Catch and Release- Israel Style

In a few hours the government of Israel is going to release the first batch of hundreds of convicted terrorists in exchange for captured soldier Gilad Shalit, with the release of hundreds more in a few days. Gilad Shalit's parents single-handedly waged a battle to get their son back. They did what any parent would do but it has been questioned whether the government was inordinately swayed by a vocal minority. But in fact, Israelis are generally supportive of the exchange. The most vocal opposition to the trade are the families of victims of terror attacks who don't want to see their loved ones' killers be released before serving their time. Needless to say, this is a complicated issue. I am most interested to hear from Gilad Shalit (when he is ready to talk about this whole episode) about whether he thinks the government did the right thing in agreeing to this exchange.
This reminds me of a review of the movie Saving Private Ryan by Mark Steyn:

[N]o Allied commander would have thought it worth the risk in lives to assuage one distraught mother's potential further bereavement... Endeavouring to justify their mission to his unit, Hanks's sergeant muses that, in years to come when they look back on the war, they'll figure that 'maybe saving Private Ryan was the one decent thing we managed to pull out of this whole godawful mess'. Once upon a time, defeating Hitler and his Axis hordes bent on world domination would have been considered 'one decent thing'. Even soppy liberals figured that keeping a few million more Jews from going to the gas chambers was 'one decent thing'. When fashions in victim groups changed, ending the Nazi persecution of pink-triangled gays was still 'one decent thing'. But, for Spielberg, the one decent thing is getting one GI joe back to his picturesque farmhouse in Iowa...
he simply cannot conceive of a world where men are prepared, quietly and without fanfare, to die for their country. Perhaps he has a point: in a narcissistic Clinto-Spielbergian culture, it's hard to see what would now drive the general populace to risk their lives.
In that sense, Saving Private Ryan is the antithesis of Casablanca: the problems of one human being are what count; it's all those vast impersonal war aims that don't amount to a hill of beans.

There are some interesting but not so well-known arguments on both sides of the Shalit debate.

• Some argue that releasing these convicted terrorists for a lone soldier will give the terrorists an incentive to kidnap more soldiers. But an intriguing counterargument has been made that such an outcome would be a positive development. Because it is much harder to kidnap a soldier than to kill him, Israel would prefer to have its enemies trying to kidnap soldiers instead of trying to kill them.
• Some argue that Israeli soldiers might have an incentive now to kill terrorists instead of capturing them only to see them released later on. Some would say this is not a bad outcome.
• It may be questioned whether is Israel willing to engage in such a trade if it were a civilian being held hostage. It should be. “If the securing the fate of a single combatant can justify endangering life and limb of numerous civilians, the entire purpose of the military is annulled and the relationship between it and the civilian sector absurdly inverted.” Martin Sherman, The Rationale for Resisting Ransom, YNETNEWS.COM, Apr., 16, 2007, available at http://www.ynet.co.il/english/articles/0,7340,L-3388587, 00.html. But if so, then Israel needs to start worrying about preventing the kidnapping of any Israeli citizen not just soldiers.
• If Hamas is willing to set the value of one Israeli soldier at 1,000 of its own citizens, then it can hardly be heard to complain about disproportionate force when more Palestinians than Israelis are killed in a conflict between the two. Hamas has set the exchange rate at 1:1,000. Also, as Miki Goldwasser (the mother of Ehud Goldwasser) noted, the parades the Palestinians are holding for the released terrorists are not symbols of victory. "[T]hey did not win, and they know it. They were humiliated precisely because so many terrorists were released for only one soldier." See the article here where one of the Hamas negotiators says that as an enemy, he would prefer for Israeli society to drop the value it places on human life. See also this post by Avi Melamed, a former senior Israeli official on Arab affairs, where he writes that Hamas agreed to this deal because of their weakness not strength.

The debate regarding these types of exchanges has been going on for a long time, most recently in 2006 when Israel released terrorists to get back the bodies of Ehud Goldwasser and Eldad Regev as well as in the aftermath of Shalit's kidnapping. For an example of the Point/CounterPoint on this debate, see articles from the Forward here and here.

