Hostage deal with terrorists in exchange for prisoners [Entebbe, Gilad Shalit, Oct 7th]:[1]

To our great misfortune, a new type of ransom which was not discussed in the Talmud or codifiers, is the demand of release of terrorists from prisons in exchange for captives. The question is raised as to whether the ransom payment restrictions and limitations enacted by the sages apply likewise to this type of ransom request. Is it more stringent or is it more lenient?

Historical overview: The above question unfortunately has risen numerous times in Israeli history, including:

• In 1954, a five-man Israel Defense Forces (IDF) patrol was abducted and tortured by the Syrian Army. One of the soldiers, Uri Ilan, committed suicide while in captivity. The surviving POWs and Ilan’s body were returned in exchange for 40 Syrian soldiers1.
• Following the 1956 Suez Crisis, Israel exchanged 5,500 Egyptian prisoners captured during the campaign and 77 others captured during military operations for an Israeli pilot taken prisoner during the war and three soldiers taken captive in pre-war attacks.
• In 1968, 12 Jordanian soldiers taken prisoner during the Battle of Karameh were released in exchange for the body of a missing Israeli soldier.
• An El-Al airliner hijacked to Algeria in 1968 led to the exchange of 12 Israeli crewmen and passengers for 16 Palestinian prisoners in Israeli jails.
• In 1970 terrorists hijacked a plane filled with Jewish tourists on their way from Germany to America, including the great Gaon Rav Yitzchak Hutner.[2]
• In 1977, an Air France flight was hijacked by terrorists which led to the famous Entebbe operation.
• In 1979, 76 terrorists were exchanged for one Israeli soldier, Avraham Amram.
• In the early 1980s, the PLO and Israel carried out prisoner exchanges. The most famous is the “Jibril Deal” in May 1985.
• In 2011 the kidnapped soldier Gilad Shalit was released in exchange for 1,027 terrorists prisoners held in Israeli jails.

Argument of leniency: The following arguments of leniency to remove any ransom restrictions can be made: 1) According to the first Talmudic approach of Kdei Dimeihem, there is no regulation against a country redeeming a captive for a lot of money as it does not cause the community to become destitute, and the same would apply to releasing Terrorists, and hence is obligated to be done to save the life of the captives.[3] 2) The restrictions against redeeming a captive, according to most Poskim, does not apply in the case that the life of the captive is in danger, as is the case by hostages.[4] 3) The release of terrorists does not transgress the rule of Ein Dochin Nefesh Mipinei Nefesh being that there is no direct and definite murder of any specific Jew as a result and if it happens R”L, it will only happen after some time.[5] 4) The government is responsible for redeeming captured soldiers, and doing so is an unwritten insurance policy on all soldiers which enlisted into the Army, and hence it is not subject to the restrictions on ransom payments.[6]

Argument of stringency:[7] The following arguments of stringency to restrict the release of terrorists in exchange for captives can be made: 1) According to the second Talmudic approach of Ligrivu Tfei, releasing terrorists will motivate future kidnappings, and hence is forbidden to be done.[8] 2) Ein Dochin Nefesh Mipinei Nefesh. This means that we do not sacrifice one life for the sake of saving another life. Furthermore, it is even forbidden to sacrifice an individual for the sake of saving the public from danger.[9] Thus, it is certainly forbidden to endanger an entire community of Jews for the sake of saving a hostage, and hence since the release of terrorists places the rest of the Jewish people in danger, it is therefore forbidden to be done irrelevant of one’s view on the subject of restrictions on redeeming captives for money. In short, we don’t sacrifice the community for the sake of an individual.[10] 3) During times of war there is no obligation to perform a hostage deal even if the hostages are in  danger, as the entire concept of war involves danger. Now, in today’s times the state of Israel is found in a constant state of war, and hence has no obligation to release terrorists for the sake of releasing hostages. On the contrary, doing so is considered assisting the enemy during war.[11]

