Israel, Hamas both inflexible in prisoner swap negotiations - opinion

Since the war in 2014, the Government of Israel has been trying to indirectly negotiate with Hamas for the return of the four Israeli captives.

 DEFENSE MINISTER Benny Gantz greets Leah Goldin, mother of fallen soldier Hadar Goldin, outside the annual state memorial ceremony on Mount Herzl in Jerusalem in June, marking the anniversary of the 2014 Operation Protective Edge.  (photo credit: OLIVIER FITOUSSI/FLASH90)
DEFENSE MINISTER Benny Gantz greets Leah Goldin, mother of fallen soldier Hadar Goldin, outside the annual state memorial ceremony on Mount Herzl in Jerusalem in June, marking the anniversary of the 2014 Operation Protective Edge.
(photo credit: OLIVIER FITOUSSI/FLASH90)

More than seven years has passed since the summer war of 2014. Two Israeli soldiers who were killed in battle were left behind; their bodies are held by Hamas.

Two other Israeli citizens, Avera Mengistu and Hisham al-Sayed, presumed to be alive, are also being held by Hamas. The two civilians entered Gaza on their own, although Mengistu was observed crossing by the Israeli army.

Both of the civilians are known to be suffering from acute mental illness. Both were taking medications for their mental illness prior to entering Gaza. Since the war in 2014, the Government of Israel has been trying to indirectly negotiate with Hamas for the return of the four Israelis.

These negotiations have taken even more than the five years and four months that it took to bring captured soldier Gilad Schalit home from Gaza. Having been intimately engaged in the negotiations for the Schalit deal and also periodically being engaged in the negotiations over the past seven years, I would like to share some of my insights.

For about five years the negotiations made no progress whatsoever because of the Hamas demand that Israel release all of the former prisoners released in the Schalit deal that were rearrested by Israel after the kidnapping and the murder of the three teens in Gush Etzion in June 2014. 

There were 58 former prisoners arrested at that time. Hamas claimed that Israel violated the terms of their release by rearresting them, and that before new negotiations could be opened, Israel had to first release those prisoners. Israel refused, seeing the release of those prisoners as a down payment just in order to open negotiations.

Hamas members carry a rocket as they march during an anti-Israel rally in Rafah, in southern Gaza. (credit: IBRAHEEM ABU MUSTAFA/REUTERS)Hamas members carry a rocket as they march during an anti-Israel rally in Rafah, in southern Gaza. (credit: IBRAHEEM ABU MUSTAFA/REUTERS)

Israel’s position was that those prisoners from the 58 who did not return to terrorism would be released as part of a new deal to bring home the four Israelis. There remain in Israeli prisons about 40 of the former prisoners, as some of the former prisoners completed their prison sentence and were released already. The rest are being held primarily as bargaining cards.

According to what I have been told by sources in Hamas, there is an acceptance that the former prisoners who did not violate their terms of release – i.e., did not return to terrorism would be released as part of the future deal.

Initially the Israeli approach to negotiations for a new prisoners’ exchange was based on what is believed to be the directives of the Shamgar Commission report. This commission was formed in 2008 to propose guidelines for prisoner exchanges with enemy organizations or enemy countries. 

The commission’s report was submitted to the government in 2012 but never published. The committee reportedly directed the government to limit prisoner exchanges to the basis of one for one, not one for one thousand. It also reportedly directed that bodies should be exchanged for bodies. In addition to almost 6,000 Palestinian prisoners, Israel is also holding several hundred bodies of Palestinians who were killed by Israel.

Personally, I have never taken the report’s directives seriously. Those limitations are nice on paper, in theory, but in real time, if the life of an Israeli soldier is at risk, those directives are meaningless, as we saw in the negotiations for Schalit’s release. Currently we are not dealing with a living solider, but with the return of the bodies of two soldiers and the return of two civilians presumed to be alive.

According to what I understand, there has been some progress over the past seven years, particularly since the May 2021 war. The Israeli team, headed by Yaron Blum, has made huge efforts over the past four and half years, with the full support of the Israeli security establishment to reach an agreement with Hamas.

Blum and his team have made significant compromises to reach an agreement. The Israeli side claims that no agreement has been reached because of the hardline positions of Hamas. Israel, according to what I understand, is willing to release several hundred prisoners as a “humanitarian release” including minors, women, some sick prisoners and others on the condition that none of them has killed Israelis. 

The release of prisoners who have killed Israelis seems to be a hard redline that the Israeli side will not cross (with the exception of the former prisoners released in the Schalit deal who did not return to terrorism). This is the main issue blocking an agreement between Israel and Hamas. Hamas is continuing to demand the release of prisoners who are serving the longest prisoner terms, meaning that they killed Israelis. 

Israel has tried to get Hamas to accept the idea of merging issues – meaning adding to a limited prisoner release the issues that Israel has repeatedly agreed to following each round of violence: work permits, movement and access of goods, water, electricity – or what Hamas calls removing the siege on Gaza.

Hamas has refused to merge the issues seeing the prisoner issue as sacrosanct and believing that Israel is already obligated by its commitments to Egypt to ease the siege policies on Gaza. Essentially Israel has refused to implement all of its commitments until the four Israelis are returned home.

Hamas has refused to present evidence that the two civilians are alive. Hamas claims in its own publications and statements that it is holding four soldiers, and most of the Palestinian public believes that at least one of the soldiers is alive and that the civilians are not innocent non-combatants, but are in fact soldiers.

From the Israeli side, there is 100% certainty that the two soldiers, Oron Shaul and Hadar Goldin were killed in battle – there is no doubt whatsoever about this. 

Negotiations are being carried out mainly through the mediation of the Egyptian intelligence agency. It seems that there is little reason for optimism, although both sides say that they want a deal and that a deal can be reached in a short period of time. 

Both sides are inflexible on their redlines. Israel will not compromise on the issue of prisoners who have killed Israelis, and Hamas refuses to give up that demand and to merge issues. Amazingly there is no public pressure in Israel or in Gaza to push their governments to make a deal. I believe that if Hamas were to release proof that Mengistu was alive some public pressure in Israel would emerge. 

Likewise, if Israel could speak directly to the public in Gaza and explain how life would be significantly better for them if the four Israelis are returned to Israel, public pressure in Gaza would also emerge. Both sides need to find a way to speak to the public on the other side.

I would also lastly recommend, as I did in the Schalit deal, to speak directly, as much as is possible, with Hamas and not through mediators. In the final agreement on the deal, both Israel and Hamas need Egypt to be a central deal closer, but until then it may be more possible to narrow the gaps through direct engagement. 

The writer is a political and social entrepreneur who has dedicated his life to the State of Israel and to peace between Israel and her neighbors. He is now directing The Holy Land Bond.