For an interesting paper on the psychology of soldiers regarding the rescue of fallen comrades see Leonard Wong, Leave No Man Behind: Recovering America’s Fallen Warriors, 31 ARMED FORCES & SOC’Y 599 (2005) available here.


*UPDATE- October 18, 2011- after Shalit's return*
After seeing Gilad Shalit's return to Israel it is hard to continue the debate and say that he should have stayed in captivity for the good of the nation. To make that argument in the abstract while he was still in captivity is one thing but to behold the man in flesh and blood and to ask him to make that sacrifice is too much.

* End Update*


*UPDATE- November 9, 2011 *
There is a good article from the NY Times Magazine Section entitled Gilad Shalit and the Rising Price of an Israeli Life

* End Update*

After the jump is part of a paper I wrote on the Jewish law view of prisoner exchanges.  I was not able to post it with the footnotes intact, so # means there was a footnote. (See also this article by Samuel Freedman here. I don't want to nitpick but his description of the actions of "Rudolf Kasztner, a Jewish activist in Hungary who had paid cash, gold and jewels to the Nazi officer Adolf Eichmann in 1944 to save about 1,600 Jews headed for death camps. So controversial were Mr. Kasztner’s actions that he was assassinated by a fellow Israeli more than a decade after the war," are I think misleading. I don't think his actions were controversial because he ransomed Jews to save them from the death camps, but rather because he chose to save specific Jews while failing to alert the masses of the impending danger. See Wikipedia here.)

The New Currency of Foreign Exchange: The Propriety of Trading Convicted Terrorists for Dead Bodies, a Jewish Law View

Judah Fish

Table of Contents
I. Introduction 2

A. The Complex Nature of the Issue 5

II. Confronting the New Reality 8

A. The Zionist Approach 9

B. The Ultra-Orthodox Approach 11

C. A Middle Road 13

III. The Lenses of Jewish Law 13

A. The International Model 15

B. The Judeo-Military Model 18

C. The Traditional Model 21

IV. Hostage Taking in Halacha 24

A. The Obligation to Redeem Captives 26

B. The New Currency 37

C. Risking Life to Save Lives 45

1. The Many vs. the Few 50

D. Civilians vs. Soldiers 52

V. Trading for Dead Soldiers 55

A. The Obligation to Bury the Dead 55

B. The Morale of the Soldiers 57

C. To Allow the Widows to Remarry 59

D. Problem of incentives 62

E. Alternative Solutions 63

VI. Who Should Decide? 63
VII. Conclusion 64

1. Introduction

In June of 2008, Israel released five Lebanese terrorists and a number of bodies of dead terrorists in exchange for the bodies of Ehud Goldwasser and Eldad Regev, two Israeli soldiers whose kidnapping led to the Lebanon War of 2006.#  One of the terrorists that Israel released was the infamous Samir Kuntar. Kuntar was just 17 years old when he was convicted of murder in 1979 after he infiltrated an Israeli town where he shot and killed an Israeli father, Danny Haran, and then killed Haran’s daughter by smashing her head against a rock.#  Haran’s other daughter was accidentally suffocated by Mrs. Haran who was trying to prevent the infant from crying and alerting the terrorists to their hiding place in a crawlspace in the ceiling of their home.#  Kuntar had been held by Israel for 30 years and his name had been floated by Hezbollah and others for years as the top priority for any prisoner exchange with Israel.#

While this exchange was not the first time that Israel had released convicted terrorists in exchange for her own soldiers, this time she was not even bargaining to recover live soldiers but dead ones.  It was a matter of some dispute whether Israel knew that the soldiers were dead or merely suspected it when she bargained.#  But by the time the Cabinet finally voted to approve the deal, the Prime Minister announced that they were in fact dead.#  Truthfully though, even this exchange was not novel.  Israel had released terrorists to retrieve the remains of her own soldiers in 1962, 1968, 1975, and 1998.#

The Regev/Goldwasser deal was complicated by the fact that there are still other Israeli soldiers being held by other enemies of Israel.  For example, the Hamas terrorist organization is still holding Gilad Shalit hostage.#  Shalit is an Israeli soldier who was kidnapped by gunmen in the early morning of June 25, 2006 in a surprise attack.#  Many believe Israel may have hurt its bargaining position with respect to Shalit by agreeing to such a lopsided exchange.#

1. Hostage Taking in Halacha

After sketching out different visions of the role of Jewish law in the modern military setting stemming from the various understandings of the significance of the return of the Jewish people to their homeland in general, we now turn to the halachic view on prisoner exchanges.

