Monadel Nafe'at was the last of the six prisoners who escaped from Gilboa Prison to be apprehended. The 25-year-old Palestinian Islamic Jihad operative was caught in a raid by the Border Police counter-terror unit. Nafe'at was not a big-name figure. He has been in administrative detention since 2019 on charges of weapons dealing and was in talks with military prosecutors over a plea bargain that would have seen him released within a few months. He wasn't on the scale of Zakaria Zubeidi, another of the escaped prisoners, and if he hadn't taken part in the prison break, then he would probably never have made the headlines.
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Ten years ago, Nafe'at was also an unknown security prisoner. He had been arrested in February 2011 for throwing a firebomb and was jailed for 11 months. However he was released in December of the same year during the second tranche of the Schalit deal, in which a total of 1,027 Palestinian prisoners were exchanged for the kidnapped IDF soldier Gilad Schalit.
Nafe'at is not the most dangerous prisoner to have returned to terrorist activities, even if he was the latest one to become a headline name. From time to time we hear about a terrorist attack, a terrorist plot, or the transfer of money to Hamas, attributed to "prisoners released in the Schalit deal."
In 2017, then-Defense Minister Avigdor Lieberman said that 202 prisoners released in the Schalit deal had been re-arrested by security forces. Today, some 70 of those released are being held by the Israel Prison Service.
In the decade since the return of the Israeli soldier, 10 Israelis have been killed in attacks carried out directly or indirectly by prisoners released in the Schalit deal: Israel Police Chief Supt. Baruch Mizrahi was killed in a shooting near the Tarkumia checkpoint, while travelling with his wife and four children to celebrate Passover; the three teenagers Naftali Fraenkel, Gil-Ad Shaer, and Eyal Yifrah, who were kidnapped and murdered in 2014 in an incident that led to the launch of Operation Protective Edge; Danny Gonen, who was murdered in 2015 at a spring near the Dolev settlement; Malachi Rosenfeld, who was murdered in 2015 in a shooting near Shvut Rachel; Rabbi Michael (Miki) Mark, shot dead in a drive-by shooting on Route 60 in the Mount Hebron area; IDF Sgt. Yosef Cohen and Staff Sgt. Yuval Mor Yosef, murdered in 2018 in a shooting at the Givat Asaf junction near Ofra; and Amiad Israel Ish Ran, who died a few days after being delivered in an emergency caesarean section after his mother was seriously wounded in a shooting on Route 60 in the 30th week of her pregnancy.
Mizrahi's widow, Hadas, says she had been opposed to the Schalit deal. Her husband was killed by Ziyad Awad, who was released in the deal. He had originally been jailed for the murder of four Palestinian collaborators.
"If my son had been kidnapped as a soldier, there would have been ways to release him. Israel is strong enough. It has a strong government and the IDF and Israeli intelligence are among the best in the world. We saw the results of the Jibril deal [a 1985 prisoner exchange in which Israel released 1,150 prisoners for three Israeli soldiers captured during the First Lebanon War] and other prisoner swaps where those released returned to terrorism.
"Awad's father was among those released in the Jibril deal, and he himself was released in the Schalit deal. His 18-year-old son was involved in the attack and his wife hid the weapon. The whole family was involved. The terrorist Awad said at his trial, 'Never mind; I'll be released shortly.' He served 10 years in prison and I until my dying day will bear the pain of loss and the pain of my injuries from the attack. They destroyed our family."
Q: Are you afraid that another exchange deal will be made?
"Of course, but I won't let that happen. I will fight till the end. Not a single terrorist can be freed. Because a freed terrorist is a potential terrorist attack. I will fight with my children, with my friends, with the entire People of Israel. We will stop trucks headed to Gaza. If the State of Israel, thinks even for a second about freeing terrorists we will block Gaza. I support the death penalty. If the state had dealt with terrorists the way it should, my husband would not have been murdered.
"Haven't we learned from previous prisoner swaps? Haven't we seen the results? There are so many lessons to be learned, how can we even talk about the possibility of future prisoner deals? We have to prevent the next terrorist attack," she says.
