A Problem of Credibility: Why a Prisoner Exchange is Inevitable

Operation Protective Edge, which took place in the summer of 2014, brought about the deaths of 73 Israeli soldiers and civilians. However, two of the soldiers—Oron Shaul and Hadar Goldin—were killed in action and their corpses have yet to be returned to Israel as they are still held by Hamas in the Gaza Strip. In addition to Goldin and Shaul, also held by the organization are two Israeli civilians, Avera Mengistu and Hisham al-Sayed, whom are known to have mental illnesses, separately crossed the border into Gaza. Their respective families have produced vast public campaigns with the purpose of pressuring the government to find a solution for their loved ones’ return.

Attempts have been made by the Israeli government to negotiate a deal for the release of at least the bodies of Shaul and Goldin, but to no avail. Such deals have included increased humanitarian aid and the softening of restrictions at the border crossing into Gaza for items such as medicine and food products. Israel is in dire search for a new strategy for releasing hostages. The government is in search for an alternative to its traditional model, one that finds its genesis in the late 1970s with a deal made to release Israeli soldier Avraham Amram, in which Israel has repeatedly bargained with recognized terrorist organizations for the release of Israeli soldiers and civilians in exchange for freeing imprisoned terrorists.

These deals have been numerically disproportionate all the while successive Israeli governments have declared a policy of no concessions with terrorists. The most recent disproportionate prisoner exchange took place in 2011, in which 1,026 prisoners held in Israeli prisons were released in exchange for Gilad Shalit whom Hamas held captive since his abduction in the summer of 2006. In this case, then Prime Minister (PM), Ehud Olmert, was heard fervently declaring that releasing prisoners in exchange for Shalit was not on the menu of policy options. However, despite calls, “Not to compromise on terror,” the Shalit deal was reached and implemented, which included in the list of prisoners, today’s head of Hamas in Gaza, Yahya Sinwar.

If an elementary definition of commitment is applied—performing an action that one declared committed to doing—Israel’s policy of not releasing prisoners for hostages has proved to be incredible. Why is it that Israel has been unable to change its bargaining behavior and policy in hostage negotiations from successive disproportionate prisoner exchanges to finding another means of freeing hostages? What makes this policy incredible and how can we know such?

I find that there are three central factors that explain Israel’s inability to commit to its declared policy and why this specific policy is perceived by its adversaries as incredible: the power of public opinion, Israel’s reputation as a result of past exchange deals, and judicial constraints on policy maneuvering. I will proceed in briefly explaining and analyzing each factor individually.

The academic literature discussing reputation in international relations is clear in its definition referring to it as a judgement of another’s character that is then used to predict or explain future behavior. In essence, this means that such an actor’s judgement is formed by its perception of how the other will act in the future. Reputation is a distinctively relational phenomenon. What is also pertinent to this view of reputation is that it is only effective in similar cases (hostage bargaining in this case). Therefore, reputation is contextual and is based on similar situational occurrences.

When facing negotiations for the release of a hostage, a distinct reputation has been formulated in the eyes of Israel’s adversaries such as the groups Hezbollah and Hamas. This perception is evident in various personal statements and expressions made by some of the groups’ senior officials.

In 2006, amidst initial attempts to free Gilad Shalit, the Palestinian Minister of Information, Yousef Rizka, stated that a prisoner exchange is something accepted in the region and that Israel has already performed such deals with Hezbollah in the past. He was keen to point out that prisoner exchange deals have already taken place in the past between Israel and its adversaries, therefore, it would not be an anomaly for another to occur in the future as well. Similarly, surrounding the same incident, he refuted Israel’s declared policy when he cynically stated, “Have you just now started with this today? All of your lives you’ve adhered to this principle.” This sarcastic tone resonates well with the fact that just a few years prior in January 2004, a disproportionate prisoner exchange took place between Israel and Hezbollah, releasing one Israeli citizen and three deceased soldiers for hundreds of Palestinian and Lebanese prisoners. Thus, because of Israel’s past behavior, its stance not to release prisoners is seen by its adversaries as a bluff and is expected to repeat itself in the future as well.

Israel, as a state possessing the function of a separation of powers, is in a disadvantaged position when formulating policy in relation to a political entity like Hamas that is non-democratic and is not subjected entirely to the rule of law and a system of checks and balances. Therefore, when a democratic and non or less democratic entity are in conflict with one another, the former is likely to find itself in a much less flexible position to formulate policy that will give it an advantage over the latter.

In November 2017, the IDF destroyed an attack tunnel built by Hamas near the Israeli town, Kissufim, which left senior officials of the Islamic Jihad dead as a result. It was then decided that their bodies would remain in Israeli custody in order to utilize them as bargaining chips for a future deal to release the Israelis held in Gaza. This can be seen as an attempt to create a balance of bargaining power between Israel and Hamas in order to change the rules of engagement in hostage negotiations. It’s an attempt to transform the previous model in which Israel is left politically paralyzed without room for strategic maneuverability. This would seemingly provide a solution for the problem of releasing convicted terrorists that are likely to return to violent activity by only returning those that are deceased.

