• On June 29, 2008, the Israeli Cabinet approved a prisoner exchange with the Lebanese Shi'a terrorist organization Hizbullah. The deal includes the return of the bodies of Ehud Goldwasser and Eldad Regev, two Israeli soldiers unlawfully kidnapped on the eve of the Second Lebanon War (2006).

• Prisoner exchange is governed by international humanitarian law as detailed in the Third and Fourth Geneva Conventions (1949). At the end of a conflict the states implement an exchange of captured soldiers. In the interim, the captured soldiers are entitled to the status of Prisoners of War, who must be provided with adequate facilities and care as well as communication with the outside world.

• Israel's enemies, using proxy guerilla organizations such as the Iranian-proxy group Hizbullah, operate outside the legal framework of the laws of war — routinely committing war crimes such as indiscriminate attacks (the deliberate targeting of civilians as such) and perfidy (disguising combatants as protected individuals such as civilians). The organizations' fighters are unlawful combatants who are not entitled to the protected status of POWs, and are subject to prosecution as war criminals.

• By exchanging prisoners with the proxy organizations as if they were law-abiding states, Israel can be seen as upgrading the status of the organizations' unlawful combatants from terrorists and war criminals. Such exchanges afford them the same rights as lawful soldiers, without demanding from their leaders the reciprocal obligations. At the same time, Israel downgrades the rights of its own captured soldiers by overlooking the organizations' systematic depravation of POW rights for Israeli soldiers under the Geneva Conventions.

• When Israel makes exchanges that are unequal, it is only natural for Israel's enemies to view the illegal kidnapping of Israeli civilians and soldiers, and the violation of their legal rights in captivity, as an extremely profitable activity. Furthermore, because Israel eschews the death penalty, Israel keeps terrorists alive in Israeli custody and thereby inadvertently creates a "bait" situation where terrorist groups attempt to free their men by ransoming newly-kidnapped Israelis.

• The status quo for prisoner exchanges harms Israeli deterrence, creates an appalling precedent that encourages further kidnappings, increases the possibility that our captured soldiers will be mistreated or even murdered in custody, and rewards imprisoned terrorists by releasing them early to claim new victims. While the return of the soldiers, regardless of their condition, fulfills an important central value of Israeli society — that the State of Israel will do its utmost to recover soldiers behind enemy lines — nonetheless, it poses serious questions that must be addressed before such exchanges are considered in the future.

On June 29, 2008, the Israeli Cabinet approved a prisoner exchange with the Lebanese Shi'a terrorist organization Hizbullah. The deal includes the return of the bodies of Ehud Goldwasser and Eldad Regev, two Israeli soldiers unlawfully kidnapped on the eve of the Second Lebanon War (2006).[1] Goldwasser and Regev were held thereafter in violation of the unanimously-approved UN Security Council Resolution 1701, which called for their unconditional release.[2]

The exchange will provide the Goldwasser and Regev families with much needed closure after an agonizing two-year wait during which Hizbullah, contrary to international law, refused to provide information on the health of the soldiers to either their families or to the International Committee of the Red Cross. While the return of the soldiers, regardless of their condition, fulfills an important central value of Israeli society — that the State of Israel will do its utmost to recover soldiers behind enemy lines — nonetheless it poses serious questions that must be addressed before such exchanges are considered in the future.
 

Under the terms of the exchange, Israel will receive:

• The bodies of IDF soldiers Goldwasser and Regev, who were killed by the same terrorist organization that is now marketing their cadavers.

• A Hizbullah "report" on the disappearance of Israel Air Force navigator Ron Arad, whose plane was shot down over Lebanon in 1986. Israel is said to be dissatisfied with the contents of the report because it does not provide any new information on Arad's fate.[3]

• The remaining body parts of IDF soldiers killed in the Second Lebanon War. This is a speculative endeavor at best, given Hizbullah's ghoulish practice of gathering Israeli body parts to use as bargaining chips.[4]

In return, Israel has undertaken to:

• Release four captured Hizbullah terrorists and the bodies of dozens of infiltrators and terrorists including eight members of Hizbullah.

