By Daoud Kuttab

If there were a case that could illustrate the disagreement between Israel and the Palestinians, the Shalit prisoner exchange deal could be the one.

Various aspects of any such exchange, and the way different issues are being spun politically, are illustrative.

Legally, Israel refuses to recognise the over 10,000 prisoners it is holding as being prisoners of war. Nor does it accept that these prisoners deserve the title of “protected individuals”, to which the Geneva Convention applies. The convention regulates how an occupying power is supposed to deal with civilians under its occupation. Israel does not accept that it is an occupying power.

The Fourth Geneva Convention, which was drawn up after the Nazi occupation of much of Europe, was agreed upon specifically to regulate the actions of a prolonged occupying power. Most international legal experts believe it to be the most appropriate and applicable international legal framework.

One stark violation of this agreement is in the area of the rights of Palestinian prisoners in Israel, who are routinely denied basic rights, including the right of family visitations because of the inaccessibility of Israeli prisons to over 90 per cent of Palestinians living in the occupied territories.

Only those with family members living in East Jerusalem (which was unilaterally annexed by Israel), or those fortunate enough to get a once in a while permit by way of the Red Cross to visit their loved ones.

By refusing to accept the conflict between Israelis and Palestinians as being war, Israel refuses to apply the definition of either “prisoners of war” or “revolutionaries” to those it holds in its prisons, as the first protocol of the Geneva convention, which was signed in 1977, would require. Legal experts insist that Article 43 of this convention considers some Palestinian detainees “prisoners of war”.

While Palestinians consider their prisoners to be political prisoners or liberation fighters, Israel considers them terrorists who do not deserve the same rights and treatment it gives to civilian inmates.

Israel and its propagandists blast Hamas for not allowing the International Red Cross to visit its prisoners; they also decry the fact that Israel is trading hundreds of Palestinians for one Israeli. Palestinians say that Israel regularly arrests as many Palestinians as it wants every day, holding many without trial or charge. They also point out the lopsided number of Palestinians killed in Gaza (over 1,000), compared to the about 10 Israelis that were killed (some from friendly fire) in that conflict.

If press reports about the refusal of Israel to release prisoners from East Jerusalem are correct, this will reflect one more area in which the Israelis expect the world to respect their unilateral decision to consider East Jerusalem part of the occupied territory.

Furthermore, and according to international law, once occupation ends, the occupying power is obliged to release prisoners because it is illegal to transfer prisoners (Article 76) from the occupied areas to the occupying country.

Israel refused to do that after the signing of the Oslo Accords, when it withdrew from all major Palestinian cities; neither did it do so after the Israeli army left Gaza Strip. In both cases, Israel illegally transferred prisoners held in the occupied territories to prisons inside Israel.

Ironically, when the Israeli army regrouped its military forces on the international borders with Gaza, the Israeli government asked the world to consider the occupation of Gaza ended, without agreeing to release Gazan prisoners, keeping them, instead, in Israeli jails.

Politically, a prisoner exchange leaves many questions unanswered. Both Israel and Hamas refuse to recognise each other, yet they have both found it convenient to negotiate via a third party (Germany and Egypt).

Therefore, the prisoner exchange reflects the absurdity of Israel’s policy which will reward Hamas while the latter refused to honour the commitments of the roadmap, which call, among other things, to a freeze of settlement activities in the occupied territories (which are also in violation of the same Geneva Conventions).

Palestinians complain that Israel rewards Hamas while denying the moderates the same treatment. They point out that repeated requests from Palestinian President Mahmoud Abbas to end settlement activities in areas earmarked for the internationally accepted lands for a Palestinian state are rejected.

Also denied has been the repeated Abbas request for the release Marwan Barghouthi, a well-known, rather moderate, Fateh leader.

Palestinians are looking for the day when all prisoners are released, not in an exchange that is forced on Israel but rather as a result of making the wrong right, ending the occupation and allowing for an independent Palestinians state alongside a safe and secure Israel.

26 November 2009, The Jordan Times

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