the State of Israel – how to release the approximately 240 captives held by Hamas. Should an agreement be reached to release them in exchange for many terrorists and a ceasefire? Let us clarify this issue from the Jewish sources.

Redeeming Captives

Our Sages have taught that the redemption of captives is a great mitzvah for which a person should donate charity, placing it at the top of the list of worthwhile causes because the captive suffers greatly from hunger, medical problems, psychological trauma, and often subhuman conditions whereby his life is often in danger (Baba Batra 8B) Therefore, it is not proper to spare means in rescuing captives (Rambam, and Shulchan Aruch, Yoreh Deah 252:1).

Nonetheless, Chazal postulated the halakha that it is forbidden to pay an over exorbitant amount for pidyon shivuim (redeeming hostages), as is stated in the Mishna: “They must not ransom captives for more than their value, for the sake of the public wellbeing” (Gittin 45A). The main reason given for this enactment, in both the Gemara and the Rambam, is to not create an incentive for highwaymen and kidnappers to seize more and more Jewish prisoners, since they know that we are willing to pay any price to set them free. The Talmud mentions another explanation for this enactment – not to pressure the public to donate funds beyond their capability. However, most of the Rishonim, including the Rif, Rosh, Rambam, and the Tur, say the principle reason is not to encourage our enemies to kidnap more Jews, and this is the ruling in the Shulchan Aruch (Yoreh Deah 252:4).

The Act of Rabbi Meir from Rothenburg

An example is told about Rabbi Meir from Rothenberg (1215-1293), one of the eminent Torah scholars of his time, who was taken hostage by the evil emperor, Rudolph and placed in Ensisheim Prison in Alsace. Rudolph requested a staggering amount of money for his release. The Rabbi’s many students wanted to raise the funds in order to secure his release, since according to the halakha, in a case where a Gadol HaDor (leader of the generation) is taken captive, there is no limit to the amount that must be paid to set him free. Nevertheless, Rabbi Meir (known as the Maharam M’Rothenburg) instructed them not to agree to the emperor’s demand, believing that if they handed over an enormous amount for his release, the enemies of the Jews would kidnap more rabbis and demand extravagant sums for their freedom. Thus, the Maharam M’Rothenburg sat in prison for seven years until the day of his death. Because of his greatness of soul and self-sacrifice for the welfare of Clal Yisrael, he prevented the capture of other leading rabbis, and the economic collapse which could have shattered many congregations. 

When the Kidnappers Threaten to Kill the Victim

Until now, we have dealt with a captive who is not in danger of being killed. What is the law in a case where kidnappers threaten to kill the hostage?

There are poskim who say that the prohibition against paying exorbitant sums applies in normal situations when the life of the hostage is not immediately at stake. However, in a case of pikuach nefesh when life is threatened, since all of the commandments in the Torah are broken to save a life, the enactment of the Rabbis not to pay overly excessive sums of money in order to free a hostage is certainly not heeded, and everything must be done to redeem him.

In opposition, many poskim, including the Ramban, state that even in a case where the kidnappers threaten to kill the hostage, it is forbidden to pay an exorbitant amount. The reason is that conceding to the kidnappers will only increase their incentive to kidnap other Jews and threaten their lives. Thus, out of concern for the overall welfare of the public, and because of the life-threatening danger to future captives, it is forbidden to surrender to the kidnapper’s threats and demands.

In practice, this question was not definitely decided, and the leading halachic authorities amongst the Achronim were also divided on the issue (Pitchei T’shuva, Yoreh Deah 252:4).

When Dealing With Bitter Enemies of Israel

Until now we have dealt with kidnappers whose motive was monetary gain; but what is the law when the kidnappers are bitter enemies of Israel, and they are only willing to release the captives in exchange for freeing numerous terrorists?

A: We previously saw that in a case where a hostage’s life is in immediate danger, the authorities were divided on whether or not to give in to their demands. Some say it is proper to redeem him, even at a price greater than his worth because his life is threatened, while others say it is forbidden, out of general concern for the wellbeing of the public.

These opinions are applicable when the kidnappers are normal criminals seeking monetary gain. But in a case of ongoing war between Israel and terrorist enemies, it is forbidden to give in to any coercion on their part, for it is clear that if we were to concede, our enemies would view this as a sign of weakness, raising their morale and increasing their incentive to strike at us further. And we have learned that every time terrorists have succeeded in getting their way, this has motivated others to join them in their war against Israel. Additionally, if we give in, terrorists will not worry about getting caught, trusting that if they are apprehended and put in Israeli prisons, they will be soon freed in the next prisoner exchange. Also, it is a proven fact that a percentage of the freed terrorists will return to carrying out attacks against Jews. Therefore, despite the pain of the matter, we are not to give in to coercion and pay an excessive price for the hostage, above and beyond the customary payment demanded in kidnappings, meaning a one-man-for-one-man exchange.

