Doubts Cast in Gilad Shalit/Palestinian Prisoner Swap

October 18, 2011

Today, we woke up to find the exchange of Israeli soldier, Gilad Shalit, and 477 Palestinian prisoners.

As news services around the world covering the exchange highlight Gilad Shalit’s ordeal of being held for five years in virtual incommunicado detention and the story of the Palestinian prisoners being released – some having been held for decades – one thing is glaringly obvious – this whole episode highlights the need for the humane treatment of all detainees – whether Palestinian or Israeli.

Amnesty International released a press release this morning that said:

“This deal will bring relief to Gilad Shalit and his family after an ordeal that has lasted more than five years. Many Palestinian families will feel a similar sense of relief today when they are reunited with their relatives, many of whom have spent decades under harsh conditions in Israeli detention,” said Malcolm Smart, Amnesty International’s Middle East and North Africa Director.

“However, more needs to be done to protect the rights of thousands of others who remain in detention. The Israeli authorities, the Hamas de facto administration in Gaza, and the Palestinian Authority in the West Bank must seize this opportunity to ensure respect for the rights of all prisoners and detainees in their custody.”

Amnesty is concerned about the violations of prisoner rights in both the case of Gilad Shalit and the Palestinian prisoners as well as problems concerning the swap itself.

Amnesty International has long worked for the humane treatment of Gilad Shalit while detained by Palestinian armed groups as well as for the rights of Palestinian prisoners detained by the Israeli authorities. Amnesty has also repeatedly called on both sides not to use prisoners as bargaining chips.

Areas of concern regarding the swap itself include the fact that a good number of the Palestinian prisoners being released are from the West Bank, but are being sent to the Gaza Strip where they will be entirely cut off from their families with no possibility of visits. While under the Oslo Accords and international humanitarian law the West Bank, including East Jerusalem, and the Gaza Strip are recognized as a single territorial unit, Israel maintains a highly restrictive closure regime on the strip that rarely, if ever, allows Palestinians living from Gaza access to the West Bank or vice versa.

Also, 41 prisoners, including one woman, will be exiled abroad. And although it is unclear whether they are being exiled permanently or will be allowed to return to their homes in the Occupied Palestinian Territories (OPT) at some point in the future – this act contravenes the Geneva Conventions.

The Geneva Conventions prohibit an occupying power from forcibly transferring or deporting people from an occupied territory; in this case, the West Bank, including East Jerusalem and the Gaza Strip. In the event that those prisoners being exiled abroad or transferred to Gaza from the occupied West Bank, including East Jerusalem, have not given their consent, Israel would be violating its obligations under international humanitarian law.

Both Israel and Hamas have used ‘security’ as an excuse to justify the harsh treatment of prisoners to ‘explain’ their actions, but security can never be used to justify violating an individual’s basic human rights.