Let me begin by saying that we in Kiryat Arba have been praying for the hostages for 15 months, and we are glad that they are being released, whatever mixed feelings we have about the terms.
Hostage deals with extravagant price tags are not something new. The first big hostage deal was in 1985, when Shimon Peres was prime minister. It was called the Jibril Deal, and I remember protesting against it at a Tel Aviv demonstration. It freed 1,150 terrorists in exchange for three Israeli hostages held by the terrorist Popular Front for the Liberation of Palestine (PFLP). Israel had never seen the likes of that.
Later, in 2011, there was the Shalit deal, which freed arch-terrorist Yihye Sinwar, mastermind of the October 7th attack, and 1,026 other terrorists in exchange for one soldier.
In November of 2023, after a month of heavy fighting following the October 7th attack, Israel achieved a hostage deal in which 108 hostages were released in exchange for 150 Palestinian prisoners. At some point, negotiations broke down and the Gaza war resumed.
Last month, a year later, presumably following pressure from Donald Trump for a deal, an agreement was reached in which 33 of the remaining 82 Israeli hostages were to be released by February 16 in exchange for the release of about 1,900 terrorists, a thousand of them serving life sentences. Another 49 living hostages remain after that, and their release will involve further negotiations.
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What should our
attitude be towards such a deal? I heard a talk about a week ago by Rabbi
Yitzchak Breitowitz, a musmach of Ner
Israel, a law professor, and a rebbe in Jerusalem’s Ohr Somayach. In that 50-minute
talk, he summarized three main opinions about the price we should be willing or
not willing to pay in exchange for freeing hostages. My summary follows, and I
will conclude with a few comments.
As explained by
Rabbi Breitowitz, there are three main halachic approaches to the price we
should be willing to pay for redeeming hostages.
The
first opinion: Ramban on Mishnayot Gittin 4:6: The Mishna states
that, for the sake of tikun olam,
enactments for the betterment of society, “we do not redeem captives for more than their value.” Since human beings have infinite value,
what does this mean? It refers to their value on the slave market. Viewed that
way, everyone has a hypothetical value. Hence in redeeming captives, Jewish law
forbids our paying ransom in excess of their economic value as a slave.
The gemara offers
two possible motivations for this ruling:
·
Protecting the public treasury.
Communities have needs. We don’t want to cause the bankrupting of a community.
·
To keep from incentivizing hostage
taking. If we pay ransoms, we encourage kidnappers to try again.
Rabbi Breitowitz
says that we rule according to the second reason. Accordingly, even private
families with the means to do so are forbidden to pay “beyond worth.”
Rabbi Breitowitz
then related the famous story about Rabbi Meir of Rottenberg, the Maharam
MeRuttenberg, the greatest rabbi in Germany during the 13th
century, and the Rebbe of Rabbeinu Asher, the Rosh. Rabbi Meir was taken
hostage by a duke and held for ransom. The Rosh wanted to raise the ransom
money that was demanded. He held that the enactment from Gittin did not apply
to a great Torah scholar. Yet Maharam MiRuttenberg vetoed the Rosh from
doing this. Consequently, he spent his last seven years in house arrest in the
duke’s castle.
His conditions
were not so terrible. He was allowed to give shiurim to students. He even wrote some sefarim while under arrest. When he died, the duke wanted an
enormous ransom for the body, and the Rosh reasoned that since Rabbi Meir was
now dead, he did not have to abide by Rabbi Meir’s previous ruling. The Rosh
got a wealthy philanthropist to pay the ransom, on condition that the donor be buried
next to him, and so it was.
In response, some poskim have forbidden giving up
terrorists in exchange for Jews, because 1) you are incentivizing terrorism;
and 2) you are releasing back into society terrorists who commit more terror.
As Rabbi
Breitowitz points out, those set to be released include such Hamas terrorists
as the one who shot and killed Eitam and Na’ama Heinken in 2015. That’s not so
long ago.
This was the first
shita: Don’t free terrorists who will
kill others later. It’s worse than money.
Second Opinion: Rav Ovadia Yosef. (Rav Yosef says that Rav Elyashiv agreed with him, although Rav
Breitowitz did not find that in writing.) A Tosafot in Gittin changes entirely how we
are understand the Gittin source.
The Tosafot say:
The whole ruling about not overpaying kidnappers only applies where the hostage’s
life is not in danger. Only in a case such as Maharam MiRuttenberg, where his
life was not in danger, do we say, “Don’t overpay.” But if hostages’ lives are
in danger, overpay. Free terrorists. Nothing stands in the way of saving lives.
Viewed that way, Hamas captivity has nothing to do with the restrictions in
Gittin.
You have here a
disagreement between Rishonim, medieval poskim.
Ramban says, even if they’re going to die, don’t overpay, while the Tosafot say
you must pay if their lives are in danger.
In Israel today, there
seems to be a split between the National Religious poskim, who prefer Ramban, and the chareidi poskim, who
prefer Tosafot.
