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Update from AIJAC

July 16, 2008
Number 07/08 #05

Israelis are intensely debating at the moment the pros and cons of prisoner swap expected overnight with Hezbollah, which includes Israel trading five Lebanese prisoners, including the notorious child-killer Samir Kuntar, in exchange for what is expected to be the bodies of two Israeli soldiers, Ehud Goldwasser and Eldad Regev, abducted in the raid which sparked the 2006 war. This Update offers a perspective from each side of this debate.

Arguing in favour of the deal is columnist Uri Misgav. He argues that despite revulsion over the acts of Kuntar, logic dictates that he is no longer a threat, and Israel is doing something noble for the families of Goldwasser and Regev. He also argues that, by removing Hezbollah’s excuse for abductions, in the form of Lebanese prisoners, the deal may also prevent future abductions. For this full argument, CLICK HERE. A fellow columnist, Uri Orbach, has mixed feelings, but differs with Misgav on this last point, arguing that the prisoner deal may lead to more kidnappings and killings in the future, and these potential victims must be taken into account.

From the other side comes a longer and more legalistic argument from legal scholars Justus Reid Weiner and Diane Morrison. They provide good details on what the deal actually entails and the history of past deals. But they also argue at length that the deal is not in Israel’s public interest, and legitimates terrorist groups, encourages future kidnappings and undermines the model of prisoner exchanges set out by the Geneva conventions. For their complete argument, CLICK HERE. Making a less legal and more political argument against the swap is former Jerusalem Post editor Bret Stephens.

Finally, on a different topic, Dr. Alexander Yacobson, an Israeli scholar specialising in the history of democracy, looks at the insistence by Palestinian leaders that they will not be “Israel’s policemen” and will not enforce peace agreements with Israel on other Palestinian factions. He says that Palestinian society should be able to find reasons in terms of their own interests to develop institutions with a monopoly on the use of force, and that “it is hard to imagine a situation in which operating as a collection of gangs would be in its interest.” But he points out that until this happens, peace is very difficult, as the experiences of recent years have made clear. For the full piece, CLICK HERE. Evidence of his point came on the weekend, as yet more rockets and mortars continued to be fired from Gaza into Israel, despite the supposed truce with Hamas and other factions.

Readers may also be interested in:

• Syrian President Assad seems to have broken out of his international isolation at a recent meeting in France, though he managed to carefully avoid shaking hands with or being near Israeli PM Olmert.
• At that meeting, Israel joined other nations in promising to work toward making the Middle East region a zone free of weapons of mass destruction.
• An interview with a Syrian dissident.

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The right move for Israel

Upcoming release of Hizbullah prisoners may prevent future abductions

Uri Misgav

Ynet.com, 07.14.08,

The details of the massacre are revolting. The testimonies are horrific. The photos of the expected celebrations planned in honor of the murderer – hoisted up, flashing a victory sign, thanking Nasrallah – will infuriate us.

Yet the gut is not the right means for analyzing national interests. This job is better left for the mind, coolly and level-headedly. And the clear Israeli interest is, to hell with it, release Samir Kuntar.

Final Stretch

Lebanese newspaper says prisoner swap between Israel, Hizbullah to commence 9 am Wednesday at Nakura crossing; Israel transferring four prisoners slated for release to prison where Kuntar is held. Hizbullah planning mass rally in Beirut to honor returning prisoners
Full story

After 28 years in prison Kuntar will no longer constitute a terror threat against Israel. Therefore, the only relevant question is the potential benefit or downside inherent in the act of release in and of itself.

There is no doubt that in terms of a cold mathematical calculation, in a vacuum, we are dealing with a problematic deal. Israel is releasing living prisoners in exchange for dead captives.

However, in the same breath Israel is doing something noble for the sake of two dignified families who made the ultimate sacrifice and deserve, at the very least, an opportunity to go on with their lives, with the fog cleared.

Nasrallah’s euphoria to be short-lived

At the same time, there is also a significant national effect here. The return of Goldwasser and Regev, along with the upcoming departure of Prime Minister Ehud Olmert, will enable Israel to put away the Lebanon failure after two years.

However, the most meaningful benefit of the swap is related to the future, not the past. It is difficult to understand how top security officials, who objected to the deal, missed it: The release of Kuntar and the four Hizbullah captives can certainly prevent future abductions.

For years, the release of prisoners served as a major cause for Hizbullah. At a certain point it became a burden, a debt that had to be repaid vis-à-vis the families and public opinion. As of this week there will be no reason to continue the armed struggle. Therefore, Nasrallah’s euphoria is expected to be short-lived.

So this is what we can expect on Wednesday: In Lebanon, the murderer of a family will be hoisted after being released from prison. Around here, we will be able to celebrate, modestly, the chance of preventing the abduction of the next Goldwasser and Regev. We’ve known worse days.

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Hizbullah’s triumph

JUSTUS REID WEINER and DIANE MORRISON

THE JERUSALEM POST, Jul. 15, 2008

On June 29, 2008, the Israeli Cabinet approved a prisoner exchange with the Lebanese Shi’ite 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). Goldwasser and Regev were held thereafter in violation of the unanimously-approved UN Security Council Resolution 1701, which called for their unconditional release.

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.
• 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.

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.