Practical ruling amongst today’s Poskim: Some Poskim[12] conclude that the government is obligated to release terrorists in exchange for the hostages, [although if they don’t do so, they have upon whom to rely as stated above[13]]. Other Poskim[14] conclude that they must agree to do so and have upon no one to rely if they refuse.[15] Other Poskim[16] rule that on the contrary, it is forbidden to do so[17], with exception to a prisoner swap that takes place at the conclusion of a war.[18] [It is important to note that the above opinions of leniency, were unaware, and did not show serious concern that these released terrorists will manage to murder Jews once again. However, now that the entire world sees that the terrorists released from the Gilad Shalit deal managed to murder a number of Jewish individuals and then went on to orchestrate the October 7 pogroms which killed, raped, and tortured 1500 Jews, certainly, there is room to consider their opinions to have been retracted in light of the new reality.[19]]

Opinion of Rav Ovadia Yosef and Rabbanut Hareishit Liyisrael:[20] On the 29th Sivan 1977, an Air France flight on its way to Israel was hijacked by terrorists, with 104 Jews taken captive on the hijacked aircraft which was landed by the terrorists in Uganda. The terrorists issued an ultimatum to the Israeli government that if they do not release 40 of their terrorist colleagues within the next 48 hours, then they will kill the Jewish hostages. When  this occurred, a number of Gedolei Yisrael convened on the behest of the Israeli government and prime minister of that time Yitzhak Rabin, to decide whether or not it was Halachically permitted to enter negotiations with the terrorists for a possible prisoner swap. The group was made up of the foremost Poskim of that time, including, Rav Ovadia Yosef, Rav Elyashiv, Rav Yisraeili, Rav S”Z Aurbach, Rav Zaluti, Rav Goldshmit, Rav Bentziyon Aba Shaul. They issued the following ruling on the subject which was given to then prime minister, Yitzchak Rabin. “Although it is clear that releasing terrorists carries with it grave dangers, nonetheless, being that the Jewish hostages are found in a state of immediate danger, according to Jewish law they therefore override the danger of releasing the terrorists and therefore it is obligatory for the government of Israel to enter negotiations with the terrorists and do everything they can to save the captives from the danger that hovers over their lives”  

Gilad Shalit:[21] Prior to signing the prisoner exchange deal for the soldier Gilad Shalit, Rav Ovadia Yosef was asked to voice an opinion on the subject and he ruled symmetrically to his opinion stated above that the deal is to be made and even asked for the terrorist who attempted to murder him personally to be released in the deal.

Opinion of the Rebbe:[22] The Rebbe did not give any halachic ruling as to the question of whether releasing terrorists in exchange for hostages is permitted according to Jewish law, and made mention that indeed Halachic deliberation exists as to its permissibility being that it involves saving a Jewish life. Nonetheless, the Rebbe disagreed with the release of a large number of terrorists in exchange for one soldier as done by the Avraham Amram release deal [i.e. 76 terrorists were exchanged for one Israeli soldier] as a grave tactical error which will invite future kidnappings, and cause more Jewish blood to be spilled. Accordingly, in the Rebbe’s opinion, the policy of the Israeli government must be to not negotiate with terrorists and not to agree to a mass prisoner release deal, even if doing so will lead to Israeli casualties. [Seemingly, in the Rebbe’s opinion, while there is room to permit a prisoner swap agreement in exchange for hostages, it is not an obligation to do so, and therefore it practically should not be done for a large number of terrorists, due to the reasons explained above.] It’s interesting to note that as a solution to the constant headache of terrorists committing kidnappings for the hope of getting a release of other terrorist prisoners, the Rebbe strongly pressed on Israeli officials to have a death penalty for terrorists rather than hold them in Israeli prisons as potential bargaining chips which motivate the future kidnappings.[23]

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[1] See Orchos Rabbeinu 1:366; Shiurei Torah Lerofim  2:138; Yabia Omer C.M. 10:6 regarding a hostage deal to release terrorists by the Air France hijacking in Entebbe; Rav Tzvi Shechter in Ikvei Tzoan 32; Chavas Binyamin [Yisraeli] 16; Koveitz Or Hamizrach 40:212; Siach Yitzchak Gittin 45a; Omek Hapeshat 122 Devarim

[2] See Rav Tzvi Shechter in Ikvei Tzoan 32

[3] Orchos Rabbeinu ibid

[4] Yabia Omer ibid

[5] Yabia Omer ibid

[6] Chavas Binyamin [Yosraeli] 16; Koveitz Or Hamizrach 40:212

[7] See Koveitz Or Hamizrach 40:212

[8] Orchos Rabbeinu ibid; See Yabia Omer ibid

[9] See Rama Y.D. 157:1; Yerushalmi Terumos 8:4; Tosefta Terumos 7:23; Rambam Yesodei Hatorah 5:5; See Yabia Omer ibid; Koveitz Or Hamizrach 40:212

