CCAR RESPONSA
On the Redemption of Captives
5753.5
She’elah
What does Jewish tradition teach us concerning the ransom of captives? Specifically, both Maimonides (Yad, Hilkhot Matanot Aniyim 8:10) and the Shulchan Arukh (YD 252:3) indicate that we must pay the ransom and negotiate with those who take hostages. What can we learn from these teachings that might help us shape an appropriate response to those who would kidnap Jews for any purpose? (Rabbi Douglas E. Krantz, Armonk, NY).
Teshuvah
Jewish tradition indeed speaks directly to this issue which is, regrettably, of more than theoretical interest to the Jewish community, whether in Israel or elsewhere.
The Talmud refers to the redemption of captives (pidyon shevuyim) as a high obligation, greater even than that of tzedakah.1 Maimonides, in the passage cited above, expresses the Talmudic law as follows: “The redemption of captives takes precedence over supporting the poor…One who ignores the responsibility to redeem the captive violates the following negative commandments: `do not harden your heart and do not shut your hand (from your brother in need)’ (Deut. 15:7); `do not stand idly by the blood of your neighbor’ (Lev. 19:16); `he (the master) shall not rule rigorously over him (the indentured servant)’ (Lev. 25:33). He similarly annuls a number of positive commandments: `you shall surely open your hand to him’ (Deut. 15:8); `your brother shall live with you’ (Lev. 25:36); `you shall love your neighbor as yourself’ (Lev. 19:18)… There is no mitzvah as great as the redemption of captives.” The Shulchan Arukh notes: “each instant that one fails to redeem captives when it is possible to do so, it is as though one has shed blood.”2
Yet despite its exalted status, this obligation is not without limits. The Mishnah3 instructs that we are not to redeem captives “for more than their monetary value” (yoter al kedey demeyhen)4 on account of “the welfare of society” (mipney tikun ha-olam). What could “welfare” mean in this context? The Talmud5 offers two explanations: payment of exorbitant ransoms might bankrupt the community; alternately, the knowledge that the Jews will pay dearly to redeem their captives might tempt would-be kidnappers to seize more Jewish hostages.
There is a significant halakhic difference between these two explanations. Should we conclude that ransoms are limited due to the crushing burden they impose upon community treasuries, then there would be no restriction imposed upon the amount that wealthy individuals may pay out of their own funds to redeem their relatives. On the other hand, should we adopt the second theory, concern that high ransom payments encourage further kidnappings, then even the wealthy would be prohibited from paying more than the limit set by the Mishnah.6
The Talmud does not resolve this issue, and the halakhic authorities are in dispute. The Rambam declares that ransoms are limited in order to discourage future kidnappings.7 R. Asher ben Yechiel,8 by contrast, rules that a private individual may exceed the ransom limit in order to redeem himself, his wife,9 or a Torah scholar.10 Others expand the permit, allowing an individual to redeem any family member at any price.11 Such lenient rulings would imply that the limitation was instituted to safeguard the public treasury. The Shulchan Arukh strikes a balance between these alternatives: it simultaneously accepts Rambam’s explanation for the ransom limitation and R. Asher’s exceptions to the rule.12
While some, if not all, of these authorities permit individuals to exceed the Mishnah’s limitation upon ransom payments, none of them allows the community to do so. This distinction between the private and the public realms is eminently reasonable. The primary ethical responsibility of individuals, when confronting the captivity of loved ones, is to the captives themselves; that duty may be said to take precedence over their responsibilities toward society at large.13 Governments, meanwhile, may not set such priorities; they are charged with the protection of the entire community. As such, they are forbidden to yield to the extortionate sums demanded by the kidnappers, for to do so would encourage future attempts at hostage-taking and thereby expose the rest of their citizens to danger.
The government of Israel, in its dealings with hostage-takers, wrestles with the very dynamic described in the rabbinic sources. Though the question may not involve the “monetary value” of captives, it does go to the issue of price: at what point do the demands of the kidnappers become “unreasonable”, so that the government, which is ultimately responsible for the security of the people as a whole, must refuse to give in to them? In return for prisoners of war or civilian hostages, captors will set an exorbitant price, often the release of hundreds of imprisoned terrorists or criminals for each liberated Israeli. To yield to this demand might well entice other potential kidnappers to seize captives in the future; the freed prisoners, in addition, would pose a serious security risk to the Israeli public. The government may regard this price as excessive and, faced with a choice between the lives and freedom of its captive citizens and the safety of its population as a whole, refuse to pay it. Difficult as this decision must be, it is well in keeping with the Jewish legal tradition which, in the name of tikun ha-olam, sets limits on what communities may pay to redeem their captives.
Still, a case can be made for the opposing view, that no demand is too excessive or unreasonable when the lives of the captives are at stake. Some authorities rule that the limits imposed upon ransom payments apply only when the captors are interested solely in money. When they threaten to kill their hostages, however, the commandment to save life (pikuach nefesh) takes precedence over all else. While others disagree,14 this theory has been adopted by a leading contemporary halakhist, R. Ovadiah Yosef,15 who argues that in such instances the clear and present danger (vadai sakanah) to the lives of the hostages outweighs the potential danger (safek sakanah) to the rest of the population should the ransom be paid. On this basis Yosef concludes that Israel ought to pay the price, whatever it may be, which terrorists demand for the release of its captive citizens.
