ת ש: דלוי בר דרגא פרקא לברתיה בתליסר אלפי דינרי זהב. אמר אביי: ומאן לימא לן דברצון חכמים עבד.

Transcription

1 ane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted George Zimmerm rting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Leiby Kletzky s Killer: The Insanity e in Halacha Accepting Charity from Non-Jews Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem Therapy and Impropriety: with a Therapist Drafting Yeshiva Students: Headlines A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism of Halacha A r Cheeseburger? The Halachic Status of Synthetic Beef Webcams Halacha Bernie Madoff: Must a Charity Return Funds Donated by a Ponzi Scheme rs? Hurricane Sandy: Rescuing Those Who Put Themselves Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Convicted Georg rman? Reporting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Leiby Kletzky s Killer sanity Defense in Halacha Accepting Charity from Non-Jews Alternatives to Cattle Prods: In Search of a Solution to the Aguna Problem Therapy and riety: Yichud with a Therapist Drafting Yeshiva Students: A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Prism a A Kosher Cheeseburger? The Halachic Status of Synthetic Beef Webcams in Halacha Bernie Madoff: Must a Charity Return Funds Donated by a Po e to Investors? Hurricane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have Conv Halachic Debates of Current Events e Zimmerman? Reporting Child Molesters: מסירה or Obligation? Shooting Down a Hijacked Plane: Killing a Few to Save the Lives of Many Leiby Kletzk The Insanity Defense in Halacha Accepting Charity from BY Non-Jews DOVID Alternatives LICHTENSTEIN to Cattle Prods: In Search of a Solution to the Aguna Problem Therap propriety: Yichud with a Therapist Drafting Yeshiva Students: A Halachic Debate Many Terrorists for One Israeli? The Gilad Shalit Deal Through the Pr cha A Kosher Cheeseburger? The Halachic Status of Synthetic Beef Webcams in Halacha Bernie Madoff: Must a Charity Return Funds Donated by a Scheme to Investors? Hurricane Sandy: Rescuing Those Who Put Themselves in Danger Stand Your Ground vs. Duty to Retreat: Would a Beis Din Have BACKGROUND The Gilad Shalit Deal: Exchanging Many Terrorists for One Israeli On June 25, 2006, IDF soldier Gilad Shalit was captured by Hamas operatives near the Kerem Shalom crossing along Israel s border with the Hamas-controlled Gaza Strip. Shalit was held captive for over five years, until October 2011, when Israel and Hamas signed an agreement brokered by Egypt whereby Schalit was returned to Israel in exchange for 1,027 prisoners held by Israel on charges of terrorist activities. The released prisoners included an operative serving twenty-nine life sentences for his participation in the infamous 2002 suicide bombing in Netanya s Park Hotel on the night of the Pesach seder, in which thirty Israelis were killed. Another prisoner who was released took part in the September 2003 bombing of Café Hillel in Jerusalem, which killed seven Israelis and wounded fifty-seven others. Also included in the deal were two Palestinian terrorists who were responsible for the abduction of IDF soldier Nachshon Wachsman in The deal was met with great euphoria throughout the Jewish world, which celebrated the long-awaited release of the young prisoner. At the same time, however, the transfer triggered a great deal of controversy and criticism, as many decried the release of hundreds of terrorists whose hands are stained with the blood of innocent Jewish men, women, and children. From a halachic standpoint, the validity of the Gilad Shalit deal must be addressed on two levels: Does the transfer of hundreds of convicted terrorists violate the prohibition against ransoming captives for an exorbitant price, a prohibition established by the Mishna and codified in the Shulchan Aruch? Statistically speaking, convicted terrorists have been shown to resume their deadly operations after their release from prison, and releasing security prisoners thus poses a risk to Jewish life. Does this risk make it forbidden to free terrorists in exchange for Jewish prisoners? Are there any limits to the mitzvah of pidyon shevuyim (redeeming captives)? RANSOMING PRISONERS FOR AN EXORBITANT PRICE We ll begin by taking a look at some sources that discuss redeeming captives for money. Talmud Bavli Gittin 45a Mishna: It is forbidden to redeem captives for more than their fair worth, out of concern for the public welfare (tikkun ha olam) Gemara: When the Mishna states that this halachah is designed out of concern for the public welfare, what does that mean? Is it expressing a concern for the community s finances, that it is unfair for the community to pay exorbitant amounts of money to redeem captives? Or is it that paying exorbitant amounts will only encourage future kidnappings? מתני. אין פודין את השבויין יתר על כדי דמיהן, מפני תיקון העולם... גמ. איבעיא להו: האי מפני תיקון העולם משום דוחקא דצבורא הוא, או דילמא משום דלא לגרבו ולייתו טפי? THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 1

