International court ruling likely to shape Israel-Hamas prisoner exchange talks

Israel and Hamas are likely to be buoyed in efforts to secure a ceasefire and a new round of prisoner exchanges by an International Court of Justice ruling.

Israel and Hamas are likely to be buoyed in efforts to secure a ceasefire and a new round of prisoner exchanges by an International Court of Justice ruling that Israel’s conduct in Gaza risks acts of genocide, even though the court’s decision failed to satisfy either party.

To be sure, Hamas was not a party to the court case initiated by South Africa nor is it at the top table of the negotiators.

Even so David Barnea, the head of Israel’s foreign intelligence service Mossad, will be relieved that the court shied away from calling for a ceasefire in the war when he meets in France this weekend with CIA director Bill Burns, Qatari Prime Minister Mohammed bin Abdulrahman bin Jassim Al Thani and Egyptian spy chief General Abbas Kamel.

A call for a ceasefire would have weakened his negotiating position.

The talks are intended to arrange a ceasefire that would allow for the exchange of more than 100 remaining Hamas-held hostages for a large number of Palestinians in Israeli prisons.

The hostages were abducted and taken to Gaza on October 7 when Hamas attacked Israel, killing more than 1,100 people, mostly civilians.

For its part, Hamas will be buoyed by the legal and moral implications for Israel of the court ruling that there was a genocide case to be heard and its insistence that Israel address the mounting humanitarian crisis in Gaza, even if the 17 judges did not order a ceasefire.

The ruling and the moral blow dealt by the court to Israel will likely reinforce Hamas’ demand that prisoner exchanges be linked to an immediate and permanent ceasefire.

To avoid further damage to its already tarnished moral standing, Israel failed to persuade the court to reject the South African complaint under the genocide convention.

In response to the ruling, Mr. Netanyahu rejected the court case as “outrageous,” a “vile attempt” to deny Israel the right to defend itself, and “discrimination against the Jewish state.” However, the prime minister and other senior officials stopped short of disclosing whether they would comply with the ruling.

Beyond the impact of the court ruling, Messrs. Burns and Al Thani’s mediation efforts will likely be facilitated by domestic pressure on both the Israeli government and Hamas, although that is no guarantee of success.

The Israeli government is under pressure from hostage families to prioritize the release of their loved ones even if that requires an end to the war.

Cracks within Israel’s military and political establishment suggest that some Israeli leaders support the families’ quest.

Gadi Eisenkot, a member of Mr. Netanyahu’s war cabinet and former Israel Defence Forces chief of staff, recently warned that only a ceasefire can secure the release of the hostages. Mr. Eisenkot’s 25-year-old son was killed in Gaza.

Hostage families and far-right protesters sought for the third day running to prevent humanitarian aid trucks from entering into Gaza by blocking the Kerem Shalom crossing point from Israel into the Strip. The protesters oppose aid to Gaza as long as Hamas does not release the hostages.

The protests prompted US defense secretary Lloyd Austin to stress the importance of “the transfer of humanitarian aid to Gaza, without interruption.” in a phone call with his Israeli counterpart, Yoav Gallant.

Meanwhile, videos posted on social media show Gazans demonstrating for a ceasefire, peace, a return to their homes, and the release of the Hamas-held hostages.

“We, the people, are the victims. They (in Hamas) are just asleep and know nothing about us. The war is against the people, not against them. We want to go back home,’ said one protester.

Writing in +972, an online Israeli-Palestinian magazine, a Gaza-based journalist said “we are beginning to wonder… Is Hamas cooperating with Israel?… Our dignity and our lives are being violated daily, and no one is providing us with help — do they know, but just don’t care?… Where is Hamas when it comes to protecting and preserving the interests of the people?

A Washington Institute for Near East Policy study, released less than 24 hours before the international court ruling, cast doubt on the Gaza Health Ministry’s casualty figures. The ministry reported almost 26,000 deaths as of this writing, a figure accepted by international organisations and media based on a perception of the ministry’s accuracy track record.

The institute’s criticism focused on the ministry’s failure to distinguish between civilians and Palestinian fighters, Gazan authorities’ alleged underreporting of male deaths given that males are more likely to be fighters, and methodological issues, some of which are due to reporting difficulties during a war.

Countering the report, Israeli journalist Yuval Abraham reported that Israeli intelligence relied on the ministry’s numbers after finding them to be “reliable” and conceded the intelligence services had no independent way of assessing casualty rates.

Mr. Abraham said Israeli intelligence had no independent estimate because the military does not conduct post-strike bomb damage assessments.

Civilian casualties remain excessive even if one deducts from the ministry’s figures Israeli and US estimates of the number of Palestinian fighters killed to date. These estimates range between 6,000 and 9,000.

Israel says it has killed 9,000 fighters, while the United States believes that between 20 and 30 per cent of Hamas’ 30,000-strong fighting force have died.

It’s unclear whether ministry figures include fighters. However, if one assumes all fighters are taken into account, that would still, based on US and Israeli estimates, leave at least 17,000 civilians killed. This includes a significant number of women and children.

As a result, the institute’s report is likely to do little to change widespread criticism of Israel’s war conduct, even though it will serve those advocating Israel’s right to defend itself in the manner it has chosen to do so.

The report is also unlikely to weaken gradually mounting US pressure on Israel to alter its war tactics.

Israel needs to “make sure” that its military “not just understand where deconflicted facilities are as they have those maps, but also the threshold for strikes needs to be such that a very, very careful, rigorous, and sustained calculus is applied when a target is in site,” said US special envoy for Middle Eastern humanitarian issues David Satterfield.

