The Deal Behind the "Shalit Deal": Prisoners, Power, Racism

Jadaliyya | By Toufic Haddad | 17.10.2011 | NEDERLANDS

If the prisoner exchange deal announced on 11 October 2011 between Hamas and the Israeli government is fully implemented without major hitches, there is little question who “won” this five-year war of wills: the deal will constitute a major victory for Hamas and the resistance-oriented political forces in Palestinian society, while simultaneously representing a significant retreat for Israel and its historical doctrines of forceful coercion and rejectionism vis-à-vis the Palestinian people and their rights.

Make no mistake about it, the tangible accomplishments and historical precedents embodied in this deal rival, if not exceed, other prisoner deals in recent memory. This does not mean that the deal was able to fulfill all expectations placed upon it. Nor does it discount the heavy price Palestinian society and political forces played to realize it. Nor again does it avoid complicated concessions by Hamas in the final conditions placed on the release of some prisoners. All this withstanding, this deal should be recognized as a major Hamas victory; any alternative interpretation of this scorecard misreads the basic balance of forces between Palestinians and their occupier in the context of the struggle to achieve Palestinian rights.

How do we read the “Shalit deal” and assess its achievements, or otherwise, for the Palestinian movement? What are the criteria by which such deals can be judged and analyzed in the first place? In order to answer these questions and appreciate more fully the dynamics at play, it is necessary to gain a command of the facts of the deal, from which a firmer assessment can be based.

The Facts

Presuming a successful prisoner release takes place based upon the official list of prisoners published by both sides at midnight 16 October 2011, the totality of this deal looks as follows:

In exchange for the release of Israeli army Staff Sergeant Gilad Shalit, who has been held by Hamas since 25 June 2006, Israel will release a total of 1050 prisoners in three stages.

The first stage of the release actually took place in September 2009 when Israel released twenty-three prisoners in exchange for a Hamas-broadcast video indicating a “sign of life” from Shalit. These prisoners included twenty women and three men from the Israeli-occupied Golan Heights.

The agreed-upon remaining 1027 prisoners are to be released in two stages. The first major stage, scheduled to take place on 18 October 2011, will see Israel release 477 prisoners, including 450 men and twenty-seven women prisoners. These prisoners were the subject of the fiercest negotiations, with each prisoner’s fate discussed via indirect negotiations between the contending parties, beneath Egyptian and previously German mediation.

The second and final stage of the deal will take place in two months, entailing the release of 550 prisoners. These prisoners will be released based on a basic set of criteria agreed upon by Hamas and Israel, with the former asserting some discretion over the selection of names. In other words, Israel cannot just arrest 550 people one day, then release them the next, and say they have fulfilled their obligations.

Prisoners released during the first major stage, and which we are limited to discussing at this time, are subject to certain negotiated conditions:

• 218 will be released to their homes without any conditions (including 133 to Gaza; sixty-eight to the West Bank; nine to East Jerusalem; seven to inside Israel, including one to the Occupied Golan Heights; and one to Jordan);
• 204 will be deported, including forty abroad, rumored to be sent to Turkey, Qatar, Syria and Jordan. Of these, 164 will be taken to Gaza, eighteen of whom will be able to return to their homes in the West Bank within three years;
• fifty-five will be released with some form of security arrangement, the nature of which has yet to be fully disclosed. This includes forty-nine to the West Bank and six to Jerusalem.

With this as the basic outline of the agreement, “crunching” the data reveals additional aspects worth highlighting.

“Quality” of Prisoners

Hamas was remarkably successfully in forcing Israel to release large numbers of prisoners with high prison sentences. In fact, 315 of the 477 prisoners released in the first major round have life sentences (310 men, five women); 144 prisoners have sentences longer than ten years; only nine prisoners have sentences less than ten years; and nine other prisoners have undetermined sentences, be they administrative detainees, or yet to be convicted.

The impressive depth of this deal is best illustrated by adding up the total number of years erased by the deal, at least on paper.