While their halachic significance might be debatable, the Torah mentions several incidents of hostage taking.  In Genesis 14, Abraham’s nephew Lot was kidnapped by the armies of the five kings. Abraham went to war to rescue him.  In Genesis 34, Jacob’s daughter Dina was kidnapped and molested by Shechem.  In response, Jacob’s sons Shimon and Levi wiped out the entire city.  In Numbers 21, the Canaanites attacked the Jewish nation and captured one girl.  In response, Moses led the Jews into battle to rescue her.  None of these incidents forms the basis for any Talmudic discussion of the laws of redeeming captives.  But for those who propose that we can learn lessons from these narrative passages,# they seem to indicate that it is permissible to wage war against an opponent who has taken hostages.

Before addressing the topic of Israel’s most recent exchange of convicted terrorists for dead soldiers, an analysis of the halacha regarding an exchange to recover live prisoners (including civilians) is necessary.  From there we can turn to the return of soldiers, first alive and then, Heaven forbid, dead.

When terrorists hijacked an Air France plane flying from Athens to Paris in 1976 and rerouted it to Entebbe, Uganda, they demanded the release of 53 Palestinian terrorists, most of whom were being held in Israeli jails, in exchange for the release of the hostages.#  Israeli special forces conducted a daring raid at the airport in Entebbe and rescued most of the hostages.#  Rabbi Yosef addressed the permissibility of a prisoner exchange, in a responsum he began writing before the rescue made it moot but which he subsequently completed.#

1. The Obligation to Redeem Captives

The obligation to redeem captives is deemed by Jewish law as a “great and important mitzvah (command)” and money collected for redeeming captives cannot be used for other charitable causes.#  The Talmud points to a verse from Jeremiah 15:2 as the source for this obligation.#  The verse reads “And it shall be when the people ask you ‘Where shall we go?’ you shall say to them, ‘Thus, says the L-rd: Those who are to go to death will go to death, those to the sword, to the sword, those to famine, to famine, and those to captivity to captivity.’”  The Talmud points out that these hardships get progressively worse and captivity is the worst because if the captors wish, it may include them all.  The implication is that if captivity is so terrible, then there is an obligation to redeem a captive to spare him from the suffering.  According to Maimonides, although redeeming captives is not specifically listed as one of the 613 biblical commandments it is, nevertheless, under the penumbra of no less than five different Torah directives and one verse from Proverbs.#

It used to be the norm for kidnappers to take an innocent victim and either sell them into slavery or return them to their families in exchange for a ransom.#  Prisoners of war became the property of their captors hence the Torah speaks of being led off to captivity.#  The Mishna records a rabbinic enactment that, despite the importance of redeeming captives, forbids Jews to ransom captives for more than they are worth.#  The next Mishna writes that it is similarly prohibited to redeem Torah scrolls or other holy writings for more than their value.#  This limitation seems only to apply where there would be a community obligation to redeem the captured item but would not apply to rescuing mundane items like cars or stereos from thieves or bandits.  Thus if someone wanted to pay a band of car thieves an excessive amount to get his car back, it might be halachically permissible even if it will lead to more theft of Jewish cars because there is no community obligation to redeem a stolen car.#

Two reasons are given for this limitation on paying excessive ransoms.  Since the obligation to redeem captives falls to the community if the relatives of the captive cannot afford the ransom,# redeeming captives for more than their value will cause the community to become impoverished if they need to collect exorbitant amounts of ransom money.  Alternatively, paying an excessive ransom will incentivize kidnappers to exert themselves and go to great lengths to take Jewish captives if it is more profitable.#  It seems that the first reason expresses concern for the financial well-being of the community while the second reason is more concerned with the physical well-being of the citizenry.#  It is possible that according to the first reason, the Mishna is only removing the obligation from the community to redeem captives but it would still be permissible to redeem them for more than their value if the community wishes.#  According to the second reason, however, it is absolutely forbidden to redeem captives for more than their value lest it put others in danger.#

Rashi, the famous medieval commentator on the Talmud, explains another difference between the two reasons given for the limitation.#  If the Rabbis of the Mishna were worried about impoverishing the community then a wealthy individual, for example, would be allowed to redeem his own daughter.  According to the logic of the first reason, the limitation is directed more toward the community leaders while according to the second reason it applies both to an individual and the community.

