Gaza hostage crisis - The Halachic perspective

Hi, as you may know, there are 120 hostages now in Gaza and there are discussions going on about whether it is right to free Hamas prisoners in exchange for their freedom, my question is what would be the Halachic perspective to such an agreement are there any guidelines in halacha?

Thank you for your question.

While this is an ongoing discussion and debate you are right in asking what would be the halachic perspective to such an exchange. So, while I cannot make such a decision in this case it would need to be decided by the great leaders of the generation based on information they are given. However, I can share with you some of the halachic background and how historically the rabbis approached this very complex subject.

We know that the mitsvah to redeem a captive is one of the greatest mitsvah in Hebrew it is called "מצוות פדיון שבויים". When the Talmud (Baba Basrah page 8a) speaks about the importance of The Mitsvah to redeem captives it quotes a verse from Yirmiyahu (chapter: 15. Verse: 2)

כֹּה אָמַר ה' אֲשֶׁר לַמָּוֶת לַמָּוֶת וַאֲשֶׁר לַחֶרֶב לַחֶרֶב וַאֲשֶׁר לָרָעָב לָרָעָב וַאֲשֶׁר לַשְּׁבִי לַשֶּׁבִי:

So said Hashem: “Those who are to die will die, those who are to perish by the sword will perish by the sword, those who are to die from hunger will die from hunger, and those who are to be taken captive will be taken captive.”

Rabbi Yochanan explains (Tractate, Baba Basrah. page 8a) that when Yirmiyahu describes the coming destruction of Jerusalem and the Holy Temple, he said, "There will be those who will die a natural death, those who will die by the sword, those who will die of hunger, and those who will be taken captive." Yirmiyahu the prophet presents this in ascending order of severity, each fate is worse than the previous. Therefore, captivity is considered the worst.

Commentators on this passage explain that captivity is particularly dire because a captive is not well fed and is unaccustomed to such harsh conditions, which would cause him to die. Moreover, the captor has the power to starve him and kill him with a sword. Therefore, captivity is a situation where all the aforementioned calamities can be inflicted upon him.

The Shulchan Aruch Yoreh De’ah Siman 252 Se’if 1- 3) writes about the importance of the community coming together to raise the funds needed to release the prisoners for example here are a few of the halachot:

1. “Pidyon She’vuyim” is so important it takes precedence over all other charities like feeding and clothing the poor. Even money raised to build a synagogue may be redirected to use for releasing captives.

2. One who ignores the plight of the captives and doesn’t take part in their release transgresses at least eight mitsvot! ('Do not harden your heart' (Deuteronomy 15,7), 'Do not close your hand to the poor' (Deuteronomy 15,7), 'Do not stand by idly when your friend's blood is being shed' (Leviticus 19,16), 'You shall surely open your hand to him' (Deuteronomy 15,8),' Let your brother live with you’ (Leviticus 25,36), and 'Love your neighbor as yourself' (Leviticus 19:18)

3. Every non-essential delay to redeem the captive is considered to having spilled his blood.

We see from the Talmud and Halacha the great responsibility Jewish law places on the community to attain the release of captives.

However, the Shulchan Aruch does stress later on in that same siman that when it comes to releasing captives it is important to consider the full picture and asses if this would really be an act of kindness or maybe this act is of kindness but it would lead to a much worse situation and many people might suffer from this act of redemption in the future. For example, in Halacha 5 the Shulchan Aruch writes one may not redeem the captives for more than they are worth. Because if the community would pay more than they are worth it would give an incentive to the captors to kidnap more Jews, (there are exceptions to this Halacha, for example, if they threaten to kill him then this halacha may not apply).

There is a story that emphasizes this idea, which happened to one of the greatest sages in Jewish history, the Maharam Mi’Rothenburg (1225-1293). He was taken captive on trumped-up charges in Austria, and a large ransom was demanded for his release, which the community was prepared to pay. However, the Maharam refused to allow them to pay for his release because, as explained above, it would only lead to more kidnappings and extortions. They did allow him to have visitors, and this is how he continued his teachings for seven years in captivity. He died in 1293 while still in captivity. In his will, he stated not to pay a ransom for his release. Eventually, seven years later, a person took it upon himself to redeem the holy Maharam and buried him in the cemetery in Worms, where he was later buried alongside the Maharam. His body miraculously stayed intact all this time.

Analyzing your question based on the above sources would open a halachic debate as to the right course of action to take.

Debate #1 - Incentive to more kidnappings and extortion

one could argue that releasing hostages in exchange for hundreds of Hamas prisoners will only give our enemies more incentive to kidnap more Jews. So, it may be like what we learned above that one may not overpay to redeem a captive.

However, we do find scenarios in Halacha where it would be permitted to pay an exorbitant amount to gain a release of the captives and that is at a time of war, this is brought in Tosfot Tractate Gittin (page 45a) that Rabbi Yehoshua Ben Channaya during the destruction of the second temple found a Jewish boy who was taken captive, Rabbi Yehoshua was so impressed with the young child's wisdom and righteousness, he paid a huge amount of money to garner his release and then eventually that young child grew to become Rabbi Yishmael Ben Elishah a great Tanna and teacher in Am Israel. So Tosfot asks how was he allowed to pay such a huge amount of money to gain his release isn't it going to cause an incentive for more kidnappings? Answered Tosfot, since it was during the time of the destruction of the temple our enemies didn’t need an incentive to capture Jews since they were waging a battle against the Jews. This rule was said only in peaceful times when the rabbis were worried it would lead to an incentive.

Same too, when analyzing this question one would have to judge if this would cause an incentive to capture more Jews or are these times considered a time of war and it would be permitted as explained above by Tosfot.

Debate #2 – Security considerations

By releasing so many terrorists would it cause more terror attacks since these prisoners that we are releasing would go back to planning and active terror against the Jews so one would argue that one cannot release them at such a cost. For example, one of the terrorists released by the Gilad Shalit prisoner swap was ‘Yahiyah Sinwar’ who twenty years later orchestrated the October 7th massacre.

One could argue that the reason was not solely his release but rather the neglect to act on the intelligence that he was a threat to security and that there were opportunities to eliminate him, which were canceled or turned down throughout the twenty years.

So as you see there is a lot of consideration that would have to be taken by the great rabbis to reach a final decision

Wishing you well may we hear only Besurot Tovot.

Talmud, Baba Batrah (8a)

Tosfot Gittin page (45a)

Shulchan Aruch, Yoreh De’ah (Siman 252, Se’if 1-3)