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A FEW PRE-SHABBAT WORDS FROM RABBI AARON

Negotiating with Hostage-Takers: How Much? Is There a Limit?

This Shabbat we chant parashat vayigash. Joseph's brothers are desperate. The silver goblet belonging to the Egyptian official [Joseph] has been found in Benjamin's sack. The Egyptian official has told the brothers that they may return home; only the thief will remain behind as a slave. Judah pleads for Benjamin's freedom. He tells the Egyptian that he [Judah] has assumed personal responsibility for the youngest brother ["ki avdecha arav et hana'ar - your servant had made himself a surety for the lad"]. 

Within the tragic interplay of family dynamics, we have an added complexity worth pondering: how do the roles of hostage-taking and the redemption of hostages continue to cast their shadows over Jewish communities? 

On this Shabbat all of the Memphis shuls are devoting their Shabbat words of Torah toward advocacy on behalf on Gilad Shalit. Gilad was captured by Hamas on June 25, 2006. The Israeli government has been actively working toward his release, and, at several points in time, the negotiations have seemed agonizingly close to success. People's hopes and prayers have been dashed by the cynical manipulations of the kidnappers.  Students of the the sad and tortured history of Israel's struggles with her neighbor know that hostage negotiations have been a familiar theme over the years. The prisoner exchanges are often quite lopsided; many hundreds of Arab prisoners are exchanged for a handful of Israeli prisoners. And sometimes, the corpses of Israelis who were tortured and murdered are returned for live Arab prisoners. 

Jewish communities through the centuries have struggled with the phenomenon of hostage taking. The emotionally wrenching question of How Much is Too Much is far too familiar to our people. If, God forbid, the captive is in your family, you're inclined to believe that no price is too high.

Below, you'll find a fairly comprehensive survey of Rabbinic sources - from the Mishna through legal opinions crafted fairly recently. The survey's author, David Golinkin, a talmud scholar living in Jerusalem, was a teacher of mine a bit over twenty years ago.  

Ransoming Captive Jews - An important commandment calls for the redemption of Jewish prisoners, but how far should this mitzvah be taken?
By Rabbi David Golinkin

To most American Jews, the issue of ransoming captives (pidyon shvuyim) may seem remote, but to Israelis, it is very much a real question. Numerous times in Israel's history, the government has been faced with the question of whether to trade large numbers of Palestinian or other prisoners for a handful of Israeli captives. In the following, Rabbi Golinkin surveys halakhic (Jewish legal) literature regarding the issue of redeeming captives. Excerpted with permission from the website of the Schechter Institute of Jewish Studies, which has the complete text of Rabbi Golinkin's responsum (rabbinic decision) with footnotes.

Rabbinic Literature & Medieval Jewish History

Anyone who surveys this topic historically is struck by the fact that many thousands of Jews were captured and held for ransom throughout Jewish history and that Jewish communities went to extraordinary lengths to redeem captives.
Indeed, the Talmud (Bava Batra 8b) calls pidyon shvuyim a  great mitzvah and says that captivity is worse than starvation and death. Maimonides rules that he who ignores ransoming a captive is guilty of transgressing commandments such as "you shall not harden your heart" (Deuteronomy 15:7); "you shall not stand idly by the blood of your brother" (Leviticus 19:16); and "you shall love your neighbor as yourself" (Leviticus 19:18).
And one who delays in ransoming a captive is considered like a murderer (Code of Jewish Law; Yoreh Deah 252:3). Indeed, Maimonides himself wrote letters exhorting his fellow Jews to redeem captives and collected money for pidyon shvuyim.

The Exception to the Rule

It would seem from the above that pidyon shvuyim is an absolute mitzvah, which must be followed at all times. But there is one major exception, as explained in the Mishnah (Gittin 4:6a):

"One does not ransom captives for more than their value because of Tikkun Olam  (literally: "fixing the world"; for the good order of the world; as a precaution for the general good) and one does not help captives escape because of Tikkun Olam."

This Mishnah was codified by the standard codes of Jewish law. The Babylonian Talmud gives two different explanations for this rabbinic enactment:

A)    "because of the [financial] burden on the community";

B)    "so that the robbers should not seize more captives"--[in other words, paying a high ransom for captives will encourage kidnappers to kidnap more Jews and demand still higher ransoms.]