Of the 315 prisoners due to be released who are serving life sentences, a little more than half (163) have multiple life sentences (ranging from two to thirty-six). They total 926 life sentences all together. To get a sense of how much prison time this adds up to, Israeli civilian courts set one “life sentence” at twenty-five years of prison time. Aside from the few cases of Palestinians tried in these courts—generally because they are Israeli citizens—most Palestinian prisoners do not have recourse to this interpretation of “life sentence” because they are tried in military courts where the duration of life sentences is left open ended. If an Israeli civil court understanding for a life sentence (twenty-five years) is nonetheless applied to the number of Palestinians sentenced to life in prison, we arrive at the figure of 23,150 years negated through this deal. It needs to be emphasized that this figure is only for illustrative purposes, as, in any case, a prisoner would not be able to serve more than three of these life sentences (seventy-five years) in a given life time. Moreover, a certain portion of these years has already been served, and cannot hence be “erased.”

In addition to those serving life sentences, however, the total number of years of those serving high but non-life prison sentences totals just over 4,585 years.

If both figures are added together, a staggering 27,735 years are technically negated by the deal. All this from less than half the total number of prisoners released (roughly 45 percent).

Period of Imprisonment

The Shalit deal sees Palestinian prisoners released from historical periods that date back to before the first intifada, to the most recent period of Palestinian history: forty prisoners were arrested before the first intifada (pre-8 December 1987); 112 were arrested during the first intifada (December 1987 – 13 September 1993); eighty-one were arrested during the “Oslo peace process” years (September 1997 - 28 September 2000); and the remaining 244 are from the second intifada (September 2000 - present).

Political Orientation

According to Israeli Prison Services, the political distribution of prisoners to be released is as follows: 307 prisoners are from Hamas, ninety-nine from Fatah, twenty-seven from the Islamic Jihad, and twenty-four from the Popular Front. The remaining prisoners derive from smaller factions (mainly the Democratic Front, the Popular Resistance Committees, and the Popular Front-General Command), or are unaffiliated with any political group.

Demographic Distribution

Released prisoners hail from all geographic locations within historic Palestine including 289 from the West Bank, 134 from Gaza, forty-six from East Jerusalem, and eight from Palestinian communities inside Israel, including one from the occupied Golan Heights. Among the West Bankers is one woman who resided in Jordan, and a second who is Ukrainian, but lives in the West Bank.

Analysis: The Accomplishments

Passing judgment on the Shalit deal cannot take place from a detached precipice of moral or political purity but, rather, must derive from an appreciation for the basic balance of forces at play between the contending parties and their historical precedents in relations between one another. There are no absolute criteria for judging such matters, with interests and needs within each negotiating party variegated, subject to shifts over time, and difficult to quantify to begin with. 

For this reason, it is helpful to begin analyzing the Shalit deal by understanding that before Shalit’s capture, Israel refused to recognize Hamas as a legitimate political entity; this non-recognition continued despite the Hamas victory in democratic elections in 2006. Israel subsequently refused all formal interaction with Hamas, encouraging other countries to do the same. Soon after Shalit’s capture, Israel’s Prime Minister's Bureau reiterated this stance, asserting, “There will be no negotiations to release prisoners…The government of Israel will not give in to extortion by the Palestinian Authority and the Hamas government, which are headed by murderous terror organizations. The Palestinian Authority bears full responsibility for the welfare of Gilad Shalit and for returning him to Israel in good condition.”

In this respect, the very sealing of a deal with Hamas was a major Israeli concession. Israel sought every possible way to retrieve Shalit without having to negotiate, but failed. The weeks after the capture of Shalit witnessed more than 400 Palestinians killed in Israel’s “Operation Summer Rains” in a failed effort to retrieve him. Israel’s massive offensive “Operation Cast lead” in December 2008/January 2009, which left 1400 Palestinians dead, also put the recovery of Shalit as a central objective of the mission. The siege of Gaza is still justified as necessary in the context of Shalit’s continued detention.

All of this was part and parcel of a broader Israeli strategy vis-à-vis Palestinians which entailed not only the historic rejection of all Palestinian political rights, but an on-the-ground military doctrine which holds that “might makes right,” Israel has a “long arm of justice,” and Israel will “burn into [Palestinian] consciousness” their own defeat.