The Schalit deal caused a public furor when it was in the works. All the more so when it transpired that among the prisoners being released were 280 who had been sentenced to life in prison, including Nasser Yatima, who was given 29 life sentences for his part in the 2002 Park Hotel bombing in Netanya, which killed 30 people. Another of those released was Majdi Muhammad Ahmed Amr, who was sentenced to 19 life sentences for his part in planning the suicide bombing on the No. 37 bus in Haifa, also in 2002, in which 17 people were murdered.
After Schalit was kidnapped, the government formed the Shamgar Commission, headed by retired Supreme Court Justice Meir Shamgar, to set guidelines for negotiations for the release of Israeli prisoners and MIAs. Members of the commission included Defense Ministry Director General Maj. Gen. (res.) Amos Yaron and Professor Asa Kasher, a specialist in military ethics.
The commission was appointed in the wake of public criticism following previous swaps. In 2004, the bodies of IDF soldiers Adi Avitan, Omar Sawaid and Benyamin Avraham, who were killed and abducted in a Hezbollah attack on Mount Dov, were returned to Israel along with Elhanan Tannenbaum, an Israeli civilian held by Hezbollah, in exchange for 400 terrorists and another 35 additional prisoners, among them Abdel Karim Obeid and Mustafa Dirani, who had at one point held missing IAF navigator Ron Arad.
Four years later, Israel received the bodies of fallen soldiers Eldad Regev and Ehud Goldwasser in exchange for the murderer Samir Kuntar, who in 1979 took part in an attack in Nahariya in which three members of the Haran family and a policeman, Eliyahu Shachar, were murdered. Together with Kuntar, Israel also released four other prisoners and the bodies of 199 enemy fighters.
"I was opposed to the Kuntar deal," says then-Justice Minister, Prof. Daniel Friedmann. "The enemy didn't even want to reveal to us whether the soldiers were dead or alive. They said to us 'you will have to release prisoners just for us to tell you what this is about.' Still, the Kuntar deal was far more reasonable than the Schalit deal. We have reached a situation where we are paying for things that we should get under international law."
"In order to save the life of a soldier, do you sacrifice many lives and remove the element of deterrence?" he asks rhetorically before shooting back quickly.
"Now the terrorist organizations say to their people, 'What are you worried about? You got a life sentence? We'll kidnap someone.' Israeli deterrence has collapsed. I don't know of another country where hundreds of prisoners who participated in awful crimes are released wholesale. A life sentence is a worthy punishment, but it must be fulfilled. To mete out punishment and then not to fulfill it is a display of weakness. If someone knows that for one Israeli captive they can release a thousand terrorists, their appetite will only grow."
When the commission was appointed it was instructed to present its findings only after Schalit was released. They were submitted in 2012 and classified. The conclusions were around 100 pages long and remain classified, inter alia because of a Shin Bet security agency document that predicts how many of the prisoners released were likely to return to terrorism, and because of the formula it determined regarding how many terrorists would be released for a soldier, civilian or a body.
One of the findings that was released in the media was that "there should be a complete disconnect between the families of the prisoners and decision makers so as to prevent undue pressure."
A person in the know of the details claims that the secrecy of the findings has been maintained for several reasons. "First of all, it's preferable that Hamas not know what our red lines are, that will certainly help in negotiations," he explains. "Then there is another opinion that claims that politicians don't like when you give them red lines. They don't want to be restricted."
To this day, a decade after the release of Schalit, the commission's members have yet to be invited to present their findings to the government. And in any event, none of the conclusions have been adopted.
"They wrote down a price list for prisoner swaps," says Yoni Ben-Menachem, former director-general of the Israel Broadcasting Authority and today a researcher at the Jerusalem Center for Public Affairs. An expert in Arab affairs and a strategic adviser on the Middle East, he says that "no one has adopted the commission's findings and it isn't at all clear why. It doesn't matter who the prime minister is; that's not how to handle things."
"I'm familiar with those who say let's set a price list," says former Mossad official David Meidan, who served as Benjamin Netanyahu's coordinator for POW and MIA affairs and was in charge of negotiations with Hamas. "Life is a lot more powerful than any price list. In the end when you negotiate you understand that determining in advance a price tag of a prisoner for a hostage may sound nice, but it's not practical.
