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Israel: Prisoner Exchange with Egypt

(Oct. 31, 2011) On October 26, 2011, Israel's Supreme Court rejected petitions by a Knesset (Israel's parliament) Member and by nationalist and terrorism victims' organizations to void a government decision to release 21 Egyptian prisoners in exchange for the release of Ilan Grapel, a dual Israel-U.S national who had been detained in Egypt on suspicion of spying for Israel. (H.C. 7793/11 Ben Ari v. Prime Minister Binyamin Netanyahu [in Hebrew], The State of Israel: The Judicial Authority website (last visited Oct. 27, 2011).) The petitions were submitted nine days after a similar request to prevent the release of the Israeli soldier Gilad Shalit in exchange for 1,027 convicted felons to Hamas was rejected by the Court. (Ruth Levush, Israel: Supreme Court Reviews Prisoner Exchange Deal with Hamas, GLOBAL LEGAL MONITOR (Oct. 21, 2011).)

Petitioners argued that the government decision in Grapel's case was unlawful because it was approved by Israel's Ministerial Committee for National Defense and not by the full government, as required for ratification of bilateral agreements. They alleged that, unlike Shalit, Grapel entered Egypt voluntarily. In their view, “the release of convicted criminals who might continue their terrorist activities and endanger public safety was unreasonable and not proportional.” They further alleged that the government's policy created a phenomenon in which Israeli citizens are transformed into potential targets for kidnapping for ransom by any hostile element and the State of Israel is made subject to blackmail, in order to obtain a sweeping release of offenders. (H.C. 7793/11, supra.)

In rejecting the petitions, Justice Miriam Naor cited several precedents and held that the Court could only intervene in governmental decisions in rare cases involving unusual circumstances. She rejected the claim that a governmental decision in Grapel's case, in which 21 prisoners would be released, required ratification by the full government. (The court decision states that the number of Egyptians released would be 21; in fact, 25 were released.) Justice Naor held that the executive branch does not have the power to pardon convicted prisoners; the power to pardon is reserved to the President upon recommendation by the executive. According to Naor, the Grapel prisoners swap deal, including its timetable, did not present any unusual conditions that would result in a judicial intervention. (Id.; Grapel Lands in Israel After Being Freed by Egypt, THE JERUSALEM POST (Oct. 27, 2011).)