His opinion, however, is subject to a number of criticisms. First, it is by no means clear under Jewish law that individuals or societies are required (or even permitted) to subject themselves to safek sakanah in order to rescue those in vadai sakanah.16
Second, it is arguable that the danger posed to society by the payment of exorbitant ransoms, while not as direct as that to the hostages, is no less “certain”.17
Third, R. Yosef bases his argument in part upon his claim that by giving in to terrorist demands we do not thereby invite further intimidation, since the terrorists are committed to a campaign of violence and murder against Israel and its people whether we give in to their demands or not. He may be right; still, much political and strategic thinking disputes him, holding that surrender to the demands of hostage-takers doesencourage future acts of violence.
Fourth, R. Yosef does not consider the fact that Israel is a sovereign nation in a state of war with its neighbors. Since its enemies have shown themselves willing to pursue this war against its civilian population, it is not unreasonable for Israel to regard all its citizens as soldiers in the conflict. If soldiers are called upon to risk their lives in defense of the nation, Israel’s civilian hostages may be said to share that duty. R. Yosef’s ruling is, to be sure, a compassionate one; he would place the safe return of hostages in the first rank of Israeli security priorities. In so doing, however, he would tie the hands of Israel’s civilian and military leaders who must somehow, in painful dilemmas such as these, strike an acceptable balance between the lives of the hostages and the welfare of an entire nation.
This balance, we think, can be established solely on a case-by-case basis. In any hostage situation, the government must determine whether and to what extent payment of the ransom demanded by the kidnappers would threaten the safety of the rest of the population. In some situations the government will decide that to pay the ransom is the lesser of two evils, that to obtain the freedom of its captives justifies whatever danger the public may face at some later date.18 In others, it will conclude that the price is too high. In each case, the decision must reflect, on the strength of careful consultation with military, diplomatic, and political experts, the best available judgement as to the likely results of either course of action.19
This is no guarantee that mistakes will not be made; experts, like the rest of us, can be wrong. It is, however, the surest means by which the government of Israel (and indeed, any government or communal authority) can hope to discharge its ethical responsibilities to its people against the backdrop of one of the harshest realities of our time.
Notes
BT. Baba Batra 8a-b. Yore De`ah 252:3. The source is Resp. R. Yosef Kolon (Maharik, 15th-cent. Italy), # 7. Gitin 4:6. How to determine the “monetary value” of captives is a subject of some dispute. Some (Chidushey ha-Ritba, BT. Gittin 45a) set the amount according to the price the individual would fetch on the slave market (or the estimated price, should slavery no longer be in practice; Resp. Maharam Lublin, # 15). Others (Resp. R. David ibn Zimra Ha-Chadashot, # 40) measure the ransom price against that which is normally paid to kidnappers. Still others (R. Menachem Ha-Meiri, Beit Ha-Bechirah, BT. Ketubot 52b) set the price according to the captive’s social status. BT. Gittin 45a. Rashi, BT. Gittin 45a, s.v. o’ dilma. Yad, Hilkhot Matanot Aniyim 8:12. Alfasi, BT. Ketubot 52b (fol. 19a), rules that a husband may not redeem his captive wife “for more than her monetary value.” This suggests that Alfasi, too, accepts the reasoning that the limits are set in order to discourage future kidnappings and that even a private individual may not exceed those restrictions; see Rabbeinu Nissim ad loc., as well as Chiddushey Ha- Rashba, Gittin 45a. This position is adopted as well by the Gaon of Vilna (Bi’ur Ha-Gra, YD 252, # 6). Gittin 4:44, following Tosafot, Gittin 45a, s.v. dela. See also R. Asher to M. Ketubot 5:22, in the name of R. Meir Halevy Abulafia. See BT. Ketubot 52a-b. See BT. Gittin 58a, where R. Yehoshua pays a high price to redeem a child from captivity, because he realizes that the child is learned and will one day become a great halakhic sage. “How much the more so,” says R. Asher, “does this apply to one who is already a talmid chakham.” See R. Yoel Sirkes, Bayit Chadash to Tur, YD 252, who notes that such is common practice “to which no one objects”, and R. Shabtai Cohen, Siftey Kohen, YD 252, # 4. YD 252:4. In EH 78:2, we read: “the husband is not obligated to redeem his wife at a price greater than her monetary value…”. This suggests that he may do so if he wishes. A similar order of priorities is established with regard to the giving of tzedakah. See BT Baba Metsi`a 71a (on Ex. 22:24); Yad, Hilkhot Matanot Aniyim 7:13; SA YD 251:3. See the responsa cited in Pitchey Teshuvah, YD 252, # 4. In Torah She-be`al Peh 19 (1977), 9-39. See, in general, Journal of Reform Judaism 36 (Winter, 1989), 53-65, and the sources cited there. R. Yosef may have the better argument on this point, yet given the long-standing dispute over the issue, it is a shaky halakhic foundation upon which to advocate that Israel cave in to extortionate ransom demands. R. Ezekiel Katzenellenbogen, Resp. Kenesset Yechezkel, # 38. And, contrary to popular impression, Israel has never adhered to a “no negotiations–ever” policy with respect to hostages. Its recent willingness to deal for the release of Western captives in Beirut and (thus far unsuccessfully) for its pilot Ron Arad, held by the Hezbollah in Lebanon, are cases in point. This is essentially the position taken by a number of contemporary authorities. See R. Shaul Yisraeli in Torah She-be`al Peh 17 (1975), pp, 69-76, R. Yehudah Gershuni in Ha-Darom (1971), pp. 27-37, and our colleague R. Moshe Zemer in Ha’Aretz, December 13, 1983.
If needed, please consult Abbreviations used in CCAR Responsa.