All of Israel and the Jewish world is wrenched with simultaneous grief and elation at the tortuous trickle of release of hostages in this first phase of the hostage deal. We all fervently pray for the safe return of every hostage.
I cannot get past the fact that the price appears to be too high.
The Gilad Shalit deal in 2011 was the release of 1,027 prisoners for the abducted soldier. One of them was Yahya Sinwar, the architect of October 7. In retrospect, was the Shalit deal worth it, knowing that 1,200 Israelis would be killed through the efforts of one of the released terrorists? Not to mention the soldiers who have fallen in the war.
There are lots of halachic opinions on prisoner swaps, and they run the gamut from permissive to very restrictive. When the Air France airliner was hijacked in 1977 to Uganda, the Israeli government asked all of the prominent leading rabbinical figures in Israel (including R' Ovadia Yosef, R' Shlomo Auerbach and R' Elyashiv) and for an opinion on whether they can negotiate with the terrorists and potentially release murderers to save the lives of the passengers. The rabbis answered in the affirmative, telling Yitzchak Rabin: “Although it is clear that releasing terrorists carries with it grave dangers, nonetheless, being that the Jewish hostages are found in a state of immediate danger, according to Jewish law they therefore override the danger of releasing the terrorists and therefore it is obligatory for the government of Israel to enter negotiations with the terrorists and do everything they can to save the captives from the danger that hovers over their lives.”
R' Ovadia Yosef reiterated this opinion in support of the Shalit deal, but we cannot know if the late rabbi would have reconsidered in light of October 7.
IDF soldier Avraham Amram was captured on April 5, 1978, in a clash with Palestinian PFLP-GC forces near Rashidieh camp in South Lebanon. He was exchanged in 1979 for 76 convicted Palestinian prisoners held in Israeli jails. It was the first time Israel negotiated directly with a terrorist organization. The Lubavitcher Rebbe strongly opposed this deal, saying that the price paid should not be higher than what other countries typically use in their prisoner swaps, citing a contemporary swap between the US and Soviet Union of two prisoners for five. But he went beyond that, saying that this crossed the red line of negotiating with terrorists who openly said they would continue their terrorism. Furthermore, said the Rebbe, putting terrorists in prison to begin with, rather than executing them, was a major mistake, since it encourages future kidnappings and invites pressure to release them at some point.
One of the prisoners released in that deal was Hafez Dalkamoni, who was the leader of a PFLP-GC cell in West Germany that was responsible for the bomb that brought down Pan Am flight 103 over Lockerbie, Scotland, in 1988, killing 270.
Similarly, the founder of Hamas, Ahmed Yassin, was freed in a 1985 hostage deal. He was responsible for countless murders.
I am in no position to argue with the eminent rabbinical authorities who permit hostage deals. But today we have more information than in the past. One major justification of hostage deals is that definitely saving lives now is a higher priority than being concerned about potential loss of lives in the future. That calculus may have changed.
About 80 percent of those released in the West Bank for Gilad Shalit resumed their terror activities,. This makes it not merely a potential concern about those being released now ending the lives of people in the future but as close to a certainty as is statistically possible.
If we assume each has an 80% chance of staying a terrorist, and each of them has a 1% chance of successfully mounting a fatal attack, that means that for 1,900 released prisoners there is a 96% chance of 10 successful terror attacks from that group and a near certainty of 5 successful terror attacks. This is of course an oversimplification but it shows how definite future terror attacks are from this group.
Actually, this is worse. Looking at the examples of Sinwar, Yassin and Dalkamoni, we can estimate that perhaps 0.1% of released prisoners are uber-terrorists who can be assumed to mastermind attacks that will murder hundreds of people themselves in the future, not just one or two. Israel is releasing about 1,900 terrorists in the first phase but about 4,000 if all the phases are carried out. That means that 3 or 4 of those released will have the ability to mount major attacks with high casualties - much higher than the number of hostages being released.
The question is not if people will be murdered in the future but how many. This may turn it from a question of pidyon shevuyim (ransoming prisoners) to a variant of the trolley problem, where doing an action to save some lives would definitely result in the deaths of others, very probably more, although it is not exactly the same since the deaths will not happen immediately and the action saving the lives is not the action that will kill the others. Rabbis have debated the trolley problem for decades before philosophers first articulated it.
The entire situation is heartbreaking. But Israel should be doing everything possible to ensure that it doesn't happen in the future, and if that means the death penalty for terrorists, so be it. Releasing these terrorists today is a virtual guarantee of many more people being killed tomorrow.
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