Rabbi Alfred Cohen in “Journal of Halacha and Contemporary Society”(Fall 2003) has an article which you might be interested in. He discusses the issue of “Ransom or Exchange of Prisoners” , but does not come to a definite conclusion. It appears that there are no contemporary teshuvos discussing the issue.

Briefly, his reasoning and mekoros, most of which I have not myself seen are:

1) The Mishna(Gittin 45A) states that hostages are not ransomed for more than their worth, in order not to encourage additional kidnapping(YD 252). Yet R. Yeshosua b. Chananya stated that he would have redeemed a child(R. Yishmael b. Elisha) for whatever sum demanded(Gittin 58A), and subsequently, he indeed paid a very large sum. According to one opinion in Tosaphos(ibid), the difference is that an excessive ransom may be paid if the captive’s life is at stake.

2) In the case of a prisoner exchange, the issue is: does the terrorist being considered for exchange, who may possibly murder additional people(c’vs), represent more of a “present danger” to life than the life of the captive currently at risk (”choleh l’fanecha” : Noda Biyehuda YD 200 and Chazon Ish Aveilus 208:7 re: autopsy).

3) Rabbi Cohen posits that the Halacha would differentiate between an individual and a community situation, as well as between wartime and peacetime, based on sources which do not directly discuss the issue of prisoner exchange(e.g., Tzitz Eliezer 13:100 and 12:57 re: an army risking additional soldiers’ life to rescue a captured soldier).

4) He concludes that one needs to weigh the benefit of redeeming, which raises morale in other soldiers, versus the negative consequenses of freeing terrorists, namely, the disastrous psychological, political, and physical consequences on the population of releasing violent terrorists.

5) One interesting source for # 3, is R. Yaakov Kamintesky’s dissenting opinion, disagreeing with the suggestion raised by students to ransom R’ Hutner Zt’l from the 1970 Black September hijacking for an exorbitant sum,the latter idea based on the halacha that a Talmid Chacham is ransomed even at a sum exceeding his worth. The suggestion was apparently accepted by many Rabbonim at the time.

As related by R. Herschel Schacter, R. Yaakov felt that paying an excessive price did not apply during hostilities, when the delivery of ransom money to the enemy would strengthen their position. (”Journal of Halacha and Contemporary Society”(Fall 1988).

If the latest war had actually eliminated Hezbollah, then Israel could have gotten its soldiers back and kept Kuntar. Since, alas, that didn’t happen, Hezbollah (or Syria or whoever) can continue to hold Regev and Goldwasser indefinitely at very little cost to themselves. Under these circumstances, I don’t see how absolutely refusing to exchange Kuntar would give Israel any long-term strategic advantage. And I don’t think Israel can afford to make these calculations based on anything but long-term strategic advantage.

You asked a very insightful question. I conjecture that the Rabinnical leadership does not want to decide the issue without first polling the amcha yisroel for its input.

On a tangential note, I usually agree with the thrust of Rabbi Rosenblum’s posts. As I contemplate some points mentioned in the original articles, I usually find additional closely related and broader issues to comment on as well.

KT