The treatment of Israeli prisoners by Palestinians and Hizballah, and correspondingly the treatment of Palestinian prisoners by Israelis, in many ways hold a kind of mirror to the conflict as a whole.
The two most recent prisoner cases that attracted broad local, regional and international attention involved the Israeli Gilad Shalit and the Palestinian Khader Adnan. Shalit, an abducted Israel Defense Forces soldier, was held incommunicado for more than five years by Hamas and affiliated organizations in the Gaza Strip. He was finally released last autumn in exchange for more than 1,000 Palestinian prisoners. Adnan, an Islamic Jihad activist, has been held by Israel under administrative detention for several months. He went on a prolonged hunger strike that led, just last week, to Israeli agreement to shorten his jail term and release him in April.
These two affairs illustrate everything that is problematic or downright wrong in each side's treatment of prisoners from the other.
Hamas' incarceration of Shalit violated every accepted rule of treatment of prisoners-of-war, political prisoners, or any other kind of prisoners: no Red Cross visits, virtually no communication, poor nourishment and little health care. On other occasions, dead Israelis in Hizballah hands have been represented in a macabre fashion as live prisoners for the purpose of bargaining. There is nothing new here; this is how Israeli prisoners have been treated for decades by non-state actors who call for its destruction, and at times by Arab state neighbors as well, such as Syria in the 1950s and 1960s.
This treatment is inexcusable in any context. Yet it is relevant to inquire why Hamas and before it Hizballah went to such extremes to abduct and hold Israelis, alive and dead. The answer lies at least partially in Israel's treatment of Palestinian and other prisoners held on terrorist charges. For the most part due process is observed, conditions of incarceration are reasonable, Red Cross supervision is honored and under some circumstances family visits are permitted. But the length of sentences is draconian.
Hamas and Hizballah know that their combatants who have killed Israelis or been involved in attacks on Israelis will never get out of jail unless they are ransomed. If their families want to see them home again, virtually the only way is a prisoner exchange.
Were Israel to treat all terrorists equally, it might be harder to challenge this approach. But that is not the case. A Hamas terrorist who murders seven Israelis will routinely be sentenced to seven life sentences. An Israeli who kills seven Palestinians, in cold blood and unprovoked, can expect to be released at some point, and in the meantime will enjoy far more humane conditions of incarceration. Such is the case of Ami Popper, who murdered seven Palestinian day laborers in 1990. His life sentences have been commuted to 40 years, and more appeals for clemency are pending. (Minister of Justice Yaakov Neeman was recently recorded instructing right-wing activists how to draft appeals for offenders like Popper.) He has married while in jail and enjoys conjugal visits. He gets weekend furloughs.
If Palestinian terrorists in Israeli jails enjoyed conditions anywhere proximate to Popper's, we might experience fewer brutal attempts to abduct Israelis, alive or dead, in order to ransom the Palestinians.
One reason for the disparity is legal: Palestinians are generally tried under the military laws prevailing in the West Bank, whereas Israelis are tried under Israeli civil law. But that military sentences can be commuted in a flash is illustrated whenever hundreds of prisoners have to be released in exchange for a single Israeli like Shalit.
The record shows that a worrisome percentage of Palestinian terrorists released in prisoner exchanges return to terrorism and kill more Israelis. Several Islamic Jihad activists released by Israel in the Shalit exchange have already reportedly reverted to terrorism. The Shalit case has prompted a degree of soul-searching in Israel regarding the need to drive a far harder bargain in exchange for the next abducted Israeli. The authorities should look not only at the exchange negotiation process, but at the jail sentences and conditions meted out to Palestinians that encourage abductions.
This brings us to the Adnan case, which put the spotlight on administrative detention--incarceration without due process and without trial. Adnan is an activist in Islamic Jihad, an organization that calls for Israel's total destruction and carries out acts of terror to that end. He was held under statutes inherited from the British mandate and employed by the British not too long ago against the Irish Republican Army and by the United States to this day in Guantanamo.
That the Israeli system incarcerated him without due process reflects the nature of the intelligence information against him--ostensibly so sensitive that it cannot be presented to his lawyers in a trial. That Adnan seemingly "broke" the system by hunger-striking for more than two months is a tribute to his character and fortitude. But whether the resultant stalemate will change anything is doubtful, as long as Israel faces the sort of terrorism preached by Islamic Jihad.
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