2 [The Gemara attempts to answer its question:] Come and learn from the following story: Levi the son of Darga redeemed his daughter for 12,000 golden dinar coins. [This story shows that an individual may choose to pay such a sum, and we are not concerned about encouraging future kidnappings]! Abaye [rejects this proof, saying]: Who said that he acted in accordance with the will of the Rabbis of his time? Maybe he acted against halachah in redeeming his daughter, since such payments encourage future kidnappings! ת ש: דלוי בר דרגא פרקא לברתיה בתליסר אלפי דינרי זהב. אמר אביי: ומאן לימא לן דברצון חכמים עבד? דילמא שלא ברצון חכמים עבד. SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE The Mishna forbids ransoming captives for more than their value because of tikkun ha olam promoting public welfare. The above Gemara proposes two possible explanations for what tikkun ha olam means in this context: The first possibility is that such redemptions impose too heavy a financial burden upon the Jewish community. In other words, there is a limit to the expense the community must incur for the sake of securing the release of a fellow Jew in captivity. The second possible explanation is that we do not wish to encourage further kidnappings. Complying with a captor s unreasonable demands to secure a prisoner s release provides incentive for further abductions, and it is perhaps for this reason that Chazal forbade paying exorbitant sums for ransom. The practical difference between these two possibilities, the Gemara notes, is the case of a prisoner whose family has the financial means to pay the exorbitant ransom being demanded. If the family is prepared and able to bear the outrageous cost of the prisoner s release, then there is no concern of draining the community s resources and the deal would be permissible. If, however, the Mishna s prohibition was enacted to avoid providing incentive for future kidnappings, then paying an exorbitant ransom would be forbidden, regardless of the family s financial capabilities. The Gemara leaves this question unresolved, noting that although there is a recorded case of a wealthy man named Levi bar Darga who ransomed his daughter for a price of 13,000 gold coins, it is uncertain whether the rabbis of his time approved of his decision. THE ACCEPTED HALACHAH The Rambam adopts the second explanation that exorbitant ransoms are forbidden because they encourage additional kidnappings: Rambam Hilchos Matnos Aniyim 8:12 Maimonides ( ) Captives may not be ransomed for more than their value, out of concern for the public welfare, so that enemies are not encouraged to kidnap people. אין פודין את השבויים ביתר על דמיהן מפני תיקון העולם, שלא יהיו האויבים רודפין אחריהם לשבותם. The Rambam s formulation is also cited in the Shulchan Aruch (Y.D. 252:4), making it the accepted halachah. Thus, it would be forbidden to pay an exorbitant ransom for a captive, even if an individual or group of individuals is able and willing to incur the cost. Can you think of any cases where there might be exceptions to this rule? THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 2

3 TALMUD BAVLI GITTIN 45A THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 3

4 A POSSIBLE EXCEPTION TO THE PROHIBITION However, some rishonim (medieval halachic authorities) qualify this ruling, claiming that it does not apply to cases in which the prisoner s life is in danger. The basis for this qualification is a story told later in Talmud Bavli Gittin 58a of Rabbi Yehoshua ben Chananya, who came across an impressive and promising Jewish child who was being held captive in Rome. Rabbi Yehoshua determined that the child had the potential to become a towering Torah sage, and he pledged to ransom him for whatever price the authorities set no matter how high. The Gemara relates that soon after making this pledge, Rabbi Yehoshua indeed paid an exorbitant sum for the child s release, and the child grew to become none other than Rabbi Yishmael ben Elisha, the famous Kohen Gadol and sage. Tosfos raises the question: How can we reconcile Rabbi Yehoshua s pledge with the Mishna s prohibition against ransoming captives for exorbitant sums? Tosfos in Talmud Bavli Gittin 58a The Baalei Tosfos ( ~ 1200) [Why was this permissible? Tosfos gives two possible answers:] [1] When the life of a captive is in danger, one is allowed to pay even an exorbitant sum to redeem them [2] Alternatively, because Rabbi Yehoshua saw that this boy was an exceptional talmid chacham, the regular rules of redeeming captives did not apply כל ממון שפוסקין עליו כי איכא סכנת נפשות פודין שבויין יותר על כדי דמיהן כדאמרינן בפרק השולח גבי מוכר עצמו ואת בניו לעובדי כוכבים כל שכן הכא דאיכא קטלא אי נמי משום דמופלג בחכמה היה... SEE THIS TOSFOS IN THE ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE Tosfos draws a comparison to the Gemara s discussion earlier in Gittin (44a) concerning one who sold himself as a slave to gentiles, whom a community must ransom if his life is danger, even if he repeated the offense several times. Tosfos claim that the restriction on paying exorbitant sums similarly does not apply in situations of life-threatening captivity. What are the implications of Tosfos s answer for a captive like Gilad Shalit, who is being held captive by Hamas? REJECTION OF TOSFOS S RULING In light of this approach by Tosfos, it would appear that an Israeli prisoner may be ransomed from terrorists at any price, because his life is in danger. However, not all halachic authorities accept the distinction made by Tosfos between life-threatening situations and other cases. The Baalei Tosfos themselves offer an alternate answer, suggesting that Rabbi Yehoshua was prepared to pay an exorbitant price for the child s release because of his extraordinary scholarly potential. According to this answer, it seems, the prohibition of paying exorbitant ransoms may apply even in life-threatening situations of captivity and an exception is made only for scholars. Indeed, the Pischei Teshuva cites several responsa from later halachic authorities who do not allow the redemption of prisoners even in life-threatening situations. Among the sources he cites is a responsum of the Kenesses Yechezkel (Rav Yechezkel Katzenellenbogen, ), who notes that Tosfos s distinction between life-threatening situations and others presumes that paying exorbitant sums is forbidden because of the financial strain it imposes upon the community. From this perspective, it stands to reason that when a captive s life is in danger, the community is required to do whatever it takes to rescue him. But if we assume that the Sages forbade paying such sums in order to avoid incentivizing future abductions, then one may not redeem captives even if the prisoner s life is in danger, as rescuing his life does not warrant jeopardizing the lives of others in the community by encouraging further kidnappings. Hence, the Kenesses Yechezkel writes, the approach of Tosfos must be based on the reason of concern for the community s funds. Since the normative halachah cited in Shulchan Aruch explicitly favors the approach of concern for encouraging kidnappings, we must conclude that Tosfos s view is not accepted as normative halachah. Accordingly to this approach, the public would not be allowed to pay exorbitant sums to release Jewish prisoners, despite the fact that the prisoners lives are in grave danger. THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 4

