I) Introduction: For the past few months, Israelis and the Israeli media have been conducting a fierce debate on the subject of pidyon shvuyim (the redemption of captives). Should Israel exchange 400 Arab terrorists including Sheikh Obeid and Mustafa Dirani for Elhanan Tanenbaum and the bodies of three Israeli soldiers kidnapped and killed in Lebanon in October 2000. This has been further complicated by the fact that this exchange will not include Lt. Col. Ron Arad, who was captured in Lebanon seventeen years ago, nor information about his fate, even though Obeid and Dirani were captured by Israel for the express purpose of exchanging them for Ron Arad.
Indeed, this is not the first time Israel has debated a lopsided prisoner exchange. There follows a chart comparing similar exchanges in the past:
Israelis ArabsSix Day War 4 6000 soldiersYom Kippur War 294 8400 soldiersNovember 1983 6 4500 Lebanese +99 Terrorists in IsraelMay 1985 3 1150 terroristsThe first two exchanges were with Arab countries and were part of a ceasefire agreement after war. In the last case, there was no ceasefire; 800 of the 1150 terrorists were returned to the West Bank where many of them resumed terrorist activity.
II) Arguments in Favor of the Current ExchangePrime Minister Sharon and others in favor of the current exchange say as follows:
Israel has a moral obligation to do whatever it takes to redeem its citizens.”A bird in hand is worth two in the bush”: Better to save Elhanan Tanenbaum now, since no-one knows the fate of Ron Arad.Tanenbaum has been tortured and is sick. We must save him now, because he is in immediate danger.Israel must do everything it can to redeem captives like Tanenbaum because if not, our soldiers will retreat in battle rather than risk capture.Most of the 400 terrorists to be released do not have “blood on their hands”.
III) Arguments Against the Current Exchange
Israel should not redeem captives at any price. If terrorists know that they will always be freed, Israel loses its power of deterrence.This exchange is a betrayal of Ron Arad. Obeid and Dirani were captured in order to exchange them for Ron Arad. They should not be released until Iran discloses information about Ron Arad.Many have emphasized that Tanenbaum was captured in Abu Dhabi where he flew in order to buy drugs or engage in criminal activity. Israel should not release terrorists in order to redeem a criminal.Exchanging hundreds of terrorists for one Israeli encourages future kidnappings of Israelis.There is no such thing as a “harmless” terrorist. Many of the 1150 terrorists released in 1985 returned to terror. A number of recent suicide bombings were carried out by terrorists released in previous exchanges and amnesties.Hizbullah is on the wane in Lebanon. This exchange will give Hizbullah tremendous prestige and help revive a deadly terrorist organization.
IV) The Importance of Pidyon Shvuyim in Rabbinic Literature and in Medieval Jewish HistoryAnyone 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. (See the Bibliography, Section I.)
Indeed, the Talmud (Bava Batra 8b) calls pidyon shvuyim a “mitzvah rabbah” (= 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 hearden your heart” (Deut. 15:7); “you shall not stand idly by the blood of your brother” (Lev. 19:16); and “you shall love your neighbor as yourself” (Lev. 19:18). (Maimonides, Laws of Gifts to the Poor 8:10 = Shulhan Arukh, Yoreh Deah 252:2). And one who delays in ransoming a captive, is considered like a murderer (Yoreh Deah 252:3). Indeed, Maimonides himself wrote letters exhorting his fellow Jews to redeem captives and collected money for pidyon shvuyim. The Cairo Genizah contains receipts to Jews who donated funds for that purpose written by Maimonides himself! (See the Bibliography, Section I, 10.)
V) The Exception to the Rule – When the Price is too HighIt 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 4:6 = Bavli Gittin 45a):
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 (ibid.) gives two different explanations for this takkanah (rabbinic enactment):
A) “because of the [financial] burden on the community”;B) “so that they [=the robbers] should not sieze more captives”i.e. 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.
VI) Was the Mishnah in 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:
The very next sentence in Gittin (45a) says that “Levi bar Darga redeemed his daughter for 13,000 gold dinars”. 13 and 13,000 are typical round numbers in the Talmud, (See Rashi to Shabbat 119a, catchword treisar; Rashi to Hullin 95b, catchword treisar; and Rabbi Shlomo Yosef Zevin, Sinai 49 (5761), pp. 151-161). but Levi must still have paid way more than she was worth. Indeed, Abaye immediately adds that Levi may have acted against the will of the Sages.A beraita (a teaching of the Tannaim, the mishnaic Sages) in Ketubot 52a-b says that if a wife is taken captive, the husband may pay up to ten times what she is worth the first time; after that, he may redeem her or not redeem her. Rabban Shimon ben Gamliel, ecoing the Mishnah in Gittin, rules that the husband may not pay more than she is worth because of Tikkun Olam. But the Tanna Kamma, the First Tanna, obviously disagreed with the Mishnah in Gittin and ruled that a husband may pay ten times what his wife is worth. Another beraita in Gittin (58a) relates that R. 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 (ibid.) derive from this story that when there is sakkanat nefashot (mortal danger), one may pay more than the captive is worth.Another opinion in Tosafot (ibid. and to 45a) says that we derive from this story about the young scholar that one may redeem a Sage for more than he is worth.A third opinion in Tosafot (45a) 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.