"I appeared twice before the Shamgar Commission. I don't have a bad word to say about its members, they are all very respectable and serious people. But there is a reason that no government has adopted its recommendations. The reason is simple – when you're in government you have to make practical decisions. As someone who has been a commander, I know that the last thing you suggest to a commander is to give orders that he knows his soldiers won't be able to follow, because then he will have no authority."
Meidan, who was the first Israeli to meet Schalit at the Kerem Shalom border crossing, says: "I would do it all over again. When people talk about cost versus benefit, they need to understand that if we hadn't freed Schalit, then without declaring it we would have been saying that we would let a soldier die in captivity – with all the implications that brings. We had no other alternative.
"Schalit spent five years and four months on the other side of the border. No other Israeli spent so much time in captivity and returned alive. Throughout that period we had no intelligence indicating what his situation was. The only thing we had was a video released in 2009 in which he appears skinny and emaciated, but alive.
"The question that was in the balance was, in the absence of intelligence and without a military operation on the horizon do you abandon him, or do you negotiate and pay the least worst price to get him back. Negotiations aren't a pleasure. Signing off on the release of prisoners serving life sentences isn't something that gives you satisfaction. You do things because you have to, and in retrospect I would say that the decision was the correct one. The number of prisoners who returned to terrorism can be counted on one hand."
Q: Nevertheless, you still let killers back out on the streets.
"During the final rounds of negotiation I was joined by Yoram Cohen, who at the time was head of the Shin Bet. At the end of the day it is the Shin Bet that has to take responsibility. It has to decide whether to release Ahmed or Mohammed. It takes the gamble, and it deals with it very well. If you look at the things without applying demagoguery, you will see that there were a lot of terrorist incidents over the past decade – attacks on the Temple Mount, at Sarona Market, on Dizengoff Street -- and 98-99% of them had nothing to do with the Schalit deal.
"One of the things we have learned is that when released prisoners return to terrorisim, it has nothing to do with personality or how many people they killed before. It's more about the climate within their organizations. If the organization is headed for an intifada, they will be part of it, and if the organization is moving to peace and reconciliation, they will be part of that. I don't want to play it down; some very serious terrorists were released, but most of them didn't return to action. It was a low level operative, one who nobody talked about, that killed Baruch Mizrahi on Passover eve. That just goes to show that the rank released doesn't matter."
Prisoners released in the Schalit deal can be found in the most influential positions, such in the Hamas leadership.: Ruhi Mushtaha, one of the founders of the military wing of Hamas and was involved in the kidnapping of Nachson Wachsman; Taufik Abu Naim, the head of the Hamas security apparatus in the Gaza Strip; and of course Yahya Sinwar, head of Hamas in Gaza and one of the founders of its military wing. In 1989 Sinwar was sentenced to five life sentences for murdering collaborators. Immediately upon his release, Sinwar promised that he would not rest until all the organization's prisoners in Israeli jails were released.
"Sinwar was perhaps the first prisoner whose release was agreed," says Meidan. "One of the things you learn in cases like this is that there are many shades, even in black. I don't want to play down any murder, Sinwar murdered five collaborators and that's awful, but when you look at the black, you say to yourself 'it isn't the Park Hotel massacre and it isn't the Dolphinarium massacre, and it isn't the murder of Minister [Rehavam] Ze'evi.
"There were a few symbolic figures that we refused to release at any cost, including Marwan Barghouti, who planned bus bombings. My last argument was with regard to Barghouti and in the end we kept him.
"The initial agreement was for 450 prisoners. When I started negotiating the figure was a done deal and the argument was about which prisoners would be included in that number?"
Q: How did we end up releasing 1,027 prisoners?
"At one stage in the negotiations (in 2009, when Ehud Olmert was prime minister) then-Egyptian President Hosni Mubarak and PA leader Mahmoud Abbas said that the deal was bad for them because it strengthened Hamas. Olmert decided to compensate them. He said 'let's give the PA more prisoners than Hamas is getting.' If they [Hamas] are getting 450, then the PA will get 550, but we will choose them. In other words, low-level prisoners. Around 300 of those released in 2011 were due to be released within the year, and 27 of them were women.
"It wasn't an easy deal, but it was also one of Israeli society's finest hours. We showed solidarity. A whole country stood behind a soldier who was captured in battle, not kidnapped while sitting in a bar on Dizengoff. Schalit was in a tank on the border. His comrades were killed and he was captured. So with all the pain and the heavy cost, the decision was the right one."