The Talmud does not decide which explanation is correct, so halakhic authorities throughout the ages stressed one or the other, leading to different conclusions. Rashi, for example, says that if you accept the first explanation, a relative could pay an excessive ransom, because that does not place a financial burden on the community; whereas according to the second explanation, a relative may not pay the high ransom because that will still encourage the kidnappers to kidnap more Jews.

Was the Ruling Found in the Mishnah in Tractate Gittin Followed in Practice?

The standard explanation for "more than their value" is the amount that captive would fetch if he/she were sold as a slave.  Even so, despite, the clear language of the takkanah in the Mishnah, we know from the Talmud, the commentaries, the Cairo Genizah, and the responsa literature that they were many exceptions to the rule:

1) The very next sentence in Gittin (45a) says that "Levi bar Darga redeemed his daughter for 13,000 gold dinars." Thirteen and 13,000 are typical round numbers in the Talmud, but Levi must still have paid far more than she was worth. Indeed, Abaye immediately adds that Levi may have acted against the will of the Sages.

2) A beraita (a teaching of the mishnaic Sages) in Ketubot 52a-b says that if a wife is taken captive, the husband may pay up to 10 times what she is worth the first time; after that, he may redeem her or not redeem her. Rabban Shimon ben Gamliel, echoing the Mishnah in Gittin, rules that the husband may not pay more than she is worth because of Tikkun Olam. But the first cited sage obviously disagreed with the Mishnah in Gittin and ruled that a husband may pay 10 times what his wife is worth.

3) Another beraita in Gittin (58a) relates that Rabbi Yehoshua ben Hannania was in Rome and they showed him a handsome Jewish boy in prison. When he tested the boy and saw that he knew the Bible by heart, he said: "I am certain he will become a legal authority! I will not leave here until I redeem him for whatever price they name. They said: he did not leave until he redeemed him for much money."  The little boy grew up to become Rabbi Yishmael ben Elisha. Tosafot [a group of medieval Talmud commentators] derive from this story that when there is sakkanat nefashot (mortal danger), one may pay more than the captive is worth.

4) Another opinion in Tosafot says that we derive from this story about the young scholar that one may redeem a Sage for more than he is worth.

5) A third opinion in Tosafot  says that we derive from this story that after the destruction of the Temple, Jews are targets in any case and paying a high ransom will not cause more or less kidnapping.

6) Furthermore, we know from the Cairo Genizah that the normal ransom for a captive was 33 dinars, but Jews... [rest of text is missing]

7) R. David ibn Zimra (Egypt and Israel, 1479-1573)--says in his responsa that "all Jews are already accustomed to redeem their captives more than their value in the marketplace, for an old man or minor are only worth 20 dinars and yet they are redeemed for 100 dinars or more. This is because the reason for the Mishnah is that they should not seize more captives, but we see in our day that the kidnappers do not set out in the first place to capture Jews, but rather whoever they can find." He further says that even if Jews pay more ransom for Jews than non-Jews do, that is because the captive is a Sage (see above) or because there is a danger that the captive will be forced to convert (this latter argument is his own invention). In other words, ibn Zimra goes to great lengths to justify the custom in his time of ignoring the Mishnah in Gittin.

8) Rabbi Shlomo Luria (Poland, 1510-1574) also testifies in his writings [Yam Shel Shlomo] 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.

Recent Responsa

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, 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.

Summary and Conclusions

We have seen that pidyon shvuyim is a major value in our tradition and that Jews have exerted great efforts to redeem captives. However, we do not pay excessive ransom "mipney tikkun olam," for the public good. In other words, the public takes precedence over the individual, even if this endangers the individual. Exchanging hundreds or thousands of terrorists for one Israeli encourages kidnapping of Israelis, and frees hundreds or thousands of terrorists who will pick up their weapons and attack Israel. In other words, it endangers the public and should not be done.

[NOTE - despite the sentiment which wraps up Golinkin's summary, we can sense that Israel's government leans pretty far in the direction of doing whatever it takes to bring their soldiers home. Israel's enemies have been quite open about their desire to continually take hostages for use as bargaining chips and  tools of furthering their own propaganda. Shalit's terrible ordeal [his and our's] will likely not be the last.]

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Rabbi David Golinkin, Ph.D., is president and rector of the Schechter Institute of Jewish Studies in Jerusalem, where he teaches Talmud and Jewish law, and he heads the Va'ad Halakhah (committee on Jewish law) of the Masorti, or Conservative, movement's Rabbinical Assembly in Israel.

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