Proportionality in War: Protecting Soldiers from Enemy Captivity, and Israel’S Operation Cast Lead—“The Soldiers Are Everyone’S Children”
OSIEL PROOF V6 10/31/2013 12:24 PM PROPORTIONALITY IN WAR: PROTECTING SOLDIERS FROM ENEMY CAPTIVITY, AND ISRAEL’S OPERATION CAST LEAD—“THE SOLDIERS ARE EVERYONE’S CHILDREN” ZIV BOHRER† AND MARK OSIEL I. INTRODUCTION On October 18, 2011, Israel struck a prisoner-exchange agreement with the Palestinian organization Hamas: Israel released 1027 Palestinian prisoners (jointly responsible for the death of some six-hundred Israelis) in return for one Israeli soldier, Gilad Shalit.1 Past experience has amply proven that many of those released will return to further violence.2 Yet, within Israeli society, the deal was broadly accepted.3 Elsewhere, however, the reaction was quite different, with many of Israel’s most prominent and ardent supporters condemning the exchange.4 How are we to account for such disparate responses? What features of Israeli and, conversely, American society might explain this variation? Were foreign commentators correct in attributing the discrepancy to † Faculty of Law, Bar Ilan University; Research Fellow 2012-2013, Sacher Institute, Faculty of Law, Hebrew University; Visiting Research Scholar 2011–2012, University of Michigan Law School; Ph.D. 2012, Tel-Aviv University. This author wishes to thank the Fulbright Foundation for its support. All translations of sources originally in Hebrew are my own. * Aliber Family Chair, College of Law, University of Iowa; B.A. 1977, University of California, Berkeley; M.A. 1978, University of Chicago; J.D., Ph.D. 1987, Harvard University. 1. See Ronen Bergman, Gilad Shalit and the Rising Price of an Israeli Life, N.Y. TIMES MAG., Nov. 9, 2011, http://www.nytimes.com/2011/11/13/magazine/gilad-shalit-and-the-cost-of-an-israeli- life.html (describing the details of the exchange).
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