Viewed in this context, Shalit’s capture and detention for five years, and Hamas’ ultimate successful negotiation for a prisoner release are all the more impressive. The deal represents the first time that any Palestinian organization captured an Israeli soldier in territorial Palestine and was able to translate this capture into a negotiated settlement with the Israeli government. Whether one agrees or disagrees with this as a tactic, there is no question that this series of events represents a significant advance for the armed resistance capabilities of the Palestinian movement, its organizational capabilities, professionalism, secrecy and stamina. No other conclusion is possible in the context of Gaza, where Israel and Egypt control its land passages; Israel controls and constantly monitors the territory via air, satellite and sea, and where electromagnetic airwaves and telecommunication networks are also dominated by Israel. Moreover, Israel also runs a substantial network of Palestinian collaborators throughout the area. These are the known means of Israeli domination over the Gaza Strip’s 360 square kilometers.

All these accomplishments relate to the fact that a deal took place, and do not relate to the substantial achievements in the negotiations themselves. But here, too, Hamas forced impressive concessions: it broke Israel’s traditional refusal to release alleged “prisoners with blood on their hands,” and it broke Israel’s principled rejection to release prisoners from 1948 Palestine (Palestinians holding Israeli citizenship) as well as those from East Jerusalem. To contextualize the latter two precedents, all previous prisoner releases negotiated with the Palestinian Authority and Hizbullah have failed to break these formerly steadfast Israeli positions.

Aside from setting new precedents in negotiations, Hamas’ selection of prisoners emphasized important political dimensions that must also be seen as important achievements, while rejecting certain Israeli tenets of praxis vis-à-vis the Palestinian people.

The deal’s inclusion of prisoners from throughout geographic Palestine, the Palestinian diaspora, and the occupied Golan Heights represents a conscious effort by Hamas to assert the unity of the Palestinian people and their connectedness to its Arab/ Muslim periphery. The inclusion of prisoners from across the Palestinian political spectrum equally asserts the national, as opposed to factional, accomplishment of the deal. Inclusion of prisoners from the pre-first intifada period to the present also emphasizes the cross-generational nature of Palestinian struggle, while implicitly criticizing the Oslo “peace process’’ failure to release prisoners from these early periods.

Although it is complicated to compare prisoner releases given the shifting nature of interests and needs at given times, suffice it to say that Hamas achieved as much as or more than many of the most well-known prisoner deals carried out with Israel in the past 30 years: the 1985 prisoner exchange between the PFLP-General Command and Israel saw 1150 prisoners exchanged for three live Israeli soldiers; the 2004 Hizbullah-Israel swap saw Israel release 431 Arab and international prisoners and fifty-nine bodies for one live and three dead Israeli military personnel; the 2008 Hizbullah-Israel deal saw the exchange of 204 Palestinian and Lebanese prisoners for two dead Israeli soldiers. All other exchanges were less significant quantitatively and “qualitatively.” It might be illustrative to note that Hizbullah’s first successful prisoner exchange with Israel saw the exchange of two Israeli bodies and nineteen South Lebanon Army personnel for 123 bodies and forty-five prisoners. The Shalit deal was Hamas’ first exchange but likely not to be its last.

Criticisms

The Shalit deal is not without its critics from the Palestinian side. They can be grouped into three categories:

Unfulfilled expectations: Hamas and the two other groups which engaged in the capture of Shalit (the Popular Resistance Committees and the Army of Islam) initially demonstrated forms of bombastic euphoria in the wake of their success, which led them to raise the ceiling of expectations within Palestinian society as to what could be achieved from a future prisoner exchange deal. Not only were high political representatives like Fatah’s Marwan Barghouti and PFLP’s Ahmed Sa’adat expected to be on the list, but the total numbers of prisoners demanded was at one stage set at 1400. Moreover, Hamas made claims that all female prisoners would be released (nine appear to be left out), and that all child prisoners would be released (it remains to be seen whether this criteria is met in the deal’s second major stage).

