Terrorist kidnapping is a rising phenomenon world-wide. Nowhere has terrorist kidnapping extracted higher prices and affected governmental behavior more than in the Israeli context. Israeli governments have repeatedly conceded to terrorists’ demands to release masses of terrorists from Israeli prisons in exchange for the release of one or a few kidnapped soldiers, or even in return for a body. Kidnapping has thus become a strategic threat to Israel. The Israeli public debate regarding terrorist kidnapping revolves mostly around the question whether Israel should adopt formal “red lines” with regard to the number or characteristics of the terrorists to be released in prisoner swaps. The Shamgar Commission seems to have recommended a policy of proportional number of prisoners released from both sides as well as exchanging “a body for a body” and “a living person for a living person.” Its recommendations however are secret in nature and will only serve as soft law guiding the government.
This Article argues that Israel should use law as a strategic tool in cases of terrorist kidnapping. Israel should enact a statute which content will be publicly known to both the Israeli public and the enemy to be credible and effective. Such a statute should embody only structural-procedural limitations on the decision making process to reach prisoner swaps in kidnapping cases. The Article argues that such a statute is preferable to both the adoption of content-based restrictions and to the status quo of having no regulations. It explains why such a statute is preferable to content-based restrictions from utilitarian, legitimacy and legal perspectives. It further explains why such a statute is preferable to the status quo by imposing limitations that are at once flexible yet restrictive in a way that will paradoxically enhance decision-makers’ bargaining power as well as reduce terrorists’ incentives to kidnap. The Article provides numerous examples of possible procedural-structural restrictions that should be embodied in such a statute and explains how each of them may improve the status quo.