Legal Advisor to Torah Mitzion
Brief Historical Background
Israel has carried out many prisoner swaps with Arab countries since declaring independence in 1948, almost always giving more prisoners and bodies than it received in return. Thousands of prisoners were exchanged by Israel in the 1948 War of Independence in return for 885 Israelis captured by various Arab countries; in the 1956 Sinai campaign, two months after Israel’s capture of 5,500 Egyptian soldiers these were all traded for four Israeli soldiers; in the 1967 Six Day War, 15 Israeli soldiers taken prisoner by Arab countries were traded for 1,000 Jordanians and Syrians (in one instance, Jordan filled two coffins with dirt and the two soldiers who were supposed to be in there remain unaccounted for); in May 1985, Israel released 1,150 Arab prisoners in exchange for three soldiers captured in Lebanon in 1982; etc.
The first release of Israeli captives took place in Egypt, as we recall every morning before the Shacharit Amidah:
“From Egypt You redeemed us, Hashem our God, and from the house of slavery, You liberated us. All their firstborn you slew, but Your firstborn You redeemed…”
Am Yisrael is redeemed from Egypt and from the Egyptian bondage by God Himself. The real miracle involved in this act is the birth of the Jewish nation outside of its land, from the clutches of a cruel and despotic superpower: “Has any god ever miraculously come to take for himself one nation from amidst another nation… such as everything that Hashem, your God, did for you in Egypt before your eyes?” (Devarim 4:34).
Pidyon Shevuyim – “A Great Mitzvah”
The massive ‘redemption of captives’ in the Yetziat Mitzraim experience has become a defining element of Jewish history. The Mitzvah to ransom captives (Pidyon Shevuyim) occupies pride of place on the practical level in our consciousness. The emotional words of the Rambam (Hilchot Matnot Aniyim 8:12) are worth citing in full in this regard:
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, but his very life is in jeopardy. He who turns his eyes away from ransoming him, transgresses the commandments: You shalt not harden your heart, nor shut your hand (Deut. 15:7), Neither shall you stand idly by the blood of your neighbor (Lev. 19:16), and He shall not rule with rigor over him in your sight (Lev. 25:53). Moreover, he nullifies the commandments: You shall surely open your hand unto him (Deut. 15:8), That your brother may live with you (Lev. 25:36), You shall love your neighbor as yourself (Lev. 19:18), Deliver them that are drawn unto death (Prov. 24:11), and many similar admonitions. To sum up, there is no religious duty greater (Mitzvah Rabba) than the ransoming of captives.
The Shulchan Aruch (Y”D 252:3), echoing the above words of the Rambam, rules expressly:
The freeing of captives takes precedence over feeding and clothing the poor. There is no commandment greater than freeing of captives; therefore, any money which is collected for another purpose may be diverted in order to free captives. And even if money was collected to build a synagogue, and they have already purchased the wood and stones needed, and set them aside for the building, (so that it is forbidden to use these building materials for any other purposes), it is still permissible to sell them in order to free captives. However, if they have already built the synagogue they may not sell it.
And he concludes by stating: “Every moment that one delays in freeing captives, in cases where it is possible to expedite their freedom, is considered to be tantamount to murder.”
“We do not redeem captives for more than their value”
Jewish communities throughout history would often spend large sums of money to perform the Mitzvah of Pidyon Shevuyim. This practice led to the concern that kidnappers would exploit this willingness to pay by demanding exorbitant amounts for the release of captives, such that the importance of this great Mitzvah would be diminished with the loss of other important values. Already in the Second Temple period, therefore, the Rabbis made a seemingly cruel enactment that “We do not redeem captives for more than their value.” Their “value” is determined by the price that the captive would fetch in the marketplace if he were to be sold as a slave; or it would follow the standard ransom for non-Jewish captives. Kidnappers demanding significantly above the going rate should not find a partner with whom to do business in the Jewish quarter.
The reason for this restriction is a matter of dispute in the Talmud (Gittin 45a). Some say it is meant to avert the impoverishment of the Jewish community at the hands of greedy kidnappers (the economic consideration); others say that if exorbitant ransoms are paid, it will provide an incentive for more kidnapping (the security consideration). Rashi explains that the practical difference between these two reasons would be a case in which ample funds are available to meet the captors’ demands (e.g. the individual, his relative or a private benefactor can pay off the ransom): here the economic consideration would not be relevant (as the public purse would be unaffected); however, the security consideration, viz. the problem of generating incentive, would still remain.
The Rambam (ibid. 8:12) (and the Shulchan Aruch in his footsteps) rules according to the second opinion: “Captives are not redeemed for greater than their value… so that the enemies should not pursue them to take them captive.” It therefore follows that the ability of the individual or of the community to pay for the ransoming of captives is of no consequence.
Notwithstanding the above, it has been accepted practice throughout the centuries to redeem Jewish captives at almost any cost. As we shall see in detail in our next column, Halachic authorities have found various justifications for leniency. In the event that the prisoner’s life is at risk, or is subject to physical abuse, or religious coercion to renounce their Jewish faith, the rule of “not more than their value” has often been waived. Having said that, it goes without saying that each situation is different and has to be considered on its own merits.