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      A Rabbi's Voice: Preventing Future Prisoner Deals

      If an enemy of Israel takes a hostage, we must go to battle for him, otherwise they will step-up their efforts to strike at us.
      By Rabbi Eliezer Melamed
      First Publish: 10/29/2011, 7:56 PM

      Shalit swap rally in Gaza
      Shalit swap rally in Gaza
      Flash 90

      Redemption of Captives

      The Sages of the Mishna teach: "Captives should not be ransomed for more than their value, for the sake of the general welfare." The enactment of such a law was necessary, lest kidnapping become a lucrative trade.

      The Rif (Rabbi Yitzhak Alfasi), the Rambam (Rabbi Moshe ben Maimon), the Rosh (Rabbi Asher ben Yechiel), and the Tur (Rabbi Jacob ben Asher) all rule accordingly, as does Rabbi Yosef Karo in his authoritative Shulchan Aruch (see Yoreh Deah 252:4).

      Yet, regarding a situation in which the life of the prisoner is at stake - i.e., his captors threaten to murder him if they do not receive the ransom they desire - Torah authorities are divided: Some say that it is permissible under such circumstances to pay more than the captive's value, because a Jewish life is at stake; others, though, maintain that such a deal is forbidden out of consideration for the general good, for if an agreement is reached, the terrorists will simply step-up their efforts to take additional captives.

      The Maharam of Rothenburg

      Rabbi Meir of Rothenburg (1215-1293 C.E.), known as the Maharam, was one of the greatest of the early Jewish codifiers. At the age of seventy he was taken captive and placed in the Einsisheim prison in Alsace, France. Emperor Rudolf I proceeded to demand an exorbitant sum for his release.

      In order to understand the full significance of this act it is important to realize that almost all of the rabbis and leaders of the Jewish communities in that generation were the Maharam's students. Even the great rabbis of the generation that followed were greatly influenced by the teachings of the Maharam.

      The most famous of his students was Rabbi Asher ben Yechiel, known as the Rosh, whose rulings are cited extensively in Rabbi Yosef Karo's Shulchan Aruch.

      Because the Maharam was such an important a figure, Emperor Rudolf I hoped to extort a huge ransom from the Jewish community.

      Indeed, the emperor's evil scheme nearly succeeded. The Maharam's students and admirers were prepared to raise the sum necessary to free their master. They felt that though the law forbids paying more for a captive than the accustomed amount, when the captive at hand is the leading Torah scholar of the generation, and the entire community is in need of him and his Torah wisdom, it is permissible to pay any fee.

      But the renowned Maharam would not permit it to be paid, for he understood that such an act would only encourage the enemies of Israel to imprison other rabbis in the future and demand huge sums for their release. As a result, Rabbi Meir of Rothenburg spent the final seven years of his life in the Ensisheim prison - and it was there that he died.

      By virtue of his greatness of spirit and his self-sacrifice for the sake of the general good, the Maharam succeeded in preventing a dam from breaking open: He saved the Torah leaders of future generations from captivity, and the Jewish communities from gigantic expenses which may well have caused their complete financial ruin.

      Individuals

      True, an individual person is permitted to pay an exaggerated ransom for himself, because, at the very most, he endangers only himself, as the kidnappers might try to grab him once again, but this is his personal responsibility.

      However, he is not permitted to ransom his family members, such as his parents or children, for more than their value. As far as paying an exorbitant ransom for his wife is concerned, there are differing opinions.

      Captives in Danger

      In a case where the kidnappers threaten to kill the captive, some 'poskim' (halakhic authorities) hold that the law is different, and 'pikuach nefesh' (life-threatening situation) overrides the ruling not to pay an exorbitant ransom. However, many 'poskim', including the Ramban, hold that even in a case of 'pikuach nefesh', it is forbidden to pay an exorbitant ransom, so as no to create an incentive to kidnap more captives and threaten their lives.

