The Foundation for Constitutional Democracy

29-Jun-2008

Prisoner Exchange in Jewish Law

Filed under: EthicsForeign PolicyJudaism — eidelberg @ 11:59 pm

It has been reported that Hamas is demanding 1,000 terrorists now in Israeli jails in exchange for IDF soldier Gilad Schalit, who has been held hostage for two years in Gaza. Hence, let’s consider an article by Rabbi Eliezer Melamed’s on the subject of prisoner exchange in Jewish law, but only insofar as it refers to the imprisonment of Rabbi Meir of Rothenburg in the thirteenth century.

“Rabbi Meir of Rothenburg (1215-1293 c.e.), known as the Maharam, was one of the greatest of the early Jewish codifiers. At the age of seventy he was taken captive and placed in a prison in France. Emperor Rudolf I proceeded to demand an exorbitant sum for his release.

“To understand the full significance of this act it is important to realize that almost all of the rabbis and leaders of the Jewish communities in that generation were the Maharam’s students…Even the great rabbis of the generation that followed were greatly influenced by the teachings of the Maharam. The most famous of his students was Rabbi Asher ben Yechiel, known as the Rosh, whose rulings are cited extensively in Rabbi Yosef Karo’s Shulchan Arukh.

“Because the Maharam was such an important a figure, Emperor Rudolf I hoped to extort a huge ransom from the Jewish community. Indeed, the emperor’s evil scheme nearly succeeded. The Maharam’s students and admirers were prepared to raise the sum necessary to free their master. They felt that though the law forbids paying more for a captive than the accustomed amount, when the captive at hand is the leading Torah scholar of the generation, and the entire community is in need of him and his Torah wisdom, it is permissible to pay any fee.

“But the renowned Maharam would not permit it to be paid, for he understood that such an act would only encourage the enemies of Israel to imprison other rabbis in the future and demand huge sums for their release. As a result, Rabbi Meir spent the final seven years of his life in prison—and it was there that he died.”

Rabbi Melamed goes on to say:

“Although … there are opinions that when the captive’s life is at stake it is permissible to pay even more than the generally accepted amount, in wartime it is forbidden to give in to any such extortion whatsoever. The rule is that in times of war one does not submit to any of the enemies’ demands. In fact, even in a case when the enemy only stole some straw and hey from a border village, the response must be a strong military one. For, as soon as one gives in to them regarding a small matter, they will gain confidence and increase their efforts to strike at us (see Eruvin 45a).

“Therefore, if an enemy of Israel takes even a single hostage, we must go to battle against them in order to save the captive, for if we allow them to succeed in taking one hostage they will gain incentive and step up their efforts to strike at us.”