New York – The recent exchange of Gilad Schalit for over 1000 Palestinian prisoners, many with blood on their hands, has sparked much debate in the Jewish community. Is this exchange wise? Is it permitted according to Halacha? Are we not endangering the lives of so many others in this move?

Many of the Rabbis who have discussed the issue thus far have come out that the exchange is a violation of halacha. Among them were Rabbi Dov Lior of Kiryat Arba and Rabbi Shmuel Eliyahu, the son of Rabbi Mordechai Eliyahu zt”l the former Sefardic Chief Rabbi of Israel. It seems that at least initially, Rabbi Amar the current Sefardic Chief Rabbi of Israel, was also in agreement with them.

Respectfully, however, this may not necessarily be the last word on the subject.

Let us not forget that often, halacha is not so clear cut. Every case in halacha must be examined upon its own merits and the specifics of each case. We must do the same here.

Before we get into the halachic discussion, however, let’s perhaps look at the question in a somewhat different light.

Gilad Schalit is a member of Klal Yisroel, and we must look at each member of Klal Yisroel as we would our own children. If, heaven forbid, one of our own children was kidnapped and threatened with death, would we release a thousand people who were threatening to kill some, most or all of our other children?

This is the way we must look at this recent exchange. But at the same time, we must take steps to ensure the future safety of our other children too.

So now let’s look at the halachic sources and also delve a bit into the underlying issues with the prisoner exchange.

The Mishna in Gittin 45b tells us that we do not redeem captives for more than their value. The meaning of course is to their value on the market as slaves. The Mishna tells us that it is “mipnei tikkun olam” – which means as public policy.

The general implication of this term is that it is a public policy enactment. In other words, in order to stop a situation where criminals kidnap Jews for a ransom a special enactment was made that prohibited paying substantially more for Jewish captives. Had this enactment not been promulgated, Jewish life would have been endangered. The enactment served to remove the incentive to kidnap Jews specifically. Jews will be halachically constrained from having to pay a premium to redeem other Jews.

The enactment, of course, would not prevent kidnappings. It would merely prevent a situation where Jews would be specifically targeted.

But the essential point is that there was a specific time and circumstance when this enactment was promulgated. Prior to the enactment, from a historical perspective, it would seem that halacha would have dictated that the ransom be paid. The Rabbis took it upon themselves to create legislation forbidding it in order to better benefit the public. It was an enactment that created a new rubric – without negative consequence.

It can and perhaps should be argued that our current situation involves no exchange of money – rather it involves the creation of a possible danger – but the enactment referred to in Gittin 45b is not relevant to our case, as it did not encompass the freeing of prisoners, or the release of a greater danger.

Should another enactment be made like that of Gittin 45b? Absolutely – as it would save lives. Do we have the ability to do so? Halachically, we can possibly utilize the institution of Cherem – communal ban, and mimic the capability of promulgating halachic enactment that the sages once had. Have we done so yet? No. Until we do so, we should go ahead with the exchange unless there is another mitigating factor, which we shall explore further.

Should the Knesset pass legislation limiting the government’s ability to facilitate such exchanges? Yes, absolutely. Have they done so? Not yet.

Another interesting issue is that there are a number of Rishonim and Achronim who rule that the entire enactment is only when there is no danger to life. These opinions are cited in Pishchei Teshuvah YD (252:4). He states that if there is a danger to life the enactment does not apply. Among those who rule thus are the Meiri. Even though the majority of Achronim disagree with this point, this is a significant point of halachic debate.

With the Mishna in Gittin no longer being an issue, the issue comes down to a definite saving of life now versus possibly saving many more lives in the future. Although one can perhaps argue that it is not a “possible” but a “definite”, as experience has shown – even still the exchange may be halachically necessary. Why? We are not sure which one’s they may be and it has not been directly established who it will be – the saving of life now may outweigh the future saving of even more life. This exact rationale is presented by Rav Vosner in Shaivet HaLevi Vol. V #137.

There are two additional issues that are pertinent as well. The first issue is that the terrorists are, and have always been motivated to kidnap. One could perhaps argue that they are “maxed out” in this regard. While they could allocate more resources toward kidnapping soldiers – it is likely that such a re-allocation may be more noticeable by Israel’s intelligence, and the entire kidnapping edifice could come down on them.

The second issue is that as far as the release of the terrorists themselves bringing about more devastation and death, the fact that the fences are more developed than they were in the past is a significant issue. It would also seem that the amount of available “manpower” is not the overriding factor in determining how much terror comes out of the territories. This may endow these past terrorists into what can be called a “Safaik Rodef.” Rav Chaim Ozer Grodzinsky (Achiezer Vol. III 72:3) address the issue of a safaik rodaif and concludes that one does not kill certain life because of the possibility of a safaik rodaif. Although the situation is not completely analogous, the difference between a certain rodaif and a possible rodaif is clearly made. Rav Feinstein zatzal also shares a similar view (see Igros Moshe CM II 69:4).

Finally, one can even argue that the guilt factor on Prime Minister Netanyahu’s part may empower him to do more in regarding to punishing terrorist acts. It is likely that future terrorist acts may be dealt with on an even more immediate and harsher basis than they have been dealt with in the past. This could possibly lead to even a reduction in loss of life.

The conclusion? It is certainly not an easy decision, but there does not seem to this author to be a clear cut prohibition to avoid the specific fulfillment in the case of Gilad Sshalit of “Lo Saamod al Dam Rayacha – do not stand idly by your brother’s blood..”

May G-d Al-mighty safeguard all of us and all those who seek and love peace.

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