Those who are worried about impoverishing the community might feel that the concern for future kidnappings is too distant to obligate the community to sit on its hands while a fellow Jew is being held captive and potentially in mortal danger, but the impoverishment of the community is an immediate consequence that should be avoided.#  But if the concern is the incentive it gives to kidnappers then even an independently wealthy individual would be prohibited from paying an exorbitant amount to free his daughter.  Those who believe this reason is primary may feel that monetary concerns should not be a reason to leave a fellow member of the faith in the hands of his kidnappers, but concern for a wave of future kidnappings would be.#  Maimonides rules that the second reason is the primary reason for this ban on ransoming captives for more than their worth as does the Shulchan Aruch.#

There are however, some exceptions to this rule.  A man is allowed to redeem his wife for more than the value of a typical captive.#  Another exception exists if the captive is a Torah scholar or a promising young student.#  Yet another exception is if the captive is in mortal danger.#

This last exception may not be as far reaching as it sounds.  Commentators explain that the exception to redeem a captive for more than his value if he is in mortal danger may only be in accordance with the view that we can’t redeem captives for more than they are worth because it might impoverish the community.#  This is logical because mortal danger usually supersedes almost all other halachic obligations.#  However, if the reason that it is prohibited to pay an exorbitant ransom is because it will provide an incentive to the kidnappers and there is an exception to one who is threatened with death, kidnappers will quickly learn that as long as they threaten their captives with death they can demand ransoms in excess of the standard rate.#  Conversely, the exception for a Torah scholar is only logical if the reason for the ransom limit is to prevent the creation of an incentive for kidnappers.  Because high caliber Torah scholars are few and far between, paying a large sum to redeem one will not increase the likelihood of further kidnappings.#  Further, it seems that Maimonides would not agree that a risk of mortal danger is an exception to the limitation on paying excessive ransoms because he first writes that the reason redeeming captives is so important is because they are in mortal danger.#  Yet he rules definitively that one may not redeem a captive for more than his worth.#

One of the most famous Torah scholars ever taken captive was the Maharam of Rothenburg.#  He was imprisoned by the Austrian Emperor Rudolf in 1286 and was held for a large ransom.#  The Maharam ruled that it was forbidden to pay the ransom based on the Talmudic passage cited above, lest the emperor be encouraged to kidnap others.  Rabbi Bleich suggests that the Maharam was of the opinion that the exemption for ransoming a Torah scholar is only applicable if the reason for the limit on ransom is so as not to impoverish the community.#  But since the operative halacha follows the other rationale, so as not to incentivize the kidnappers, the only exception would be if he was in mortal danger which he was not.  In fact, the Maharam was imprisoned in the emperor’s fortress for seven years until he died in 1293.#

Rabbi Ovadia Yosef- in his typical encyclopedic fashion- cites numerous opinions for both the proposition that that when they are in mortal danger it is forbidden to redeem captives for more than their value and the position that it is permitted.#  One of the major opinions relied upon to permit paying exorbitant amounts to free captives is Rabbi Shlomo Luria.#  He rationalized the prevalent custom of his day that Jews would redeem captives for far more than they were worth and the communities voluntarily assumed the cost because the Jewish population was shrinking dramatically and they needed to save as many as they could.  Also, while in captivity, these Jews were being forced to give up their religion and therefore it was permitted to rescue them at any price.#

In the period after the destruction of the Second Temple in Jerusalem, the problem of providing kidnappers with an incentive to kidnap more Jews did not apply.#  One rationale behind this is that since all the Jews were already captured, there was nobody left for their enemies to kidnap.#  Alternatively, since the period after the destruction of the Second Temple was a period of great upheaval and Jews were being jailed all the time, paying large ransoms would not make the problem any worse.#

