The International Committee of the Red Cross (ICRC), the main arbiter of the Geneva Convention’s regulations, frequently describes the West Bank and even the Gaza Strip as “Occupied Palestinian Territories.” Yet, Alan Baker writes, this phrase—also used by the UN—wildly misapplies the laws the ICRC is tasked with protecting:

The classical rules of occupation are set out in the international law of armed conflict and specifically in the 1907 Hague Regulations and the 1949 Fourth Geneva Convention. . . . [T]he Hague Regulations define a territory as occupied when it comes “under the control of a hostile army.” The Fourth Geneva convention goes further and requires that the territory of a “High Contracting Party [i.e., a signatory of the Convention] comes under partial or total occupation.” . . .

[But] the sovereign status [of the West Bank and Gaza] is legally unclear or non-existent and as such cannot be seen as “territory of a High Contracting Party” as defined by the Fourth Geneva Convention. The legal questionability of Jordan’s pre-1967 sovereignty in the West Bank, as well as Egypt’s self-admitted non-sovereign military administration of the Gaza Strip, [cast doubt on] whether the classic and simplistic concept of belligerent occupation could be legally relevant and applicable to Israel’s unique situation in the territories.

It is well known that prior to 1967, Jordan’s annexation of, and claim to sovereignty in, the West Bank were not accepted in the international community, except for the UK and Pakistan. Jordan’s claim to east Jerusalem was not accepted even by the UK. . . .

Meanwhile, by contrast, the ICRC and the UN almost never use “occupation” or related terms to refer to the numerous textbook cases of military occupation across the globe. Baker concludes:

Thus, the use by the international community of the terms “belligerent occupation” and “occupied territory” almost exclusively to refer to Israel’s status in the territories has taken on a distinct politicized connotation that ignores the legal, historical, and political situation on the ground. The terms extend far beyond the simplistic rubrics foreseen in the definitions. . . .

This runs counter to the ICRC’s very basic fundamental principles of “impartiality, neutrality, and independence” as required and defined in the Preamble to the Statutes of the International Red Cross and Red Crescent Movement. The cumulative effect of such legally flawed assumptions in effect prejudges the central negotiating issue between Israel and the PLO—namely, the permanent status of the territories. That issue constitutes an agreed-upon negotiating issue pursuant to the 1993 Oslo Accords in which the Palestinians themselves agreed to negotiate the permanent status of the territory.

Ron Ben-Yishai explains Hamas’s current calculations:

Strategically speaking, Hamas is hoping to add more and more days to the pause currently in effect, setting a new reality in stone, one which will convince the United States to get Israel to end the war. At the same time, they still have most of the hostages hidden in every underground crevice they could find, and hope to exchange those with as many Hamas and Islamic Jihad prisoners currently in Israeli prisons, planning on “revitalizing” their terrorist inclinations to even the odds against the seemingly unstoppable Israeli war machine.

Chances are that if pressured to do so by Qatar and Egypt, they will release men over 60 with the same “three-for-one” deal they’ve had in place so far, but when Israeli soldiers are all they have left to exchange, they are unlikely to extend the arrangement, instead insisting that for every IDF soldier released, thousands of their people would be set free.

In one of his last speeches prior to October 7, the Gaza-based Hamas chief Yahya Sinwar said, “remember the number one, one, one, one.” While he did not elaborate, it is believed he meant he wants 1,111 Hamas terrorists held in Israel released for every Israeli soldier, and those words came out of his mouth before he could even believe he would be able to abduct Israelis in the hundreds. This added leverage is likely to get him to aim for the release for all prisoners from Israeli facilities, not just some or even most.