In early October 2011, shortly before Schalit was released on the 11th of the month and immediately after the lists of prisoners slated for release were submitted, a round table was held at the office of the director-general of the justice minister, Dr. Guy Rotkoff. Shin Bet, Israel Prison Service, and justice ministry representatives attended the meeting.
An in-depth discussion was held regarding each security prisoner who appeared on Hamas' list: what has he been convicted of, how he had behaved in prison, and how much blood he had on his hands. There were frequent arguments between the various participants regarding some of the names submitted – these arguments would go as far as Cabinet meetings with the prime minister.
"Over time, the Jibril prisoner swap, which had originally set the upper level [for prisoner releases] became the lower threshold," says Rotkoff. "It was the first time we agreed to pay those kinds of prices, and after that the sky was the limit. In the Schalit deal, the other side gave us a list of names that were their condition, and if we wanted to change anything it was at the fringes. We could only remove a few names.
"It was really difficult for me, but as a director-general you carry out government policy up to the point you define as your red line. From my perspective it didn't pass that point."
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One person who felt that his work was abrogated by the Schalit deal was Lt. Col. (res.) Maurice Hirsch, who served in the Judea and Samaria military prosecution, and in 2013 was appointed Chief Military Prosecutor for the territory.
"The release of terrorists was a very difficult event; there were prosecutors who went through many sleepless nights to get them into jail, and in one fell swoop all those prisoners were released," says Hirsch. "Over the years, in the framework of my various positions, I also served as a member of the justice ministry committee that would review who was eligible for release, so of course we take into account that some of them may return to terrorist activities. But we try to minimize damages, certainly when it comes to murderers and others serving life sentences.
"In this particular instance, part of the solution proposed was to deport a large number of the terrorists outside of Judea and Samaria. This created a situation whereby the backbone of Hamas sat in Gaza and directed operations from there, including in Judea and Samaria. Other operatives went to Turkey, and then there is the monster Ahlam Tamimi, who to this day sits in Jordan – she drove the terrorist who carried out the Sbarro restaurant bombing in 2001 in which 15 people were killed, and she smiled when she found out that eight children were among the dead."
In March, Interpol dropped Tamimi from its most-wanted list, but she is still wanted by the FBI because two of the victims of the Sbarro attack, Malki Roth and Judith Greenbaum, were American citizens. The US Rewards for Justice program is offering up to $5 million for information leading to her arrest or conviction and she is defined as "armed and dangerous."
But the Americans, despite their declarations, are not investing every possible effort into finding Tamimi, who since her release has not even tried to hide. If the US authorities wanted to find her they could ask Arnold Roth, the father of Malki Roth, who was just 15 when she was murdered. For years he has been trying to point them to Jordan.
"Tamimi is the most wanted woman in the world, and everyone knows where she lives," says Roth, whose family receives support from the One Family NGO, which helps terror victims and their families.
"Ten years ago. I was in Washington and I met with the Feds and the American justice ministry, and since then they have repeated the same absurd mantra – 'she is top of our agenda' – but they don't do anything.
"I know everything about Tamimi. She has a weekly web column, she appears every week on Jordanian televisions, usually about affairs she writes about - the Palestinians, prisoners, human rights. Since October of last year she has been living separately from her husband, who was deported by the Jordanians to Qatar [Jordan refused to extend his residency visa.] She stated in the media several times that she has no intention of joining him, and that her life would be in danger if she leaves Jordan."
Q: What do you think of the fact that Interpol has dropped Ahlam Tamimi from its most wanted list?
"In the Arab world, people claimed that Jordan had managed to persuade Interpol that the Zionists were lying and that the case against her was closed. But that's fabricated. Interpol dropped her from its list because Tamimi won't budge from Jordan, and Interpol has no authority there. The Jordanian police arrested Tamimi in 2016, but the magistrate's court released her the next day. I don't put any importance on Interpol. As long as she is in Jordan, it's a political affair, not a legal one. We want justice and we will continue to strive for it, because no one else but us will do so."
In the summer of 2014, during Operation Protective Edge, the Knesset Foreign Affairs and Defense Committee debated proposed legislation on the release of prisoners due to political or security considerations. Among those present was the then director-general of the justice ministry Emi Palmor, who updated the committee on the release procedure in the Schalit deal.
