International Court of Justice (ICJ)

How Will International Court Ruling Shape Israel-Hamas Prisoner Exchange Talks?

Israel and Hamas are likely to be bolstered in negotiations for a ceasefire and exchange of prisoners following an International Court of Justice ruling that Israel’s conduct in Gaza risks acts of genocide. The court’s decision, which did not satisfy either party, is expected to be a relief for David Barnea, head of Israel’s foreign intelligence service Mossad, who is meeting with CIA director Bill Burns, Qatari Prime Minister Mohammed bin Abdulrahman bin Jassim Al Thani, and Egyptian spy chief General Abbas Kamel in France. The talks aim to arrange a ceasefire that would allow for the exchange of over 100 remaining Hamas-held hostages for Palestinians in Israeli prisons. Hamas will be buoyed by the legal and moral implications for Israel of the court ruling, as well as its insistence on addressing the humanitarian crisis in Gaza.

The South African court ruling on the South African genocide case will likely reinforce Hamas’ demand for prisoner exchanges linked to an immediate and permanent ceasefire. Israel failed to persuade the court to reject the South African complaint under the genocide convention, causing further damage to its moral standing. Netanyahu criticized the court case as “outrageous,” “vile attempt” to deny Israel self-defense, and “discrimination against the Jewish state,” with domestic pressure likely facilitating mediation efforts.

The Israeli government is under pressure from hostage families to prioritize the release of their loved ones, even if it necessitates 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 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. Protesters and hostage families are blocking the Kerem Shalom crossing point from Israel into Gaza, opposing aid to Gaza as long as Hamas does not release the hostages. US Defense Secretary Lloyd Austin emphasized the crucial need for the uninterrupted transfer of humanitarian aid to Gaza. A Washington Institute for Near East Policy study has cast doubt on the Gaza Health Ministry’s casualty figures, stating that the ministry reported almost 26,000 deaths.

The institute’s criticism focused on the ministry’s failure to distinguish between civilians and Palestinian fighters, Gazan authorities’ alleged underreporting of male deaths, and methodological issues, some of which are due to reporting difficulties during a war. Israeli journalist Yuval Abraham countered the report, stating that Israeli intelligence relied on the ministry’s numbers after finding them “reliable” and conceded the intelligence services had no independent way of assessing casualty rates. The institute’s report is likely to do little to change widespread criticism of Israel’s war conduct, but it will serve those advocating Israel’s right to defend itself in the manner it has chosen to do so.

The report is unlikely to reduce US pressure on Israel to change its war tactics, as US special envoy David Satterfield criticized Israel for indiscriminate bombings targeting safe areas for displaced Palestinians and UN facilities.The Washington Institute’s report is unlikely to change widespread criticism of Israel’s war conduct and will serve those advocating Israel’s right to defend itself in the manner it has chosen to do so. Gaza’s population of 2.3 million has been displaced by Israel, with many seeking refuge in public facilities like hospitals in smaller parts of the Strip. These were attacked by Israel despite being declared safe. Israeli Prime Minister Netanyahu’s domestic issues extend to hostage families and 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 attacks, fearing and displaced, and hoping for reprieve from US President Joe Biden or Qatar. In private remarks to hostage families, Netanyahu disparaged Qatari efforts and prided himself on not thanking Qatar. In November, the Gulf state negotiated a one-week truce, releasing over 100 Hamas-held hostages in exchange for 240 Palestinians incarcerated by Israel. The United States temporarily halted funding of the United Nations Relief and Works Agency (UNRWA), the largest UN operation in Gaza, due to allegations that 12 of its employees had participated in Hamas’ October 7 attack. UNRWA terminated the suspects in a statement.Netanyahu criticized the US for renewing a 10-year military presence extension in Qatar, arguing it should have been used as leverage to pressure Qatar to pressure Hamas.

Israeli Prime Minister Benjamin Netanyahu has been accused of a leak that could end his political life once the Gaza war ends. The leak was described as “puzzling” by former head of Mossad, Yossi Cohen, who warned that a rupture in Israeli-Qatari relations would provoke a crisis too large to overcome. Qatari foreign ministry spokesman Majed al-Ansari described Netanyahu’s comments as irresponsible and destructive, arguing that the leak was designed to thwart hostage negotiations. Prolonged gun silencing could lead to the end of the Gaza war without toppling Hamas, the end of Netanyahu’s coalition, and mass demonstrations demanding his resignation or immediate election. Israelis blame Netanyahu for intelligence and operational failures, and an opinion poll shows only 15% want him to stay in office after the war ends.

Nebrahim’s public rejection of the creation of an independent Palestinian state alongside Israel as part of a resolution of the Israeli-Palestinian conflict appears at odds with a majority of Israelis. A poll this week concluded that 51.3% of those surveyed would support an independent Palestinian state provided it was demilitarized, while almost 20% said they did not know what their attitude would be. Haaretz journalist Alon Pinkas suggested that the US seems unable to understand the two phases of the process, with the first being about revenge and anxiety.