AIDP Blog

What’s the Exchange Rate?

Amos Guiora, Professor of Law, S.J.Quinney College of Law, The University of Utah

And Martha Minow, Jeremiah Smith, Jr. Professor, Harvard Law School

We are trying to understand why Israel traded dead Sgt. Ehud Goldvasser and First Sergeant Eldad Regev for live Samir Kuntar, and what it means for Israel and other nations.

Trades in the past reflected the desire to avoid military action.  In 1985, Israel released 1,150 prisoners in exchange for three Israeli soldiers captured in Lebanon. Then-Defense Minister Yitzhak explained: “When no military option exists, there is no choice but to enter negotiations and pay a price.”

This time, Israel exchanged five imprisoned known terrorists for the bodies of two Israeli soldiers–although much was made about the possibility that the soldiers were alive. A representative of Hezbollah (the “party of God” is an Iranian-backed Shiite terrorist organization) said “for two years you (Israelis) have wondered what the is the fate of the soldiers” and the camera spun to the sight of two coffins–while 5 terrorist suspects returned–alive-to Lebanon.

In fact, the Israeli government did not tell the public before the exchange, the intelligence community was convinced three days after the attack that the two soldiers were dead.  Indeed, because approximately ten liters of blood had been lost by the soldiers, as found near the command car, the evidence all but established that they were dead.

Nevertheless, Prime Minister Olmert argued that the two soldiers must be returned–and initiated the second Lebanon War on that ground. Demonstrating that “no soldier can be left behind”–the ethos commendable in practice–this action also obviously exacted a high price. In the immediate aftermath of the kidnapping, five soldiers were killed in an effort to rescue the two soldiers.

The ultimate exchange of the soldiers’ dead bodies in exchange for the release of Samir Kuntar and four other Lebanese endangers otherwise innocent citizens.  The price may be even higher—as will be the danger to Israeli citizens–if 1000 Hamas terrorists are released in order to free Gilad Shalit–shifting the “exchange rate” even further.

The commitment to leave no Israeli soldier behind–even at such high a price–is a big reason for the recent exchange. Another reason is the truly brilliant advocacy and media campaign by Karnit Goldvasser. Goldvasser’s vow that she will bring her husband home shows admirable personal commitment and extraordinary persuasiveness.

Yet even to understand why this could work–why the drumbeat of media attention to the captured two IDF soldiers could torque the negotiation and strategic policy of a savvy, experienced nation state, deserves more careful explanation.

At one level, a small nation that has been in an armed conflict since its founding 60 years ago is a family of families, moving between defiant embrace of life and the mourning rituals for both the literal dead and the loss of innocent, carefree lives. The vast majority of families has immediate connections with the military–one child a year away from service; one still serving; a brother just called up for reserve duty; an uncle still recovering from a wrenching time as check-point guard.

What parent wouldn’t want the government to do anything—and everything–to recover a missing soldier-daughter or son?  If a parent is in the drivers’ seat, no price is too high, no measure to risky if there is a chance of recovering the child alive, and even recovering the remains of the cherished family member. Moreover, combat soldiers in recent days have expressed their support the exchange, and noted it is important for them to know that should they fall into captivity the state will do anything to release them.

But what is the obligation of the state when it sends soldier to combat? Does the state owe that individual “everything” should something happen? What are the limits of state obligation? What does “everything” mean? Turn over 1,000 members of Hamas for Gilad Shalit? Or East Jerusalem?

Leaving no one behind was once a source of great pride and confidence. Thirty two years ago (almost to the day) in the 1976 Entebbe raid IDF soldiers rescued Israelis held in Uganda. But today, a policy to “leave no one behind” raises huge questions, as it seems to elevate the state’s obligation far above the soldier’s fellow citizens (and families).  During the Second Lebanon War, Israel seemed to “accept” civilian loss of life more readily than it accepted soldiers dying in battle.

Ultimately, engaging in the exchange for the two bodies heightened risks for civilians.  How so? The very fact of the “exchange” with terrorist organizations Israel shows that that kidnapping pays. By releasing terrorists with a proven “track record” (Hamas will only accept an exchange that includes terrorists who have killed Israelis from both sides of the Green Line) Israel increases the likelihood of new terrorist attacks in the future by the newly released individuals or those who would copy them. According to many experts the 1985 exchange between Israel and Ahmed Gibril contributed to the Intifada for many of the 1,500 active participants.

For the recent exchange alone, the price has already been higher than many would have imagined. Nasarallah embraced Samir Kintar: Lebanon made his return a holiday in Lebanon and both the Prime Minister and the President welcomed him home. Watching the celebration of Samir Kuntar as hero is incomprehensible–after all he killed a father in the presence of his four year girl and then smashed his rifle butt into the little girls head. He is also responsible for the tragic death of that little girl’s two year old sister who was accidentally smothered to death by her mother who-in an effort to prevent her from crying and alerting Kuntar to their hiding place.  Watching the embrace of Kuntar take place simultaneously with the burials of Goldvasser and Regev exacerbated the already difficult question of “what price for an exchange.”

By making the exchange, Israel has demonstrated that it is all negotiable; the only question is at what price. What will be the exchange rate in the future? Is a bargain also to include selling out the state’s obligation to its citizens who are potential targets of terrorism upon the release of convicted terrorists who vow to act again?

Israel’s exchange offers a window onto the desperate desire of ordinary Israeli’s for an end to all the conflict; do anything for the children, even be gullible, even if it’s too hard to stomach street celebrations of a murderer of little children, too unbearable to say nothing can be done to the grieving families of soldiers whom the state put in harm’s way?

In exchange, on an emotional level, all Israelis were with Goldvasser and Regev for one day. But–is Israel stronger strategically? 

Even asking this cruel and painful question especially to anyone whose own family member could be subject to such an exchange is difficult. Talking national security in a strategic sense is all important –except when your own family member is involved. “Leave no one behind” seems the ethos to reconcile national security and family love, but hard headed assessment reveals these two goals are not always reconcilable.

Cross-posted on National Security Advisors