"In the case of the Schalit deal an unprecedented was prepared," Palmor told the FADC at the time. "There were endless conditions, the violation of each of which would allow for the re-arrest of a prisoner, including on the same morning they were released. There was a clause there that enabled us to re-arrest them while they were still on the bus."
"We insisted that the releases would be conditional, among other things because we knew that things were very fragile and could change at any moment. In other words, even when the prisoners were already on the bus, the President still had a way to rescind and return them to jail. After that we introduced far-reaching terms that were unprecedented when it comes to pardons – even the most minor violation, with sentencing of three months and above, could send someone to resume their life sentence, 20 life sentences and so on."
On the issue of deterrence, Palmor requested to note that "within the framework of the Schalit deal, 10 of those released but not allowed to return to their homes were given the option to return after a year, subject to approval from the Shin Bet. Not one of them chose to return, among other things because they understood the significance of these conditional mechanisms. They stayed overseas or in Gaza."
Hirsch remembers the period before Operation Protective Edge when the judicial system was finding it hard to deal with the number of prisoners released in the Schalit deal who had been re-arrested.
"The first tranche of the Schalit deal took place on October 18 and included the release of 477 terrorists," says Hirsch. "From that group, the terrorists went all over the place, some of them to Gaza, including Judea and Samaria residents who were sent there as part of the conditions for their release. About 120 of them were released to Judea and Samaria and to Arab communities in Israel. The release was conditional on them not committing any further offences.
"From October 2011 to July 2014 only a few of them were arrested for activities that constituted a violation. In July 2014, the three teenage boys were kidnapped in Gush Etzion, leading to the arrest of many terrorists, only one of whom had been released in the Schalit deal.
"After that we said to ourselves let's check who among those released has violated the terms, and within three days we had arrested 60 out of 120 people we had access to for conducting various terrorist activities. An incredible figure."
Q: Did you think the numbers would be any different?
"Not at all, I thought the prisoner release was a bad idea from the start. It was obvious that a lot of them would return to terrorism, because we didn't act to create deterrence. If the state had acted immediately with the first violation of conditions, things could have been much better. How did we reach a situation where in 2014 there were 60 people who violated their terms? 50 of those arrested were sent to appear before a judicial committee affiliated with the military courts, and the remainder were brought before the Israel Prison Service parole board to discuss whether they have violated the terms of their release. It was proven with regard to all of them that they had, and they were re-imprisoned to serve the remainder of their sentences."
One of the prisoners to be re-imprisoned was Samer Issawi, a resident of Issawiyeh in east Jerusalem, who was originally detained in 2002 for membership in the Democratic Front for the Liberation of Palestine. In June 2012, less than a year after his release, he was arrested on charges of violating the terms of his release by leaving Jerusalem, and the Shin Bet said that it had intelligence proving that he planned to return to terrorist activities.
In August 2012, launched a prolonged hunger strike that lasted on and off for more than 200 days until he reached a deal with the IPS, authorized by then-Prime Minister Benjamin Netanyahu, that he would be released under restricted conditions. Shortly before the deal was made, a security prisoner had died leading to riots at Megiddo Prison, and the IPS was concerned that if anything happened to Issawi, further disturbances could erupt.
"Samer Issawi forced our hand and we had to release him again in exchange for him calling off his hunger strike," says Hirsch. "Unfortunately I had to present this shameful position to the courts. We stated that we were willing to release him as part of an agreement for him to call off his hunger strike."
Issawi wasn't the only one to use a hunger strike. Ayman al-Sharawana, a Hamas operative from the Hebron area who was sentenced to 38 years in jail for a series of terrorist offences, including placing an explosive device in Beersheba that injured 19 people, was released as part of the Schalit deal, but was jailed again for returning to terrorist activities. After a 53-day hunger strike, during which there were demonstrations in Judea and Samaria calling for his release, he was exiled to Gaza.
But even in Gaza he didn't halt his terrorist activities. In May 2013 Al-Sharawana gave an interview to a Lebanese TV channel, Al-Mayadeen, in which he said that he had returned to the Izz ad-Din al-Qassam Brigades, the military wing of Hamas. The correspondent described how Al-Sharawana would put on a uniform and go out on operations in the evenings.