• Release Lebanese terrorist Samir Kuntar who was serving four life sentences for the cold-blooded murder of four Israelis in the coastal town of Nahariya in 1979. As a reflection of the specific horror of Kuntar's crimes, Israel refused to release him for decades, despite repeated demands to do so.

• Deliver information, if it has any, on four Iranian diplomats who went missing at the hands of a Lebanese Christian militia in Beirut during the 1982 Lebanon War.

• Release an unspecified number of Palestinian terrorists after the implementation of the deal.[5]

Prisoner exchange is not a new phenomenon. It has been practiced by warring states for centuries. In the modern age these arrangements are governed by international humanitarian law as detailed in the III Geneva Convention (1949)[6] and Article 133 of the IV Geneva Convention (1949).[7] Within this framework the approach to prisoner exchanges is clear. At the end of a conflict the states implement an exchange of captured soldiers — each state returning the soldiers it captured. In the interim, the captured soldiers are entitled to the status of Prisoners of War (POWs), and each state must provide the POWs with adequate facilities and care as well as communication with the outside world.[8]

For the first few decades of its existence, Israel made exchanges with its Arab enemies of the sort contemplated by the Geneva Conventions following the cessation of each war. For example, during the 1948 War of Independence a total of 882 Israelis were captured by the various Arab forces and Israel captured a total of 6,344 Arab fighters.[9] Through the process of negotiation, nearly all captured POWs on both sides were repatriated.

However, the rules of the game have since changed. In particular, Israel's enemies have mutated from using national armies as their principal modus operandi to using proxy guerilla organizations such as the Iranian-proxy group Hizbullah. These surrogate organizations operate outside the legal framework of the laws of war — routinely committing war crimes such as indiscriminate attacks (the deliberate targeting of civilians as such) and perfidy (disguising combatants as protected individuals such as civilians).

The extra-legal behavior of the proxy organizations has two implications for the law applying to prisoners taken in Arab-Israeli conflicts. On the one hand, the organizations themselves illegally defy the laws of war by depriving Israeli POWs of their protected rights such as the right to contact Red Cross representatives and communicate with their families. On the other hand, the organizations' fighters are unlawful combatants who are not entitled to the protected status of POWs, and are subject to prosecution as war criminals. Indeed, these organizations fall under the definition of terrorist groups under such instruments as the International Convention for the Suppression of Terrorist Bombings, and Israel — like other states — is legally obliged to take a variety of steps to foil the terrorists' activities and bring them to justice.

By exchanging prisoners with the proxy organizations as if they were law-abiding states, Israel can be seen as upgrading the status of the organizations' unlawful combatants from terrorists and war criminals, giving them the same rights as lawful soldiers, without demanding from them the reciprocal obligations. At the same time, Israel downgrades the rights of its own captured soldiers by overlooking the organizations' systematic depravation of POW rights for Israeli soldiers under the Geneva Conventions. The damage this does to both international law and the international criminal justice system is considerable.

Contemporaneously, out of a sense of moral obligation to its kidnapped soldiers and their grief-stricken families, successive Israeli governments have negotiated deals in which Israel released large numbers of unlawful combatants (terrorists) in return for a few living soldiers, several cadavers, or even body parts. An early example was the Jabril deal of 1985 in which 1,150 convicted terrorists were exchanged for three Israeli soldiers. This disproportionate ratio is not just a matter of numbers but also a discrepancy of kind — the released Palestinian and Lebanese terrorists are war criminals, while the Israelis are lawful combatants who are entitled to POW status if captured, or civilians immune from kidnapping altogether. International law entitles, and perhaps even requires, Israel to put on trial and punish captured terrorists once they are convicted. Because Israel eschews the death penalty, Israel keeps terrorists alive in Israeli custody and thereby inadvertently creates a "bait" situation where terrorist groups attempt to free their men by ransoming newly-kidnapped Israelis.
 