      This question was not determined, and even the imminent, latter-day 'poskim' are also divided (Pitchei T'shuva, Yoreh De'ah 254:4). Seemingly, the halakha depends on the degree of risk, and when there is a good chance that agreeing to pay a high ransom will cause the kidnapping of additional hostages and endanger their lives, it is forbidden to submit.

      Wartime

      So far, we have dealt with regular kidnappers, whose sole desire is to make money.

      However, when it comes to a state of perpetual war, the threat of life is more severe, for if we submit, our enemies will definitely interpret it as an expression of weakness, their morale will increase, and they will continue more vigorously to attack us.

      It is well known that after every such "success", more terrorists join their ranks.

      Additionally, the terrorists who attempt to attack us will have no fear about their future, knowing that even if they are caught, in the long run, they will be released from jail in a prisoner swap. Furthermore, there is a reasonable fear that at least some of the released prisoners will return to terrorist activities.

      Therefore, despite the pain involved, it is forbidden to surrender and pay for the captive more than is acceptable in such situations – one-for-one.

      The Law Regarding Prisoners in Wartime

      Although, as we have said, there are opinions that when the captive's life is at stake it is permissible to pay even more than the generally accepted amount, in wartime it is forbidden to surrender to any such extortion whatsoever.

      The rule is that in times of war one does not submit to any of the enemies’ demands. In fact, the Talmud states that even in a case when the enemy only stole some straw and hay from a border village, the response must be a strong military one. For, as soon as one gives in to them regarding a small matter, they will gain confidence and increase their efforts to strike at us (see Eruvin 45a).

      Therefore, if an enemy of Israel takes even a single hostage, we must go to battle against them in order to save the captive, for if we allow them to succeed in taking one hostage they will gain incentive and step-up their efforts to strike at us.

      To this effect we find in the Torah (Numbers 21:1): "And when the Canaanite King of Arad, who lived in the Negev, heard that the Israelites were traveling along the Atharim Highway, he attacked them and took some captives." According to the Sages, they took only a single maidservant. Yet, in order to save her, Israel did not suggest negotiations, but went to battle against the Canaanites.

      An additional example can be brought from King David: When the Amalekites attacked the town of Ziklag, taking the women captive, King David did not sit down at the negotiating table, but went to war against them and saved the prisoners (Samuel 1:30).

      Summary

      Even when we lack the ability to return the hostage by use of force, it is forbidden to surrender and pay more than one-for-one. Incidentally, this rule is accepted in almost every country in the world – and regarding terrorist organizations, the attitude is much more severe.

      For example, in the United States of America, there is a law forbidding the government from negotiating with terrorist organizations at all.

      Exchanging Prisoner's of War

      It is important to realize, though, that at the end of the war, when a final cease-fire agreement is reached between the sides, it is permissible for Israel to release all of the enemy prisoners in its possession in turn for all of our own captives being held by the enemy - even if we have taken many captives. The reason for this is that such exchanges are recognized as accepted practice at the end of the war, and therefore not considered acts of extortion.

      Unfortunately, though, we do not foresee such an end to war and terrorism arriving anytime in Israel's near future.

      Looking to the Future

      Although this dangerous deal has already been carried out, it is important to continue engaging this issue, because there is a good chance it will become relevant once again. Therefore, it is important now to pass a law restricting the authority of the government to negotiate prisoner swaps of more than one-for-one.

      Worrisome Erosion

      The responsibility for this dangerous deal lies first and foremost with the government and its' leader, who, for many years, gained world-wide recognition as an expert in the war against terror, and alarmingly, turned his back to what he preached for years.

      The problem is that the majority of the people supported this wanton agreement. Two factors lead to this:

      First, a severe devaluation of the importance of the 'klal' (overall community), and the individual's willingness to sacrifice for it. If such attitudes had been prevalent in the past, the Jewish nation's struggle for independence would never have succeeded.