Some of those released in the Schalit deal had been militant while in prison and continued to be so after their release. Mazzen Faqha, a senior Izz ad-Din al-Qassam Brigades member from Tubas in northern Samaria, was sentenced in 2003 to nine life sentences and an additional 50 years for his part in a suicide bombing on the 361 bus at Meron Junction in which nine people were murdered.
Following his release he was deported to Gaza, from where he continued to plan terrorist attacks in Samaria. One of his most loyal operatives was Ahmed Zahran, the head of a terror cell eliminated in an IDF raid near Jenin in late September. In March 2017, Faqha was shot in the head in the southern Gaza Strip. At first it appeared Israel's long arm had reached him, but it transpired that he had been shot by a fellow Hamas operative seeking revenge for his dismissal from the organization. The killer was later executed by Hamas.
The IDF did get its hands on Muhammad Fakia, who was jailed as a Palestinian Islamic Jihad operative but crossed the lines to Hamas while behind bars. Fakia was released in the Schalit deal and returned to the village of Dura near Hebron, where he had grown up. It was from there that in July 2016 that he conducted the fatal terrorist attack on route 60 that claimed the life of Rabbi Mark.
Less than a year later he was killed in an exchange of fire with IDF, Shin Bet and Israel Police counter-terror forces, who fired an anti-tank missile at his hideout after he opened fire on them. Fakia became a martyr and local hero after his death. On the day he was killed a large march was held in his memory, with Hamas leader Ismail Haniyeh eulogizing him via phone.
While some of the prisoners released were directly involved in terrorist attacks, many others were involved behind the scenes in organizing attacks. Hussam Qawasmeh who mastermind the kidnapping and murder of the three Israel teens in 2014 told the Shin Bet during his interrogation that it was his brother Mahmoud, who had been released in the Schalit deal and deported to Gaza, who had transferred 220,000 shekels to him to carry out the operation.
Salim Juaba, who was sentenced to four years for helping smuggle mobile phones to prisoners at the Eshel Prison, is suspected of having been operated by Bassim Kurad, who was deported to Gaza in the Schalit deal. Kurad sent Juaba to a money changer who on four separate occasions handed over to him a total of 340,000 shekels ($105,000) that he used to purchase the mobile phones.
On the other hand, Media claims that most of the prisoners aren't interested in resuming terrorist activities. "Do you remember Mona Awana?" he asks. "The Christian Arab who in January 2001 tempted a teenager, Ofir Rahum, from Ashkelon and drove him to the suburbs of Ramallah, where he was shot dead?
"Awana was sentenced to life in prison and was released in the Schalit deal. Today she lives in Turkey and has nothing to do with terrorism, she's in a completely different place. She is horrible, awful and from a moral point of view would never have been released, but she is a horrible person who has left the way of terror and is today taking care of herself. Most of them are like that.
"In the discourse of demagoguery that has emerged, when people say that someone who was released spoke on the phone about transferring funds for an attack, they don't mention that prisoners speak from jail about funding attacks. It doesn't matter whether that operative is in Bethlehem, Hebron or Hadarim Prison.
"When it comes to the test of reality, 10 years have gone by and most of the prisoners have not returned to terrorism, and all the forecasts that rivers of blood will flow and there will be a third intifada have not materialized."
One person who has spent a lot of time interviewing security prisoners while they were in jail is Yoram Schweitzer, a senior researcher at the Institute for National Security Studies. Schweitzer specialized in researching suicide attacks, and spent two-and-half years meeting and talking with dangerous security prisoners.
"I sat down with a lot of them in long, intimate conversations," says Schweitzer. There are those who during their time in jail became less militant. Others such as Ahlam Tamimi, for example, showed no change. Like Samir Kuntar, she continued to spout abuse even in background conversations and not just formal interviews. But you have to know that only a few returned to terrorism, and if you look at it in a rational and calculated manner, then most likely if they hadn't done it others would have been sent on the mission.
"The question wasn't whether they would return to terrorist activity. Prisoner swaps are part of the risk society takes upon itself in order to uphold the values that enable mothers to send their children to battle, knowing that if something goes wrong everything possible will be done to bring the boys back home."