Mr. Satterfield was criticising Israel for often indiscriminate bombings, including of areas designated as safe for displaced Palestinians by the Israeli military as well as the targeting of hospitals, schools, houses of worship and United Nations facilities.

An estimated 85 per cent of Gaza’s population of 2.3 million has been displaced at the behest of Israel. Many sought refuge in public facilities like hospitals in ever smaller parts of Gaza, primarily in the south of the Strip. These were subsequently attacked by Israel despite being declared safe.

Mr. Netanyahu’s domestic woes are not limited to hostage families. He also differs with significant segments of public opinion in his attitude towards Qatar, the key mediator of prisoner exchanges, and his partner-in-crime in keeping the Palestinian polity divided between Hamas and Palestine President Mahmoud Abbas’ Al Fatah movement.

“Israel is reeling from October 7… They are scared, they are displaced… and they have a leadership that is promising things that it is not able to make good on. So, in some ways, Israel is praying and hoping that (US President Joe) Biden, or Qatar, or somebody is going to make something happen that will give them some reprieve,” said senior International Crisis Group analyst Mairav Zonszein.

In private remarks to the hostage families that were leaked to an Israeli television station, Mr. Netanyahu disparaged Qatari efforts and prided himself on not thanking Qatar. The prime minister’s office endorsed the leak.

In November, the Gulf state negotiated a one-week truce during which more than 100 Hamas-held hostages were released in exchange for 240 Palestinians incarcerated by Israel.

“You don’t hear me thanking Qatar… It is essentially no different from the UN or Red Cross, and in a certain sense is even more problematic – I have no illusions about them… They have leverage over (Hamas). Why do they have leverage? Because they finance them,” Mr. Netanyahu told the families, ignoring that Qatari funding of Hamas in Gaza was at his behest.

This week, the United States temporarily halted funding of the United Nations Relief and Works Agency (UNRWA), the largest UN operation in Gaza, because of allegations, based on Israeli intelligence, that 12 of its employees had participated in Hamas’ October 7 attack.

In a statement, UNRWA said it had immediately terminated the suspects.

Mr. Netanyahu said he got “very angry recently with the Americans” for renewing a deal to extend the US military presence at a base in Qatar, a major non-NATO US ally and host of the largest American base in the Middle East, for another 10 years.

Mr. Netanyahu suggested the United States should have used the extension as leverage to force Qatar to exert pressure on Hamas.

Qatar is the biggest obstacle to returning the hostages. We could get all 136 hostages tomorrow if Qatar would give Hamas an ultimatum to return all the hostages, and if the West would give Qatar an ultimatum to do that,” Mr. Netanyahu’s far-right finance minister Bezalel Smotrich said in separate comments.

Describing the remarks as “puzzling,” Mr. Netanyahu’s former head of Mossad, the foreign intelligence service, Yossi Cohen, warned that a rupture in Israeli-Qatari relations would provoke “a crisis too large to overcome. Qatar would escape from the negotiating table, and we would be left without effective mediation.”

Qatari foreign ministry spokesman Majed al-Ansari described Mr. Netanyahu’s comments as “irresponsible’ and “destructive.” Mr. Al-Ansari said Mr. Netanyahu made the statement for “reasons that appear to serve his political career instead of prioritizing saving innocent lives, including Israeli hostages.”

That analysis is shared by some Israeli analysts who suggest the leak was designed to thwart hostage negotiations.

Prolonged silencing of the guns as part of a deal “could mean the end of the war without toppling Hamas. That could mean the end of (Netanyahu’s) governing coalition, and that could mean mass demonstrations demanding his resignation or an immediate general election,” said Haaretz journalist Alon Pinkas.

Mr. Netanyahu is expected to face a political reckoning that could end his political life once the fighting ends. A majority of Israelis hold him responsible for intelligence and operational failures that enabled Hamas’ October 7 attack, the worst against Israel since the 1973 Middle East war.

An opinion poll earlier this month concluded that only 15 per cent of Israelis want Mr. Netanyahu to stay in office after the Gaza war ends.

Similarly, Mr. Netanyahu’s public rejection of the creation of an independent Palestinian state alongside Israel as part of a resolution of the Israeli-Palestinian conflict appears to be at odds with a majority of Israelis.

A poll this week concluded that 51.3 per cent of those surveyed would support an independent Palestinian state provided it was demilitarised. Almost 20 per cent said they did not know what their attitude would be.

Mr. Pinkas, the Haaretz journalist, implicitly appeared to take the poll with a grain of salt even though he did not refer to the survey directly.

“What the US seems unable to understand is that there are two phases to the process, and the first is about revenge and anxiety. October 7…instilled fear, uncertainty, and humiliation in Israelis. When they hear ‘a Palestinian state,’ many now intuitively think about…more October 7s…  Who in their right mind would entertain such a solution?” Mr. Pinkas said.

Hamas political bureau member Bassem Naim reinforced Israeli sentiments, claiming in an article on Al Jazeera’s Arabic website that the October 7 attack was “a scaled-down model of the final liberation battle and the demise of the enemy.”

Dr. James M. Dorsey
Dr. James M. Dorsey
Dr. James M. Dorsey is a senior fellow at the S. Rajaratnam School of International Studies, co-director of the University of Würzburg’s Institute for Fan Culture, and the author of The Turbulent World of Middle East Soccer blog, a book with the same title, Comparative Political Transitions between Southeast Asia and the Middle East and North Africa, co-authored with Dr. Teresita Cruz-Del Rosario and three forthcoming books, Shifting Sands, Essays on Sports and Politics in the Middle East and North Africaas well as Creating Frankenstein: The Saudi Export of Ultra-conservatism and China and the Middle East: Venturing into the Maelstrom.