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.
An Israeli soldier opens the gate of the Rosh Hanikra border crossing between Israel and Lebanon.
Photo: AP
Israel's capitulation in the Goldwasser/Regev deal makes the terrorist organizations appear strong, 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.
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.
The authors appreciate the efforts of Rafi Brass and Benjamin Fisher for their contributions to this article. This study, provided by the Jerusalem Center for Public Affairs, is a product of the Global Law Forum, sponsored by the Legacy Heritage Fund.