The general rule is that during a war we do not give in to any demand from the enemy, and if they take even one Jew hostage, we go to war to free him. It is written in the Torah:  “And when the Kenaanite, the king of Arad, who dwelt in the Negev, heard that Israel came by the way of Atarim, then he fought against Israel and took some of them prisoners” (Bamidbar, 21:1). Rashi cites Chazal who explain that only one handmaid was captured from Israel. The Jews didn’t enter into negotiations to rescue her – rather they went to war. This is also what King David did when Amalek invaded Zeklag and took the women captive – he went to war to rescue the captives without bothering to negotiate first (Shmuel 1, 30.) Even if the enemy came to only steal straw and hay, we wage war against them, because if we give in to them on a small thing, they will continue to fight against us with even greater resolve (Eruvin 45A).

All of this concerns terrorists and enemies who are perpetually at war against us. However, if the war has ended, it is permissible to exchange all the enemy prisoners in our hands for the Jews whom they have taken captive, even if the prisoners we set free substantially outnumber the Jews who are released. This is because exchanges of this sort are customary when cease fires are formulated and all prisoners are set free. This is not considered paying more than the captives are worth on a prisoner-for-prisoner basis.

Halachic Authorities Who Hold There Is No Prohibition

However, there have been rabbis who have raised arguments permitting releasing many terrorists in exchange for a single soldier. Rabbi Shaul Yisraeli wrote that it is permissible to exchange many enemy prisoners for our captives, according to the rule that a man can pay an excessive sum of his own money to redeem himself. He reasons that any soldier who enlisted in Tzahal did so under the assumption that if he were captured, the army would redeem him at any price. Thus, it is the army who acts on his behalf in deciding the terms of his release. However, he also permitted endangering soldiers in order to avoid releasing numerous terrorists, in order to prevent Israeli capitulation, and humiliation of her honor. Rabbi Ortner permitted this because there is no certainty that the released terrorists will continue their terror (Techumin vol. 13).

Rabbi Goren, in “Torat HaMedinah,” pgs.424-436, agrees that it is forbidden to surrender to the coercion of terrorists. However, regarding soldiers who were taken captive while carrying out their military duties, he wrote that it stood to reason that the State of Israel had an absolute obligation to redeem the captives at any price, without considering the damage it might cause to the security and welfare of the country. However, since this posed a danger to the State of Israel, he further stated that the State was obligated to impose the death penalty against terrorists, for without this deterrence, terrorists will continue murdering, since they would be confident that if they are captured, they will be freed in a future prisoner exchange.

Reality Has Disproven Their Reasoning

Over 20 years ago I wrote about this topic, and returned to write about it several times before the Gilad Shalit prisoner exchange deal. And each time there were readers who asked how I could have written so decisively that it is forbidden to redeem a soldier for more than one prisoner, when there are rabbis who agreed to permit it – including former Israeli Chief Rabbi Ovadiah Yosef, who instructed Shas ministers to support releasing over a thousand terrorists for Gilad Shalit. I replied that reality has proven that the words of our Sages who ruled not to redeem captives for more than their value, remain valid and binding, while the words of rabbis who found leniencies permitting violation of this, are rejected. Had they foreseen the results of such deals, they would surely have retracted, because they relied on “security experts”, while reality proved that capitulation led to disasters.

The Disasters

The first was the Jibril deal in 1985, when 1,150 terrorists were released in exchange for 3 IDF soldiers. The releasees spearheaded the First Intifada, which broke out less than 3 years later. In 2004, the deal with Hezbollah released Elhanan Tenenbaum and 3 IDF bodies in exchange for 450 terrorists, including Sheikh Obeid and Mustafa Dirani.

Over the years there were various other deals, but the deterioration continued, peaking with the Gilad Shalit deal in October 2011. The commander of the Hamas military wing, Ahmed Jabari, said that the released prisoners were responsible for the murder of 569 Israeli civilians. Prime Minister Benjamin Netanyahu and 26 other ministers supported the deal, three opposed: Avigdor Lieberman, Moshe Ya’alon, and Uzi Landau.

Within a few years, many of the terrorists who were released to Judea and Samaria returned to engage in terrorism, and apparently hundreds of Jews were killed by them. And the terrorists who were released to Gaza, led by Yahya Sinwar, initiated the murderous attack on Simchat Torah on the communities near Gaza, in which more than 1,200 were killed. The war that Israel is now waging to destroy the terror monster they created, still has not ended.

Please My Brothers, Do Not Make Things Worse

Great efforts must be made to release all captives, but not at the cost of endangering thousands of soldiers and civilians. It is difficult to blame the families of the captives – their grief is unbearable. Those helping them raise the issue abroad are doing holy work. However, those demonstrating inside Israel and claiming in the media that the government must do “anything” for the captives’ release – they strengthen the enemy, and endanger our soldiers at the front. Who knows, without them, perhaps the enemy would have already compromised? But when they hear of protests, the enemy understands they have much more power, they raise the price, demand we stop fighting, while our soldiers take more risks, and chances diminish for redeeming all the captives.

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.

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