High Court decides not to intervene in Schalit swap

Decision rejecting petitions against release of terrorists from Israeli prison removes last obstacle to the return of captive soldier.

By JOANNA PARASZCZUK
Supreme Court President Dorit Beinisch 311 (photo credit: Dudi Vaknin / Pool)
Supreme Court President Dorit Beinisch 311
(photo credit: Dudi Vaknin / Pool)
The High Court ruled late Monday night not to accede to requests by terror victims to interfere in the government's agreement to release Palestinian security prisoners in return for kidnapped soldier Gilad Schalit.
Supreme Court President Dorit Beinisch, Justice Hanan Melcer and Justice Eliezer Rivlin said in their judgment that they had considered acceding to petitioners' requests to delay the prisoners' release, but decided not to do so after the state explained that the timeline for the scheduled releases was critical to the agreement with Hamas.
"Now, perhaps more than ever, it is clear that Gilad Schalit's fate depends on these hours and any change to the agreement may prevent it from being carried out and could even endanger Gilad's life," wrote Beinisch.
The petitioners, almost all of them family members of those killed in terror attacks, opposed the release of 1,027 Palestinian security prisoners, 477 of whom are due to be released on Monday.
In the hearing, just hours before Gilad is scheduled to be released, the Schalit family's lawyer begged Supreme Court President Beinisch, Justice Eliezer Rivlin and Justice Hanan Melcer not to accede to petitioners' demands to delay the prisoner releases.
Any delay to the deal with Hamas could put Gilad Schalit's life in jeopardy, warned attorney Gilad Sher.
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In the courtroom, emotions ran high even before Monday's hearing began.
Shvuel Schijveschuurder, who lost his parents and three brothers in the 2001 Sbarro terror attack, shouted at Gilad's father Noam as he took his seat on the front row of the public gallery.
"Come on, look us in the eyes! You should put a black flag over the Israeli flag you're flying at home," yelled Schijveschuurder.
Noam Schalit did not respond, and remained composed, though notably tense, throughout the almost four hours of the hearing. Gilad's father listened intently as each petitioner addressed the court, and occasionally passed notes to his attorney.
The panel of justices heard four petitions, three filed by terror victims and one by Ronit Tamari, a Jerusalem resident who said she had witnessed terror attacks.
Terror victims group Almagor filed the first petition, and included Hovav Nuriel, whose father, Sasson Nuriel, was murdered by a Hamas cell in 2005.
The names of four members of that cell  -  its leader Yasser Muhammed Saleh, Ali Mohammed Ali Qadhi, Abdullah Nasser Arrar, and Said Ibrahim Shalalda - are all scheduled to be released as part of the first stage of the Schalit deal.
The second petition was filed by members of the Schijveschuurder family, who lost five family members in the Sbarro bombing. Hamas terrorist Ahmam Tamimi, the driver of the suicide bomber responsible for the attack, is one of the prisoners scheduled for release.
A third petition was filed by attorney Zeev Dasberg of the Legal Institute for Terror Research. Dasberg's sister Efrat Ungar and her husband Yaron were murdered in 1996 when Hamas terrorists fired a machine gun on their car near Beit Shemesh. The Ungars' baby son, Yishai, was injured in the attack.
One of the convicted terrorists, Abed al-Rahman Ganimat, is named on the list of prisoners to be released in the first stage of the Schalit deal.
Also present in the courtroom were several other terror victims and bereaved family members of those killed in terrorist attacks.
Several of those terror victims stood up in court to make their presence known as Meir Indor, CEO of Almagor, gave the first speech of the hearing.
"Hamas has not only kidnapped Gilad," Indor announced. "They have also kidnapped his family, the people and our society all together. And that is exactly what terrorism is supposed to do - sow fear and destroy the foundations of the country and its justice system."
Indor slammed the state for allowing bereaved families only 48 hours to submit their objections to the prisoner releases, and argued that this was a violation of the Victims of Crime Law.
During the hearing, Indor also revealed that he had spoken with former Mossad chief Meir Dagan on Sunday, who had told him he had been against the Schalit deal.
"I asked [Dagan] if the deal had changed for the better and he said it had changed for the worse," Indor said. "I asked if he had opposed this deal and he said yes, he had opposed it."
Dagan had said the deal accepted by Prime Minister Binyamin Netanyahu last week is worse from Israel's perspectives than previous prisoner-exchange drafts rejected by former prime minister Ehud Olmert.
Justice Melcer raised the question of why the current heads of the Mossad and Shabak supported the deal, when their predecessors had been so very opposed to it.
Attorney Osnat Mandel, for the state, explained that there had been changes made to the deal itself.
Current Shabak head Yoram Cohen, Mossad head Tamir Pardo, and IDF chief of staff Benny Gantz had all given their support for the final deal, Mandel said.
Petitioner attorney Meir Schijveschuurder, who represented both himself and his family, also opened his address to the court by criticizing the state for failing to inform victims' families that those convicted of murdering their relatives would be released.
According to the Victims of Crime Law, Schijveschuurder said that victims are supposed to be informed before the president pardons convicted murderers and not after.
"Hamas published the list on Friday and it was freely available," he said. "But the state said people had to wait."
To jeers and shouts from the public gallery, state attorney Osnat Mandel said the state had given information to several victims' families who had turned to the Justice Ministry for information prior to the prisoner list's publication.
Mandel also argued that the Victims of Crime Law does not apply to crimes committed in Judea and Samaria.
