Israel Reflections 2024–The Law (and Strategy) of Hostage Negotiations

The issue of hostage negotiation is front and center throughout Israel.  Even when business or school appears to be operating “as usual”, it is clear that the focus of the Israeli people is on the hostages.  Their photos are everywhere—bus stations, sides of buildings, even in the public seats in the Knesset.  And banners—to free them, to free them now, and to not forget them—are equally throughout, each with its own political underpinnings.  Our trip reflected this as well with speakers every day giving us a legal overview, strategic implications, and then hearing later in the week from a released hostage and a hostage family.

Our first speaker on topic was Professor Rivka Weill of Reichman University who has written for years about the substance (how many people should be exchanged for any given hostage) and the process (does the government need to consult?  Should it?) of hostage negotiations in Israel.  Student Daniel Edelstein outlined her talk:

Professor Rivka Weill of Reichman University is a preeminent Israeli legal scholar who has penned seminal scholarship involving hostage negotiations. As our visiting Cardozo Law delegation is part of a conflict resolution class specifically focused on Israel, hearing from Professor Weill on the hostage crisis currently plaguing Israel was something I was particularly looking forward to. I was intrigued to learn that her research directly influenced the Israeli government’s position of publicly announcing the death of hostages when it learned of such intelligence, since this would weaken the negotiating stance of the hostage-taking group due to Israeli society being privy to the death and thus putting less demand on the government. This in turn means the hostage-taking group expects less concessions.

 The foregoing policy is part and parcel of Professor Weill’s key thesis: that focusing on procedural—rather than substantive—aspects of hostage negotiation is the most effective, realistic, and implementable safeguard to maximum concessions. Professor Weill’s research indicates that, as a matter of realpolitik, a “we don’t negotiate with terrorists” hardline stance—even if it is likely the policy which may be most likely to disincentivize hostage-taking—is something which democratic countries do not in actuality implement. On the other hand, having no impediment to concessions on the side of the democratic government from which hostages are taken can mean that the hostage-taking militant group will keep taking hostages while demanding—and realistically expecting—maximum concession. An example of this is the 2011 Gilad Shalit deal, where a captured Israeli soldier being held hostage for years was exchanged for over a thousand terrorists. Moreover, having substantive red lines (e.g., “we won’t release someone convicted of committing lethal acts of terror”) would mean that the Israeli government lacks the full flexibility to account for particularly novel situations, such as October 7. Professor Weill’s solution to this issue is a balancing act focusing on procedural processes, whereby the prime minister/cabinet officials would have to have any prospective hostage deal approved by a majority in the Knesset, and so if the hostage-taking group knows the government’s hands are procedurally tied, its demands would be lower since the government in power would have to attain the consent of at least some hardliners less willing to budge.

 Our next speaker talking about hostage taking was Moty Cristal, CEO of Nest Consulting, former advisor to multiple Israeli governments about hostage negotiations, and author of a great book chapter on negotiation in no-to-low trust environments about whom you’ve read on this blog before here and here !

This time, Moty’s focus was much more clearly on the current situation and, as student Olivia Corn noted, in explaining the social contact of the Israeli government vis a vis hostages.

During our meeting with Mr. Cristal, he shed light on and talked quite a bit about Israel’s social contract with its citizens: this important idea that if Israel is going to mandatorily draft members of its society for military duty, no price is too high for Israel to get that soldier back during negotiations. This social contract extends to protecting civilians who have been “let down” by the Israeli government, such as individuals who moved close to the border with Gaza because they were told it was safe and individuals who were captured because of security lapses on the Gaza border. As an American who lives in a country without a mandatory military draft, this discussion shed light on why the Israeli public feels so strongly about the government’s inability to get back the remaining hostages in Gaza. On a human level, of course, I understand the hurt and anger about hostages being held by terrorists, but for Israelis, this taking of hostages hits so much harder because of this social contract.

One thought on “Israel Reflections 2024–The Law (and Strategy) of Hostage Negotiations”

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.