Was the release of two Syrian prisoners legal? - analysis

Laws were passed, including in 2014, that could potentially completely block the exchange of certain prisoners, or at least make an exchange more difficult.

Israeli Prime Minister Benjamin Netanyahu (photo credit: REUTERS/Ronen Zvulun)
Israeli Prime Minister Benjamin Netanyahu
(photo credit: REUTERS/Ronen Zvulun)
Was it legal for the government to release two Syrian prisoners on Sunday, apparently in a goodwill gesture following the recent return of the remains of Sgt. First Class Zachary Baumel?
Baumel went missing in action in Lebanon in 1982. The return of his remains after so many years, including a widely publicized ceremony involving Prime Minister Benjamin Netanyahu and Russian President Vladimir Putin, is one of a short list of events shortly before the April 9 election which some credit with securing Netanyahu’s electoral victory.
With criticism of the government’s release of the Syrians coming from the Almagor NGO representing terrorist victims, as well as Zvi Hauser, an incoming Blue and White MK and former cabinet secretary, there is a lot of confusion.
Following the Gilad Schalit prisoner exchange of 2011 in which the IDF soldier was swapped for 1,027 mostly Palestinian prisoners, including hundreds with Israeli blood on their hands, there was a political backlash against such deals.
The government put in place a policy that it would give the families of victims of terrorists 48 hours’ notice (in some cases, even more notice is required) to object to the High Court of Justice before carrying out certain exchanges.
Officials called for adopting the recommendations of the Shamgar Commission which had studied the issue, and suggested establishing binding guidelines and a standing committee for deciding on such exchanges.
The Shamgar Commission and other commissions gave a central role to the cabinet needing to approve such exchanges so that such moves were not made simply by a few senior politicians for some narrow interest.
Laws were passed, including in 2014, that could potentially completely block the exchange of certain prisoners, or at least make an exchange more difficult.
On the basis of all of these trends, Almagor petitioned the High Court to block the exchange, and Hauser said that the decision was invalid having lacked the cabinet’s endorsement.
How is it, then, that Attorney-General Avichai Mandelblit approved the release of the Syrians as having “no legal bar?”
How is it that the government turned over the two prisoners without waiting for the High Court to rule?
Part of the answer is clear from some High Court rulings in 2013 in a time period where the government was periodically turning over dozens of Palestinian prisoners to the Palestinian Authority in good faith gestures as part of the peace process run by then US secretary of state John Kerry.
Back in 2013, Almagor petitioned against the releases, arguing that getting only 48 hours’ notice violated their rights under a law granting families of victims the right to submit opposition in writing to a planned pardon of whoever harmed their family member.
The court rejected Almagor’s argument, saying that this law only applied to individual prisoners being pardoned for reasons specific to that prisoner. However, it was not applicable at all to a general pardon being granted to a group of prisoners in the context of a state-sponsored peace process.
Sunday’s release was a worse position for Almagor legally-speaking. There were no specific families of victims because the two Syrians being released were in jail for drug-related crimes and attempted kidnapping. Zidan Tuil, a resident of Khader, Syria was jailed in Israel after being convicted of drug smuggling and was expected to be released this July. Hamis Ahmed, a Fatah activist and resident of the Yarmouk refugee camp near Damascus, was sentenced to 18 years in prison for his role in a plot to injure or kidnap IDF soldiers.
Neither Tuil nor Ahmed had blood on their hands.
Almagor correctly pointed out that they are still security prisoners and that aspects of the laws passed as a backlash to the Schalit deal seem to refer to all security prisoners, not just those with blood on their hands.
But at the end of the day, there is no law on the books requiring the government to let anyone petition to the High Court before releasing prisoners without blood on their hands.
It also was not lost on Mandelblit that the exchange was one body for two prisoners – a far cry from 1,000 Palestinian prisoners for one IDF soldier or even from 26 Palestinian prisoners – simply to create good will.
In short, by law the government still has few limits on its powers to carry out prisoner exchanges. Most of the limits are by government policy, and it can choose to ignore some of its own recent trends if it feels it can get away with it because the politics are not treacherous.
When 26 Palestinians were being released for good will for a peace process that he was being attacked for, Netanyahu slowed things down and expanded the blame for the exchange to include the High Court.
In contrast, the Baumel exchange is still mostly viewed as a political victory.
Hauser’s criticism about the need for a cabinet decision to run a government properly and honestly, even if not legally required, is more complex.
Was it okay for Netanyahu to revel in the positives of getting Baumel’s body back before the election, holding off the sour pill of returning Syrians until after he was reelected?
Likud MK Yoav Kisch told Israel Radio that the cabinet is only a transition-cabinet. He said this means it lacks its regular status and did not need to be consulted. But that then begs the question of whether Netanyahu making such an exchange in a transition period was proper, even if legally permitted.
Like past exchanges, the real conclusions of whether this one made sense or not will need to wait for a later date.