[10] Omek Hapeshat 122 Devarim in name of Rav Shmulevitz and Rav Moshe Shternbuch

[11] Rav Tzvi Shechter in Ikvei Tzoan 32 and in name of Rav Yaakov Kaminetzky regarding giving money in exchange for hostages and certainly this would apply to releasing terrorists in exchange for hostages

[12] Orchos Rabbeinu ibid; Yabia Omer C.M. 10:6 in name of Rabbanim: Rav Ovadia Yosef, Rav Elyashiv, Rav Yisraeili, Rav S”Z Aurbach, Rav Zaluti, Rav Goldshmit, Rav Bentziyon Aba Shaul; Siach Yitzchak Gittin 45a; Minchas Yitzchak Likkutim 110; Shiurei Torah Lerofim  2:138 in name of Rav Elyashiv; Shamru Mishpat 4:689; Mishnas Hamishpat p. 197; Devar Yehoshua 5 Y.D. 15 and 17

[13] Orchos Rabbeinu ibid

[14] Minchas Yitzchak Likkutim 110; Shiurei Torah Lerofim  2:138 in name of Rav Elyashiv

[15] The reason: As the terrorists are in any event motivated to continue the kidnappings, as well as that during times of destruction and war the concept of Lo Ligrivu does not apply. [Rav Eylashiv ibid]

[16] Rav Tzvi Shechter in Ikvei Tzoan 32 and that so ruled Rav Yaakov Kaminetzky; Koveitz Or Hamizrach 40:212; Omek Hapeshat 122 Devarim in name of Rav Shmulevitz and Rav Moshe Shternbuch and many Rabbanim

The story with Rav Yitzchak Hutner: When Rav Yitzchak Hutner was taken hostage in the hijacked plane in Jordan in 1970, his students in America desired to arrange his release in exchange for giving millions of dollars to the terrorists. While some Rabbanim defended this action on the basis that the monetary limitations of ransom payments do not apply to a Torah scholar, Rav Yaakov Kaminetzky ruled that it is forbidden to do so in this case, as it is a time of war and it is forbidden to help the enemy and give them money.

[17] The reason: 1) As the state of Israel is in a constant state of war with its enemies, and hence even payment of a monetary ransom is forbidden and certainly the release of terrorists. [Rav Tzvi Shechter ibid; Omek Hapeshat 122 Devarim in name of Rav Shmulevitz and Rav Moshe Shternbuch] 2) As releasing the terrorists will cause more Jews to be killed. 3) It encourages future kidnappings. [Omek Hapeshat 122 Devarim in name of Rav Shmulevitz and Rav Moshe Shternbuch] 4) There is no obligation to redeem a Mumar.

[18] See Koveitz Or Hamizrach 40:212; After the 1948 Arab–Israeli War, Israel exchanged all its Palestinian prisoners and POWs from Arab armies in exchange for all Israeli soldiers and civilians taken captive during the war.

[19] See Siach Yitzchak Gittin 45a who concludes this way in the name of his brother even prior to the October 7 attacks, and certain this would apply now.

[20] Yabia Omer C.M. 10:6

[21] See Siach Yitzchak Gittin 45a; Abirei Bavel p. 359

[22] Sichas Motzei Parshas Bamidbar 5739 regarding the 76 terrorists that were exchanged for one Israeli soldier, Avraham Amram; See also Igros Kodesh 31 p. 332 regarding the discussion to release terrorists in exchange for the hostages that were later released in the Entebbe operation in which the Rebbe expresses surprise that no one thought of the fact that perhaps even after an agreement is reached with the terrorists and the release of the terrorist prisoners takes place, the terrorists will not agree to release all the hostages alive.

[23] During a yechidus with an Israeli official, the Rebbe strongly criticized the Israeli governments policy of arresting and imprisoning Arab terrorists. “You are mistaken when you arrest and imprison terrorists,” the Rebbe warned. “These terrorists came to kill and they should be killed. You’re going to end up paying dearly when they demand the release of these killers in a prisoner exchange.”