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Prisoner Swap Deals Under Israeli Law

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The recent release of the Israeli soldier Gilad Shalit has forced Israelis to reflect again on the cost of releasing kidnapped soldiers. Shalit was abducted by the military wing of Hamas from inside Israel’s borders in June 2006 and had been held captive for over five years.  Israel agreed to release 1,027 Palestinian prisoners in exchange for the release of Shalit.

First Picture of Gilad Shalit After his release. Source: Israel Defense Forces' Flickr photostream, Credit to Israel Defense Forces

Several hours before Shalit’s release, Israel’s Supreme Court rejected petitions by terrorism victims’ organizations and by individuals that sought to avoid or suspend a government decision to ratify the exchange agreement (H.C. 7523/11 Almagor Association of Victims of Terrorism v. the Prime Minister). The decision involved the release of many prisoners who had been convicted by Israeli courts for their involvement in fatal terrorist attacks against Israeli civilians.  A petition to prevent a similar prisoner exchange between Israel and Egypt involving one Israeli in exchange for twenty-five Egyptians was similarly rejected by the Court on October 26, 2011 (H.C. Ben Ari v. the Prime Minister Binyamin Netanyahu).

In rejecting petitions by 28 individuals and victims organizations to block the prisoner exchange deal in the Shalit case, Court President Dorit Beinish held that the scope of judicial review in matters involving ratification of prisoners exchange agreements was very limited.  She recognized that such matters are within the authority of the executive branch because they involve decisions on state security and international relations.  In refraining from intervening in the government decision regarding Shalit, Beinish continued the Court’s ongoing policy relating to prisoner exchange agreements.  The Court has previously rejected petitions to block the release of Palestinian prisoners who were released to the Palestinian Authority as a gesture of goodwill (H.C. 10578/08 Legal Institute for Research of Terrorism and Assistance to Victims), and to Hezbollah in exchange for the release of Israeli prisoners or their remains and for information on the disappearance of Israeli air force navigator Ron Arad (H.C. 6063/08-A Shakhar v. the Government of Israel).

Two books available at LC: The Captive: A View from Gaza & Come Home: Poems and Thoughts Written by Youth for Ehud Goldvaser, Eldad Regev and Gilad Shalit (in Hebrew).

The Shalit prisoner exchange deal with Hamas was very controversial in Israel and was the subject of two earlier petitions to the Supreme Court.  In October 2009, the Almagor Organization of Victims of Terrorism (AOVT) petitioned to prevent the release of 20 Palestinian women prisoners in exchange for receipt of proof that Shalit was alive and as a confidence-building measure in the context of negotiations over a future prisoner exchange deal (H.C. 7893/09-A Almagor Association of Victims of Terrorism).  In December of that year AOVT petitioned to require the government to publish criteria that had been allegedly used in the negotiations to release prisoners in exchange for Shalit’s release.  (H.C. 9446/09 Karman v. Binyamin Netanyahu Prime Minister of Israel). Both petitions concerning the negotiations with Hamas for the release of Shalit were rejected on similar grounds, namely, that they involved political matters that are subject to the authority and discretion of the government and regarding which the Court would exercise judicial restraint.

Rejecting the petitioners’ claim on the eve of Shalit’s release, Beinish also expressed her doubt that any legislative criteria regulating future negotiations with kidnappers were appropriate.  Referring to the Shalit case as an example, she noted that negotiations on prisoner exchanges are usually conducted under duress and involve foreign governments.  Any determination depends on the particular circumstances and requires the balancing of many interests.  It was doubtful, she stated, whether predetermination of set criteria, as requested by the petitioners, was useful in conditions that were unpredictable. (H.C. 7523/11 Almagor Association of Victims of Terrorism v. the Prime Minister).  The controversy that the Shalit and other prisoners swap deals involving disproportionate exchange have caused may test these assumptions.

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