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With negotiations between the Palestinian Liberation Organization (PLO) and Israel re-commencing over the next nine months, the unsettled question of Palestinian political prisoners returns to the forefront of discussions among politicians.
Israel promising to release prisoners as a “goodwill gesture” towards the Palestinians has become standard procedure since the start of the negotiations in 1993. In line with this practice, just days preceding the return to negotiations, the Israeli cabinet voted to release 104 “pre-Oslo” prisoners in four phases during the negotiations, with the first 26 prisoners to be released on 13 August 2013.
However, historically speaking, this policy of prisoners releases has proven that it is not truly a “goodwill gesture” to build trust during negotiations, but rather is used as a tool by the Israeli government to manipulate the prisoners issues and distract from their core issues and demands. These 104 pre-Oslo prisoners were slated to be released as a pre-condition in previous negotiations that Israel has reneged on. Now, many of them serving more than 25 years in prison, and some of them with their sentences almost completed, as expected to be released in phases over the next year. However, this decision, will be determined by the Israeli government, who will decide the “condition, criteria, dates and phases” of the release, thereby controlling the entire process.
The release of these prisoners does not guarantee the end of Israel’s policies of mass detention and arbitrary arrest, nor does it guarantee the rights of over 5,000 prisoners who are currently detained, including 136 who are held under administrative detention without charge or the right to trial.
Addameer, as a civil society organization dedicated to upholding principles of human rights and international law, finds it necessary to raise concerns about Israel’s unchanged policies towards detention and impunity towards international law that are not addressed by such releases. Re-arrests of released prisoners, continued mass arrests and the policy of phased releases signify the importance of the release of all political prisoners before negotiations as well as an end to Israel detention policies.
Comparative studies of recent peace processes, such as those in South Africa and Northern Ireland, reveal the importance and centrality of prisoner releases to the greater negotiations towards a lasting peace. In a negotiated peace settlement, amnesties are often a necessary condition for putting an end to the conflict. In apartheid South Africa, the release of all political prisoners was a pre-condition before peace talks between the African National Congress and the National Party government. Prisoners often play a central role in post-conflict politics – both during their internment and after their release – and can be instrumental in addressing past grievances and in seeking justice and reconciliation.
The PLO and Israel have not secured this basic and necessary component to resuming negotiations. In fact, although Israel promises to release prisoners in every return to negotiations since Oslo I in 1993, they often renege partially or completely on the agreements, in direct violation of Vienna Convention of the Law of Treaties (1969), which affirms that agreements between two party states are binding. Indeed, over 23,000 Palestinians have been released since 1993 as “goodwill measures” during various negotiations and peace talks. However, in that same period, at least 86,000
Palestinians have been arrested, including children, women, disabled persons and university students.
Re-Arrests of Released Prisoners
The prisoners released during these negotiations are not immune to re-arrest and indictment based on their previous sentence. A dangerous provision made in the Israeli cabinets decision to release the prisoners states:
“The State of Israel reserves the right to take any means necessary against any of the released prisoners if they commit any terrorist and hostile activities as well as returning them to serve the remainder of their sentence, as will be decided by the relevant authorities.”
These prisoners are not granted amnesty for their previous convictions by the State of Israel, but instead, their sentence is considered “parole” and they are subject to re-arrest and having the remainder of their previous sentence re-imposed.
It is clear that the Israeli government is referring to Military Order 1651, Article 186, which allows for a special Military Committee to re-arrest released prisoners based on so-called “secret information” and convict them to serve the remainder of their previous sentence. For these pre-Oslo prisoners, most of who have life sentences, the stakes are high if they are re-arrested.
At least 12 prisoners who were re-arrested after their released in the October 2011 prisoner exchange are currently facing the possibility of serving the remainder of their previous sentences. One prisoner, Ayman Sharawna, engaged in a long-term hunger strike due to this policy. He was re-arrested based on secret information, and before being released following his hunger strike faced the possibility of being returned to his previous sentence of 28 years. Ayman Sharawna was forcibly displaced to the Gaza Strip when he was released, instead of being returned to his home in Hebron.
Like Ayman Sharawna, prisoners, especially those released in such deals, face the possibility of being forcibly displaced as a condition of their release. As part of release of the prisoners in the October 2011 exchange, 18 West Bank prisoners, including those from East Jerusalem, were expelled to the Gaza Strip for a period of three years, while an additional 146 were forcibly relocated there on a permanent basis. An additional 41 were deported outside of the oPt. In past deals, individuals who were expelled to the Gaza Strip for short-term periods were not necessarily allowed to return home after completing the agreed upon period.