5 TALMUD BAVLI GITTIN 58A THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 5

6 THE DANGER OF FREEING CONVICTED TERRORISTS All of the above sources discuss cases of redeeming captives in exchange for money; redeeming them in exchange for imprisoned terrorists introduces a whole new set of issues. In light of the statistical evidence that convicted terrorists tend to resume their nefarious activities after their release, one needs to wonder if such a dangerous exchange can be performed according to any of the above authorities. A similar conundrum is discussed in Sanhedrin, and the Gemara s ruling there can shed light on our discussion: Talmud Bavli Sanhedrin 74a What is the source that [one must give up his life] rather than commit murder? It is pure logic, as can be seen in the following story: A man once came to Rabbah with a predicament: My landlord recently came to me and demanded, Kill so-and-so, or else I ll kill you! [Should I kill the person, or should I let myself be killed?] [Rabbah responded:] Let him kill you, rather than commit murder yourself. Who says that your blood is any redder than his? Maybe his blood is redder than yours! רוצח גופיה מנא לן? סברא הוא. דההוא דאתא לקמיה דרבה, ואמר ליה: אמר לי מרי דוראי זיל קטליה לפלניא, ואי לא קטלינא לך. אמר ליה: לקטלוך ולא תיקטול. מי יימר דדמא דידך סומק טפי דילמא דמא דהוא גברא סומק טפי. SEE THIS ORIGINAL PAGE OF TALMUD ON THE NEXT PAGE What are the implications of this Gemara for the question at hand? Does it make halachic sense to endorse the release of dangerous terrorists to save a single Jewish prisoner? It seems clear that the mitzvah of redeeming captives applies only to paying money or making efforts on behalf of the captive s release. Nowhere do we find an obligation upon the community to endanger itself for the sake of releasing a Jewish captive. The rationale of Mai Chazis ( Who says your blood is redder than his? ) which forbids killing someone else to save one s own life presumably applies here, as well. The captive s blood should not be regarded as redder than anyone else s, and thus it seems to be improper to free a Jewish prisoner at the expense of public safety. CONCLUSION There are two factors that must be addressed when considering the exchange of one thousand terrorists for a single Jewish captive: Paying one thousand terrorists for one captive would seem to be an exorbitant sum, with the potential to encourage terrorists to perform future kidnappings, and hence is likely forbidden even when the prisoner is in a life-threatening captivity. The mitzvah of pidyon shevuyim (redeeming captives) does not require a community to endanger itself for the sake of securing a prisoner s release. It goes without saying that this analysis is presented only as a theoretical basis for discussion, and not for the purpose of issuing a practical halachic ruling, a responsibility that lies with the halachic authorities of our generation. There are many other factors and considerations that must be taken into account when deciding such issues of life and death, such as the psychological effect such a captivity has on other soldiers as they go out to battle, and this discussion is in no way intended as a comprehensive study of this very complex and painful question that the Jewish State has unfortunately been forced to confront time and time again. We hope and pray for the protection of our soldiers and of each and every member of Klal Yisroel, and for the quick and immediate release of all our imprisoned brethren, speedily in our days. DISCLAIMER: The views and opinions presented in this sourcesheet should not be taken as halachah l maaseh. Before applying these halachos to real-life situations, one must consult with a competent halachic authority. THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 6

7 TALMUD BAVLI SANHEDRIN 74A THE GILAD SHALIT DEAL: EXCHANGING MANY TERRORISTS FOR ONE ISRAELI 7