An interesting parallel to Israel's dilemma under international law can be found in Jewish law. Regrettably, the ransoming of captives is not a new problem for the Jewish people. Over the ages, there are countless examples of Jewish prisoners held for ransom. Perhaps the best known example is that of Rabbi Meir of Rothenburg (1215-1293 CE) who, having been imprisoned by Holy Roman Emperor Rudolph I, instructed the Jewish community not to pay the high ransom demanded for his release in the belief that acquiescence to the ransom would encourage the kidnap of additional prominent Jews.[10] Rabbi Meir ultimately died in prison. His remains were retrieved some years later by a wealthy Jewish individual prepared to meet the ransom payment. Had he been alive, Rabbi Meir may well have rejected the kindness of this individual, viewing the issue as a matter of principle.

Rabbi Meir's approach has its source in the Mishnah which rules that one does not ransom captives for more than their value because of Tikkun Olam.[11] The Talmud disputes the rationale for the Mishnah's stipulation.[12] One view is that it is intended to prevent the impoverishment of the Jewish community which would otherwise make extortionate ransom payments; the other is to avoid providing an incentive to the kidnappers to continue in their ways. Both Maimonides[13] and the Shulchan Aruch[14] adopt the second rationale. While both maintain that there is no greater mitzvah than the redemption of captives, ultimately, public security considerations take precedence when evaluating whether to pay a ransom.[15] Interestingly, Tosafot maintain that where there is a danger to life, captives may be redeemed for more than their value, but this position has not been codified.[16]

Application of Jewish law to contemporary prisoner exchanges is not straightforward. Two questions are particularly difficult to resolve. The first is how to establish the value of a captured soldier. The second, related question is how to apply Jewish law where the ransom payment consists of convicted terrorists instead of financial capital. In classical times, the question of value could readily be resolved by resort to the slave market or the market rate for the ransom of non-Jewish captives,[17] but the question today is obviously far more complex. Moreover, as the payment consists of convicted terrorists, the state must engage in an unenviable balancing act, weighing the rights of the individual against the security needs of the country. What is clear, however, is that as a general rule, captives should not be redeemed for more than their value if it is reasonably believed that paying the ransom will increase kidnappings and thereby pose a threat to the public. In fact, former Israel Defense Forces Chief Rabbi Shlomo Goren was opposed to lopsided prisoner exchanges, noting that the safety of one or a few Jews in captivity does not take precedence over the safety of the entire public.[18]

A growing number of senior defense and security experts, including the heads of the Mossad and the Israel Security Agency (Shin Bet), believe that the "more than fair value" test has once again proven relevant.[19] As Israelis lacking any family or other connection to the Goldwasser/Regev families, we are convinced that the current skewed deal threatens the public interest, undermines Israel's ability to defend its legal rights and carry out its legal duties, and could threaten Israel's strategic objectives. The optimal position, of course, is to rely on military action to free captured soldiers and/or civilians as in the famous Entebbe rescue.[20] If such a rescue is not a viable option, any negotiations should be conducted within the context of national security objectives.
 

When Israel makes exchanges that are unequal, it is only natural for Israel's enemies to view the illegal kidnapping of Israeli civilians and soldiers, and the violation of their legal rights in captivity, as an extremely profitable activity. These exchanges present Israel as willing to concede all its legal rights and to accommodate any and all demands of terrorist organizations. Additionally, by bestowing undeserved largesse upon terrorist groups like Hizbullah, these exchanges strengthen that group's leverage as a political actor in the Arab and Muslim worlds, and enhance its support on the Arab street.[21] Hizbullah has been able to successfully negotiate the release of a celebrated Lebanese terrorist, extract information on four missing Iranian diplomats, and secure the release of an unspecified number of Palestinian prisoners.

