The War in Gaza: Who is Authorized to Approve a Deal for the Return of the Hostages in Exchange for the Release of Palestinian Prisoners?
“Redeeming captives” has always been a primary value in Judaism and in the Israeli national ethos. The state has a moral and ethical duty of the highest order to act as quickly as possible to free and return all the hostages and the missing. But what is the legal mechanism that should be applied when agreeing deals to secure their release which also involve freeing Palestinian prisoners from Israeli prisons?
Photo by Gili Yaari FLASH/90
Until 2014, there was no legal provision for releasing prisoners in exchange for the return of Israeli captives and hostages or as part of a foreign policy agreement or gesture. The person who was authorized by law to release prisoners was the president of Israel (except in cases of prisoners who were tried in military court, for which this power rested with the military commander of the relevant area). The government would prepare a list of prisoners for release,[1] and the president would grant them a pardon,[2] on the basis of his powers under the Basic Law: The President of the State. This procedure was considered to be artificial in these circumstances, since such pardons were not based on any personal aspects relating to the rehabilitation of a particular prisoner, but on Israel’s security and foreign policy requirements. In addition, from a practical viewpoint, a pardon is an irreversible act, making it impossible to reincarcerate released prisoners, as long as they didn't breach the particular conditions attached to their release.
In 2014, the Knesset passed an amendment to the Government Law (2002) which empowered the government to decide on an early release of prisoners for reasons related to the state’s security and foreign relations. Section 8(b) of the law states that the decision to release prisoners for such reasons is to be made by the government, and only in one of the following three scenarios:
- To secure the release of hostages or captives who are Israeli citizens or Israeli residents, to include the return of their bodies or to gain information about hostages, captives, or missing individuals who are Israeli citizens or Israeli residents;
- As a foreign policy gesture;
- As part of a foreign policy agreement, including interim agreements or memorandums of understanding.
The law forbids the government from attempting to circumvent the mechanism set down, for example by arranging for prisoners to be pardoned.
According to the law, a prisoner’s release can be revoked not only if they breach the conditions of their release (which was possible before), but also in other circumstances, including if the government decides that “there is no longer any security or foreign policy interest in their continued freedom.” This clause was intended to allow the government, in a case in which a terrorist organization takes civilians hostage, to reincarcerate prisoners who were released, regardless of whether they themselves had behaved improperly, as a deterrent.
Two Syrian prisoners were released in 2019 on the basis of a decision made solely by the prime minister, in what was termed a “goodwill gesture” following the return of the body of Sergeant Zechariah Baumel, one the missing soldiers from the Sultan Yacoub battle of 1982. According to reports, Prime Minister Netanyahu, who at the time was also serving as defense minister, asked the president to pardon the two prisoners. The president acceded to this request, as did the minister of justice. This exceptional procedure was approved by the attorney general, and the formal response of the Ministry of Justice was that given the unique circumstances, there was no legal impediment to releasing the prisoners in this manner. The approval given by the attorney general was based on a pragmatic interpretation of the arrangements described in the Government Law as being designed to make it more difficult to release large numbers of prisoners, while in this case there were only two prisoners, one of whom was due to be released shortly anyway.
The release of the Syrian prisoners was a fairly exceptional case, and it is doubtful whether anything can be learned from it for future prisoner exchanges, especially if such agreements involve the release of large numbers of Palestinian prisoners.
The Ministerial Committee for Security and Foreign Policy Affairs, known as the foreign policy and security cabinet, operates on the basis of section 6 of the Government Law.
A review of previous decisions to release prisoners—whether as part of deals to return Israeli captives, or as part or foreign policy agreements or gestures—shows that on many occasions, the government was the body that recommended the prisoner release. This was the case, for example, with the deal to release Gilad Shalit, the Jibril deal, and the Goldwasser-Regev deal. In other cases, a special ministerial committee for prisoner releases was involved in decision-making, but it was the government that ratified the decision. On occasion, the government defined main details of the recommendation in advance (the number of prisoners to be release and various criteria to be applied)—and empowered the ministerial committee to make a concrete decision, with the government’s approval. At the same time, some of the decisions involving recommendations to release prisoners were taken by the foreign policy and security cabinet.
In the High Court of Justice Case known as the Ben Ari affair, the Court rejected an argument that only the government is empowered to order the release of prisoners and that a cabinet decision is not sufficient.[3] However, this ruling was handed down before the amendment to the Government Law, when the government was only empowered to recommend the release of prisoners.
Even if from a legal perspective the cabinet can be recognized as having the power to decide to release prisoners on the basis of the Government Law - and this is a complex question open to interpretation (due to the government's rule of procedure and other considerations) - such an important and sensitive decision should be approved by the entire government.
Following the outbreak of the war in Gaza, a government resolution empowered the foreign policy and security cabinet to establish a smaller war cabinet, and to decide on its composition and roles.[4] The agreement reached ahead of the formation of the emergency government states that the war cabinet is supposed to “ensure the execution” of the decisions of the foreign policy and security cabinet on a series of issues, including “drawing up recommendations and providing guidelines for the implementation of policy on the subject of the missing and captured.”[5] Thus, the general policy regarding the hostages is to be set by the broader cabinet.
In fact, the wording of the agreement indicates that the foreign policy and security cabinet is to remain the superior body that makes all the main decisions about the war, and not only regarding the hostages. At the same time, past experience shows that in many cases, smaller forums established to direct military campaigns became the real decision-making authority.
[1] In doing so, it applied the powers granted it by section 32 of the Basic Law: The Government.
[2] Section 11(b) of the Basic Law: The President.
[3] HCJ 7793/11 Ben Ari v. Prime Minister of Israel (October 26, 2011), known as the Ben Ari affair.
[4] Resolution 951 by the 37th Government of Israel, “Ministerial Committee for Security and Foreign Policy Affairs (the foreign policy and security cabinet)—Amendment to a Government Resolution” (October 13, 2023).
[5] Principles for the Establishment of a National Emergency Government [Hebrew]: https://main.knesset.gov.il/mk/government/documents/CA37-Unity.pdf