ATbar One-way back home: prisoners’ deal-exchange

One-way back home: prisoners’ deal-exchange

26/05/2021 | by Kalo, Avi (ADV., Lt. Col. Res.)  

As Operation “Guardian of the Walls” draws to an end one can hear among former security officials and on the airwaves that Israel must act to promote a prisoner exchange in accordance with the practice that at the of a military campaign each party releases the other party’s soldiers and civilians that it captured. Additional argument heard was that framework of such transaction must be in a manner similar to prior prisoner exchange deals Israel was a party to with Egypt, Jordan, and Syria (e.g. Yom Kippur War, the War of Attrition, the Six Days War, etc.).

 

In fact, these arguments have been heard time and again over the course of the past 20 years when the IDF finds itself engaged in rounds of hostilities vs. terrorist organizations rather than a state actor’s armed forces. As one can see the above argument does not hold water and in fact no deal was ever struck based upon it, either in Israel or overseas. The author wishes to argue that even though there is an appropriate moral value to the above argument, it is unrealistic in the context of contending with terrorism and in fact may hinder the process of returning the four Israeli MIAs in Gaza, either soldiers or civilians.

 

To support the latter the author will detail the arguments that provide the basis for the above as well draw some practical conclusions, as follows:

 

  1. Prisoner of War Status – the 3rd Geneva Convention (1929) arrived at in the midst of the symmetrical wars era between superpowers and in between the world wars, specifies the rights of a POW, including immunity from prosecution by the enemy while in captivity. The Convention stresses that only those who serve in a state actor’s armed forces will earn the status of a POW and the rights and protections that come with it. With the asymmetrical reality when contending with terrorist organizations, the legal practice around the world does not provide a terrorist with a POW status, inter alia, in light of the latter’s constant violation of the principles of the law of war (e.g. not distinguishing between military and civilian elements; intentional targeting on civilians and civilian infrastructure; violating hostages rights by denying contact with the Red Cross and more). In 2008, Israel promulgated into law its Incarceration of “Illegal Combatants Law” that formally provides that terrorists will not earn the status of POWs. The above was on the heels of the American practice post 9/11 attacks where Guantanamo prison was excluded from the US Code and denied POW rights from al-Qaeda operatives. In light of the above, the argument that based on prior POW deals the same should apply to a deal between Hamas and Israel set a high legal bar and in fact awards Hamas with a state actor status. Therefore, it is neither right nor possible to rely on these precedents as a framework to bring the missing soldiers and civilians from Gaza back home.
  2. The Authority for a Prisoner Exchange Deal at the End of a Military Campaign – indeed, the 3rd  Geneva Convention provides (section 118 forward) that at the end of a military campaign POWs are to be released forthwith, however this rule was never realized anywhere in the world at the end of a campaign involving a terrorist organization. Selected examples: (i) the US was never able to release prisoners from Taliban captivity at the end of rounds of hostilities in Afghanistan; (ii) the French military is fighting a number of militias, ranging from al-Qaeda to al-Shabab, in the Sahel  region without any terms or agreements on prisoners exchange at the end of rounds of hostilities; and (iii) Israel’s rounds of hostilities with Hezbollah and Hamas never included prisoners exchange at the end of the hostilities but a distance away from any conflict resolution/mechanism arrived at the time.
  3. The Ideological Angle – The argument that Hamas may be forced to arrive at a POW deal at the end of the hostilities is impractical in light of Hamas’ deep rooted ideology that drive the Palestinian prisoners narrative. History points out that there is no real ability to enforce Hamas to conclude a POW deal as per the Israeli standards (i.e. the Shamgar Committee standards that have set unrealistic criteria for POW exchanges such as “one for one”). For example, the Shalit deal in 2011 as well as previous deals with Hezbollah, Fatah/PLO, Jibril and others – where Israel had to pay a high and disproportional price for its captives. On the other hand, if Israel will choose to decisively demolish Hamas and conquer the Gaza Strip, an option which at the time being is not on the table due to its high price, however once decided upon, it would appropriate to reexamine the above within the necessary changes.
  4. The Negotiations Angle – there is another difficulty that demonstrates the impracticality of a POW deal per the precedents discussed above. Thus, presenting unrealistic demands to a terrorist organization in such a sensitive issue might even harden terrorist organization’s hawkish positions and prove unproductive. Unlike the battlefield, presenting a tough position in the negotiation room might weaken the state’s position in the long run.

 

  1. To sum it up, seven years after the end of Operation “Protective Edge” and as Operation “Guardian of the Walls” draws to an end, Israel must focus its efforts to bring KIA and missing civilians back home in a discrete and practical negotiations with Hamas to achieve a reasonably comfortable  (to Israel) prisoners deal.
  2. Hamas leadership is interested in a concluding such a deal quickly as it will fast track the Gaza’s restoration efforts and the negotiations should leverage that desire. Seven years after missing soldiers have been captured by Hamas, the time is ripe to abandon concepts that are not applicable to the negotiations counterparty and focus practically on bringing the missing MIAs and civilians back home, as soon as possible.

 

 

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