Simon Jackson
Legal Advisor to Torah Mitzion

 

The question of the legitimacy of giving in to the exorbitant demands of our enemies for the redemption of captives has not disappeared. However, while in the past Jewish communities throughout the world grappled with the issue of the ransom of captives by payment of large sums of money, the State of Israel today is forced to grapple with the legitimacy of different types of exorbitant payments – most notably in the form of lopsided prisoner exchanges in return for the release of one Jew.

Is it right to release a large number of terrorists in exchange for the release of a small number of captive soldiers, as was done in 1985, when Israel agreed to release 1,150 Arab terrorists in exchange for three soldiers captured in Lebanon in 1982? Or perhaps this is too high a price, which should not therefore be paid, for three reasons: (a) it is liable to encourage the kidnapping of other soldiers; (b) the released terrorists rejoin their colleagues to expand the security risks in Israel in the future; and (c) the release of murderers violates the fundamental principles which underlie the rule of law (the equal subjection of all to the ordinary law administered by the ordinary courts)?

The exchange of the bodies of the three Israeli soldiers abducted near the Lebanon border in 2000 and assumed dead, and an abducted Israeli businessman, for more than 400 Arabs and Palestinians, in November 2003, raised further twists to this question. Notably, the deal also included the release of Hizbollah commander Abdul Karim Obeid and operative Mustafa Dirani. Both were abducted by Israeli forces in the early 1990s in an attempt to win the release of captured Israeli air navigator, Ron Arad. However, Israel’s release of Dirani and Obeid even before obtaining significant information regarding the fate of Ron Arad constituted a significant departure from previous Israeli policy. This aspect of the prisoner exchange, absent in nearly all news reports, demonstrated an additional Israeli accommodation – beyond the lopsided numbers that Israeli has long agreed to in order to free her captive sons.

Also worthy of note in this context is the late mother of Ron Arad who pronounced on her deathbed: “If my son is dead, not a single terrorist should be given away for his body.” It has been argued that this selfless act is more ethical and ‘Jewish’ than the Israeli Government’s release of 400 past/future terrorists in return for dead bodies and a person with a dubiously criminal past.

Even today these questions disturb the Israeli public, and make decisions by its elected officials extremely difficult.

Many of the questions raised above have hardly merited discussion (or resolution) in the legal arena. By contrast, all these issues have been dealt with (as we have demonstrated in these columns) by leading past and contemporary Rabbis. In our next and final column in this series, we will examine a little more closely the permissibility of putting the community in a situation of doubtful danger in order to rescue our soldiers from certain danger. Here, we will suffice by considering the specific issue of the cost: what is the limit to be paid in return for the release of captives?

We cited earlier the opinion (expressed by Rav Shlomo Goren and more recently by Rav Yisrael Rosen) that the release of thousands of terrorists in exchange for a few soldiers at best is an exorbitant price to pay, and therefore forbidden under the rule which prohibits the ransoming of captives for more than their value.

A very different conclusion to this issue is reached by one of the foremost Poskim in the State of Israel, Rav Shaul Yisraeli z”l. His explanation is based on the exception to the Rabbis’ restriction with which we ended our last column: No restriction is placed on a person’s right to redeem himself.

Based on the above principle, Rav Shaul Yisraeli writes as follows:

“If a person would, for example, take out insurance with an insurance company, in exchange for a premium paid by him, that in the event he is taken captive he will be redeemed for a large sum of money; since an obligation would then be owed by the insurance company to the insured person, and they are merely his agents in this regard, they are entitled and even obligated to redeem him at any cost, in accordance with their undertaking to him…

The Rabbis’ restriction against redeeming captives for greater than their value does not prevent this; because [as we have seen] a person is allowed to redeem himself at any cost. And the State’s obligation to redeem those taken captive in time of battle, must also be viewed in this light.

Since our soldiers have gone out to fight as servants of the State and on its behalf, in defense of the people who dwells in Zion, there exists an unwritten (but implicitly understood) undertaking that the State will utilize all means at its disposal (within reasonable limits which do not detrimentally affect its overall security) 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, God 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.”

[This latter phrase refers to the Gemara in Bava Batra (8b) on which the Rambam (Hilchot Matnot Aniyim 8:10) bases his reference to Pidyon Shevuyim as ‘a great Mitzvah’. Hashem tells Jeremiah the Prophet (Jeremiah 15:2): And if they [the people of Israel] tell you ‘Where shall we go?’ say to them, ‘Thus says Hashem: Whoever is destined for death – to death; whoever for the sword – to the sword; whoever for famine – to famine; and whoever for captivity – to captivity.’ And Rabbi Yochanan comments on this pasuk: whatever comes later is more difficult: the sword is more difficult than death; famine is more difficult to bear than the sword; while captivity is the most difficult of all, because it includes all of these elements.”]

And because the State’s ability to do all this derives from the obligation it accepted upon itself in exchange for their IDF service, it is as if they were redeeming themselves, concerning which no limitation exists, such that the rule of “not redeeming captives for more than their value’ does not apply.”

It transpires from the opinion of Rav Yisraeli that no price is too high for the release of captured soldiers, albeit that it goes without saying that other factors must also be taken into consideration, such as the security risk involved in the release of murderous terrorists, when making this decision.