Why a Shalit ‘deal’ would be a disaster

A swap would not amount to justice — just Hamas extortion

By Raphael Harkham and Justus Reid Weiner, April 7, 2009

in the wake of another upsurge in activity and publicity surrounding Gilad Shalit, it bears remembering that there are compelling reasons for the Israeli government to think twice before agreeing to release hundreds of terrorists for his safe and overdue return:

● Capitulating would endanger the welfare of Israel’s citizenry. It would be highly irresponsible for Israeli strategic decision-making to hinge on the fate of a single individual.

● The most palpable effect of releasing terrorists is their rate of recidivism. Over a third of those released in the 1985 “Jibril deal” renewed terror activity within the year. In the wake of the 2004 “Tennenbaum deal”, those freed murdered at least 35 Israelis (as of April 2007). The Negohot terror attack (September 26, 2003), the Café Hillel bombing and the Tzrifin bombing (September 9, 2003) were all perpetrated either by or with the aid of a released terrorist. More generally, at least 30 terror attacks since 2000 have been committed by terrorists freed in deals with terror organisations, altogether killing at least 177 innocent Israeli civilians and soldiers.

● Negotiating with Hamas complicates and politicises an issue already fraught with difficulty. First and foremost, it pits security against politics. While the Israeli security establishment has consistently opposed outrageously asymmetrical prisoner swaps and releasing prisoners “with blood on their hands”, competing domestic pressures make politicians more receptive to such exchanges.

● Yielding to Hamas will transform them from an influential force in Israeli domestic politics to a certifiable power. The degree to which Hamas has already managed to hijack the domestic agenda is astounding; the hopes of the nation rise and fall with fabricated reports by Hamas of an impending exchange, leaving the Israeli government to blame if no “deal” is reached.

● Submitting to Hamas’s demands would establish an ever more dangerous precedent. A review of the evolution of these exchanges reveals higher demands by the various factions and increasing disproportion in the exchanges. As a case in point, the Regev/Goldwasser deal saw the release of convicted killer Samir Kuntar (among hundreds of others) for the bodies of the two Israeli soldiers.

● Israel will suffer a further erosion of deterrence. Hizbollah’s success in freeing child-murderer Samir Kuntar emboldened Hamas; its spokesman stated that the Kuntar exchange “prove[d] that a useful way to liberate prisoners from the jails of the occupation is to capture Zionist soldiers”.

● Releasing terrorist prisoners perverts justice. Releasing individuals in an extra-judicial manner undermines the normative concept of justice itself. It sends a message that justice is conditional and eliminates the disincentive effect of punishment.

● Consummating a prisoner exchange greatly enhances the status of terrorist groups. It was Hizbollah, not the Lebanese government, that secured the release of Kuntar, at the time the longest-serving Lebanese prisoner in Israel. Western governments have begun to reassess their policies toward Hizbollah in recognition of its emergence as the prime mover in Lebanese politics.

● A consummated deal would reaffirm the painful cost of not having an established policy on hostages. The lack of some, or any, coherent policy is the source of the weakness, vacillation, and divisiveness that characterizes Israel’s response. Terror groups deftly exploit this deficiency.

Israel needs to equalise the asymmetrical negotiating positions so that terror groups are not dictating conditions and controlling outcomes.

“Doing all we can to bring our boys home” should not mean jeopardizing the security of millions of Israel’s citizens.

Raphael D Harkham, JD, is Legal Research Assistant at the Jerusalem Centre for Public Affairs. Justus Reid Weiner is an international human rights lawyer who lectures at Hebrew University and a Senior Research Fellow at the Global Law Forum at the Jerusalem Centre for Public Affairs

Last updated: 11:31am, April 7 2009