Jonathan Muskat

Don’t opine on the hostage deal until you meet with the families

I often tell my students that the difference between a yeshiva student and a rabbi is how we deal with halachic questions. Yeshiva students sitting in a beit midrash want to raise issues. Yeshiva students argue that a particular course of action raises the following halachic issues. Rabbis, however, want to find solutions to problems. Rabbis do not simply study a case in theory, but they understand that there are actual people involved and they want to find solutions that balance the need to be sensitive to the halachic system with the feelings of the person who is standing before them. Sometimes we may arrive at a halachic conclusion when discussing a topic in the abstract, but when we face an individual, we may be forced to work harder and consider more factors to sometimes arrive at a different conclusion.

I experienced this phenomenon when I visited Israel last week and saw families and friends of hostages who are experiencing indescribable pain of not knowing the future of their loved ones. The lack of closure is particularly painful. Israel is forced to make the impossible choice of trying to eliminate Hamas while rescuing their hostages by allowing Hamas to regroup and freeing Palestinian prisoners who may likely engage in acts of terror in the future.

Israelis are all too aware of the deal to free Gilad Shalit. He was freed by Hamas in exchange for 1027 Palestinian prisoners. Many Israelis are afraid that if we go down this path with Hamas with respect to our hostages, Hamas will exploit the situation so that they will remain a threat to Israeli security after this war is over. The price seems not to have been that “high” for the first group of hostages, with a three to one ratio of Palestinian prisoners released for every Israeli hostage released and a few days of a temporary cease fire to allow Hamas to regroup. Additionally, from Hamas’ perspective, keeping young children and women hostage erodes sympathy for them in the eyes of public opinion. If they are only keeping men and certainly soldiers hostage, then they will feel less public pressure to release them and they can extort Israel for even greater concessions than what they received for the first group of hostages thus far.

When I studied this topic about the extent to which we must go to free individuals from captivity, the dominant halachic position is that it is a mistake to “overpay” for the release of hostages. That is the standard view in the Shulchan Aruch (Yore De-ah, 252:4), although one can make an argument that if the hostage faces imminent death, then you might be able to “overpay” for his freedom (Piskei Tosafot, Gittin 5:216, Yam Shel Shlomo, Gittin 4:66).

But even if we “overpay” for hostages whose lives are in danger, at what point are we endangering Israeli society as a whole? If we free Palestinian prisoners who will likely engage in acts of terror, what is the limit of what we are willing to do to free the hostages?

After the hijacking of Air Flight 139 but prior to the IDF’s daring Entebbe rescue on July 4, 1976, Israeli’s Sephardic Chief Rabbi Ovadya Yosef issued a ruling that we may release Palestinian prisoners, even those who were convicted for attacks of terror and murder, in order to release the hostages (Yabi-a Omer, Choshen Mishpat 86). Based on a responsum by the Radbaz (Vol. 3:627), he argued that although I may not place myself in a potentially harmful situation to save someone from imminent death, I may place someone else in a potentially harmful situation to save someone from imminent death. Additionally, he cited the ruling of Rabbi Yechezkel Landau (Noda B’Yehuda, Mahdura Tinyana, Yoreh De-ah, 210), that an autopsy is forbidden if it will not directly help a current patient now, even though it may contribute to medical knowledge and save lives in the future. When it comes to saving a life, we are concerned about present and not future situations. Similarly, argued Rabbi Ovadya Yosef, we should be concerned with freeing hostages who face imminent danger even if it means possibly putting Israeli citizens in danger in the future by freeing many Palestinian prisoners who likely will engage in acts of terror in the future.

Rav Ovadya Yosef’s view is a minority view and many halachic authorities did not agree with him. Are we really going to release Palestinian terrorists with blood on their hands who will return to their murderous ways when released? Perhaps now when we are releasing Palestinian youths who are serving time in Israeli jail for relatively minor offenses in order to secure the release of the elderly, the women and the children at a rate of three Palestinians for one Israeli, we can tolerate the risk of future danger in exchange for the reward of returning our hostages to their families. But the price to release Israeli men and certainly Israeli soldiers will be far greater. Will we pay the price and should we pay the price?

This is where I find a difference between studying this issue in a beit midrash and experiencing this issue face to face with actual people, in this case with families of the hostages. If we believe that freeing numerous Palestinian terrorists from Israeli prisons for every hostage released, we will end up losing more Israeli lives because these terrorists will resume their acts of terror once they are freed, then we should not make these kinds of deals with Hamas and I would not be sympathetic to Rav Ovadya Yosef’s halachic position. However, after visiting the families of the hostages and seeing firsthand the amazing volunteer efforts of the “Bring Them Home Now” campaign and how freeing every last Jew in captivity is drilled into the DNA of the citizenry of our Jewish state, I am much more sympathetic to this position. Much of the nation feels paralyzed while its citizens are in captivity.

What does this mean in practice? Does it mean that Israel should secure a deal allowing Hamas to remain in power in Gaza in exchange for the release of all hostages? I think this is also a position that Israel cannot countenance because after the October 7th massacre, the consensus among Israelis is that Hamas in power in Gaza presents an imminent threat to the communities in southern Israel. But Israel may have to “overpay” to free their hostages by freeing terrorists with blood on their hands which will increase the risk of harm to Israeli citizens in the future. That is a sickening prospect. There are no good answers. At the very least, though, before we opine on what Israel needs to do, we must not remain in the beit midrash. We must meet the families of the hostages face-to-face and understand the psyche of a large proportion of the citizens of this country. Hopefully, as we all struggle with this national nightmare in which we find ourselves, let us remind ourselves of one thing. Our love for every Jew who is kidnapped and taken hostage may be our greatest weakness, but it is also our greatest strength.

About the Author
Jonathan Muskat is the Rabbi of the Young Israel of Oceanside.
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