Despite the Israeli government’s attempt at making “goodwill gestures” in negotiations by releasing Palestinian prisoners, these releases have been followed by widespread and mass arrests that increase the numbers held in Israeli jails. Addameer anticipates that the policies of arrest and arbitrary detention will continue throughout this negotiations period and afterwards, as it has in the past.
The most recent prisoner exchange on 18 October 2011 confirmed the release 1,027 prisoners in two phases in exchange for a captured Israeli Occupation Forces soldier. This deal brokered between the Hamas Resistance Movement and the Israeli government, released 477 prisoners in the first phase and 55 in the second phase, including prisoners who had life sentences and had been detained before Oslo. However, within two months of the first phase of the release, between 18 October 2011 and 15 December 2011, Addameer documented nearly 470 arrests across the West Bank, effectively detaining the same amount of Palestinians in prison as before the release. Similarly, Israel released 429 prisoners in 2007 and 770 in 2008 in the framework of the Annapolis peace process, but 4,945 prisoners were arrested in the same period, nearly three times as many as those released.
This policy of mass detention continued even during the first attempt at negotiations during the Oslo process, when the Israeli government verbally agreed to release a number of prisoners and subsequently released 970 in March 1994, all whom had served most of their sentence and not charged with serious offenses. Then, in just two weeks between 15-30 April 1994, 2,700 Palestinians were arrested, and 200 were issued with administrative detention orders and imprisoned without charge or trial.
The lack of policy change during these negotiations allows for Israel to continue its occupation and detain and imprison Palestinians without any accountability to the peace process or international law.
According to Palestinian officials, the first phase of the prisoner release will begin on 13 August 2013 with 26 prisoners being released, and then in intervals during the negotiations process, contingent on the “progress” made. It is unclear who or what will define “progress.”
A phased prisoners release can be seen as a media tactic to boost the image of the Israeli government and return to negotiations without the intention of realizing the agreements to release prisoners. The Cairo Agreement in May 1994 provisioned the release or handover of 5,000 prisoners and detainees to the Palestinian Authority within a period of five weeks. However, Israel reneged on this agreement, only releasing 4,450 prisoners, 550 which were handed over to the Palestinian Authority to finish their sentences. During the Wye River Memorandum of 1998, Israel was slated to release 750 political prisoners. Again, Israel reneged on this agreement and only released 250 Palestinian prisoners, with only 100 of them political prisoners. The Israeli authorities often blame the PA for their failure to release the prisoners, claiming that the PA does not fulfill their end of the agreement. This most recent “goodwill gesture” will in no way guarantee the release of the 104 pre-Oslo prisoners.
Furthermore, as exemplified by the first group of 26 prisoners to be released, Israel will not necessarily release all of the pre-Oslo prisoners. For example, although it is widely assumed that all pre-Oslo prisoners should be freed in this most recent deal, the list published by the Israel Prison Service (see below) includes Burham Sbeih who was arrested in 2001. No prisoners from the 1948 territories or from Jerusalem are included in the first phase of the release, and 9 of the 26 prisoners have served almost the entirety of their sentence and would have been released in the upcoming year. Israel has refused to release prisoners from the 1948 territories in the past, insisting that they are citizens of Israel, and therefore the PLO does not represent them.
The recent agreement to a prisoner release raises several additional questions: Why have marginalized prisoners, such as women, children and the ill, been overlooked in this prisoner’s release? Why have the current hunger strikers, many who are nearing death, not been mentioned?
It is clear that in the most recent prisoners release the prisoners are used as “bargaining chips” by the Israeli government to subdue the Palestinian and international community in order to continue negotiations – and effectively continue the colonization of Palestinian land.
In fact, on the same day that the Israeli government voted to release the 104 pre-Oslo prisoners, demonstrations erupted in Ramallah and Gaza against the return to political negotiations. In Ramallah, the Palestinian Authority police, the Palestinian brokers in the negotiations, suppressed the demonstrations, beating dozens of demonstrators and arresting four, three of them from Ramallah Hospital as they were being treated for injuries sustained from the attack.
These trends and incidents call for a new direction in the role of the prisoner’s movement in the negotiations. The Palestinian Authority, instead of settling for the promise of prisoners releases that have been reneged on for over 20 years, must demand a change in policy regarding Palestinian prisoners –the immediate halt to arbitrary detention policies, arrests of young children and the egregious treatment of the Palestinian prisoners, including torture, medical negligence and inhumane living conditions. Without a change in policy, the continued prisoner releases will not bring any justice to the case of the Palestinian political prisoners nor can there be a sustainable, lasting peace.
For a detailed timeline of detentions and releases during the peace process, please see Addameer’s paper “Reaching the No Peace Agreement: The Role of Palestinian Prisoner Releases in Permanent Status Negotiations” (link)