Hamas presently holds 222 Israelis hostage in Gaza. They range in age from infants to 85-year-old ladies. Also among the hostages are Israel Defense Forces soldiers.
All were captured during the attack of Saturday, Oct. 7. Although two hostages were released on Friday, the fate of those still in captivity is unknown.
The release of two Israeli hostages on Monday is a positive sign. So was the active involvement by the U.S. and Qatar in the release of two Americans on Friday. President Biden’s human touch here has struck a sharp contrast with imperiousness and disengagement that defines Israeli Prime Minister Benjamin Netanyahu. One day, the Israeli public will demand an accounting from him for his role in allowing Israel’s worst crisis in decades to occur on his watch.
The Israeli government has maintained, at best, a low profile amid this unimaginable and heartbreaking crisis for the hostages’ families. But Israelis have begun to speak up. With their government barely functioning, the remarkable thing over the last two weeks has been Israelis’ spirit of volunteerism and coming together, regardless of our innumerable differences.
I write these lines from Jerusalem, as someone who served for 20 years in the Israel Defense Forces Judge Advocate General Corps, including three years as the IDF’s Legal Advisor in the Gaza Strip. I was also the lead lawyer for implementation of the Oslo Agreement in Gaza, and I participated for 10 years in Track II negotiations with Palestinians, albeit never with Hamas.
On Saturday night, October 20, I attended a vigil in Tel Aviv supporting the hostages and their families. The event was somber, the music soft, the distress overwhelming. I went with family and friends to express our support, to “be there.”
There are no words that can be said to family members.
However, there are loud and clear words the Israeli public must say to the government: Bring the hostages home.
Israel presently holds 6000 Palestinian prisoners arrested over the years for security related offenses. No doubt, some, if not many, committed horrific terrorist attacks. Nevertheless, we must be honest: for all the traditional bluster and rhetoric regarding prisoner releases, at the end of the day, Israel makes the “trade”: prisoners for captured Israelis.
Although the possibility of an Entebbe-style raid has been raised, this seems unlikely, given the little information available.
The hostages are divided into two categories: soldiers and civilians. Because Israel has obligatory military service there is, for lack of a better term, a contract between the state and parents: We give you our children, you return them safely. Failure to endeavor the release of the captured soldiers not only violates that contract regarding these soldiers, but casts doubt how that failure will be perceived in the years to come.
With respect to civilians, the equation is much easier. While there must be no doubt regarding the egregious war crimes committed by Hamas on Oct. 7, that is unrelated to the safety of those held captive.
Although the International Red Cross has not been granted access to the hostages, we must assume that their condition worsens with each passing day. We have heard from family members regarding significant health issues that demand medication and attention. It is a also fair assumption that their welfare is not the chief concern for their captors. That is particularly true for soldiers in captivity.
It is, then, for that reason that the government must act. It is a basic duty, both from the perspective of humanity and because the government bears responsibility for their being held hostage. The decision to shift IDF units from the Israeli border with Gaza to the West Bank, in order to placate right-wing extremists, is what helped cause the events of Oct. 7. Such decisions are never cost-free.
Hamas committed outrageous acts, for which they must be held accountable. But Netanyahu’s political pandering to violent West Bank settlers and their political representatives directly endangered Israelis living near Gaza, leaving the southern flank as exposed and vulnerable as it was.
Voices will be raised regarding the dangers involved in releasing 6,000 prisoners. Those concerns are legitimate and understandable, given the concern of recidivism and adding fuel to the fire, particularly when a conflagration is literally upon us. But those anxieties must take a back seat to the government’s basic duty to the hostages and its responsibility for the events that led up to Oct. 7.
For those reasons, the Israeli government has no alternative but to act now to ensure the safe return of all Israelis held hostage by Hamas.
Amos N. Guiora is professor of law at the S.J. Quinney College of Law, University of Utah. He is involved with the Bystander Initiative. He is co-author of “Overcoming the Retributive Nature of the Israeli-Palestinian Conflict.”
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