In their petition, the Schijveschuurder family asks the court to order the state to set clear standards for the release of security prisoners.
Schijveschuurder noted that some of the prisoners will be released for the third time, and criticized the government for what he said was setting Noam Schalit's personal interests against those of the general public.
"[The state] cannot value a soldier's blood above that of its citizens," he said.
Schijveschuurder also sharply criticized the government's decision to deport certain of the released prisoners abroad, which he said would put the lives of Jews in other countries at risk.
"We are sending my parents' murderer abroad to do hasbara [public diplomacy]," said Schijveschuurder. "This is a terrible mistake. I can't cope with the idea of even one terror attack being carried out abroad by these murderers."
Schijveschuurder called on the state should explain that decision.
"How did you decide to send them abroad?" he asked the state attorneys present in the hearing. "Was that a security decision? Are you saying that England can deal with these terrorists? Because if the state is saying it is sending them abroad because Israel cannot deal with them, then they should remain in prison."
However State Attorney Osnat Mandel said that the prisoners' deportation was included in the deal for security reasons.
Mandel also emphasized that the decision to release the prisoners was a political decision made by the government.
"The court's role is to examine the legality of that decision, and not anything else," noted Mandel.
According to Mandel, 26 government ministers had agreed to the Schalit deal after hearing opinions of security professionals. The deal had been made in order to release Gilad Schalit while minimizing the risk to state security, she added.
Mandel also quoted a court ruling by Beinisch in 2009, in which the Supreme Court President had said that the court does not interfere in government decisions regarding state security.
The state also argued that most of the claims raised in the petitions had already been rejected in previous High Court petitions over prisoner releases.
The Schalit family's attorney Gilad Sher also gave his response to the petition, sharply refuting petitioners' claims that Noam Schalit had been involved in the deal-making process.
According to Sher, the decision to release the prisoners had been the "fruit of many years' hard work" and warned that any delay to the sensitive timetable set out in deal could put Gilad Schalit's life in danger.
Supreme Court President Beinisch turned to state attorney Mandel to ask whether the timetable set out for the prisoner release deal was indeed so critical.
"The timetable is part of the agreement, and it is critical," Mandel replied.
In their address to the court, petitioners attorney Zeev Dasberg argued that the President has no authority to grant pardons without first giving the injured parties an opportunity to oppose the pardon.
Dasberg was accompanied by legal expert Professor Gideon Sapir, who argued that releasing the prisoners violates international norms on punishment for terrorists.
However, state attorney Mandel countered by saying that Gilad Schalit's captivity also violates international law, including because he has been denied visitors for over five years.
Towards the end of the hearing, the justices allowed several people named on the petitions to speak to the court.
Yossi Mendelovich, whose son Yuval was killed in March 2003, said that the court was his last hope.
"When the court put the terrorist who murdered my son in prison he said, 'don't worry, when I get out of jail I'll come find you and kill you too'," said Mendelovich. "And now he's going to be released."
Hovav Nuriel, whose father's killers are also scheduled to be released, said the prisoner releases gave the Palestinian people the message that terrorism works.
"The murderers are going home," he said. "The men who kidnapped, bound and beat my father and then stabbed him to death - they are on their way home. It just proves that terror works."
During the hearing, Court President Beinisch noted as problematic the situation in which those terrorists who murdered Israelis are aware they will be released from prison in just a few years.
"The price is the cancellation of legal rulings that determined these people are in prison," Beinisch said. "There is no need to explain to us the history of this painful and very difficult dilemma."
Beinisch also said she thought the government is aware that terror victims' families are opposed to the deal.
"The difficulty, the pain and the injury is clear," Beinisch said
In a move that petitioners later said was significant, at the end of the hearing, Supreme Court President Dorit Beinisch prevented Schalit from addressing the court.
As Schalit walked out of the courtroom, representatives of the bereaved families called "shame" after him.
Shvuel Schijveschuurder, who had remained silent throughout the hearing following his initial outburst, lost his temper and shouted in rage outside the courtroom.
"I'll carry out my own price tag on all of you," shouted the 27-year-old Schijveschuurder, referring to the fact that he is suspected of spray-painting the words "price tag" on a memorial to Yitzhak Rabin in Tel Aviv after the Schalit deal was first announced.
His brother Meir Schijveschuurder also called out after Noam Schalit, accusing him of courting media attention. "He's afraid to look us in the eyes," he said.
Noam Schalit, whom justices refused permission to speak in the courtroom, told reporters that he felt the bereaved families' pain and admitted that the deal was difficult.
"Our hearts are with the bereaved families. We understand their pain. I regret that they weren't with us for most of this time, during which we tried to put pressure on Hamas," Schalit said. "The government of Israel failed for five years to release Gilad, two governments changed, chiefs of staff, Shin Bet chiefs, and they could not come up with any other alternatives."
Click for full JPost coverage on Gilad Schalit
Click for full JPost coverage on Gilad Schalit


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