Israel 'using own detained Arab citizens as trading chips with Hamas', raising concerns for due process, civil rights

The inclusion of Palestinian prisoners with Israeli citizenship (1948 Palestinians) within the prisoner-for-hostage truce deal between Israel and Hamas has sparked controversy among lawyers and human rights activists concerned about due process and their legal and civil rights.

Out of 50 new names added by Israel to the list this week of prisoners due for release as part of the swap, 20 were female prisoners with Israeli citizenship.

The vast majority of these prisoners were arrested after the current war on Gaza which began on 7 October, but not all.

Other '48 Palestinians released were Shatila Abu Ayada from Kafr Qasem, who has been imprisoned since 2016 and was sentenced to jail for 16 years over an alleged stabbing attack, and Aya Khatib, of Arara village, who began serving a four-year sentence two months ago for 'aiding Hamas', which she denied.

"Including female prisoners from 1948 who have not yet been convicted, and who were only arrested for social media posts, within this deal, has a political goal," Hassan Jabareen, a human rights lawyer and director of Adalah – The Legal Center for Arab Minority Rights in Israel – told Al-Araby Al-Jadeed, The New Arab's Arabic-language sister edition.

"This is firstly that they can be followed up with after this deal, and secondly to serve the purpose of incitement against '48 Palestinians, by implying they supported what happened on 7 October".

He added: "We oppose this step, which it is clear Hamas didn't demand. We think National Security Minister Itamar Ben Gvir is behind it, to bolster the idea that all the arrests, and threats to freedom of expression, and freedom to protest, and the charges made against Arabs, are credible, and to strengthen the idea that 1948 Palestinians support 'terrorism'".

This step also aimed to strengthen the sense that "Palestinian female students at Haifa University, Technion Institute and Tel Aviv University, of whom a number were detained, supported the 7 October attacks, and through doing that, to justify all the repressive measures taken against them" said Jabareen.  

He believes "racist and political" motives lie behind the decision, "which weren't taken in the interest of the women".

He says the Israeli government should have released "those convicted in the "Karamah Uprising" (in 2021), who were given disproportionate sentences, and not those detained who should have been released anyway without a deal, as the charges against them are not credible".

Palestinian detainees released as part of the Israel-Hamas prisoner exchange deal have detailed the appalling conditions of Israeli jails in the wake of October 7

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Human rights lawyer Omar Khamaisi from Meezaan, a human rights organisation in Nazareth, said the decision to include prisoners with Israeli citizenship was an Israeli government one "and they would bear the consequences for that".

"Also, the post-October 7 detainees must not be made to bear the consequences of the reckless attacks and incitement began by the right-wing parties and others which aim to exploit the issue politically by mobilising the Jewish community against the Arab community".

Khamaisi said that the '48 prisoners and their families weren't involved in compiling the prisoner lists, so they have no knowledge or responsibility "regarding the legal implications this will have".

He added: "When there's a demand for all female prisoners in the prisons to be released, Israel has to put down the names of all the female prisoners, regardless of classification by faction, or nationality – whether from 1948, Jerusalem, or the West Bank.

"Therefore, ultimately, it's the Israeli government which bears the responsibility and will face the ramifications - as citizenship is a contract between the citizen and state institutions."

Lawyer Alaa Muhajana said: "The legal issue is the fact that every person who hasn't been convicted, or given a final, non-appealable decision, is still innocent. Further, the inclusion of a prisoner within the deal contains an implicit assumption that she was guilty in the eyes of the Israeli state".

He added: "There are other issues, namely, fears that freed prisoners may be sent back [to jail] or they will continue [being monitored], if the terms of the deal are violated – terms which we don't know until now."

He said that in previous deals, Israel had rearrested those released based on provisions in the deals "which permitted the rearrest of liberated prisoners according to their initial sentences, for example, if they'd been involved in a "terrorist act" or in cases of membership of an illegal organisation" as defined by the Jewish state.

Muhajana also questioned whether the move weakened the concept of citizenship: "In 1948 Palestine we have a distinct position. We are full citizens of the Israeli state.

"I am not talking about rights, as there has always been historical prejudice due to the identification of the state as Jewish. But from an official point of view, we are citizens. And furthermore - on what basis were prisoners who have not yet been tried included in this deal?"

Muhajana believes that "trading" prisoners who haven't been convicted will carry with it "political or political-legal problems".

He pointed out as one example of the repercussions of this step, is that the Technion Institution issued an official statement that if a student from the institute was included in the deals, they wouldn't be allowed to continue her education at the institution.

So far only children and female prisoners have been included in the exchange deal between Israel and Hamas.

However, there have long been calls for the release of longstanding Palestinian prisoners, including those from 1948 Palestine, some of whom are serving life sentences.

The most prominent case is Walid Daqqa, who served a 37-year sentence for his part in killing an Israeli soldier in 1986. Though he was due for release this year, Israel extended his sentence and has kept him behind bars - despite his diagnosis with a rare form of bone marrow cancer in 2022.

Before October 7, there were around 5,200 Palestinians in Israeli custody. However, after the Hamas attack of October 7, the number of Palestinians arrested has skyrocketed with over 3,000 more arrested since then.

This article is based on an article which appeared in our Arabic edition by Nahed Dirbas on 28 November 2023. To read the original article click here.