By: Jacob Benchetrit
On October 7, 2023 Gaza based terror group, Hamas, launched a series of attacks against Israeli sovereignty and the general populace. Hamas militants entered by land, sea, and even air, attacking indiscriminately wherever they arrived. Many cities and smaller kibbutzim were attacked, and so was a highly attended event, the Nova Music Festival. While over 1,200 Israelis were murdered by Hamas militants during the attack, around another 250 people, mostly civilians, were taken hostage by Hamas and brought back to Gaza.
Efforts to rescue the hostages have manifested in multiple ways. Negotiations have been ongoing between the Israeli government and Hamas (via third party intermediaries such as the United States, Qatar, and Egypt) since shortly after the hostages were taken. Pressure has been placed on Hamas by the International community to release hostages as well. Israeli special forces have even conducted multiple hostage rescue operations, the most famous of which was Operations Seeds of Summer in which the Israeli special forces rescued four hostages from residential buildings in the Nuseirat camp in central Gaza.
At the beginning of 2025, 101 hostages remained in Gaza, with the outside world unsure of whether or not each individual hostage was dead or alive. According to some sources, even Hamas was unsure of the whereabouts of some hostages due to competing factions within Gaza holding different hostages. On January 16, 2025, Israeli Prime Minister, Benjamin Netanyahu, announced that a deal had been struck with Hamas, which was later approved by his cabinet, that would include a ceasefire and a phased hostage-prisoner swap. In the first phase of the agreement, which is to span six weeks, Hamas agreed to release thirty three hostages. In exchange, Israel had to agree to release thirty Palestinian prisoners for each corresponding Israeli civilian hostage and fifty Palestinian prisoners for each corresponding Israeli soldier held hostage by Hamas. These first thirty three hostages are to consist of women, children, and the elderly, while negotiations for the release of the remaining male hostages is to take place during phase one of the agreement.
On January 19, the first step of phase one took place when three Israeli civilian women were returned to Israel while ninety Palestinian prisoners were released to Gaza. A second step took place on January 24, 2025, when four Israeli women were returned to Israel and 200 Palestinian prisoners were released to Gaza. There was a snag when Hamas failed to release Israeli civilian, Arbel Yehud, who was scheduled to be released on January 24, with Israel threatening to not allow Gazans to return to northern Gaza until Yehud was released. The issue seems to have been resolved with Hamas agreeing to release her on January 30.
This agreement leads to interesting questions of international law. While scholarly articles have discussed prisoner swaps, such as a prisoner exchange between the United States and Russia in 2021, or the United States and the Taliban in 2014 this exchange contains a fundamental difference. Instead of prisoners being swapped, a limited number of hostages are being exchanged for swaths of prisoners who were convicted of crimes by a court of law and, in many instances, received life sentences for their crimes. There was considerable backlash in the Israeli government over the agreement, with Itamar Ben-Gvir, a member of Prime Minister Netanyahu’s cabinet, resigning. While this is not the first time that Israel has conducted a prisoner exchange in order to safely return Israelis being held hostage, the process has been subject to considerably more legislative scrutiny over the past decade.
In 2010, then-Israeli Minister of Defense, Ehud Barak, appointed a committee (the Shamgar Committee) to propose guidelines for review of executive decisions to engage in prisoner swaps. As a result of the Committee’s work, several important guidelines were put into place. While bills, such as the Basic Law: President of the State (Amendment – Prohibition on Release of Murderers) Bill, failed due to reluctance to directly reduce executive authority, Government Law (Amendment No. 9) (Release of Prisoners for State or Security Considerations), 5774-2014 and Parole (Amendment No. 14) Law, 5775-2014 are now Israeli law, gaining more traction because they reduced governmental authority as opposed to executive authority.
The result of these two pieces of legislation is that in order for the Israeli government to engage in a prisoner exchange, the exchange must be conducted: (1) in exchange for the release of hostages or kidnapped persons who are Israeli citizens or residents, including the return of their bodies, or receipt of information regarding hostages, kidnapped persons, or missing persons who are either Israeli citizens or residents; (2) as a state gesture; or (3) as a state agreement, including an interim agreement or a memorandum of understanding.
Additionally, a prisoner’s release may be voided on the basis of (1) a government decision that there is no longer any state or security interest in continuing the prisoner’s release; (2) a Committee determination that the prisoner has committed an offense punishable by at least three months’ imprisonment during the period he or she would have served if not released earlier; or (3) a Committee determination that the prisoner violated one of the conditions for release that were established by the government.
Lastly, the Parole Committee is prohibited from reviewing requests for early release by prisoners who have received a life sentence for acts of murder the courts have determined to be exceptionally heinous, unless (1) at least fifteen years have passed from the day of the sentencing, and (2) the sentence cannot be commuted to less than forty years.
While it appears easier to meet the first two sets of tests, since these Palestinian prisoners are being exchanged for hostages that have been kidnapped and there is still a state interest in continuing the release, the government had to jump through some hoops to comply with the third set of tests that sets limitations on how large of a commutation a prisoner can be given if they committed seriously heinous crimes. In order to meet some of these temporal requirements there are some Palestinian prisoners being released that have been incarcerated in Israel since before the 1993 Oslo Accords.
An interesting comparison lies in a 2014 prisoner swap between the United States and the Taliban. President Obama greenlit a decision to exchange five Taliban militants being held in Guantanamo Bay for Sgt. Bowe Bergdahl in June of 2014. Serious questions were raised as to whether President Obama’s actions complied with legislation passed by Congress in 2013. H.R. 3304 (113th): National Defense Authorization Act for Fiscal Year 2014 was proposed in January of 2013 and passed in December of the same year. Among other things, the Act requires the president to notify congress of a decision to release prisoners from Guantanamo Bay at least thirty days prior to their release. This is in order to give congress the opportunity to raise any objections. In the case of the 2014 Bergdahl swap, President Obama chose not to discuss the decision with congress, supposedly because the negotiations were secret and he did not want to risk any leaks.
The Act requires the Department of Defense to provide congress with (1) a detailed statement of the basis for the transfer or release; (2) an explanation of why the transfer or release is in the national security interests of the United States; (3) a description of any actions taken to mitigate the risks of reengagement by the individual to be transferred or released, including any actions taken to address factors relevant to a prior case of reengagement described in subsection (c)(3); (4) a copy of any Periodic Review Board findings relating to the individual; (5) a description of the evaluation conducted pursuant to subsection (c), including a summary of the assessment required by paragraph (6) of such subsection.
While both Israel and the United States have laws that place serious checks and balances on authorization of the executive branch to conduct a prisoner swap, Israel evidently has stricter requirements. Both countries require detailed justifications for the swap and certain assurances of decreased risk of reoffence, Israeli law also places multiple temporal restrictions on the release and offers a variety of ways in which the decision of the Parole Board can be voided.
To conclude, the taking of hostages is never justified. While the newest agreement between the Israeli government and Hamas is promising in some respects, it also gives many people pause due to the imbalance of the trade when comparing kidnapped hostages to criminals who were handed life sentences by a court of law. Despite freshly placed red tape, the Israeli government managed to orchestrate this release. Also, despite sometimes less than favorable public perception, Israel’s legal system contains robust guardrails for hostage and prisoner exchanges that rival those of even the United States. Now, the world waits with bated breath, hoping to see all of the hostages returned and an end to this conflict.
