Halacha of Redeeming Gilad

It is an ongoing tragedy that the Israeli soldier, Gilad Shalit has been held hostage for several years in Gaza while his Life becomes ever more a tool for political rhetoric from both sides of the War between Israel and the enemies which pursue her. This week then we explore the Halachic issues surrounding the mandate to redeem the captive, a primary obligation in Jewish Law.

Priority of Pidyon Shevuyim

The Shulchan Aruch teaches that the redemption of captives takes priority over all other charitable causes. Money set aside for other purposes may be diverted to redeem the captive, even funds, supplies and materials for building a synagogue may be diverted for this purpose. Every moment that one delays in freeing captives, where it is possible, is considered tantamount to murder. (Karo, Shulchan Aruch, Yoreh Deah 252:3)

This is based on the Rambam (Maimonides) who wrote in Hilchot Matnot Aniyim 8:10–

• The ransoming of captives takes precedence over the feeding and clothing of the poor. Indeed, there is no religious duty more meritorious than the ransoming of captives, for not only is the captive included in the generality of the hungry, the thirsty, and the naked, his very life is in jeopardy. He who turns his eyes away from ransoming him, transgresses the commandments: “You shall not harden your heart, nor shut your hand” (D’varim 15:7), “Neither shall you stand idly by the blood of your neighbor” (Vayikra 25:36), “You shall love your neighbor as yourself” (Vayikra 19:18), “Deliver them that are drawn unto death” (Mishlei 24:11), and many similar admonitions. To sum up, there is no religious duty greater than the ransoming of captives.

The Rambam is in turn referring to a passage in Talmud Bavli, Bava Batra 8b which cites a passage from Yirmiyahu 15:2 “And if they tell you ‘where shall we go?’ say to them, ‘Thus says HaShem: Whoever is destined for death– to death; whoever for sword– to the sword; whoever for famine– to famine; and whoever for captivity– to captivity.’” R’Yochanan comments on this passage: Whatever comes later is more difficult– the sword is more difficult than death; famine more difficult than the sword; and captivity is most difficult of them all, because it contains all the other elements in it.

We do not redeem captives for more than their value

That redeeming the captive is a primary obligation, a mitzvah rabbah, is accepted by all the halachic commentators. The debate begins with the question, at what price? How much is too much to pay for the return of a member of the community taken hostage?

Talmud Bavli, Gittin 45a states: “We do not redeem captives for more than their value, to prevent abuses (an enactment for the protection of society)” This is the crucial statement in Gemara on which most of the rest of the halachic debate around redeeming captives hinges. The key question being, is “to prevent abuses” referring to preventing a precedent of exorbitant ransom to save the community from impoverishment? Or is it to deter the practice of hostage taking? If it is to prevent impoverishment of the community, then when a hostage is taken from a wealthy family or a wealthy community, or if the ransom is within the means of the community to pay, then it is permitted to pay a ransom above “the value” of the prisoner. However, if it is to deter the practice of hostage taking, then it is not permissible to pay a value higher than the ransom warrants as this places the whole community in danger from an increased trade in hostage taking.

Most of the commentators agree that the reference in Gittin refers to deterring the practice of hostage taking for ransom. Rambam in Hilchot Matnot Aniyim 8:12 says “Captives are not redeemed for greater than their value… so that the enemies should not pursue them to take them captive.” This is the basis on which most hard line voices argue against exchanging Gilad for Hamas prisoners held by Israel, and the argument most often used to argue against negotiating with terrorists for hostages. There is a great rabbinic precedent that supports this argument in the ruling by the Maharam (Rabbi Meir of Rothemburg 1215-1293 ce) where he gave a decision regarding his own captivity in which he refused the ransom money raised by his students and the community on the grounds that it would encourage the practice of taking prominent rabbis hostage for exorbitant ransom. The Maharam was the pre-eminent Torah scholar of his day, who trained many of the great halachic minds of the next generation, so his decision to remain in prison rather than encourage a precedent for taking Jews hostage represents a big moment in the rabbinic commentary supporting the argument for not paying more than a hostages “value”. He remained in prison for seven years and died there, after which his body was held hostage for another fourteen years before a wealthy Jew finally ransomed it and he was buried, with honor in a Jewish cemetery.

And yet, this is hardly the end of the halachic line when it comes to the debate over how much to pay for the ransoming of a hostage. The Shulchan Aruch 252:4 adds that a Talmid Chacham (an outstanding Torah scholar) or even a young potential talmid chacham, may be redeemed for excessive amounts. On the case of the Maharam cited above, the Maharshal (Rabbi Shlomo Luria) in Yam Shel Shlomo, Gittin 4:66 states:

• Rabbi Meir was an outstanding Talmid Chacham, whose learning and piety was matched by none other in his generation, such that it was permissible to expend all money in the world to redeem him.

and continues in reference to the willingness of some communities to pay high ransoms:

• And nowadays, men of great deeds in and around Togarma (Turkey) redeem captives for more than their value… they are willing to overlook the financial burden to the community, may HaShem reward them for their actions… we too have become diminished in the Exile, and thus it becomes necessary to save the remnants, so that the flame of Israel does not become extinguished… therefore, in cases of danger to life, we redeem captives for greater than their value.

