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Israel: Supreme Court Reviews Prisoner Exchange Deal with Hamas

(Oct. 21, 2011)

On October 17, 2011, several hours before the release of the Israeli soldier Gilad Shalit, Israel's Supreme Court rejected petitions by terrorism victims' organizations and by individuals to void or suspend a government decision to ratify a prisoner exchange agreement with Hamas. According to this agreement, Shalit was released in exchange for 1,027 Palestinian prisoners who will be released before completion of their sentences. According to the Court, many of these prisoners had been convicted by Israeli courts for their involvement in fatal terrorist attacks against Israeli civilians.

The Court noted that Shalit was abducted by the military wing of Hamas from inside Israel's borders in June 2006. Shalit had been held by that group since his capture, without access to the Red Cross or any other humanitarian organization. Negotiations for his release have been underway for several years, through a German mediator. The Court noted that in requesting that the government ratify the proposed exchange agreement, Israel's Prime Minister expressed his belief that the window of opportunity to release Shalit might otherwise be shut forever in view of the volatile changes currently taking place in the Middle East.

Petitioners expressed the pain caused both by the prisoners' actions and by the prospect of their upcoming release. They also argued that the release of a large number of convicted killers would enable those who had committed terrorist acts to continue their terrorist activities. They alleged that the decision on the release of convicted offenders was made without a substantive review and that there needed to be firm criteria for handling prisoner exchanges that would recognize the voice of victims. Petitioners further argued against the legality of a collective pardon by the government or by the President.

Court President Dorit Beinish, speaking for the Court, rejected the petitioners' argument regarding the danger posed to state security by the release of a large number of convicted terrorists. She noted that there was a difference of opinion between current and former top security officials regarding the dangerousness of a mass release of convicted terrorists. Such a difference, she held, may reflect personnel changes, but is mainly due to the dynamic nature of prisoner exchange circumstances.

According to Beinish, prisoner exchanges are within the authority of the Executive branch, which is responsible for handling both state security and international relations. The scope of judicial review in this case, she determined, was very limited.

Beinish rejected the petitioners' argument that the criteria for the conduct of negotiations and the determination of the level of ransom must be determined ahead of time. She doubted that rigid criteria were necessary. In her view, each case depended on the particular circumstances and required an evaluation and a balancing of competing considerations.

Beinish also rejected claims that the pardon violated the Rights of Offense Victims Law, 5761-2001. She held that the Law's provisions were not fully applicable to the special circumstances of the grant of a pardon based on an agreement entered into by the state. The current case differs from others in its special circumstances, the political and security sensitivity it presents, and the existence of a critical time table, Beinish stated. Although this Law was not fully applicable to the case, she held, victims should be provided the opportunity to be heard.

Beinish found that the petitioners were provided with sufficient opportunity to object to the prisoners' release throughout the duration of negotiations that have lasted for several years. Recognizing that Shalit's life was at risk and that any change in the agreement might endanger his life, Beinish rejected all petitions to suspend or void the agreement. (H.C. 7523/11 Almagor-Organization of Terrorism Victims v. The Prime Minister, State of Israel [in Hebrew], Judicial Authority website (last visited Oct. 18, 2011); Rights of Offense Victims Law, 5761-2001, SEFER HAHUKIM [Official Gazette], No. 1782, at 183.)