Rather than arguing over the ‘gestures’ of releasing long-term prisoners, Israel must use restraint during arrests in the West Bank, while ensuring fair and swift procedures in the military courts.
(Translated by Ofer Neiman)
One of the main factors behind the failure of the recent round of Israeli-Palestinian talks was Israel’s decision to cancel the release of 26 Palestinian prisoners, which had been agreed upon as a goodwill gesture to the Palestinian Authority. The issue of prisoner release, whether in the framework of negotiations or in the framework of prisoner exchange deals, touches on very strong sentiments on both sides. For the Palestinians, the prisoners are members of their own people being held by a foreign occupier. For many Israelis, the prisoners are “bad people,” responsible for killing and injuring Israeli soldiers and Jewish citizens.
The release of prisoners, perceived by one side as the redemption of captives, is perceived by the other as gross injustice and even as a threat to one’s life. Accordingly, Palestinians have regarded the cancellation as sufficient grounds for terminating the talks; while in Israel previous rounds of prisoner release have brought about waves of protest and condemnation, culminating in a controversial bill aimed at preempting the future release of prisoners sentenced to life imprisonment.
Criminalizing an entire people
Negotiations on the issue of Palestinian prisoners tend to focus on a certain group of prisoners – those sentenced to lengthy terms, usually on the basis of convictions of grievous violence (the validity of these convictions and/or the gravity of the offenses are a bone of contention). All 78 prisoners released so far as part of gestures for the promotion of the talks in 2013 – 2014 belonged to this group (and the same holds for the 26 whose release was cancelled). Of 1,027 prisoners released as part of the Gilad Shalit deal in 2011, 434 had been sentenced to at least 20 years (including 275 cases of life imprisonment) – and this group was the focus of negotiations between Israel and Hamas.
Focusing on the aforementioned prisoners is only natural. They are the ones who have spent, or are expected to spend, a long period behind bars. They are also those who have been convicted by Israel’s military justice system of what it sees as grave offenses.
However, one should recall that this group is only a minority among Palestinian prisoners at large. According to the Palestinian NGO Addameer, the group numbers less than 1,000 prisoners out of a total of nearly 5,000. Fifteen or 10 years in prison is surely a long period, but even if one were to lower the bar, those same prisoners who have been sentenced to long terms will still constitute a minority. This follows from data (albeit not up to date) published by The Israeli Prison Service in 2007. According to the data, two thirds of the prisoners were sentenced to terms of no more than seven years.
The fact that supporters of the two-state solution (not to mention its opponents) have neglected this second group of prisoners is most disturbing. For every Palestinian sentenced to a lengthy imprisonment, there are, apparently, tens of Palestinians who have served or are serving, shorter terms. Some researchers have argued that a fifth of Palestinian men in the West Bank and the Gaza Strip have spent some time in Israeli prison. Even if the numbers are much lower, they still attest to the criminalization of an entire people.
Secondly, there is good reason to believe that the wider prisoner population ends up in jail due to substantial flaws in the military courts in which they are tried. These flaws are too numerous to list here, but the basic mechanism which they produce is quite evident.
Changing policy: A long-term investment
Palestinians who are indicted on “security” charges (including what is known as “disturbing the peace”) are almost always detained on remand (i.e. until the completion of proceedings). This means that they will spend a year or two in detention until their verdict is given. Their chances of being acquitted then – in the face of a hostile court – are quite slim. Such conditions create a very strong incentive to sign a plea bargain with the prosecution, in exchange for a somewhat reduced sentence, especially since conviction by an Israeli court is significantly less stigmatized in Palestinian society. This dynamic primarily affects those prisoners who are charged with lesser offenses, as they can reach a reasonable plea bargain.
This view is corroborated by data provided by the Israeli Prison Service to B’Tselem, the human rights NGO. According to the data, a third of current prisoners were detained before the court ruled in their case, and nearly all of them were detained on remand. The number of detainees has doubled in the past four years, while the number of prisoners being convicted has declined by one third. This is perhaps the reason why the total number of Palestinian prisoners hardly declined during the same period, despite the relative calm of recent years or the mass release of prisoners as part of the Gilad Shalit deal.
Should Israel use restraint during arrests in the West Bank, while ensuring fair and swift procedures in the military courts, the number of Palestinian prisoners will decrease substantially. This may also make the renewal of peace talks more difficult. The detention of fewer prisoners may lead to the issue becoming less prominent on the Palestinian agenda, and the “reserves” of prisoners who can be released will dwindle. Accordingly, Israel’s ability to implement gestures and deals while using this bargaining chip, as well as the PA’s ability to point out concrete achievements which would justify the continuation of the talks, will be degraded.
This is a classic example of the tension between promoting “peace talks” in the short run and laying the foundation for real justice between Israelis and Palestinian in the long run. Those who believe that the conflict will be resolved through a compromise between the elites, which need only gather sufficient strength to appease their public opinion, will continue to focus on “gestures” of prisoner release, while ignoring the production line for new prisoners. By contrast, those who believe that a true deal can only come about as a gradual process of changing reality for both peoples should focus their efforts on tackling the root of the wider problem.
This this post in Hebrew on Local Call.