He is supported by Tosafot in Gittin 58a which state:

• When there is a danger to life, captives may be redeemed for more than their value.

There also is a precedent in Gemara which supports paying more than the value of the hostage. This is the story of Rabbi Yehoshua ben Chaninah who learned of a Jewish boy who had been imrisoned in Rome. He went to the prison and through the cell window, referring to a passage from Isaiah 42:24 asked the boy, “Who gave Ya’akov for a spoil and Israel to the robbers?” and the boy answered, “it is G-d…” Rabbi Yehoshua then said that he felt certain this boy would become a great Torah Scholar and that he would not leave that spot until the boy was ransomed, which he was, at great cost. Who was that boy? Rabbi Yishmael ben Elisha, one of the great Torah minds of his day.

Tosafot struggle with the seeming contradiction with this passage and the Mishna which states that captives must not be redeemed for more than their value. They look to two points to try to resolve the conflict:

1)  That because Rabbi Yehoshua said that the boy would become a great Torah Scholar, it was permitted to ransom him for more than his ‘value’.

2)  The Mishna’s prohibition of paying more than a captive’s value was limited to circumstances where the hostage’s life was not in danger.

One may pay more to save one’s self

There is another exception to the Mishna that prohibits paying more than a captive’s ‘value’ in redeeming the captive, and that is when the captive chooses to pay the price himself.

Tosafot rule that :

• “Even according to the security question (of deterring hostage taking), the Rabbis did not prohibit a person from redeeming himself for more than his worth, as the verse states in Iyov 2:4, ‘Skin for the sake of skin! Whatever a man has he would give up for his life! — and a person’s wife is like himself.”

This in reference to a passage in Ketubot 52a

• “where a man’s wife is captured, and the captors demand ten times her value (of the ketuba), he has an obligation to ransom her…”

A person’s spouse is considered one with themself and therefore it is permitted to pay more than their ‘value’ to ransom them back. It underscores the basic principle that one is permitted to pay anything to ransom one’s self. This is an important halachic concept in the case of Gilad, as Rabbi Shaul Yisraeli, z”l, one of the preeminent Halachists of modern Israel, commented that:

• Since our soldiers have gone out to fight as servants of the State and on its behalf, in defense of the people who dwell in Zion, there exists an unwritten (but implicitly understood) understanding that the State will utilize all means at its disposal to redeem them in the event that they should fall into captivity. And in the same manner as there exists an obligation to treat them in the event of injury or disability, and similarly to look after their families in the event of their injury, G-d forbid, in time of war, there is no less of an obligation to take all acts in order to free them from their captivity, because captivity includes all of these. (referring to the passage in Bava Batra 8a and utilized by Rambam as he basis for redeeming the captive as a Mitzvah Rabbah, a great obligation, as cited in sections above) And because the State’s ability to do all of this derives from the obligation it accepted upon itself in exchange for IDF service, it is as if they were redeeming themselves, concerning which no limitation exists, such that the rule of ‘not redeeming captives more than their value’ does not apply.

Certain danger takes precedence over doubtful danger

There is a principle in Halacha of Bari V’Shema, Bari Adef– Certainty outweighs potentiality at all times. This is a crucial concept when considering whether to pay more than the value of a hostage to ransom them and so risk encouraging more hostage taking in the future, and is also crucial when considering in the case of Gilad, whether to release dangerous prisoners of the State in a prisoner exchange to redeem a hostage.

After the Entebbe Raid to free hostages taken by terrorists, Rav Ovadiah Yosef, another eminent Israeli Halachist, ruled that it would have been permissible to release prisoners in exchange for the hostages, because the released prisoners posed a potential threat, whereas the hostages faced a real threat to life. Rav Yisroeli adds to this ruling in Chavat Binyamin Siman 16:

• Even though it is true that the life of every captive is in danger, there is a difference between the danger of captivity and clear and immediate danger, such as in the time of the Crusades and the terrible massacres of the Middle Ages. That being a case of certain danger, there exists no limitation on the Resources that can and should be expended in the redemption of captives– notwithstanding the risk that this practice will provide an incentive for further kidnappings– because certain danger takes precedence over doubtful danger. According to this principle, it follows that, in the event of the seizure of hostages, which is a case of clear and present danger, all concerns for the future are swept aside, in order to save the hostages from the real danger with which they are confronted in this moment.