Some of the problems raised in the modern halachic literature and even popular newspapers are the incentives a lopsided exchange gives to the terrorists.  They will try to kidnap more soldiers in order to use them as bargaining chips to free all remaining terrorists from Israeli prisons.#  If they see that they are able to demand an exchange of one soldier for 500 terrorists, the next time they will demand even more.  Any deterrence of future terrorist actions is negated because potential terrorists are not afraid of going to jail; they know it will only be a short stay.#  The deterrence aspect of jail time is also rendered meaningless even for those who were actually caught and imprisoned.  If their sentence is curtailed they may recidivate on the assumption that even if caught again they will be released in a future exchange.#  The retribution dimension of their punishment is similarly undermined.#  Furthermore, when Israel agrees to the terrorists’ demands it undermines the rule of law.  A life sentence is not enforced and even domestic criminals will think that the justice system is a joke.

Rabbi Yosef’s final analysis seems to be based on the greater number and weight of halachic decisors who allow redemption of captives for excessive sums when there is a risk of mortal danger to the captives.  Further, since the Mishna’s rule is only a rabbinic decree and according to the Torah law such sums may be paid, if we are unsure whether the Rabbis intended their limitation to apply in cases of danger to life, we should revert to the Torah’s rule as it was prior to the rabbinic ordinance.#

2. The New Currency

The Talmudic and post-Talmudic discussion does not fix the price that should be paid to ransom captives.  Whatever the market rate for kidnap victims was the standard of measure.#  But in modern society, how do we calculate the value of a captive?  There are two main halachic views.  The first is that we calculate the value of the captive based on what they would fetch on the slave market (if there was one).#  The second is that Jews should only pay what non-Jews pay to ransom their hostages.#

When terrorists take hostages, their demands may include political recognition, money, safe passage, or the release of their compatriots being held in prison.#  How does a government determine how many terrorists to release per hostage?  How much is a hostage worth in human currency?  Halachic writing on the exchange rate of Jewish prisoners for other prisoners is non-existent until the twentieth century.  This is understandable when we consider that there was no organized national body that could capture and detain non-Jewish prisoners.#  Furthermore, the whole concept of mid-conflict prisoner exchanges is a relatively new phenomenon.#

If the terrorists demand the freedom of their imprisoned allies then Rabbi Kalev maintains that the rate of exchange is measured in people. #  In such a scenario, the acceptable price for ransoming a captive is whatever the non-Jewish nations “pay” in terms of releasing prisoners to free one of their own.  Paying anything more would incentivize terrorists to kidnap Jews.  He argues that even the Maharam Lublin, who says that the value is calculated based on the slave market,# would agree that today the “currency” may be measured in terms of people, not money.#

It may seem that the terrorists and hostages should be traded on a one to one ratio, but it is certainly feasible that different captives could have different values depending on their age, sex, status, etc.#  In fact, during the United States’ Civil War, there was an agreement by which the Union and the South would trade prisoners of war according to a fixed schedule.#  “A noncommissioned officer would be exchanged for two privates, a lieutenant for four and the exchange values worked themselves up to a commanding general, who was worth sixty privates in exchange.”#

In a case where terrorists demand the release of hundreds of their imprisoned comrades in exchange for releasing just a few hostages some of the previously mentioned allowances to overpay for their release may not apply.  As mentioned above, the exception to redeem captives for more than their worth in a case of mortal danger might only apply if the reason for the prohibition is so as not to impoverish the community.  But if the reason for the prohibition is to disincentivize future kidnappings then the prohibition would still apply even in cases where the captives are in danger.  Since Maimonides and the Shulchan Aruch rule that the reason for the prohibition is to prevent future kidnappings, it may not be permitted to make an unbalanced trade to secure their release.  This is the conclusion of a number of religious Zionist rabbis.