Q: So prisoner swaps are acceptable from your point of view?
"One has to take into account that Hamas and Islamic Jihad in the south, and Hezbollah in the north, have become terrorist armies. If there is a war and prisoners are taken, then despite the stench we will have to make deals with these armies and with people that murdered Israelis in terrorist operations. We will face a different challenge, because when you negotiate with an army it is on the face of it legitimate. We will face a heart-wrenching, but practical dilemma. We can call them terrorist organizations all we want, but we will have to negotiate with them.
"What do you think would have happened if in November 2018 the special forces unit that got into a firefight in Gaza would have remained there? [the failed IDF operation near Khan Younis in which Lt.-Col. M. was killed. E.L.] I would like to see what all the heroes would say then."
Both former justice minister Friedman and Hirsch believe that the time has come that Israel, in such cases, employ the Detention of Unlawful Combatants Law passed in 2002 after the High Court of Justice ruled that the defense minister has no authority to hold Lebanese citizens in administrative detention as bargaining cards.
According to the law, an unlawful combatant is "a person who took part in hostilities against the State of Israel, whether directly or indirectly, or who is a member of a force carrying out hostilities against the State of Israel, who does not satisfy the conditions granting a prisoner of war status under international humanitarian law, as set out in article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War;…"
"Let's assume that Hamas terrorists were sentenced to a specific term and had completed that sentence. The question is whether they should be released and then will be able to return to all activities," explains Friedman. "The law allows them to continue to be held without trial under a detention order that undergoes judicial review, in cases where there is danger, but it is not used. There is a reluctance to use means that we are allowed and need to use, measures that I believe meet international standards."
Hirsch also supports the use of the law: "The more you hold people from the command level, the more you succeed in preventing them from dragging us into debates about freeing murderers. Regretfully, the judicial system is conceptually ossified and has not found a way to continue to hold these people in prison even after completion of their sentence. I my opinion in order to receive the bodies of our soldiers the state should not release terrorists to Gaza, but should simply hold them as unlawful combatants, and peace be upon Israel
Q: Should the state hold prisoners for an indefinite period of time?
"In principle we are talking about a situation that is similar to the status of a prisoner of war, because after all we are talking about unlawful combatants. They should be held until the conclusion of hostilities and until there is no further danger from their organization. That is definitely something that could be done
The Schalit deal most likely won't be the last. At present, the bodies of Lt. Hadar Goldin and Staff Sgt. Oron Shaul, who were killed in action in Operation Protective Edge, are being held in Gaza, along with three captive civilians, Avera Mengistu, Hisham al-Sayed, and Juma Abu Anima. Negotiations over their release are constantly in the air.
"It is a battle between two values that are both right," says Schweitzer. "Those that say you must not give in, and you must not pay such inflated prices, are right, and on the other hand so are those that support the value of bringing prisoners back home, and even risking soldiers' lives to do so, if there is an option.
"The Americans are always given as an example of a country that doesn't give in to terrorism, but they did a deal to release a deserter, Bowe Bergdhal, who was taken captive by the Taliban. The Americans released five Al-Qaida and Taliban to get him back."
When I was involved in negotiations, I wasn't sufficiently aware of the impact on the public," adds Meidan. "I was focused on how to find a crack to squeeze through and get the affair over with. There was a broad consensus among the public – I believe that more than 80% supported the deal – that releasing the prisoners was not something good and it was something done due to constraints and not something to be happy about."
Q: Will the other side raise the price in future deals?
"That is the theory. The thing that is on the table right now is two bodies and three civilians. That is in the category of humanitarian negotiations. It is not a soldier captured in battle and still alive. So in my opinion the negotiations should take place in a humanitarian framework, and here I am willing to be generous and even to come out a sucker. I'm willing to give a lot, because I gain twice – I gain what I want, and I am happy to help the other side out from a humanitarian perspective.
"I am sure that if you dig deep you will find among the thousands of security prisoners dozens who have cancer, are receiving dialysis, and perhaps those are mentally ill. I would put a package like that together and publish it, because how you present things is important. Add to that package the construction of a hospital or a large clinic, of course on condition that the Egyptians lead the deal, because only they know how to talk to Hamas. Of course that doesn't mean it's easy, but there are no easy deals.