The Goldwasser/Regev deal — as a deviation from the Geneva Conventions model — discourages compliance with international humanitarian law, harms Israeli deterrence, encourages future kidnappings, and endangers the lives of those who may be taken hostage by Hizbullah or another terrorist group. The value Israel places on a single life is laudable, but its translation into a policy of capitulation to terrorist kidnappers' demands magnifies the already grossly inflated price of prisoner exchanges. For terrorist organizations, kidnapped Israeli soldiers and civilians are valuable and relatively cheaply-acquired bargaining chips to bring home their terrorists imprisoned in Israeli jails. As Yoram Shachar, the brother of policeman Eliahu Shachar who was murdered in a terrorist attack involving Kuntar, said: "The release today is the kidnapping of tomorrow."[22]

Moreover, given that Israel has traded hundreds of terrorists for Israeli bodies and even body parts, there is very little incentive for the terrorists to uphold any sort of humanitarian standards in their treatment of kidnapped Israeli soldiers or civilians or, for that matter, to keep them alive at all. Indeed, Dr. Boaz Ganor, the Executive Director of the International Institute for Counter-Terrorism at the Herzliya Interdisciplinary Center, has noted that Israel should never have agreed to trade captured terrorists for dead IDF soldiers because it undermines any motivation to feed, guard, medically treat, or otherwise do whatever is necessary to keep future Israeli captives alive and well.[23]

In this context, it should be recalled that the Goldwasser/Regev deal does nothing for other Israeli soldiers missing in action including Rahamim Alsheikh, Yosef Fink, and Zachary Baumel who disappeared in the 1982 Lebanon War.[24] Perhaps knowledge of their whereabouts is part of Hizbullah's strategic reserve of "reports" and body parts to be utilized at some later date to liberate additional terrorist murderers from well-deserved imprisonment. By using so much of its leverage to close the Goldwasser/Regev deal, Israel's future ability to release other Israeli prisoners is sharply diminished.[25]

Israel's capitulation in the Goldwasser/Regev deal makes the terrorist organizations appear strong and successful and, thus, encourages additional support, recruitment, and donations to the organizations. This is not something new. Some analysts say the first Intifada was the direct result of the Jabril deal. The return of more than 1,000 terrorists proved and augmented the strength and effectiveness of the Popular Front for the Liberation of Palestine — General Command and enabled freed Palestinian terrorists to carry out key roles in the protracted violent uprising against Israel.[26]

The Tennenbaum deal between Israel and Hizbullah in 2003, where Israel freed more than 400 terrorists and other criminals and nearly 60 Lebanese bodies in exchange for three corpses and an Israeli drug dealer, continued the damaging trend. In its wake, support for Hizbullah skyrocketed. It is widely believed in Israel's security echelon that the Tennenbaum exchange elevated the prestige of Hizbullah in Lebanon.[27] Hizbullah then kidnapped two additional IDF soldiers, an event that triggered the Second Lebanon War.[28] Taking and ransoming Israeli hostages is becoming a never-ending cycle, and Hamas, Islamic Jihad, Hizbullah, and other groups are likely developing plans to take new hostages.

In addition, releasing convicted terrorists undermines the criminal justice system. Simply put, it is unjust to release individuals who have committed serious crimes before they have served their sentences. Surely, Israel would not release a convicted Israeli mafia murderer if his relatives took other civilians hostage. In addition, such releases are likely to provide comfort to terrorists planning future attacks, who can hope that if caught and convicted they will one day be exchanged for kidnapped Israelis.[29]

Finally, the most troubling, long-term consequence of such exchanges is the fact that many of the terrorists released return to committing terrorism and related offences. According to the Almagor Terror Victims Association, 854 of the 6,912 Palestinian terrorists released in confidence-building measures between 1993 and 1999 were subsequently arrested for acts of murder and terrorism (as of August 2003).[30] In fact, 80 percent of the terrorists released committed criminal offences related to terrorism, "whether as commanders, planners, or murderers."[31] Since the year 2000, 180 Israelis have been murdered by terrorists who had been released from Israeli jails. These statistics do not account for the hundreds more who were injured by these same recidivists.[32]

The Almagor investigation provides a number of examples including:

• Abbas ibn Muhammad Alsayd, who after being released in 1996 was involved in the perpetration of three attacks in Netanya including the Park Hotel Passover attack on March 27, 2002, in which 30 people were murdered and 155 wounded.