Rabbi Shlomo Aviner, argued that either reason given by the Talmud leads to the same conclusion.#  If the reason for the prohibition to pay too much to rescue a captive is because it will “impoverish” the community, if Israel accedes to the terrorists demands and proceeds with an exchange then she will be “impoverished” when the land is filled with murderers.  If the reason is so as not to provide an incentive to kidnappers, a deal like this will give the terrorists an incentive to kidnap more Jews in order to gain the release of all such prisoners in Israeli jails.  He writes that in the past few years 122 people have been killed and hundreds more injured by terrorists that Israel released.  Rabbi Aviner references the Biblical stories of Genesis and Numbers, where Abraham and Moses went to war to secure the release of hostages, and argues that the obligation to redeem captives for money only applies when the Jewish people is in exile, but when Israel has its own army, the halachic calculus changes and military force should be used to rescue the hostages.#

Dr. Itamar Warhaftig raises another problem with releasing terrorists.#  The Torah states that it is forbidden to release a convicted murderer from jail in exchange for money:

And you shall not take ransom for the life of a murderer, that is guilty of death; for he must surely be put to death. … And you shall not pollute the land in which you are; for blood, pollutes the land; and no atonement can be made for the land for the blood that is shed therein, but by the blood of him that shed it.#

If we would accept money in lieu of punishing criminals, anyone with the means would slay his neighbor and just buy his way out of jail and the land would be desolate of people.#  Rabbi Goren had suggested that Israel sentence convicted terrorists to death to avoid having to free them in exchange for Jewish hostages.#  But even if Israel is loathe to implement the death penalty and instead sentences a terrorist to a long prison term, it would still be forbidden to free a murderer.#  This prohibition would apply even if the “coin” used to ransom him is not money, but people.#  Furthermore, even if the government releases terrorists as part of a prisoner exchange, they should not be allowed to remain in Israel.  First of all, exiling them serves as a form of punishment, and second, as the verse states, the Land of Israel does not tolerate murderers.#

There are those who say that the value of one Jewish person is infinitely more than the value of one terrorist and therefore freeing any number of terrorists to rescue one Jew would not be considered “overpaying.”#  This sentiment was apparently not lost on Samir Kuntar.  Upon his release, Kuntar expressed envy at the lengths the Jewish state will go to return its captured soldiers.#  Similarly, some maintain that since each life has infinite worth, and "whoever saves a life, it is considered as if he saved an entire world,"# there is no such thing as overpaying for a Jewish life and every prisoner exchange “is a bargain from a Jewish perspective.”#  They argue (with some amount of presumptuousness) that due to Israel’s military prowess and success, the ratio of captives will always favor the other side.#

Rabbi Yehuda Zoldan, on the other hand, writes that the words “redeeming captives” implies a monetary cost while the word “trading” would more aptly describe an exchange of prisoners.  Therefore the Talmudic discussion about how much to pay to redeem captives may not be applicable to a prisoner exchange and lopsided exchanges of captives would be permissible.#  Rabbi Yehuda Shaviv writes that during war, an army would rather have the enemy trying to kidnap its soldiers, because that means the enemy is not trying to kill them.#  Therefore paying an exorbitant amount to redeem captured soldiers would actually save more lives.#  This may be the case in a traditional battlefield situation but during a decades long conflict with a non-traditional enemy it may not hold true.

Rabbi Yosef also thinks that the Mishna’s prohibition on overpaying to redeem captives is not applicable to a scenario where the terrorists demand the release of their comrades.#  The Mishna’s rule was presumptively stated regarding paying actual money, not people.  Further, since the terrorists fighting Israel already try very hard to kidnap Israeli soldiers or citizens, releasing terrorists does not provide any further incentive for them to perpetrate these acts.#  The situation today is comparable to the Second Temple period where Jews were constantly being targeted and paying an excessive amount for their freedom won’t make things any worse.#  This is in line with Rabbi Yosef’s general traditional approach to halachic questions regarding military matters discussed in section ‎III.C above.  He analyzes the question based on the traditional sources and paradigms and applies his analysis to the new facts.  In this case, the new facts that terrorists demand the release of other terrorists dramatically change the analysis and the traditional prohibition is inapplicable.

