October 11, 2023
Images and news reports depicting Israelis – soldiers and civilians – held in Gaza by the Hamas and the Islamic Jihad, move and upset every Israeli, but we will not let ourselves be content with the expression of emotions. The question of redemption must be considered: what is Israel’s obligation towards every one of its soldiers and civilians who are held by the enemy, and how can it fulfil these obligations towards these soldiers and civilians? In the early days of this war, we’ve heard two politicians’ answers to these questions. At the Cabinet meeting on Saturday, Minister Smotrich said: “We must be brutal now and not consider the hostages too much.” On Tuesday, a “senior official” said: “Dealing with the hostage issue – only after the war.” These responses are wrong, both morally and professionally.
It is unacceptable to leave “Dealing with the hostage situation” until after the war. The state’s efforts to redeem the soldiers and civilians from the enemy have an intelligence component. Naturally, this component is already being activated and will not be abandoned for a single moment. This component involves enlisting the help of other nations and international organizations in the redemption effort. Germany (through its own ‘Mossad’), and Egypt (though its intelligence minister), and the International Red Cross, have all been involved in past redemption efforts, and there is scope for trying to engage them here and now. There are other professional considerations against postponing these efforts until after the war, and we can rely on those involved in all state’s intelligence agencies to not allow any irresponsible delay.
The notion of “not considering the hostages too much” is intolerable. It is important to highlight two aspects of Israel's formal activities in which a completely different approach should be taken. First and foremost, the state must clearly and unequivocally declare its obligation towards all those held by the enemy to take appropriate action to bring them home safely - soldiers and civilians, the living and those who were murdered by the enemy. There is absolutely no situation in which the state is at liberty to renounce this fundamental moral duty. Such renouncement is a sign of callousness, a lack of responsibility, and a lack of understanding of Israel's ethical identity as a Jewish and democratic state.
Another aspect of Israel’s formal activity, in which there is a moral obligation to consider the captives, is the military activity in Gaza. There is a moral justification for a military action against Hamas, aimed at eliminating its military capacity to harm Israel and its inhabitants. At the same time, moral justification does not mean a justification to act without limits, according to convenience, or driven by emotional impulses. Military activity is bound by the moral, ethical, and legal constraints of international law.
The uppermost moral constraint is the duty to exercise caution and avoid harming the Israelis held by the enemy. The question of how to exercise this caution is a highly complex matter, involving intelligence and operational considerations. However, the state does not have the authority to disregard this duty as if it did not exist. The simplest example: should we bomb a building that we know contains Israelis held by the enemy? Real-life situations will be much more complex, but even in these cases, the obligation to exercise caution is present. If this duty conflicts directly with another obligation, a careful, calculated, and responsible balance will be required, based on the moral duty to preserve human dignity in all circumstances, in all places, and in all situations.
The state and its soldiers are bound by moral constraints, not only regarding the perceived danger to Israelis from Israeli military actions but also the perceived danger to civilians of the enemy state who are not involved in terrorist or military activities. This is the "purity of arms" value that we take pride in. It is an integral part of the identity of the IDF and a component of the identity of the state.
Often, there is no choice but to cause harm to citizens of the enemy state who are not involved in terrorism or warfare, especially in situations where the atrocious enemy acts in proximity to them or under their protection. In such situations, commanders are aware of the need to make proportionality assessments, weighing the expected benefit of the military activity against the "collateral damage" it is expected to cause, particularly to the lives of uninvolved citizens of the enemy state. Proportionality assessments are morally justified, ethically justified, and legally required under international law, and they must be adhered to. Such restraint can also assist in negotiations for the redemption of Israelis from enemy hands. Abandoning the duty of restraint would be a victory for Hamas, allowing it to impose its anti-moral norms on us.
We commonly declare that we will not engage in any direct negotiations with Hamas for the redemption of Israeli hostages. This approach is justified on the level of Israel's international relations with Hamas, an organization which Israel will never recognize. However, this is an unviable approach when it comes to practical matters, such as the duty to redeem Israelis from enemy captivity. It is possible to conduct redemption operations even without direct negotiations. To do so, various intermediaries and actors can be engaged, who are experienced with such indirect negotiations.
When the time comes, the question of "exchange" will need to be addressed: how many Palestinian prisoners can be released to redeem the Israelis from the enemy? Here, two principles will be relevant. First, the release of prisoners must be done in a way that does not significantly increase the threat posed to Israelis from the released prisoners, should they re-engage in terrorist activities. In this regard, the assessments of the Shin Bet (Israel Security Agency) and the IDF will be crucial for decision-making.
Second, in the past, we have been concerned with the ratio between the number of Israelis returned home and the number of prisoners released. However, it is likely that this will not be a significant issue this time because the number of Israelis in the hands of the enemy is very high, and even the most stringent exchange agreements’ formulas will likely allow for the release of many prisoners.
With proper forbearance, we will anticipate the safe return home of all Israelis held by the enemy in Gaza.
Asa Kasher is Prof Emeritus of Professional Ethics and Philosophy, Tel Aviv University, and a Senior Researcher at the Institute for National Security Studies. Kasher was a Member of the Shamgar Commission of Israeli Prisoner Redemption
Contributed by Prof. Asa Kasher to USA for Israeli Democracy
Translated from Hebrew by: Niva Kaspi