• Iyad Sawalha, who was released pursuant to the Wye Agreement in 1998 and was responsible for the June 5, 2002, bus bombing at the Megiddo junction, murdering 17 people and wounding 42.

• Ramez Sali Abu Salmim, who detonated himself in Jerusalem's Café Hillel on September 9, 2003, just seven months after his release, murdering 7 people and wounding over 50.[33]

The long-standing policy of successive Israeli governments, that have succumbed to high ransom payments to secure the release of kidnapped Israeli soldiers (or their bodies) with the release of hundreds of terrorists, is contrary to Israel's international law rights and responsibilities. The Israeli government has appointed a committee to develop new guidelines for establishing more favorable terms on which to negotiate any future ransoms. The committee includes such prominent individuals as Professor Asa Kasher, an Israel Prize-winning ethicist and Tel Aviv University law professor who wrote the "IDF Code of Conduct,"[34] retired President of the Supreme Court Meir Shamgar, and Maj.-Gen. (res.) Amos Yaron.[35] These guidelines should send a signal to Israel's enemies that prisoner exchanges will hereafter be balanced in a manner that is more sensitive to international law as well as to Israeli strategic considerations.

In a similar vein, it would be worthwhile to consider implementing a waiver scheme by which Israeli soldiers could voluntarily relinquish their "right" to be brought home via extortionate exchanges. The model for this could be the release that Israeli parents with a single child are required to sign before he/she can serve in a combat unit.

The status quo for prisoner exchanges harms Israeli deterrence, creates an appalling precedent that encourages further kidnappings, increases the possibility that our captured soldiers will be mistreated or even murdered in custody, and rewards imprisoned terrorists by releasing them early to claim new victims. The Hizbullah and Hamas terrorists have a good thing going. This humiliation must stop.
 

Notes

1. Editorial, "The Cabinet Decides," Jerusalem Post, June 30, 2008, p. 13.

2. Ashley Perry, "A New Paradigm for Releasing Israeli Captives," Jerusalem Post, July 6, 2008, p. 13.

3. Yaakov Katz and Tovah Lazaroff, "Hizbullah Deal to Move Forward Despite Disappointing Arad Report," Jerusalem Post, July 13, 2008, p. 1.

4. Roee Nahmias and AFP, "Nasrallah: We Have Israelis' Body Parts," Ynet News, 19 January 2008,
http://www.ynetnews.com/articles/0,7340,L-3496155,00.html.

5. Herb Keinon and Yaakov Lappin, "Egypt Says Shalit Deal Now Its Top Foreign Policy Priority," Jerusalem Post, June 27, 2008, p. 2.

6. Geneva Convention III Relevant to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135-285.

7. Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, art. 133, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

8. See generally, Geneva Convention III Relevant to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135-285.

9. http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2004/1/
Background%20on%20Israeli%20POWs%20and%20MIAs.

10. Ian Fisher, "A Hostage Taken, a Ransom Paid (Again)," International Herald Tribune, Mar. 24, 2007,
http://www.iht.com/articles/2007/03/25/europe/web-0325fisherWIR.php.

11. Mishnah Gittin 4:6.

12. TB Gittin 45a.

13. Maimonides, Hilchot Matanot Aniyim 8:10 , Mishneh Torah.

14. Shulchan Aruch (Y"D 252:3), cited at
http://www.torahmitzion.org/eng/resources/showLaw.asp?id=435.

15. Maimonides, Hilchot Matanot Aniyim 8:1; see generally Shulchan Aruch as discussed by Simon M. Jackson, in
http://www.torahmitzion.org/eng/resources/showLaw.asp?id=435.

16. Tosafot, TB Gittin 58a.

17. Simon M. Jackson, "The Redemption of Captives — At Any Cost?,
http://www.torahmitzion.org/eng/resources/showLaw.asp? id=435.

18. See Prof. David Golinkin, "Redeeming Captives: How Far Should Israel Go in Redeeming Captives from Terrorist Organizations," Oct. 2, 2003, discussed at
http://www.jewishvirtuallibrary.org/jsource/Judaism/captives.html.

