Recently, there have been reports in the Arab and international media about a deal for the release of captives between Israel and Hamas, mediated by the United States, Qatar, and Egypt. Hamas currently holds 136 captives, including 29 bodies. In addition, Hamas is holding two Israeli civilians and two bodies that were captured in Gaza before the October 7th attack.

According to various reports, Hamas intends to demand between 100 and 300 militants for each captive to be released, a change from the previous deal where three militants were released for each captive. Additionally, Hamas demands an increase in humanitarian aid entering the Strip and a complete withdrawal of the IDF from Gaza. In the previous agreement, the IDF ceased operations for a week, including the cessation of aerial surveillance of activities in the Strip, and retreated to defensive lines.

At least within the framework of the deal, as unofficially reported, Israel is expected to cease hostilities in Gaza for the duration of the agreement, lasting approximately two months. This will coincide with a cessation of intelligence gathering through fighter jets and UAVs in wide areas of the Gaza Strip.

Regarding the comprehensive ceasefire, it is highly likely that Israel will reject this demand outright, as one of the goals of the war is to defeat Hamas and destroy its military and ruling capabilities – Israel still has a long way to go and many actions to take to achieve this goal. Additionally, Israel has already committed that after defeating Hamas, IDF soldiers will remain in Gaza for an extended period for counter-terrorism operations and to prevent the resurgence of Hamas and other terrorist organizations.

While one of the goals of the war is the release of captives by Hamas, it should be remembered that every additional day of a ceasefire carries significant strategic and tactical risks for the Israeli strategy in the war in Gaza. According to the IDF, during the ceasefire in the previous deal, Hamas exploited the time to set up many booby-trapped houses, reorganize, and prepare ambushes. It is very reasonable to assume that Hamas will act in the same pattern, and this time it will receive a significantly longer period to carry out its plans against the IDF.

Hamas’ interest is to drag out the time as much as possible, hoping that Israel will not withstand the international pressure that will be exerted on it as the war continues. In the end, Hamas hopes that the war will stop with a ceasefire, and it will somehow survive.

The quantity of militants that Israel will release as part of the deal must be taken into account, especially when it is not clear that most of them will be transferred to Gaza. In the previous captive deal, Israel released many militants to the Judea and Samaria area and even to East Jerusalem. If all of them were released to the Gaza Strip, Israel could have dealt with a larger number of militants, as it would be much easier for Israel to neutralize them in Gaza than in other areas.

However, releasing a large number of captives may lead to continued terrorist efforts to abduct civilians and soldiers, undermining Israeli deterrence. For example, one of Hezbollah’s main objectives in a possible attack on Israel includes abducting civilians and soldiers, and it can be assumed that this gained importance after the successful attack in October, strengthening the organization’s lethal capabilities.

The previous captive deal was achieved mainly due to the ground maneuver of the IDF in the northern Gaza Strip and the significant damage caused to the organizational, political, and military capabilities of Hamas. Hamas hoped that once the IDF stopped its maneuver, it would not resume due to diplomatic, political, public, and operational considerations. Therefore, Hamas agreed to a captive release deal for a very low “price” relative to previous abduction and captivity events that Israel faced.

In the deal conducted between November 24, 2023, and December 1, three militants were released from Israeli prison in exchange for each Israeli captive – a “price” that certainly meets the threshold set by the Shamgar Committee; in fact, according to estimates, it is even lower than the threshold. For comparison, according to media reports, the recent proposed deal included Israel’s willingness to release about 30 militants for each Israeli captive.

"Hamas intends to demand between 100 - 300 terrorists for per released hostage"
photo: Oren Rosen

Ambiguous Policy

In general, Israel’s handling of the issue of captives requires rethinking and a comprehensive, cohesive policy. The examination of Israel’s existing policy on captives raises concerns – despite recent attempts and painful lessons from historical cases in Israel, the country has yet to act in accordance with a unified, systematic, and coherent policy. Such a policy could potentially reduce the motivation of its enemies to capture Israelis.

