How Israel decides which Palestinian prisoners to release, what are the legal considerations, and how have previous hostage deals impacted the current outlook, Lt.-Gen. Maurice Hirsch, who served in the IDF Military Advocate General Corps for 19 years, explains the process to Sarah Ben-Nun, this week on The Jerusalem Post Podcast.
Hirsch describes the enormous difficulty and fundamental inequality of releasing convicted murderers, some serving whole life sentences, for innocent civilians.
“This cannot be referred to as a prisoner exchange. On the one hand, you have a genocidal terrorist organization and on the other side you have a democratic country, that’s not a prisoner exchange deal. It is extortion by a terrorist organization. There is no equality that can be drawn between the two sides.”
Hirsch describes how many of the terrorists released in the Gilad Shalit deal had already returned to terrorism.
“By 2014, 50% of those released Judea and Samaria almost immediately returned to terrorism.”
‘We saw a very high rate of terrorism recidivism and at rates much higher than we could show the court.”
Hirsch was involved in almost all prisoner release deals from 1998 until 2016, with the exception of the Shalit deal.
“The Palestinians celebrate 41 separate incidences where Palestinian prisoners have been released since 1998. Some of these were as part of the Oslo Accords, others were in exchange for hostages or bodies, and some are features of ‘goodwill’ from Israel for a variety of reasons such as before Ramadan.”
In some of these cases, specific people were requested. In other cases, Israel was given more leeway to make these decisions.
“There is a committee that sits in the Justice Ministry that goes through the different options, names, and cases; and then comes up with a list which is presented to the cabinet.”
“In many cases, the offers made during the negotiations were totally disconnected from the ability of Israel to meet those criteria.”
No moral equivalence
Hirsch explains that there can be no moral equivalence between someone convicted of terror offenses and an innocent civilian.
In the committee, headed by the director-general of the justice ministry, there are representatives of all the relevant security agencies.
This committee then begins going through lists and starts either choosing or eliminating from the list of possible prisoners for release.
The committee follows guidelines set by the government and must also ensure that releasing the prisoner will not impact other parts of the justice system, including whether they are a relevant witness or whether they have been released previously.
“We’ve seen releasing terrorists for hostages become part of the Israeli psyche. It’s a cycle that feeds itself, if we keep releasing terrorists in exchange for hostages they will keep taking hostages. Because there is a reward for their actions. And if we never change our approach to the situation, we’re really feeding into and feeding the flames of desire to kidnap more people. Because it brings about good results for the terrorists.”
Hirsch describes how creating an equivalence between Palestinian prisoners and hostages is a core part of Hamas’ tactics.
“I don’t believe we’ve been able to understand what the ramifications of these deals are. All these major deals have caused wide-scale destruction and murder. The Shalit deal led to the October 7 massacre. Already by November 2012, Yahya Sinwar was meeting with Qassem Solemanei in Tehran and planning October 7.”
Hirsch finished off by saying that there were other pathways and other leverages that Israel could be utilizing to release the hostages, and that rerunning the same old path is not going to lead to different results.
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