The global coronavirus pandemic is not without its opportunities, and recognizing them is key to developing "exit strategies" for the various aspects of our lives, which have been completely upended.
Resuming a "new normal" without challenging past misconceptions will be tantamount to missing these opportunities, especially with respect to recent reports suggesting Israel and the Hamas terrorist group have resumed indirect negotiations for a prisoner exchange deal.
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Windows of opportunity in the Middle East are fleeting by nature and an opportunity to advance a prisoner exchange deal is fragile, rare and laden with risks. Making the most of it requires discretion, flexibility of thought, professionalism and above all, expediency.
The magnitude of this opportunity cannot be overstated. For the past six years, Hamas has been grossly violating international law. This violation has been consistently condemned by the top officials in the international community and the world's most prominent bodies.
Said international officials and bodies have put forth an unequivocal demand that Hamas return the remains of IDF soldiers Oron Shaul and Hadar Goldin, killed in the 2014 Gaza conflict, and Israelis Avera Mengistu and Hisham Sayed, both suffering from mental health issues, crossed into Gaza willingly in 2014 and 2015 and were captured by the terrorist group.
Hamas, stated the demand, must return the four to Israel immediately and with no preconditions as a confidence-building measure that will, in turn, promote talks on improving the situation in the coastal enclave.
Hamas cannot face the coronavirus pandemic sans help and Israel can offer considerable assistance. So far, Israel has not conditioned any of the direct and indirect aid it has offered Gaza's rulers since the COVID-19 crisis erupted on the return of its missing soldiers and civilians. However, a guiding principle in international law, "reciprocity," allows and requires to overturn the current equation and make it clear that Israel, too, has essential humanitarian needs.
The current window of opportunity permits and requires Israel to pose this immediate and unequivocal demand from Hamas before Israel expands on the aid with which it already provides Gaza. In doing so, the principle of reciprocity will create an "exit strategy" from the conceptual state of captivity, according to which Israel's ability and willingness to provide Hamas with the power to prevent a disaster in Gaza requires the Islamist terrorist group to take the next step – which it has already said it was willing to do – and discuss a prisoner exchange deal with Israel.
No such thing as a free lunch
Israel faces many challenges on this issue, among them recognizing the window of opportunity, realizing how fleeting it is, understanding it requires challenging the prevailing concept and modus operandi by which such negotiations have been handled for many years, and accepting the responsibility for setting an alternative equation based on the tools offered by The Hague.
Crafting the necessary new equation entails many potential implications that go beyond the coronavirus crisis and the retrieval of the missing Israeli soldiers and civilians. Such a move will also be able to rebuild and validate Israel's power of deterrence vis-à-vis terrorist organizations and the regimes that sponsor them in our region.
Moreover, it has the power to see Israel exit the "defendant's box" while officially adopting and speaking in the "language of rights" that is prevalent in the global arena. This is the same language used by Israel's friends and of which its foes make cynical use.
Furthermore, adopting the "language of rights" has the power to change the balance of power and the way law-abiding states conduct themselves when dealing with the terrorist organizations that so grossly violates these rights. It can challenge the cooperation, hypocrisy, and turning of a blind eye that gives immunity to regimes and organizations that are abusing international law, and are trampling and grossly violating its principles.
A new equation will have the power to set free many civilians who are being held as hostages by regimes and terrorist organizations in the Middle East as a whole and finally give them the protection that human rights laws are meant to provide – and the hope that human rights are not just a phrase to which those who abuse them pay lip service.
Challenging the misconception must begin with a basic principle: Hamas, a murderous terrorist organization that has grossly violated international law for six years, is not entitled to dictate reality.
If Hamas' policy on Israel is not clear enough, in a recent interview with Palestinian media, Hamas military leader Yahya Sinwar made no effort to disguise his anti-Semitism and threatened that "If we find that corona patients in Gaza can't breathe, we will cut off the air to six million Zionists and take what we want from you."
All or Nothing
This is an era when most countries around the world have adopted the International Holocaust Remembrance's definition of anti-Semitism, which states that some forms vitriol, including the demonization and delegitimization of Israel, comparing it to Nazi Germany, and denying the Jewish people's right to self-determination are examples of anti-Semitism, though criticizing Israel's policies is not.
Israel adopted this definition in 2017 so it stands to reason that it cannot allow the existence of equations based on such anti-Semitism, let alone do anything to bolster their existence.
This is why Israel should be the one to determine the new equation, according to which both parties will devise their exit strategy from the corona crisis.
A possible equation of this nature, which reflects the principles of international law, moral order and common sense, is "humanitarian gesture for a humanitarian gesture." This wording is self-explanatory and it could lead to other options decision-makers may choose to consider.
Some would argue that even if this language is acceptable by international standards, we cannot "educate" a terrorist organization. Well, the window of opportunity that presented itself in light of the corona crisis in the region allows and requires Israel to lead, rather than be dragged into the dictates of a terrorist group.
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So far, Hamas has insisted on separating the issue of the captives from the security and civilian arrangements it is trying to reach vis-à-vis Israel, and now, it is apparently insisting on separating any information regarding the fate of the captives from a potential prisoner exchange deal.
This absurd reality is a direct expression of Hamas trying to "have it both ways" by seeking and receiving humanitarian aid by virtue of the same international laws that it so grossly violates.
The opportunity of a new corona-motivated coping strategy requires and allows for this absurdity to end, by unequivocally and uncompromisingly demanding that the end to this segmentation by Hamas.
Gaza needs more comprehensive and effective aid to battle the coronavirus from Israel and from international sources and therefore, Israel must stand firm against Hamas' demands and dictate an overall alternative concept: no to separating obtaining information about the captives from their retrieval; and no to separate conditions for information on or the retrieval of the civilians and the soldiers' remains.
Capitulating to Hamas' demands not only undermine dealing with it in the present and the future, but it will also undercut the significant progress made over the past year to obtain international support for Israel's demand to include the issue of the captives under the title of humanitarian aid, which calls for the four's immediate return as a constructive and unconditional step.
The steps taken to prevent the coronavirus from spreading between Israel and Gaza are effective enough to be used as the premise on which this moral-legal outline could be implemented.
This window of opportunity is narrow but for the first time, the odds are not in Hamas' favor. Losing Israeli and international aid in a time when a pandemic is threatening the Gaza Strip poses an imminent threat to the terrorist group's rule over the coastal enclave. Israel is currently in a unique position: It has the ability, as well as the moral and diplomatic imperative to ignore Hamas' threats and demand that Shaul, Goldin, Mengistu and Sayed, be returned – forthwith and sans any condition.
A failure by Israel to recognize and seize this historic opportunity, with the pendulum so clearly swinging in its favor will not only be naturally devastating to the families – it will Israel's ability to deal with the challenges of terrorism, particularly when posed by Hamas, a crippling blow. Moreover, it will undermine Israel's regional and international standing and erode Israeli deterrence.
But perhaps most of all, failure by Israel to exhaust this historic opportunity will render hollow the values of mutual guarantee and camaraderie that are at the very heart of Israeli society.
Unlike the coronavirus crisis, a failure to devise a conceptual "exit strategy" from the "captive mindset" that has resulted in the stalled prisoner exchange negotiations, may prove a crisis that Israel will not be able to weather.
Professor Irwin Cotler is the former Canadian justice minister; Elyakim Rubinstein is a retired Supreme Court justice, and attorney Michal Cotler-Wunsh is a research fellow at the International Institute for Counter-Terrorism at the Interdisciplinary Center Herzliya.