Conditions of release: The high number of deportees (204), be they sent abroad (forty) or to Gaza (164) drew criticism for touching upon a sensitive nerve in Palestinian society. Political exile was consistently practiced by Israel throughout the occupied territories since 1967 as a means of punishment, as well as weakening the national movement by detaching it from its organic leadership. That Hamas would agree to forms of total or partial deportation at all, and in such large numbers, opened the movement up to criticism that it was an accomplice to strategic Israeli objectives. Because of the sensitivity of this concern, Hamas emphasized its consultation with prisoners over the issue of deportation, while hinting that all external deportees will be able to return to Gaza, at least, via the territory’s land crossings with Egypt. The issue of whether all prisoners were indeed consulted remains an open question, as it seems likely that some prisoners were consulted, while others were not.

Political timing: Hamas opened itself to additional criticism on two fronts regarding the deal’s timing. Coming scarcely three weeks after PLO Chairman Mahmoud Abbas’ bid for Palestinian statehood at the UN, Hamas was criticized, particularly by elements of Fatah, for attempting to steal Abbas’ “thunder.” Furthermore, the deal also came on the eleventh day of a major Palestinian hunger strike protesting prison conditions, particularly the policy of sustained solitary confinement (up to eight years and counting in some cases). Critics argue that the prisoner exchange is out of step and poorly coordinated with the hunger strike, while the celebratory atmosphere the prisoner exchange ushers in contradicts the seriousness demanded of the hunger strike. Concerned parties even argue that the poor timing may contribute to endangering some of the hunger strikers’ lives, or breaking the strike early without achieving its demands.

Conclusions and Fallout

While the validity of these criticisms will reveal themselves over time, the political fallout of the Shalit deal can already be stated: Hamas and its agenda are unquestionably bolstered by the deal, enabling it to mitigate any popularity gap that might have arisen between the movement and its rival Fatah in the wake of the latter’s UN statehood bid. This is because Hamas will be able to argue that while Fatah makes grandiose speeches at the UN and is welcomed in international fora, its strategy (political negotiations with Israel) failed to ever achieve a substantive prisoner release, and hence Fatah cannot be expected to achieve the far larger goal of statehood. Hamas will argue that despite it pariah status by the Western powers, the movement remained steadfast in its non-recognition of Israel and its resistance-oriented strategy to achieve Palestinian rights, and in the end reaped tangible, political and human rewards of value to the movement and its future.

While debating these issues is indeed important and necessary for the Palestinian movement and its allies, the real political legacy of this deal might be more obvious than this simplified polarity suggests. That is to say that for any political strategy pursued by Palestinians and their allies to succeed, the enormous disparity in the “valuation” between Palestinian and Israeli people and prisoners of war needs to end. That one single Israeli soldier could be negotiated for more than one thousand Palestinians gives pause to question how a situation arose locally and internationally where such disparity of value became possible.

To illustrate this disparity, suffice it to say that twenty-six Palestinian prisoners in the Shalit deal were already in prison before Gilad Shalit was even born, with the longest amongst them—Nael Barghouti–having served thirty-four years in prison. In fact, ten Palestinian prisoners expected to be freed in this deal spent more time in Israeli prison than Nelson Mandela spent on Robben Island, although not one of them is known to non-Arabic-speaking publics. Not one of them—Sami Yunis, Fuad al-Razem, Uthman Musalah, Hasan Salama, Akram Mansour, Fakhri Barghouti, Ibrahim Jaber, Muhammad Abu Hud'a, Nael Barghouti, and Salim Kiyal—is the subject of a Wikipedia entry, for example. In contrast, Gilad Shalit, who has spent five years in captivity, is a household name in many western countries, holds honorary citizenship in three countries, and has Wikipedia pages translated into twenty-three languages. The disparity in perception, organization and financing between Zionist propaganda and Palestinian organizing is obvious, shocking and humbling. This is the legacy of entrenched racism, complicit media practices, sustained dehumanization campaigns, asymmetrical colonial and global power dynamics, disorganized or incompetent political projects and priorities. Whatever the cause, the disparity must be eradicated, and fast.

Let this prisoner deal light a path to areas of neglected work that need to be focused on in the coming period among Palestinians and their allies in order to ensure that never again will the racism and discrepancy of human value between the colonized and the colonizer be able to prevail for so long.

[Click here for a comprehensive list of Palestinian prisoners being released by the Israeli govnernment on 18 October 2011, including their names, origins, dates of arrest, sentences received, and destination of release.]