Whose blood is redder than whose?

The final issue at hand in the Halacha of redeeming Gilad, is whether one is or isn’t required to risk one’s life to save another life. And like most of halacha, there is no clear answer. The reason this is an issue, is because to release dangerous prisoners in a prisoner exchange places other lives at risk, as does encouraging the practice of hostage taking. It is a question then for society to decide if it is willing to assume potential risk of danger in the future in order to save a life now.

Sanhedrin 73a:

• From where do we know that if one sees his friend drowning in a river, or if he sees a wild animal attacking him, or bandits coming to attack him, that he is obligated to save him? The Torah teaches: Do not stand over your neighbor’s blood (Vayikra 19:16)

According to the Rambam, this translates into a positive obligation to use your time, energy, money, and even your body to save your fellow. (Mishnah Torah, laws of murder and guarding life 1:14)

In Beis Yosef Choshen Mishpat 426, Yosef Karo adds that according to the Yerushalmi (Terumot end of Chapter 8) the potential rescuer “is obligated to even enter himself into questionable danger (Safek Sakana) to save his fellow.” The reason being that the risk to his life is questionable, but the risk to his fellow is certain. According then to the Rambam and to Karo in the Beis Yosef, it would seem clear that one must risk one’s life to save another. However, it is not clear at all, as Karo himself did not record this opinion in his Shulchan Aruch! It is thought that this is because there is a counter position within Talmud that shows a person does not have to risk one’s life to save another, although it is permissible to voluntarily do so. (Sanhedrin 73a; Niddah 61a; Baba Metzia 62a)

Further, the Chofetz Chayim in Mishnah Berurah rules that one is not obligated to risk one’s own life to save others if there is a definite danger (Sakana) to the rescuer. He writes that even a questionable danger (Safek Sakana) to the rescuer outweighs the definite danger to the endangered party. But then states that if there is only a questionable danger, the would be rescuer should evaluate the situation to make a judgement about the actual risk involved in saving the endangered party and not be too overly cautious with the risk to his own life. The Chofetz Chayim, then it seems, leaves it up to the individual to choose whether to voluntarily risk his or her life to save the life of another.

When it comes to the risk to society of releasing dangerous prisoners in a prisoner exchange or risking the encouragement of hostage taking by paying an enormous ransom for a hostage, the Halacha is unclear whether the people in the community must risk these dangers to free the hostage. What is clear, is that the community may voluntarily assume the potential risk of danger in the future, in order to prevent the certain death of the hostage now. The obligation is uncertain, the opportunity to voluntarily save the hostage is clear.

Three options from within the Halacha for redeeming Gilad

There is much commentary to be found from hard line voices about how the Halacha is clear in prohibiting the proposed prisoner exchanges for redeeming Gilad Shalit. Their argument is based entirely on the Mishna prohibiting paying more than a hostage’s value for redemption, and cite as the conclusive precedent the case of the Maharam, Rabbi Meir of Rothemburg, who refused to be ransomed exorbitantly so as not to set the precedent for taking Jews hostage. But we have shown here that there are at least three avenues from within the Halacha that allow for the redemption of Gilad even at the excessive price of the proposed human prisoner exchange. These options include:

1)  Paying more than the Value of the Hostage is allowed when the Hostage’s life is in danger, as Gilad’s certainly is.

2)  A person may ransom himself at any price– Rav Yisroeli showing how Gilad as a member of the IDF is during the term of his service, One with the State, and therefore the State’s paying an excessive amount to ransom him is as if he is ransoming himself.

3)  It may be required to risk our own lives to save the lives of others, but if it is not required, it may certainly be a voluntary decision to do so. Thus, the citizenry may voluntarily assume the risk of releasing dangerous prisoners and encouraging the practice of hostage taking in the future, in order to save Gilad’s life now.

All of these options are available from within the Halacha.

May HaShem, HaKadosh Baruch Hu, Bless the leaders of the State of Israel as they search their hearts and minds and souls for the means to bring Gilad home safe, AmEn.

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Mi Sheberach

May HaShem, Who has blessed our Ancestors, Avraham, Yitzchak and Yaakov;

Sarah, Rivka, Rachel, Leah, Bilha v’Zilpa–

May He bless, protect and guard the soldier,

a member of the Israeli Defense Forces,

Gilad ben Aviva and Noam Shalit

May He redeem him from his captivity, and quickly return him to his home, healthy and whole.

May the prayers of the multitudes of B’nei Israel stand in his merit,

so that he may be returned to his family and to his country speedily and in our days,

AmEn.

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The (Sometimes) Weekly Halacha/Minhag/Hashkafah is an offering of Rabbi Sarah Etz Alon of Eber Lat Living Lab.