What about the
people who are going to die later on as a result of freeing terrorists now?
In response to
this, Rav Ovadia Yosef said, “Future doubt cannot override present certainty.”
Rav Ovadia rules
like Tosafot, saying that the gemara in Gittin is only talking about where no
lives are threatened (however rare that situation is). Rabbi Breitowitz thought that Rav Ovadia Yosef was
marginalizing the gemara. In other words, by saying that it only referred to
the unlikely event that terrorist captives faced no threat, he seemed to
render the entire gemara irrelevant. In most cases, there is a deadline.
Terrorists say, “Bring the money by deadline X or we’ll kill the captive.”
Terrorists do not wish to shlep
around a hostage for a long time.
A Third Approach: Rav Yaakov Kamenetsky many years
ago and, more recently, Rav Herschel Schechter.
This third
approach reaches the same conclusion as the first opinion, that one must not
give in to terrorist demands, but arrives there by a different paradigm:
Hostage taking should not be viewed as kidnapping. It is an act of war.
Rav Kamenetsky
classifies Israel’s defensive wars as milchemot mitzva, compulsory wars,
because they involve “saving Israel from an attacker.” Referring at the time to
hijackings, Rav Kamenetsky says that hijackings are an act of war, and in war,
we must do all we can to destroy the enemy, to stop the enemy from attacking
you. There is no room for giving in to hostage demands. Anything that
strengthens the enemy is against the mitzva of waging war. So you cannot
compromise. You cannot give in.
On September 6,
1970, the PFLP terror organization hijacked a plane. Rav Yitzchak Hutner was on
the plane. One idea that was raised was to pay a ransom only for Rav Hutner.
Rav Yaakov Kamenetsky, a close friend of his, was against doing that. He said, “Hostage
taking is an act of war, and just as the death of soldiers is a cost of war, so
is the death of hostages. Giving in will embolden the enemy and create graver
dangers.”
Rav Kamenetsky and
Rav Schechter, in regards to today’s hostage situation, say that if there is a
mitzva to wage war, then there is a mitzva to beat the enemy and not empower
it.
Referring to
Israel’s presently having agreed to this deal, Rav Breitowitz asks, “Did Trump
promise something to Netanyahu in exchange for the hostage deal? Did he say, ‘If
you free the terrorists I will let you bomb Iran? Or I will let you continue
the war?’ If so, then in terms of Rav Kamenetsky’s approach, freeing the
terrorists might be part of strengthening the war effort – although we won’t
know for sure until it happens.”
Rav Breitowitz
concludes by asking, “If you go with Rav Ovadia’s approach, does that include
releasing live terrorists to get dead bodies?” He points out that although some
rabbis have indeed said that even getting back dead bodies contributes to “combat
morale,” Rabbi Breitowitz asks, “Is morale of soldiers more important that
avoiding terrorists killing people?”
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Up to here has
been my summary of Rav Breitowitz. Now I will add a few comments of my own.
Knesset Member
Itamar Ben Gvir previously went on record saying we should be killing captured
terrorists to prevent their being released in hostage deals. Recently, he gave
up his job as security minister and left Netanyahu’s coalition. As a resident
of Kiryat Arba, he went to our beloved Rav Lior, longtime Chief Rabbi of Kiryat
Arba-Hebron, and asked him if he should stay in the government and vote in
favor of the agreement. And Rav Lior, true to Ramban’s approach, told him no.
He should resign in protest. Itamar ben Gvir was criticized for the approach he
took, but there is nothing crazy about what he did.
That said, at this
moment I think we unfortunately have even bigger things to worry about than the
number of terrorists who might be set loose in Judea and Samaria. I am more
concerned about the war effort and how Gaza – and Lebanon, and Syria, and Iran
– are going to be handled in the future. Netanyahu said when the war began, “What
was will not be.” I hope that is the case. Will Israel remain in charge of the
border between Gaza and Egypt? All the weaponry that made this war possible was
smuggled over the border from Egypt. Will Israel be in charge of keeping
further weapons out? Or will some Hamas-type force under a different name be
placed in charge?
Similarly, in
Lebanon, Israel just exerted a great effort to clean southern Lebanon of
Hezbollah fighters. Now, Israel is under pressure to withdraw from there. Who
will police southern Lebanon? More European tin soldiers who look the other way
when terrorists come in and take over, as has happened more than once before?
Did Trump, in
fact, give a green light to Netanyahu in exchange for this deal to take out
Iran’s nuclear arsenal? To continue fighting in Gaza or in Lebanon? Or to
remain in Syria?
Right now we know
absolutely nothing about what is going to happen. Many hundreds of thousands of
fine young men fought valiantly in Gaza and in Lebanon, and 800 lost their
lives. I hope that there will be some long-term benefits from the present war.
We are happy,
obviously, that those poor hostages are being released. I hope, however, that
the war will not turn out to have been in vain. We have to pray for good
results.
