From the land of the enemy

“A voice is heard in Ramah. Lamentation, bitter weeping. Rachel weeps for her children. She refuseth to be comforted for her children, as they are not. Thus saith the Lord, ‘Restrain thy voice from weeping, and thine eyes from tears. For thy work shall be rewarded…Thy children shall return from the land of the enemy.’” Jeremiah, 31:14-15, from the Haftarah for the second day of Rosh Hashanah.

Very recently Hamas announced that it has agreed with Egypt on conditions for the return of our dead soldiers, Hadar Goldin and Oron Shaul. In essence, the Hamas terms are, “You give us everything we want, including the release of our killers, and then we will discuss with you whether we shall return your dead soldiers.” To call this proposal “chutzpadik” would not do justice to the magnitude of its arrogance. In fact, the proposal is so outrageous that neither Hamas nor Egypt can seriously expect us to respond favorably, or at all. This proposal is a political statement, not a realistic offer.

So then we should ask ourselves if there is truly a way to return our soldiers, as well as the living civilians who wandered into Gaza during the 2014 war. Hamas’ refusal to return the bodies of combatants is without question a war crime, as set forth in the First Geneva Convention of 1949 and Rule 114 of Customary International Humanitarian Law of the Red Cross. But although this is true, who would enforce this rule? The International Criminal Court (ICC) in the Hague? The ICC has finished about 10 cases since it became active in the year 2002, at a cost of more than $1.5 Billion. The ICC has discretion to accept or reject cases, and so far they have focused, properly, on cases of genocide and mass murder. Will they really take up the case of our dead soldiers? And if they did, would we wait 5-7 years for a decision? And if we did wait, who would enforce such a decision?

The same logic applies to the other crimes of Hamas. Our children Hadar and Oron were dead or dying at the time they were seized. They were NOT taken as prisoners of war. When a soldier is killed, or wounded so badly that he will clearly not return to the fighting, he has ceased to be a soldier. He is “hors de combat”, out of the war, and his seizure is not an act of war, nor is it a crime of war, it is merely the simple crime of kidnapping. The same crime was, and is still being, committed by Hamas when our civilians, apparently under an unbalanced mental state, voluntarily walked into Gaza. Failure to return non-combatants is also kidnapping. But who would enforce that law? The truth is that there will not be a legal solution to the return of our soldiers or civilians.

We in Israel all know that in the end, there will be a political solution, a deal, for the return of our soldiers. We will pay a price we should perhaps not pay, accepting conditions that should perhaps not be accepted, and releasing people who should not be released. Almost surely the price we will pay will not be as steep as the price to return Gilad Shalit, for the obvious difference between the living and the dead, but the Shalit deal is a signpost for what we may expect here. As we worked five years to free Gilad, we may expect that here, too, a deal will be struck eventually, probably around the year 2019, five years after the kidnappings by Hamas.

What may we expect from the deal in 2019? No stretch of imagination is required to know that the Palestinians will see this as a great national victory over the Israelis, over the Zionists, over the Jews. We can predict very safely that on the day of the Great Palestinian Victory hundreds, or even thousands, of rifles will be fired in the air in Gaza, and also within the territory of the Palestinian Authority. And what will be the situations of the Gazans and the Israelis on the day of the Great Palestinian Victory? Permit me to make my own predictions.

In the days just before the 2014 War, unemployment in Gaza was over 40%, water quality was sub-standard, electricity supply uncertain, and the ordinary Arab citizens displeased. On the day of the Great Palestinian Victory in the year 2019, the Arabs will be very happy for their victory. But on day after the Great Palestinian Victory, unemployment in Gaza will still be over 40%, the water will be barely drinkable, electricity intermittent, and the ordinary citizens in deep despair. In every real measure of quality, life in Gaza will be much worse.

Between 2014 and 2019, the annual GNP in Israel will increase by about $35 Billion, and that will be enjoyed by us year after year. During these same five years, the Jewish population of Israel will increase by over 600,000. It is likely that our population will become more believing, more confident, more motivated. In every real measure of quality, life in Israel will be much better.

We have not had a war with Gaza in more than three years now. Given the situation today, it is unlikely that there we a war within the next few years, almost certainly not before 2019. To say that Hadar Goldin and Oron Shaul have created a deterrent would be an exaggeration, but it is not incorrect and not an exaggeration to say that among other issues, Hamas is preoccupied with the kind of deal they can get when they return our people. One can almost anticipate the joy that the Hamas leaders feel in their anticipation of the concessions they can extract from Israel. And in this sense, Hadar and Oron contribute to the relative quiet in the period 2014-2019, years during which Gaza is slowly falling apart while Israel goes from strength to strength.

Soldiers they were, and soldiers they still are. As they protected us in life, so do they protect us in death. So do not weep now for Hadar or Oron, nor for our civilian prisoners. There will be time to weep later, on the day of the Great Palestinian Victory, when our children return from the land of the enemy.

About the Author
US patent lawyer and Israeli attorney, specializing in information & communication technologies (ICT) as applied to both military and civilian affairs. With the assistance of Shurat HaDin – Israel Law Center, authored a book on the laws of war (also called “international humanitarian law”) entitled A Table Against Mine Enemies: Israel on the Lawfare Front (Gefen Publishing, Jerusalem, 2017). Aliyah in 1988. BA Harvard College, MBA Northwestern, JD University of Chicago.