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) and Article 133 of the IV Geneva Convention (1949). 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.

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. 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 guerrilla 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. 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 Mishna which rules that one does not ransom captives for more than their value because of Tikkun Olam. The Talmud disputes the rationale for the Mishna’s stipulation. 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 and the Shulhan Aruh adopt the second rationale. While both maintain that there is no greater mitzva than the redemption of captives, ultimately, public security considerations take precedence when evaluating whether to pay a ransom. 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.

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, 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.

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. 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. 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. 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.”

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.

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. 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.

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.

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. Hizbullah then kidnapped two additional IDF soldiers, an event that triggered the Second Lebanon War. 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.

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). In fact, 80 percent of the terrorists released committed criminal offences related to terrorism, “whether as commanders, planners, or murderers.” 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.

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 seven people and wounding over 50.33

THE LONG-STANDING policy of successive Israeli governments, which 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 Asa Kasher, an Israel Prize-winning ethicist and Tel Aviv University law professor who wrote the IDF Code of Conduct, retired president of the Supreme Court Meir Shamgar, and Maj.-Gen. (res.) Amos Yaron. 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.

Dr. Justus Reid Weiner is an international human rights lawyer and a member of the Israel and New York Bar Associations. He is currently a Scholar in Residence at the Jerusalem Center for Public Affairs, and an adjunct lecturer at the Hebrew University of Jerusalem. 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.

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Not Israel’s policemen

Alexander Yakobson

 Haaretz, 14/07/2008

All the signs indicate that Hamas in the Gaza Strip is currently interested in a lull. The rocket fire targeting Israel that is perpetrated by armed groups refusing to accept authority – including Fatah operatives – causes Israel to repeatedly close the border crossings and deprives Hamas of what it considers one of the main advantages of the lull: the removal of the blockade from Gaza. The Israeli government, which is also interested in a lull and is not heeding suggestions to respond militarily to every rocket, cannot, even from a political perspective, allow the crossings to remain open while the Negev is being shelled.

But if the rocket fire continues, a military response will eventually follow. The Hamas leaders realize this and don’t want it. They have spoken out vehemently and unequivocally against the rocket fire, and one of the most radical Hamas leaders, Mahmoud Zahar, has even threatened those who violate the lull with arrest. Nonetheless, the rocket fire continues. Apparently the perpetrators are relying on Hamas’ not allowing itself to backtrack on the statements its leaders have repeated recently, that even though a lull is currently in the Palestinian interest, Hamas will not function as Israel’s policeman or turn its weapons on other Palestinian groups to defend Israel’s security.

A government that starts off by promising competing groups of militants operating in its territory that it will not forcibly impose its authority has no chance of “convincing” those groups to obey. It does, however, have an excellent chance of finishing off just as the Fatah government ended its rule of Gaza: Those with whom it refrained from clashing, those it allowed to accumulate power under its nose will topple it at the right time. This is a long way from happening in Gaza, but the direction is clear. The multistory buildings from which Hamas operatives flung their Fatah rivals during the takeover of Gaza are still standing.

This slogan – we won’t be Israel’s policemen, we’re not the South Lebanon Army – was adopted by Fatah in the early days of the Palestinian Authority, and more than anything else, this is what decided the fate of the Oslo process. It also decided the fate of the Fatah government in Gaza, and is now threatening its rule in the West Bank.

From Israel’s perspective, this slogan disparages the principle of land for peace, since it promises that as long as Israel cedes land, it will get less peace – and that’s regardless of the will of the Palestinian leadership. There were periods before September 2000 in which Yasser Arafat was interested in terror attacks, and then the slogan served only as an excuse. But there were also times when he wanted quiet, and this quiet was disturbed by his rivals. Senior Palestinian security officials realized the grave danger posed by the armed anarchy that had developed in the territories, and urged their leader to exert force. There were times when the PA did indeed prevent terror attacks, but it never made a systematic effort to disarm the militant groups or impose the basic rule without which no government can exist: a monopoly on the legitimate use of force.

Palestinian Authority President Mahmoud Abbas has openly and courageously denounced the terror attacks and the armed struggle against Israel. There is no reason to doubt his sincerity, because such comments did nothing to improve his popularity when the prevailing assumption among Palestinians in the territories was that a few exploding buses would topple Israeli society. But even Abbas stuck to the approach that it was permissible to try to persuade those attacking Israel in contravention of the leadership’s position that they should stop, and even to bother them here and there, but that the government should not confront them and certainly should not fight them – because after all, “we’re not Israel’s policemen.”

Indeed, the Palestinian government should not be Israel’s policeman. It shouldn’t act against terrorism because of Israeli pressure, but of its own volition and for its own reasons. A national movement could have an interest in making peace, either in a truce or in war, but it is hard to imagine a situation in which operating as a collection of gangs would be in its interest. Of course, Israeli policy should also make it easier for the Palestinian leadership to impose its authority. But the Palestinian unwillingness to do so is not just a matter of weakness. It is connected not just to the occupation, but also to Israel’s lack of legitimacy in the eyes of the Palestinian public.

Nonetheless, the question of the attitude toward Israel is not, ultimately, the most important one. The primary issue is whether there will be a Palestinian leadership, whatever its ideology may be, that operates as a national leadership and as a government – one that polices itself.

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