Does the Release of Arab Terrorists Contradict Jewish Law
and the Commandment to Obliterate Amalek?*

Prof. Paul Eidelberg

Introduction: Some 700 years ago, the great Rabbi Meir of Rotenberg was abducted and imprisoned in Germany, then under the reign of Rudolph I. Rabbi Meir’s community offered a vast sum of money for his release, but he refused to be ransomed by more than the amount prescribed by Halacha, Jewish law, lest it encourage the abduction of other Jews. The great sage died in prison, after having been incarcerated for seven years.

This raises the question whether a Jewish soldier abducted by Arab terrorists should be ransomed by Israel’s release of Arab terrorists, or whether, if the soldier could affect the issue, should accept his release under that quid pro quo? This is not a question that can be answered by tyros. Here I offer some historical facts and some thoughts about Jewish law.

Historical Facts

In May 1985, Israel’s cabinet, in an unprecedented and unanimous decision, agreed to exchange 1,150 Arab terrorists for three Jewish soldiers captured in Lebanon by the PLO. 600 terrorists were allowed to return to their homes in Judea, Samaria, and Gaza. In December 1987, the first intifada erupted, led by some of those released terrorists. Arab violence increased in dramatic fashion, including the kidnapping, murder and rape of Jewish men, women, and children.

On December 4, 2007, the day after the Olmert Government announced its intention to free 429 Arab terrorists, the Almagor Terror Victim Association reported that, between 1993 and 1999, Israeli governments had released 6,912 terrorists. Of that number, 854 were arrested subsequently for lethal terrorist acts which claimed the lives of 123 Israelis.

During Ariel Sharon’s 2001-2005 premiership, some 600 terrorists were released, 435 to recover the bodies of three dead soldiers in Lebanon and Elchanon Tannenbaum, an Israeli drug dealer who had collaborated with Hezbollah. During Sharon’s reign, 177 Israelis were killed by terrorists who had been previously released from Israeli jails on the basis that they were “without blood on their hands.” (35 were murdered by prisoners released in Tannenbaum deal.)

Thus, since 1985, Israeli governments released more than 9,000 terrorists who subsequently murdered at least 300 Israelis. Religious parties collaborated in these decisions, presumably on the Jewish principle of pikuach nefesh (פיקוח נפש), the saving of Jewish life—a position which seems to contradict the teaching of Rabbi Meir of Rotenberg.

Be this as it may, allow me to examine the issue as a layman. I do so to encourage people to think about the subject in Jewish and not merely in political terms, for which purpose they should inquire of their rabbis.
Jewish Law

The Jerusalem Talmud declares: “If gentiles [surrounding Israel] demand, ‘Surrender one of yourselves to us and we will kill him; otherwise we shall kill all of you,’ they must all suffer death rather than surrender a single Israelite to them” (Trumot 8, 9).

The Talmud rules that handing over a Jew who will be killed is itself an act of murder (שפיכות דמים). The prohibition against murder trumps the law of pikuach nefesh.

The question arises whether the act of releasing terrorists from Israel jails may result in the murder of Jews. Some rabbis say that since it is not definite or immediate that freeing terrorists will result in the death of future victims, we do not have an act of murder here. For example, some years ago a Jewish soldier was abducted by Arab terrorists who, for his freedom, demanded the release of other terrorists. A most learned rabbi suggested that the IDF, immediately after making the exchange, should launch a devastating attack on the terrorists—a provocative position not likely to win acceptance by the government, but worth thinking about.

The rabbinic opinion about freeing terrorists because of the uncertainty as to whether that will result in future terrorist victims may have been valid when it was rendered before Oslo. Whether it remains valid today is problematic in view of Israel’s experience since 1993, and especially since Arafat’s terror war broke out in September 2000. Israel is now at war with an enemy that has a more professional army equipped with increasingly deadly weapons.

Jewish law is not an intellectual strait-jacket. An underlying principle of Jewish law is probability. For example: in a town in which nine butcher shops sell kosher meat and one sells non-kosher meat, any meat found in the town is halachically kosher. What determines the status of the meat is not whether it was ritually slaughtered, but the supervening halachic principle of probability (Hullin 11a).

This principle is so stringent in capital cases that the most compelling circumstantial evidence is not sufficient to permit the Sanhedrin to convict a person accused of murder. However, if murder has become frequent in Israel, the Sanhedrin can delegate capital cases to the King, under whose authority circumstantial evidence may be sufficient for conviction.

Since the probability principle applies to Jews accused of murder or threatened with death, it may arguably apply to Arab terrorists whose release from Israeli jails has repeatedly resulted in the murder of more Jews. This is not all.

Amalek

Some commentators identify the Arabs as Amalek, Israel’s world-historical enemy. In Exodus 17:14, Moses is told, “Write this for a memorial in the Book … I will utterly obliterate the memory of Amalek.” Rashi comments that the Name of God will not be whole until the name of Amalek is blotted out.

Amalek’s hatred of Israel is manifested in two ways: (1) murdering the weak—like blowing up a school bus—and (2) degrading Judaism—like building mosques on Jewish holy sites.

After one-third of world Jewry had perished in the Holocaust, and on the very day a homeland was established for the Jewish people after millennia of exile—on that very day the organized armies of the Arabs attacked the fledgling, unarmed Jewish state. Now ponder Rabbi Samson Raphael Hirsch’s commentary on Exodus 17:14:
Esau’s grandson, Amalek, was the first and only nation that, completely unprovoked and unthreatened, attacked Israel on their way to national independence. However weak and tired out they were by their wanderings, this people with women and children seeking a homeland must have appeared … [yet] it was only Amalek … who hurried out of his way to gain renown and take up arms against [Israel] … Amalek’s renown-seeking sword knows no rest so long as one single pulse beats in freedom, and pays no homage to it, so long as any modest, quiet happiness exists which does not tremble before Amalek’s might….

In Israel Amalek sees an object of mortal hate and complete disdain…. In [Israel], in the idea of the greatness that Man can attain by Peace—in that Jewish idea—Amalek sees the utter scorn of all his own [bellicose] principles. Sees in [Israel] his one real enemy, and senses somehow his own ultimate demise.

This is the core of the Arabs’ eternal hatred of Israel. Maimonides says of them: “Never did a nation molest, degrade, and hate us so much as they. Thus, when [King] David, of blessed memory, inspired by the Holy Spirit, envisaged the future tribulations of Israel, he bewailed and lamented their lot only in the Kingdom of Ishmael.”

Consider the obscene vilification and hatred of Jews appearing in the media of the Ishmael’s descendants. Add Mahmoud Ahmadinejad’s threat to wipe Israel off the map. Some halachic authorities suggest that any nation that arises against the Jewish people to wipe them out has the same status as Amalek, hence, that it would be incumbent upon Israel to wipe them out!
Well, I will leave you with these thoughts to ponder if and when Israel’s government releases more Arab terrorists.
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*Edited transcript of the Eidelberg Report, Israel National Radio, December 24, 1007.