Israel Pulse

Will Israel release Palestinian prisoners re-arrested in 2014?

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Article Summary
Thirty-one prisoners who were arrested in 2014, three years after their release in the Shalit prisoner-exchange deal, are now petitioning the Israeli High Court of Justice against their incarceration.

Israel released over 1,000 Palestinian prisoners in 2011 within the framework of the Shalit prisoner-exchange deal. In return, Hamas released Israel Defense Forces (IDF) soldier Gilad Shalit, who was abducted five years earlier. But in July 2014, after the abduction (and murder, as it was later discovered) of Israeli youths Gil-Ad Shaer, Naftali Frenkel and Eyal Yifrach in the West Bank, Israel re-arrested several dozen of the released prisoners. On March 3 of this week, 31 of these Hamas prisoners appealed to the High Court of Justice (HCJ) through their lawyer, Avigdor Feldman, against their imprisonment.

Feldman argued that Israel re-imprisoned these people because of political reasons, even though none of them had committed a security offense or threatened the security of the state. It was also argued that the second incarceration violated the agreement signed by the government.

As proof of their arguments, the prisoners submitted their appeal together with a post that had been circulated Feb. 4 by the founders of the New Right party, Naftali Bennett and Ayelet Shaked, in which it was argued that the re-incarceration was designed “to inflict pain on the terrorists and pressure their families.” The post also claimed that by virtue of Bennett’s actions in the security Cabinet, the IDF and the Shin Bet re-arrested 60 prisoners released in the Shalit deal after the 2014 kidnapping of the three youths. Meanwhile, half of them have been released already. The remaining 31 now have appealed to the HCJ.

In the appeal, Feldman explains that Israel indicted the prisoners for violating the terms of their release because they accepted money from associations that were declared illegal. Feldman also claims that this excuse was supposed to provide legal backing for the re-arrests after they had been released in an agreed-upon deal backed by Egypt.

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Israel never denied that the arrest was designed to inflict pressure on Hamas to lead to the release of the three boys before it became known that they had been murdered. (True, a phone call from one of the boys that was taped in the police emergency center in the very first hours after the kidnapping showed that the chances were low that they could be alive. A volley of shots was heard in the recording, then silence.) Nonetheless, Israel initiated Operation Brother's Keeper in Hebron, in addition to the re-arrest of some of the prisoners released in the Shalit and arrest of the Hamas Palestinian Legislative Council members.

The arrests did nothing to help locate the graves of the youths; instead, it only served to cause further deterioration between the sides, leading to the 2014 Gaza-Israel campaign (Operation Protective Edge). Hamas began firing rockets at Israel because Israel had deprived it of Hamas’ only achievement in Gaza till then: the release of the Palestinian prisoners. Israel responded by attacking targets in Gaza, and the sides found themselves embroiled in a bloody military operation that lasted 50 days and caused the deaths of 68 Israeli soldiers, five civilians and one foreign worker. Gaza was witness to more than 3,000 deaths of civilians and militants.

Note Bennett’s revelation: His post shows that he is responsible for the explosion of peace talks between Israel and the Palestinians in April 2014. It is worth remembering that parallel to the launching of official talks between Israel and the Palestinians in August 2013, Prime Minister Benjamin Netanyahu committed himself to release Palestinian prisoners in four stages. The goal was to deflect the strong criticism hurled at Palestinian President Mahmoud Abbas for agreeing to conduct negotiations without stipulating that Israel freeze construction in the settlements for the duration. Netanyahu preferred to release terrorists rather than freeze construction in the settlements to offset the strong opposition of the settlers. However, he only carried out the first three stages (August 2013, October 2013 and December 2013).

What happened? According to Bennett, he threatened to leave the government if Netanyahu would carry out the fourth stage, which was to release terrorists. “Despite his [Netanyahu’s] commitment to [John] Kerry and President Abbas, that fourth stage was not carried out — and from then until this very day, not one terrorist was freed,” he said. Netanyahu argued at the time that he refused to free the last 26 prisoners out of 104 that had been agreed on since the last group included Israeli-Arab prisoners including the murderer of Israeli soldier Moshe Tamam.

The bottom line: Bennett’s threats to quit the government made their mark, the fourth stage was canceled, the negotiations blew up and the rest is history.

The re-arrest of the Shalit-deal freed prisoners constituted a continuation of Israel’s tendency not to carry through on its commitments. Eventually, it also emerged that even the attempt to re-imprison the prisoners from the Shalit deal as a means of pressure did not achieve its objective. On the contrary: It dragged Israel into Operation Protective Edge and averted the deal for the release of the bodies of slain Israeli soldiers Oron Shaul and Hadar Goldin (who fell in the battle in Rafah) and two Israeli civilians held in Gaza, Hisham al-Sayed and Avera Mengistu.

The Hamas leadership has long stated that it will no longer consider prisoner-exchange deals with Israel because the latter does not carry out its obligations and promises. Hamas demands that Israel, in the very first stage, must release these Hamas operatives who were re-imprisoned before any talk of a new deal — a broad arrangement including alleviating the blockade on the Gaza Strip and exchange of prisoners and civilians.

It is clear beyond a doubt that there is no deterrence-value involved in this continuing incarceration. Still, Israel keeps refusing to free the Hamas operatives. This re-imprisonment does not create pressure on Hamas. If anything, it creates pressure on Netanyahu.

However, the pressure inflicted by right-wing parties on Netanyahu (against a release) has proven to be both effective and deterring. Netanyahu will not dare free the prisoners of the Shalit deal as the first condition for beginning negotiations with Hamas. More so, he won’t release them even when pressured by the Shaul and Goldin families. On the other hand, if the HCJ should decide that the re-arrests were illegal and order that the operatives be released, that would get Netanyahu off the hook. It wouldn’t be a political decision that would lead to a right-wing protest against the political echelons. Instead, the fury would be directed at the court.

Those in the Palestinian Prisoner's Club in the Strip believe that the decision to petition the HCJ at this point in time evidently points to an Israeli plan in the works for a large-scale deal with Egyptian involvement to secure an arrangement with Gaza. This deal will be completed after Israel’s April elections. According to club chairman Qadura Fares who spoke to Al-Monitor, the Feb. 28 release of four Hamas operatives who were held in Egypt from 2015 shows that the HCJ petition is part of a much larger scheme.

No one can tell ahead what the HCJ justices will decide with regard to such a sensitive issue or whether the Shin Bet will present confidential material that may cause a continuation of the incarceration. Still, facts and publicized information tell a very clear story. Netanyahu keeps capitulating to the right, thus sealing the fate and future of Israel.

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Shlomi Eldar is a columnist for Al-Monitor’s Israel Pulse. For the past two decades, he has covered the Palestinian Authority and especially the Gaza Strip for Israel’s Channels 1 and 10, reporting on the emergence of Hamas. In 2007, he was awarded the Sokolov Prize, Israel’s most important media award, for this work.

Eldar has published two books: "Eyeless in Gaza" (2005), which anticipated the Hamas victory in the subsequent Palestinian elections, and "Getting to Know Hamas" (2012), which won the Yitzhak Sadeh Prize for Military Literature. He was awarded the Ophir Prize (Israeli Oscar) twice for his documentary films: "Precious Life" (2010) and "Foreign Land" (2018). "Precious Life" was also shortlisted for an Oscar and was broadcast on HBO. He has a master's degree in Middle East studies from the Hebrew University. On Twitter: @shlomieldar

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