SHALOM

A. is twenty two years old, born to a well known family. Following the successful completion of his compulsory service at an IDF infantry unit, he embarked on a hiking trip in South America, together with a dozen young men and women. At first the group traveled together, discovering hitherto unfamiliar natural and man-made wonders. After a few weeks, however, the hikers split up, as A. and a couple of his friends decided to hike through a mountainous area known to be politically unstable and thus unsafe for tourists. As was later found out, the first days of this hike had gone by uneventfully, and the natives A. and his friends had encountered were friendly and helpful. But as the small group ventured deeper into the mountains, they were accosted and taken prisoners by a local resistance faction. It so happened that this splinter group was connected to Muslim terrorist organizations which were notified of the capture of Israeli hostages. As a result of the ensuing negotiations, guns and ammunitions were smuggled to the kidnappers, and Hizbullah, the Lebanese Shiite terrorist group, announced that they control the fate of the abducted Israelis. The Hizbullah spokesman claimed that they were war criminals, which will be tried and duly sentenced to death, unless six hundred Arab "freedom fighters" will be released from Israeli jails, in which case the prisoners will set free.

The televised threat raised uproar. The hostages' families started mounting an ever increasing pressure on the government to agree to Hizbullah's terms as soon as possible, in order to guarantee the safety and well being of their loved ones. On the other hand many political leaders categorically objected to give in to terrorists' demands. The families made a plea to leading Rabbis that they should rule that the basic biblical commandments of redemption of captives, and of rescuing endangered lives, take precedence over all other considerations. "After our sons will safely return home, let Israel punish the Hizbullah severely, but first they must be released" said one of the mothers.

Is it really true that captives whose lives are at risk should be redeemed, regardless of the cost? Some claimed that even though the release of so many terrorists may pose a security hazard, and risk other innocent lives through future potential acts of terror, still "a doubt cannot negate a certainty" (Pesachim 9a), and a possible threat cannot prevent a certain necessity of redemption and rescue.

Firstly, a famous Mishnah should be considered: "Captives should not be redeemed for more than their value, for the good order of the world" (Gittin 45a). The captives' "value" is the price they might fetch for the captor in the slave market. Apparently this ruling per se is not relevant to our situation, as the release of prisoners has nothing to do with the price the hostages might fetch in any slave market. Unlike the situation in the period of the Mishnah – the Greek Roman era – when bandits used to kidnap people in order to sell them for slavery, thus redeeming them was an alternative to such a sale, the present day hostages are kept for one reason only, forcing the release of imprisoned terrorists.

However, the Gemarah offers two possible rationalizations for the above ruling. One is preventing the burden which may be imposed on the community if the cost of redeeming the captives will not be limited, and the other the possibility that the activities of the bandits may be stimulated by excessive profits. The practical bearing of the difference between these two reasons is whether an above cost redemption is permitted by relatives since not imposing any burden on the community. Such redemption should be permitted according to the first rationale, and forbidden according to the second. The eminent sixteenth century Polish authority, Rabbi Shlomo Lurie, known as Maharshal, ruled that the first explanation - that of preventing the public financial burden – is the one that is binding (Yam Shel Shlomo, Gittin, Chapter V 66). Hence one may redeem his relatives at any cost, disregarding the ensuing potential risk to other people who may become bandits' victims.

This ruling seems strange. How come that imposing unlimited financial burden on the public is a stronger argument against redeeming captives at a high cost, than that of a potential risk to people's freedom and lives? It should also be noted that the Gemarah (Baba Bathra 8b) considers captivity as comprising possible death by disease, sword or starvation. Why then does redemption from captivity not justify imposing financial burden on the public?

The answer seems connected to the explanation of another seemingly strange ruling. The Gemarah (Baba Metzia 62a) brings the case of "two people who are traveling on a journey (far from civilization), and one has a pitcher of water. If both drink, they will both die, but if one only drinks, he can reach civilization… R. Akiba came and taught: ‘that thy brother may live with thee’ (Leviticus XXV 36) - thy life takes precedence over his life". R. Akiba's ruling applies, of course, only to the precedence of the pitcher owner's life over his companion's. In case the pitcher contains more water than necessary for drinking, but sharing his water with his companion will deprive him of the possibility to launder his cloths, it is obvious that his companion's life takes precedence over the owner's discomfort of wearing dirty clothing.

However when the Gemarah (Nedarim 80b-81a) applies this argument to two communities rather than two individuals, it changes dramatically. The case discussed is that of a well belonging to one town, and people of another town use it also. When there is not enough water for both townspeople and if shared the water will not suffice for the first town drinking needs "their own lives take precedence". If when shared the water will not suffice for both townspeople laundry needs "their laundering takes precedence over that of strangers". These two rulings are in clear accordance with R. Akiba's ruling above. But then R. Jose ruled "if the choice lies between the lives of strangers and their own laundering… their laundering takes precedence over the lives of strangers… Scabs arising through the wearing of unclean garments cause madness". R. Jose's ruling was accepted by later authorities (Rav Achai Gaon, Sheiltot 147).

Later commentators discussed the validity of this ruling. Why the laundry of one town takes precedence over the lives of the other townspeople? Even if wearing unclean cloths may cause madness, which might be considered tantamount to death, it seems to be a far fetched risk, compared to the immediate risk to the others who have no water to drink. Rabbi Naftali Zvi Berlin of the nineteenth century, known as the Natziv of Wolozyn, in his commentary to the Sheiltot, explains that even though an individual may agree to risk his own life to rescue another's, community leaders may not take any risk to the life of the community members, even a statistically small one, for that purpose. The reason he gives that such decision must be done voluntarily, and every community contains minors who are not able to do such volunteering. The late Rabbi Yekuthiel Yehuda Halbershtam, the Rabbi of Klozinburg, in order to further explain this ruling shows that a potential risk, which on an individual level might be considered negligible, is considered a real threat to life when it becomes relevant to an entire community (Divrey Yatziv Choshen Mishpat 79). That is why lack of water for laundering cloths for an entire community is considered a threat to their lives, and thus takes precedent over the strangers' need to drink.

This is the reason why an excessive financial burden on the public is equivalent to a threat to life. As available public funds are used also for life saving functions, their lack, caused by unlimited spending to redeem captives, may risk lives, and on the public level this lack is considered a real threat to life. When in such a dilemma is posed to the community, the ruling is to adhere to the status quo, as in the case of the water, and not change the funds allocation. However, an individual may redeem his relatives, even at an excessive cost, because he does not have to consider the statistically small risk of stimulating kidnapping, against the clear risk to his relatives. The obligation to regard a small risk to the community as being actually life threatening - lies with the community decision makers only.

It follows that the Israeli government may not release terrorists even to save A. and his friend's lives. Such a release is considered a real life threat, and when considering this threat against the threat to the lives of the captives, the decision should be to maintain the status quo and abstain from actively risking the lives of the public.