Stephen Hoadley: Prisoner swaps pit justice against expedience

The recent America-Russia spy swap spotlights not only the convoluted nature of espionage but also the pragmatism of prisoner exchanges.

Swapping captured spies is as old as the practice of spying. Both policies are controversial. But swapping is an inexpensive way to reduce tensions between rival states.

Spy swaps achieved prominence during the Cold War, exemplified by the US exchange of Soviet spy Rudolf Abel for U-2 spy plane pilot Francis Gary Powers in 1962. Washington also swapped nine Soviet spies in return for the release of Russian-Jewish dissident Anatoly Shcharansky in 1986.

But spies, whether caught and swapped or not, are relatively thin on the ground compared with soldiers. Prisoners of war are by far the main object of swaps, called prisoner exchanges.

The Geneva Conventions of 1929 and 1949 govern the treatment and repatriation of POWs. They specify that prisoners are to be treated humanely and, at the termination of hostilities, returned to their country of origin.

Hundreds of thousands of POWs were repatriated in 1945 and 1946 by the major belligerents, the Soviet Union, the United States and the Western democracies. Germany and Japan, though defeated and occupied, continued to function and to engage in POW repatriation, including with New Zealand. Similar exchanges took place after the armistice in Korea in 1953.

Many Russian POWs appealed against repatriation to the USSR, where they feared persecution, but were returned anyway, in accordance with the letter of the Geneva law of 1929. North Korean and Chinese POWs, too, tried to stay in South Korea or relocate to Taiwan by claiming political asylum.

Recognising this anomaly, the 1949 Geneva Convention now features the phrase "repatriation or accommodation in a neutral country", thus giving prisoners an alternative place of refuge, providing a "neutral country" is willing to accept them.

The wars of the Middle East - between Israel and the Arab states (1948-1976), Iraq and Iran (1980-1988) and the US and Iraq in 1992 - each generated POWs that were eventually repatriated. The government of Colombia and the FARC guerrillas intermittently exchange captives, as do other governments with antagonistic rebel groups.

These days it is Israel that is the main practitioner of exchanges. Israel has released about 7000 prisoners over the past decades in return for the freedom of 19 Israelis and the bodies of eight fallen soldiers.

Notable was the release of 1150 prisoners in 1985 in return for three IDF soldiers. Other exchanges took place in 1998, 2000 and 2004 involving the release of 578 captured Palestinian and Hizbollah fighters in return for 12 Israelis.

These swaps are unusual in two respects. First, they involved Palestinians represented since 1992 by the Palestinian Authority or the Hizbollah guerrilla party of Lebanon. Neither is recognised in international law as a sovereign authority, and no formal state of war exists between it and Israel.

The Geneva Conventions, while providing guiding principles of humane treatment, are of limited use in determining how detailed negotiations are to be conducted.

The other unusual feature of the Israeli-Palestinian exchanges is their asymmetry. The government of Israel values its soldiers highly.

This is not only ideological but also utilitarian: solders confident of steadfast support by their government, even after capture or death in foreign lands, will be more loyal and effective.

Israel, with limited human resources compared with the more populous Arab states that surround it, must make every soldier count for dozens of their adversaries.

Since 2006 Israel has sought the release of Staff Sergeant Gilad Shalit, kidnapped by Hamas and held prisoner in an unknown location in Gaza. Public demonstrations have put pressure on Prime Minister Benjamin Netanyahu to negotiate for Shalit's release by offering Palestinian prisoners in exchange. The number demanded by Hamas is 1000.

Is this asymmetry unbalanced, even absurd? Not if one takes political values rather than arithmetic into account. As in a market, the price is determined by what the buyer is prepared to pay and the seller to accept; there is no inherent "right" price.

But is it legal? Judges, and those who suffered damage or injury, may object that justice is not done by letting prisoners go.

Evasion of the law undermines not only the law but also the legitimacy of the government, critics contend. David Lange's exchange of the two Rainbow Warrior saboteurs for monetary compensation from France was slammed on these grounds. In the strict legal sense, the critics may be correct.

And does it bring peace between the antagonists? Diplomats argue that swaps smooth relations, as the US-Russia exchange seems to have done.

Critics argue that "giving in" and freeing the perpetrators makes the surrendering government's resolve less credible, puts spies or fighters back into action and raises the enemy's incentive to engage in espionage, kidnapping or attack with impunity.

But prisoner exchanges or unilateral releases lie in the political realm, not the judicial realm, and politicians and diplomats decide, not judges. Democratic governments have to satisfy their constituents, and demands to free their own captives cannot be ignored.

Even economics come into play - prosecuting spies and holding prisoners of war can be costly; a quick exchange can relieve pressure on the courts and the penal system as well as bring diplomatic benefits.

What have we learned?

First, spy swaps, prisoner exchanges and unilateral releases are accepted policies by governments and also by non-government entitles such as guerrilla armies.

Second, each of these swaps is unique, shaped to the context of the day and values of the parties. There is no template. Balance and fairness are in the eye of the negotiators, not in an arithmetic equality.

Third, exchanges will be controversial whenever governments overrule prosecutors and judges and affront aggrieved citizens who value justice over diplomatic expedience or economy.

But those spies or soldiers freed will seldom complain or count the costs.

* Associate Professor Stephen Hoadley teaches foreign policy analysis at the University of Auckland.