19. Yaakov Katz, "Government Teams Formed to Forge Future 'Kidnapping Policy," Jerusalem Post, June 22, 2008, p. 1, and "Swap Garners Mixed Reactions from MKs," Jerusalem Post, June 30, 2008, p. 3; Daniel Gordis, "House Debate," Jerusalem Post Magazine, June 27, 2008, p. 4.

20. See Israel Hasson, "Prisoner Swap Immoral," Ynet News, June 25, 2008, http://www.ynetnews.com/articles/0,7340,L-3560148,00.html.

21. Khaled Abu Toameh, "Palestinians Disappointed PA Prisoners Won't Be Included in Swap for Regev, Goldwasser," Jerusalem Post, June 30 2008, p. 3.

22. Rebecca Anna Stoil and Dan Izenberg, "Brother of Slain Policeman Petitions Against Kuntar Release, Jerusalem Post, July 8, 2008, p. 2.

23. Yaakov Lappin, "Analysts: The Exchange Is a Mistake," Jerusalem Post, June 30, 2008,
http://www.jpost.com/servlet/Satellite?pagename=JPost/
JPArticle/ShowFull&cid=1214726154383.

24. Letter, Jerusalem Post, July 1, 2008, p. 14; Batsheva Pomerantz, "An Ongoing Battle," Jerusalem Post, In Jerusalem, June 27, 2008, p. 24.

25. Yaakov Katz, Khaled Abu Toameh and Ben Sales, "Israel: Hizbullah Deal May Toughen Hamas Demands for Shalit," Jerusalem Post, July 1, 2008, p. 1.

26. Matthew Wagner, "What Would the Sages Say about the Agreement," Jerusalem Post, June 30, 2008, p. 3.

27. See generally, Yaakov Lappin, "Analysts: The Exchange Is a Mistake," op. cit.

28. Dina Kraft, "Report Says Israelis Held by Hezbollah Were Wounded," New York Times, December 7, 2006,
http://www.nytimes.com/2006/12/07/world/middleeast/07soldiers.html.

29. See comments of Dr. Boaz Ganor as reported at "Sufian Abu Zaida, Palestinian Authority Minister for Security Prisoners, participated in a panel discussion on Liberating Security Prisoners," Aug. 2, 2005,
http://www.idc.ac.il/eng/news_events/showNews.asp?messageId=1899.

30. Almagor Terror Victims Association, "We Must Prevent the Next Terror Attack,"
http://www.al-magor.com/site/detail/detail/
detailDetail.asp?detail_id=495811.

31. Almagor Terror Victims Association, "Terrorists with No 'Blood on Their Hands' Released and Returned to Terrorism,"
http://www.al-magor.com/39719/the-full-investigation.

32. Ibid.

33. Ibid.

34. Yaakov Katz, "Anniversary Angst," Jerusalem Post, July 11, 2008, p. 13.

35. Abe Selig and Yaakov Katz, "Kasher: New Prisoner Exchange Policy Should Differentiate Between Live and Dead Soldiers," Jerusalem Post, July 7, 2008, p. 1.

Dr. Justus Reid Weiner is an international human rights lawyer and a member of the Israel and New York Bar Associations. He received his J.D. from the School of Law (Boalt Hall), University of California, Berkeley. He is currently a Scholar in Residence at the Jerusalem Center for Public Affairs, and an adjunct lecturer at the Hebrew University of Jerusalem. Weiner was formerly a Visiting Assistant Professor at the School of Law, Boston University.

Diane Morrison, Adv., is an Israeli-qualified lawyer, having served her clerkship at Herzog, Fox and Neeman. She will be pursuing a Masters in International Legal Studies at New York University in the Fall of 2008. The authors appreciate the efforts of Nicole Betel, Rafi Brass, and Benjamin Fisher for their contributions to this article.

This study is a product of the Global Law Forum, sponsored by the Legacy Heritage Fund. This is No. 565 July 2008 of the Jerusalem Viewpoints series. It is published by the Institute for Contemporary Affairs, Jerusalem Center for Public Affairs
http://www.jcpa.org/JCPA/index.asp

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