Following the resignation of Attorney Lior Lotan, the Prime Minister’s envoy for captives and missing persons and the Israeli Defense Minister's comment that "Israel will not ‘repeat the mistake’ of freeing terrorists" there is an urgent need to outline clear criteria for returning captives.
Attorney Liron Libman, researcher for the Amnon Lipkin-Shahak Program at the Israel Democracy Institute, and the former director of the IDF's department on International Law, explains that those criteria must be based on international law and establish the principle that Israel will not release prisoners and detainees who acted against the laws of war. However, Israel will be ready to negotiate regarding prisoners and detainees who carried out belligerent acts which are within the boundaries of these laws.
For example, a terrorist who carried out an attack against civilians or belligerent acts outlawed by International law, such as shooting from within an ambulance or hospital, will not be a candidate for release, while a fighter who acted against soldiers in an open manner can be a part of such a deal. This does not go to say that Israel recognizes members of organizations such as Hamas or Hezbollah as prisoners of war—captured fighters will stand trial for attacks carried out on soldiers and the distinction will be made only at the time when a prisoner swap is being negotiated.
Libman explains that "There are a number of advantages to adopting these measures: Firstly, it will help to create a combat environment of combatants fighting one another. Secondly, it is meant to lower the motivation of terrorists to carry out terrorist attacks against civilians. And lastly, it will bring us international legitimacy and also bring international pressure on terrorist organizations to engage in negotiations, and will aid Israel's international image.