3. Risking Life to Save Lives

The Talmud states that if a city is surrounded by enemies who say “Give us one person or we will massacre the entire city,” it is forbidden to give up the one person and all of the city’s inhabitants must sacrifice their lives.#  This is based on the principle that no one knows whose life is more valuable or whose “blood is redder” than another’s.#  Maimonides codifies this law and writes that even if the besieging party specifies by name the individual they want, if he is not deserving of death then it is forbidden to turn him over to their hands.#

The Talmud also records a debate concerning a scenario where two people are traveling in the desert but one of them is holding a canteen containing just enough water for one person to drink and survive.#  Rabbi Akiva rules that the person holding the water may drink it even though the other person will die because “your life comes first.”#

During the Holocaust, there were many difficult halachic questions posed to the rabbinical authorities regarding these laws.#  In one instance, the Nazis at Auschwitz rounded up all boys younger than eighteen.#  In order to determine who was too young to be a productive worker the commandant in charge of the camp had them all pass beneath a bar.  Anyone whose head reached the bar was assumed to be old enough to be productive and was allowed to live.  Anyone who was too short to reach the bar was sent to a special barrack to await his death.  This barrack was guarded by kapos, Jewish guards who cooperated with the Nazis.  No amount of pleading by any of the doomed boys’ relatives was able to convince the kapos to release any of the boys.  But the kapos could be bought.  For a large sum of money or a piece of gold or jewelry they would release a child from that barrack.  In order to ensure that the number of boys under their watch remained constant, they would forcibly conscript a boy who had evaded the selection or who was indeed the required height to touch the bar as a replacement.

A father of one of the boys awaiting death wanted to know if it was permissible to bribe the guards to release his son if as a result a different child would have to take his place.  The rabbi who was asked this question refused to answer.  The father inferred from his silence that it was prohibited based on the rule that we cannot determine whose blood is redder.#  A compatriot of one of the unfortunate boys wanted to know if it was permitted to switch places with his friend.  The rabbi replied that it was forbidden based on the principle that “your life comes first.”#

By releasing convicted terrorists to save the hostages from certain death, Israel would be putting its citizens, particularly those living close to the border of Palestinian controlled areas, in potential danger.#  The released terrorists may very well recidivate and commit more crimes against the Israeli population.  Although there is a debate amongst Jewish authorities whether one must, or even can, endanger his own life to save someone else’s, in this case it is a third party, the government, that is making a decision to endanger the lives of its innocent citizens to save the lives of other citizens, the hostages.#

Based on the Talmudic law that forbids the residents of a city to hand over a citizen to the enemy, it would seem to be forbidden to potentially “hand over” the citizens living close to the border of lands populated by terrorists by putting them in harm’s way even if it means the death of the hostages.#  However, Rabbi Yosef writes that there is a difference between handing someone over to the enemy where he will suffer certain death and releasing imprisoned terrorists who may pose a potential danger to the Israeli citizenry.  In the former, the action is one of cruelty to the individual and thus forbidden even if it means the whole city will be murdered.  The latter action is basically one of rescuing the hostages with a potential for collateral damage.#  Furthermore, it is unclear whether the released terrorists will actually engage in more acts of terrorism after they have already spent time in jail for their crimes.#

He then writes that because the hostages are threatened with certain death, others are obligated to endure a potential threat to their lives to rescue them.  It is not relevant that the governmental decision-makers would not directly be bearing the risk themselves but rather the third-party citizenry, because everyone has an equal obligation to rescue his fellow from mortal danger.#

1. The Many vs. the Few

There are those who argue that Jewish law values the rescue of the lives of the many over the rescue of the lives of the few.#  This question also arose during the Holocaust.#  In one poignant case, a group of Jews, including a baby, were hiding from the Nazis in a bunker.  While they were hiding, the baby began to cry.  Someone put a pillow over the baby’s face to quiet it and the baby suffocated.  Was it permitted to cover the baby’s mouth even though it might smother the child?  In a response given after the Holocaust, Rabbi Shimon Efrati, the rabbi of the few Jews who survived the Holocaust in the Warsaw area, wrote that it was permitted.#

Not only may the lives of the many be more valuable than the lives of the few, but one may even be obligated to sacrifice himself in order to save the entire nation.#  The Talmud seems to say as much when it says that a king may engage in a discretionary war where up to one sixth of the population will be killed.#  The same should hold true when dealing with terrorists who kidnap Jewish people for political motivations.#  The military and political leaders can decide whether it is in the best interest of the state to rescue the hostages, trade for them, or leave them in the hands of the enemy.#  The hostages may be obligated to sacrifice their own lives to prevent the release of violent terrorists who may kill more Jews.#  Thus it would seem that if releasing terrorists will threaten the lives of the entire population, there is no obligation to release those terrorists even if the hostages will be killed.#  But Rabbi Yosef believes that the potential threat posed by the released terrorists is too distant and speculative to outweigh the immediate danger to the lives of the hostages.#