In a majority ruling in Israel’s Supreme Court, responding to the petition of the families of the members of the Islamic Jihad to receive the bodies to be properly buried, it was ruled that the state does not possess the authority to withhold the bodies for the purpose of negotiating. The government was subsequently granted six months to legislate a law that permits the state to refrain from returning the bodies. In addition, the law must be in accordance with the standards of both Israeli and international law.

The subsequent political discourse illustrated the limiting effects the court has on strategic maneuverability when dealing with such non-democratic entities as Hamas. The Minister of Education, Naftali Bennet, and Justice Minister, Ayelet Shaked of the Jewish Home party, stated in response to the ruling that, “We are in a war against murderous terrorist organizations, and it’s impossible to fight them with our hands tied.” The ‘hands tied’ remark is a portrayal of the binding effect that the legal institutions of a democratic country have coping strategically with non-democratic powers.

The Minister of Tourism, Yariv Levin, further stated that, “Again terror received today another prize from the Supreme Court Justices.” He also responded by saying that the ruling hurts Israel’s ability to bring back the Israelis held hostage by Hamas. Similar to the remarks of Bennet and Shaked, within the words of Levin lies a description of a judicial system that prevents the government from implementing strategic policies that will assist in releasing hostages. Democratic rule of law disables the state from imitating the methods of the non-democratic actor in order to cope with the security challenges it poses, as Israel has tried doing by withholding the bodies of senior Islamic Jihad officials.

Finally, the successive campaigns of Israeli citizens applying pressure on Israel’s decision-makers in order to release hostages damages the state’s credibility as well. This phenomenon is epitomized clearly in the case of Israel’s hostage dealings with Hamas both during the Shalit saga and today as well.

It is no secret that Israel’s government has what has been called an ‘unwritten contract’ with its soldiers that warrants paying high and, at times, disproportionate prices for their return if captured—dead or alive. The Shalit family was successfully able to mobilize a vast portion of Israeli society to advocate for their son’s release. In the summer of 2010, an organized march from the family’s home in Mitzpeh Hila to the PM’s residence in Jerusalem, which was expected to consist of just a few hundred people, turned into a nationally televised event featuring approximately two hundred thousand supportive marchers. Additionally, towards the finalization of the deal, 79% of the Israeli public was supportive of releasing prisoners in exchange for Gilad’s freedom. This imposed an immense amount of pressure on the Israeli government which ultimately led to the final deal including prisoners whom were convicted murderers.

Looking back into recent history just a few decades ago, Miriam Grof, the mother of Yosef Grof who was captured during the First Lebanon War in 1982, also discovered the effectiveness of a public campaign of applying pressure on the government in order to arrive at a deal. It was said of her that, “She grasped that public pressure on the government is a result of being aggressive and proactive…you focus on what’s important to you, not on the good of the country.” It was her strenuous efforts that aided in arriving at the Jibril Agreement in 1985. It was a deal that negated the strategic interests of the State of Israel through its grossly disproportionate ratio of three Israelis for 1,150 prisoners, in which among the prisoners released was Ahmed Yassin, one of the founders and spiritual leaders of Hamas.

It is also pertinent to show how Hamas viewed public pressure on Israel’s government to come to an agreement as a factor that illuminates its incredibility. Just days following the Shalit’s abduction, Haaretz reported that there was certainty in Gaza that the Israeli government would be unable to withstand the public pressure placed upon it to bring Gilad back home. This indicates that already from the beginning Hamas is convinced that Israel’s declarations of not coming to a deal for his release is incredible because of the public pressures with which they were faced.

Today, both the Shaul and Mengisto families have been implementing similar tactics to those of the Shalit family. They have been seen building demonstration tents in front of the PM’s residence advocating for progress in the negotiations. In addition, towards the end of 2017, the Mengisto’s were set to embark upon an important trip to the United States hoping to raise awareness regarding Avera.

It is clear that their actions collectively are also having an impact on the current government. This became evident when an Israeli official anonymously was reported by the online news site Al-Monitor as saying that, “The Goldin family is terrorizing the cabinet,” referring to the family of Hadar Goldin. These harsh words illustrate the tension that is created between the political establishment and the families of those they are trying to bring back to Israel. Moreover, it epitomizes the main issue at hand, that is, how the interests of the state and its decision makers and the families for rationally pressure the state to take any measures in order to bring back their loved ones, negate one another. This tension faces the chance of tilting towards the favor of the captives’ families, in which the Israeli government will be pressured into implementing, yet again, another disproportionate prisoner exchange.

It is Hamas’s position that has proved to be more credible than Israel’s. Their original stance was that Shalit would not be released without a prisoner release deal. This, in the end, was the final result as predicted—a disproportionate deal. Also, although Hamas does face public pressure from the families of prisoners, it does not have the same institutional limitations as does Israel, such as those of a local justice system and subordination to international law.

Additionally, Hamas’s interest for abducting soldiers and civilians will always remain high so long as thousands of their operatives and other Palestinians remain Israeli prison. Hezbollah’s Nasrallah expressed a similar stance regarding his organization’s motivation for continued kidnappings when he stated that they wouldn’t have a reason to abduct Israelis if all of the prisoners were released. While both parties have a clear interest in implementing the behavior that they do in hostage negotiations, so long as the three factors discussed above remain in effect, Israel will be unsuccessful in changing the current model—disproportionate prisoner exchanges.