      The second factor is the devaluation of the recognition of our right the Land of Israel. It's not by coincidence the feeling that Gilad Shalit must be returned 'no matter what the price', originated from leftist circles. In their view, our return to the Land of our Forefather's, by the word of God, is thievery; therefore, to some extent, the terrorist's struggle is just, and ethically speaking, it's not so terrible to release them from jail before their time is served. In any event, they believe, the only solution is a withdrawal as large as possible.

      The Media's Role

      The mainstream media played a major role in persuading the public to go along with this humiliating agreement, but the problem is they take absolutely no responsibility; when the terrorist attacks increase, the government is blamed, and not the media.

      Thus, the mainstream media allows itself to adopt an irresponsible standpoint, which corresponds to their leftist point of view. They claimed that soldiers would not want to fight if they didn't know that "everything" would be done to redeem them if captured, but actually, people who are familiar with combat soldiers know that they did not support this shameful agreement.

      A soldier who is ready to risk his life in war does not agree to surrender.

      Although the public is aware of the media's leftist bias, it nevertheless is influenced by it. The public thinks that the media is only a slightly biased – and being wise media consumers, people believe they are able to counterbalance its jaundiced eye. But the public does not know that the media's leftist bias is drastic, to the point where today, many people from the media find it difficult to define themselves as Zionists and Jews.

      Only when media consumers are fully aware of its intense damage, can the journalists wash their hands and claim: Our hands have not shed this blood.

      The Military's Failure

      A dangerous process amongst the military brass also took place. For five years, not one proposal was raised to rescue the captured soldier. Thirty years ago, this could never have happened amongst I.D.F. commanders.

      The erosion began with the partial turning of the army's effort against the settlements in Judea and Samaria, and increased greatly leading up to the withdrawal from Gaza, when, for three years, the main occupation of the army was planning and educating towards the withdrawal and expulsion of Jews from the Gaza Strip, and the top brass was selected with one main consideration – support of the withdrawal.

      Thus, we find the Chief of Staff calling Gilad Shalit a 'hero'. And while still in uniform, Maj. Gen. Avi Zamir was not ashamed to relate in an interview (Hebrew daily, 'Yisrael HaYom', 12/4/09), about the powerful impression left on him after watching the video of Gilad Shalit in captivity: "I have no doubt that for me, it was one of my saddest moments…"

      This man was responsible for all our soldiers, some whom he sent to risk their lives in combat units, with not all of them returning to their homes in peace – but watching the video of the captive soldier stirred him most.

      The Legal System

      The legal system, which preaches to us day and night that Israel is a state of law,  agreed with the most serious violation of the principles of morality, justice, and criminal law by approving the release of hundreds of terrorists who violated the most serious offenses, and were sentenced lawfully to numerous life-sentences.

      At every opportunity, they allow themselves to interfere in government decisions: determining the rules engagement, the location of the security fence, defining the borders of settlements, etc., but suddenly, in the case of Gilad Shalit, they were seized with an attack of humility, remembering the claim that 'the Court should not intervene in matters that are within the government's authority'.

      Anyone who needed proof can now be certain that their leftist outlooks precede the law. But they will continue preaching to us about the rule of law, and continue abusing any soldier who might have seemingly acted improperly towards the enemy.

      Thank God for the Jews of Judea and Samaria

      How fortunate we have idealistic Jews on the mountain range of Judea and Samaria, in the Galilee and the Negev, establishing our right to the Land of Israel, and our hold on our country. The more the spirit of these communities increases, the quicker the shadows will flee. 

      Rabbi Eliezer Melamed is the Dean of Yeshiva Har Bracha, a prolific author on Jewish Law and one of the most active leaders amongst the religious-Zionist public. HIs halakhic compendium is part of the recognized religious school curriculum in Israel. This article was translated from his popular weekly column "Revivim" which appears in the "Besheva" newspaper. According to official media surveys, it is the most widely read editorial amongst the religious and ultra-Orthodox public in Israel.  Rabbi Melamed's articles also appear at: http://revivimen.yhb.org.il/