4. Civilians vs. Soldiers

Rabbi Kalev writes that there is a difference between a prisoner exchange at the end of hostilities which is common practice between nations because the risk of future danger is over and an exchange during ongoing hostilities.#  But he sees no distinction between captive soldiers and civilians and thinks that in either case releasing more terrorists than hostages is not permissible.#  He reasons that “we do not allow danger to soldiers to be an overwhelming factor in military decisions.”#  Allowing soldiers to be killed by their captors is no different than “allowing” them to be killed on the battlefield.

Rabbi Goren, however, felt that releasing terrorists to free Israeli hostages is inappropriate when the terrorists demand a disproportionate trade.#  He thought that even Tosfos who allow an exorbitant ransom payment if the lives of the captives are in danger would object when the price demanded is the release of terrorists who could cause further harm to the community.#  But, if the terrorists were holding soldiers captive, then Rabbi Goren posited that the State had an obligation to get them back regardless of the cost.#  This would seem to be consistent with Rabbi Goren’s Judeo-military approach to halachic questions pertaining to war.  He believed that the laws of warfare differed from the laws of daily Jewish life.  Therefore, the law regarding redeeming captive soldiers is different than the law regarding civilians.#

Rabbi Yisraeli also made a distinction between cases where civilians or soldiers were being held prisoner.#  He wrote that the Israeli government is obligated to get its soldiers back even for more than they are worth.  He compared this to a husband’s obligation to redeem his wife from captivity.#  In contrast, the government is not obligated to get its civilians back but it is permitted, although the Defense Ministry should make the decision and try to make it an even trade.#  This may be in line with his international model for dealing with questions pertaining to warfare in the Jewish state because other nations seem to give precedence to the lives of their soldiers over civilians too.#,#

1. The Morale of the Soldiers

Halacha recognizes the importance of high morale in the army.  The Torah itself commands soldiers who are afraid to enter the fray to leave the battlefield lest their presence detract from the morale of the other soldiers.#

The Israeli army promises its soldiers that it will do anything to get its soldiers back even if they are dead.#  The thinking is that only if soldiers know that no effort will be spared to rescue them will they advance headlong into dangerous situations.  “Next time they have to stick their neck out for a soldier, they will do it with the knowledge that in the next round, the same will be done for them.”#  This argument is made by Rabbi Cohen in his article regarding exchanges for live soldiers.#  To ensure that morale remains high among soldiers it may be permitted to make a lopsided trade to even get bodies back.#

But it is reasonable to question if the morale of the soldiers will be improved if they now know that if captured, their enemies have no incentive to keep them alive.#  A counter argument can also be made that if soldiers see that the terrorists that they risked their lives to capture are being released without serving their full sentences and are returning to commit more terrorist acts, then the soldiers have less incentive to perform those missions.  Alternatively, they have an incentive to kill the terrorists instead of capturing them, thus reducing the number of bargaining chips at Israel’s disposal.

Soldiers are sent into battle knowing that they may be killed or captured.  They know that by doing their service they are protecting thousands of civilians.  “If the securing the fate of a single combatant can justify endangering life and limb of numerous civilians, the entire purpose of the military is annulled and the relationship between it and the civilian sector absurdly inverted.”#  It would be edifying to see some statistics reflecting the claim that if soldiers are not assured that the government will do anything in its power to rescue them, even if it takes three years or more, that they will refuse to embark on combat missions.#

2. Alternative Solutions

Israel does not need to constantly give in to lopsided prisoner exchanges.  There are other solutions available to her.  As mentioned above, she can mete out the death penalty to all convicted terrorists and there will be no one for her enemies to trade for.#  Or she can strictly limit the activities of the captured enemy fighters in her prisons who currently receive mail, cigarettes, visitors, and even conjugal visits.#  Israel can curtail these things without violating the Geneva Conventions and that would put a lot of pressure on her enemies to agree to a more balanced exchange.#