The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Another Terrible Hostage Deal
The Israel-Hamas ceasefire deal that went into effect today exchanges hundreds of terrorists for 33 Israeli hostages. It will predictably incentivize more hostage-taking and terrorism.
Joe Biden and Donald Trump both claim credit for Israel-Hamas ceasefire deal, which began to be implemented today. I suspect it has more to do with calculations made by the Israelis and Hamas themselves. But in truth, no one deserves credit, because the deal is terrible. The Israelis will release some 1900 terrorists and captured Hamas members in exchange for 33 mostly civilian Israeli hostages (some of whom are not even alive). Many of the terrorists scheduled for release have committed horrific atrocities. Like previous hostage deals with terrorists, this predictably incentivizes future terrorism. You get more of what you reward. Plus, the released terrorists are likely to kill again, as has happened with many of those released in previous deals.
It seems neither the Israeli nor the American backers of this deal have learned the terrible lessons of previous such exchanges. I summarized them in an October 2023 post, which also referenced a 2011 piece, in which I was critiqued the Shalit deal, which was a key factor in leading to the October 7, 2023 attack that started the current war:
The horrific Hamas terrorist attacks against Israel revealed a variety of weaknesses in Israel's security policies, and perhaps those of some other Western nations, too. But one that has not gotten as much attention as it deserves is the folly of hostage deals with terrorists. Hamas leader Yahya Sinwar, the likely mastermind of the [October] attacks, was one of 1027 Palestinian terrorist prisoners released by Israel in 2011, in exchange for a captured Israeli soldier Gilad Shalit. And one of Hamas's motives for the attack was to use the captured hostages to secure the release of other Palestinian terrorists held by Israel…
At the time of the 2011 agreement, Israeli Prime Minister Benjamin Netanyahu's government was widely praised for demonstrating how much it values the lives of its people. I was one of the relatively few critics of the deal….
While it seems I was right to predict that the deal would cost far more innocent lives than it saved, I had no idea of the enormous extent to which this has turned out to be true. With well over 1000 dead, the terrorist attack in which Sinwar played a key role is by far the worst in Israel's history, and one of the worst in the entire history of the world. It is also the biggest anti-Semitic massacre since the Holocaust….
Simple Economics 101 says you get more of the kinds of activities you reward. If you reward hostage-taking, you will predictably incentivize more hostage-taking. Plus, the terrorists you release are themselves likely to go out and commit more acts of terrorism - as Yahya Sinwar did.
I hope this time the lesson will finally be learned. But I fear it will not….
Yahya Sinwar was ultimately killed by Israeli forces last year, but not before he masterminded the October 7 attacks.
Sadly, it seems I was right to worry that the lessons of the Shalit deal and other previous failures would not be learned, even after October 7. The present deal shows it.
And, admittedly, this is not a simple matter of the Israeli government yielding to the US. Polls indicate the deal is highly popular in Israel, backed by a large majority of public opinion. That is probably the main reason why the government agreed to it.
I wrote about the problematic political dynamics of hostage deals in my 2023 post:
[H]ostages currently held by terrorists are very visible to the public, and politicians like [Israeli Prime Minister Bibi] Netanyahu have strong incentives to listen to the anguished pleas of their family and friends. It seems cruel not to!
By contrast, we cannot and do not know the identities of the future hostages whose seizure we incentivize through our deal. Nor can we know the identities of future victims of terrorists released in the deal. In 2011, no one could know the identities of the future victims of Yahya Sinwar. Their families were in no position to lobby government officials to save them.
In the 2023 post, I also recognize that people might dismiss my view because it is not my friends and relatives who are being held hostage:
I realize that… some will reject the above logic on the grounds that I can only say these things because it isn't me or my family who are being held as hostages by Hamas. If it were, maybe I would think differently.
It may well be so. I have never had a friend or family member taken hostage and cannot know what I would do if I did. I have dealt with a number of death threats (most due to my advocacy of migration rights). I chose not to give in…. But the small risk I took was utterly insignificant compared to that endured by hostages held by groups like Hamas.
Still, I would ask those inclined to give in to such emotional considerations to remember that the future hostages seized as a result of the deals we make today also have families who will suffer terrible anguish. The same goes for the families of future victims of terrorists released under those deals. We should strive to reduce the amount of such suffering, not increase it. And that means remembering Econ 101, and learning to say "no" - as the Israelis should have done in 2011.
Eitan Fuld, whose brother Avi was killed by one of the terrorists scheduled to be released in today's deal gets the point:
"The release of Ari's murderer hurts," he said in a statement. "My big problem and for all of us is that of the coming victims and the next families that to our regret will join the bereaved families due to this bad deal."
I realize that my take on this deal aligns with that of far-right Israeli parties who voted against it. I think these parties and and much of their agenda are awful. I have, for example, critiqued their and Netanyahu's plans to undermine judicial review in Israel. I am likewise (to understate the point) no fan of their repressive and discriminatory policies respecting West Bank Palestinians and Israel's Arab minority. But a stopped clock is right twice per day, and this is such a moment.
I am more happy to be in alignment with libertarian-leaning conservative Boston Globe columnist Jeff Jacoby, who has criticized the deal on similar grounds.
Will Israel never learn?
On numerous occasions in the past, Israeli governments have agreed to similarly lopsided exchanges with terrorist organizations like Hamas, Hezbollah, and the Palestine Liberation Organization. Time and again, Israel has paid for the freedom of a few hostages or prisoners of war, or sometimes just their remains, by releasing hundreds of violent prisoners, many of them responsible for the deaths of civilians. Time and again, the newly freed terrorists have picked up where they left off.
As noted above and in my earlier posts on these issues, the Israelis aren't alone in their failure to learn this lesson. Other Western governments, including our own, have all too often made the same types of mistakes.