Furthermore, we know from the Cairo Genizah that the normal ransom for a captive was 33 dinars, but Jews would pay 40, 60 and even 100 dinars to ransom a captive. (See Goitein in the Bibliography, Vol. I, p. 329.)R. David ibn Zimra, the Radbaz (Egypt and Israel, 1479-1573) says in his responsa (Vol. I, No. 40) 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, the Radbaz goes to great lengths to justify the custom in his time of ignoring the Mishnah in Gittin. 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 way 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.
VII) Recent Responsa about Exchanging Terrorists for Israeli SoldiersSince 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 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 (At the very end of his article, Rabbi Goren changes his mind and justifies the prisoner exchange without citing one source! In any case, his arguments against such an exchange stand on their own merits).
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, they will prefer retreat to capture. This too can be considered a halakhic innovation. Therefore, he does not think that the State of Israel acted against Jewish law in exchanging 1150 terrorists for 3 Israeli soldiers.
VIII Summary and ConclusionsWe have seen that pidyon shvuyim is a major value in our tradition and that Jews have exerted great efforts to redeem captives. The Mishnah in Gittin ruled that one does not redeem captives for more than their value and this was codified by all major codes of Jewish law. However, the Talmud itself and later authorities found ways to circumvent this Mishnah, and captives were frequently redeemed at excessive prices. Rabbi Goren and many rabbis compare our dilemma to the Mishnah and say that hundreds or thousands of terrorists is an excessive price to pay for a few Israeli soldiers. This type of exchange will endanger the public by increasing kidnapping and setting loose thousands of terrorists. Rabbi Hayyim David Halevi says that the Mishnah in Gittin is not really relevant to our dilemma because at that time robbers kidnapped for money, while Palestinian terrorists kidnap for nationalistic reasons and the price we pay will not alter their attempts to kidnap.
I was not asked by the Israeli government for my opinion, but if I were asked, I would have to reluctantly agree with the majority of Israeli rabbis who have written on this subject. I am certainly in favor of halakhic innovation as advocated by R. H. D. Halevi, but I think he is missing the plain meaning of the Mishnah. 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.
I) Historical Studies and Sources
Abraham Ibn Daud, Sefer Ha-qabbalah, ed. Gerson Cohen, London, 1967, English side, pp. 63-66Irving Agus, Rabbi Meir of Rothenburg, Vol. One, New York, 1970, pp. 125-151Salo Baron, The Jewish Community, Vol. 2, Philadelphia, 1942, pp. 333-339 and Vol. 3, pp. 213-215Eliezer Bashan, Shviyah Upedut .1391-1830, Ramat Gan, 1980Gerson Cohen, Studies in the Variety of Rabbinic Cultures, Philadelphia, 1991, pp. 157-208Encyclopaedia Judaica s.v. Captives, Ransoming ofMirik Garzi, “The History of the Takkanah: Ein Podin” ., Iyar 5752, 46 pp. (unpublished)S.D. Goitein, A Mediterranean Society, Vol. I, Berkeley 1967, pp. 327-330 and Vol. II, Berkeley, 1971, pp. 137-138Jewish Encyclopedia, s.v. RansomMaimonides, Igrot Harambam, ed. Shilat, Vol. I, Jerusalem, 1987, pp. 60-71; Teshuvot Harambam, ed. Blau, Jerusalem, 1960, nos. 16, 91, 452Cecil Roth, Personalities and Events in Jewish History, Philadelphia, 1953, pp. 112-135II) Halakhic Studies
R. Yehudah Gershuni, Hadarom 33 (Nissan 5731), pp. 27-37 (summarized in R. J. David Bleich, Contemporary Halakhic Problems, Vol. I, New York and Hoboken, 1977, pp. 18-20)R. Shlomo Goren, Sefer Torat Hamedinah, Jerusalem, 1996, pp. 424-436 (= Hazofeh, 11 Sivan 5745)R. Hayyim David Halevi, Aseh Lekha Rav, Vol. 7, Tel Aviv, 5746, No. 53 (analyzed by R. David Ellenson in: Judaism and Modernity etc., Jerusalem, 2001, pp. 341-367)R. Avraham Yitzhak Halevi Khlab, Tehumin 4 (5743), pp. 108-116R. Yisrael Melamed, Shanah B’shanah 5746, pp. 241-246R. Natan Ortner, Tehumin 13 (5752-5753), pp. 257-263R. Yehudah Shaviv, Noam 17 (5734), pp. 96-115Itamar Warhaftig, Tehumin 6 (5745), pp. 305-308R. Shaul Yisraeli, Torah Shebe’al Peh 17 (5735), pp. 69-76R. Moshe Zemer, Halakhah Shefuya, Tel Aviv, 1993, pp. 202-205, 344 = Evolving Halakhah, Woodstock,Vermont, 1999, pp.225-229
Prof. David Golinkin is the President of the Schechter Institute of Jewish Studies in Jerusalem. Feel free to reprint this article in its entirety. If you wish to abbreviate the article, please contact Rabbi Golinkin at: firstname.lastname@example.org. The opinions expressed here are the author’s and in no way reflect an official policy of the Schechter Institute.