The management of prisoners and missing persons is conducted within the office of the Prime Minister and is under his direct responsibility. The office manages its actions through a Coordinator for Prisoners and Missing Persons acting on behalf of the Prime Minister.

In 2008, the Shamgar Committee was established to formulate a policy for managing negotiations regarding captives and missing persons. The committee, led by the former president of the Supreme Court, Meir Shamgar, was formed when Gilad Shalit was in captivity, and it was decided that its recommendations would not apply to the deal for his release.

Among the recommendations was a reference to the price that the state must pay to release captives. The report, spanning about 100 pages, was classified as “highly confidential” and was not fully disclosed to the public. According to publications, the document suggested that in exchange for a captured soldier, individual prisoners would be released, and only bodies would be returned. It also recommended establishing a separation between the families of the captives and the decision-makers to prevent subjective pressure, and exerting pressure on the capturing party – including by changing the conditions of the imprisoned terrorists in Israel.

In 2012, after the release of Gilad Shalit from Hamas captivity, the committee submitted its recommendations to the Minister of Defense. At the end of 2014, the recommendations were brought to discussion in the Security Cabinet, but no vote was held to approve them. The government did not advance the implementation of the recommendations, even after the State Comptroller’s  critical report was published in January 2023 on the matter. This reality, lacking a systematic and unified policy, reflects Israel’s conduct over the past decades, up to the peak of releasing more than 1,000 terrorists in exchange for Gilad Shalit.

Dealing with the issue of captives and missing persons requires gathering information, managing international relations to obtain arrangements for the return of captives and missing persons, and maintaining regular contact with their families. The issue requires the management of interfaces and collaborations between government ministries, agencies, authorities, and various governmental bodies. Recently, it seems that Israel is beginning to move towards formulating a policy, or at least a unified organizational framework.

About a month after the start of the war, the government approved the establishment of the Captives Administration, which aims to consolidate all responses to captives and their families, replacing the ad hoc bodies that existed, including in the IDF. However, at this stage, the administration will operate alongside the Coordinator for Prisoners and Missing Persons, not in his place. These are important steps in the right direction but may not be sufficient.

In comparing Israel’s policy with that of the United States, for example, it can be learned that a systematic policy is needed to limit flexibility against terrorist organizations. In 2015, President Obama approved a Presidential Policy Directive related to the government’s handling of the issue of American captives abroad. The directive updated previous policy guidelines and defined a renewed and more flexible response by the American government to the taking of American citizens as hostages abroad.

The directive affirmed the long-standing commitment of the American government not to make concessions to individuals or groups holding American citizens as hostages for ransom, political release, changes in policy by the US government, or any other form of concession. According to the directive, the goal of the American strategy on this issue is to protect US citizens and strengthen national security by eliminating an incentive for groups and individuals to focus on American citizens and preventing terrorists and other malicious actors from obtaining the money, manpower, and other resources they need to carry out attacks against the United States, its citizens, its allies, and their interests. In addition, the directive led to the restructuring of the entire issue of dealing with captives and missing persons, establishing new and consolidated agencies and bodies.

However, it should be noted that over the years, both before the approval of the presidential directive, based on previous American law, and afterward, the United States did not always act in line with the policy of “no concessions.” For example, the United States tends to engage in negotiations if the abductor is a state. Although there is a technical and legal distinction in the United States between hostages (those abducted by non-state actors) and detainees (those held by states), the border is blurred when Americans are taken for explicit bargaining purposes. For example, the Obama administration agreed to a prisoner exchange deal with Cuba to release Alan Gross from Cuba and journalist Jason Rezaian and others from Iran. Generally, such deals are executed, among other things, within a comprehensive framework of diplomatic agreements and include other elements.

However, the existence of a clear and relatively assertive American policy, implemented through professional and consolidated organizations dedicated to the issue of captives and prisoners, allows the United States to “pay” relatively low prices, even if it chooses to deviate from political and diplomatic motives. It would behoove Israel to create such a policy as well.

"More than 1,000 terrorists were released in exchange for Gilad Shalit״
photo: IDF Spokesman