How an IDF official shifted policy by sending Schalit deal terrorists back to jail for life

Outgoing Chief West Bank Prosecutor Lt. Col. Maurice Hirsch speaks to 'The Jerusalem Post' about his fateful decision that led Israel to a massive policy shift.

Outgoing IDF Chief Prosecutor Maurice Hirsch on the true meaning of terrorism (credit: ELI BEN ZEEV)
British-Israeli outgoing IDF Chief West Bank Prosecutor Lt. Col. Maurice Hirsch was the official personally responsible for convincing the Government of Israel and the Shin Bet (Israel Security Agency) on June 14, 2014 to send dozens of Palestinian terrorists, who had been released in the 2011 Gilad Schalit prisoner exchange, back to jail for life, instead of for only a few months of administrative detention.
Hirsch made the revelations to The Jerusalem Post in his first exclusive interview to be published since having retired as chief prosecutor on January 31.
Sending back most of the nearly 60 Palestinians to jail for violating their parole was cited by Hamas as one of the reasons, from their side, for the war with Israel which started on July 8, 2014, and for refusing cease-fires and continuing the war for the 50 days it ran until August 26, 2014.
Hamas’s attempts to get them released has also been a regular topic of the intermittent indirect communications between Israel and Hamas since then, including in several news reports on January 11.
Israel’s dramatic decision, which it announced on June 16, 2014, to seek to send around 60 Palestinians back to prison, many for life, for violating the terms of their Schalit deal parole, was a titanic policy shift.
It shocked Hamas and much of the world in the midst of Operation Brother’s Keeper, and was as close as Israel and the West Bank have come to war in years, though that conflict is viewed by most as falling just short of a war.
It was criticized by human rights lawyers, including Merav Khoury, who said the whole idea and legal proceedings were a fraud and a historic abuse of the released prisoners. But according to Hirsch it saved lives.
What has been known publicly until now is that the decision was made as the Shin Bet searched desperately to find three Jewish teenagers: Gilad Shaer, Naftali Fraenkel and Eyal Yifrach, who were kidnapped by Hamas operatives Marwan Kawasmeh and Amar Abu-Isa in the evening between Thursday and Friday of June 11 and 12, 2014 (there is a permanent debate about whether senior Hamas leaders gave the order or not.)
What has never been reported is that originally, these 60 Palestinians were mostly slated for short administrative detention stays, possibly as little as a few months, after which they would have been released again onto the streets.
In an extensive interview with the Post, Hirsch goes into extraordinary detail about his communications with Israeli intelligence and security forces, giving a play-by-play of that critical weekend in which his idea shifted the fate not only of those 60 Palestinians, but of Israeli and Palestinian policy and relations for the 2014 Gaza war and on into the future.
The operatives who perpetrated the kidnapping were eventually gunned down on September 23, 2014 and their mastermind handler, Husam Kawasme, was arrested, tried, convicted and sentenced to three life sentences in prison.
How did Hirsch push the scales of fate in an unexpected, and as yet unrevealed, direction?
He described how his involvement in responding to the kidnapping to the three Jewish teens unfolded, “On Friday… there was some type of a suspicion that there had been a kidnapping, but the details were very unclear… I had a number of telephone conversations with the relevant people of the security forces, both army personnel and other security forces, to discuss what would be the potential response that would be needed.”
“As the Sabbath drew closer [Hirsch is Sabbath observant and would not answer his telephone other than for emergencies], I agreed with one of my counterparts in one of the security agencies… that should… the situation develop into a full-blown kidnapping and a response would be needed, obviously he could phone me on the Sabbath and… I would carry my phone with me,” Hirsh continued.
On Saturday afternoon, Hirsch “received a telephone call as I was coming out of synagogue in the morning from one of the legal advisers of one of the security agencies to discuss…” that the kidnapping was verified, and the army needed to arrest Palestinians potentially involved in terrorist acts.
The goal was “on the one hand… reach the boys as soon as possible and on the other hand, prevent the security situation from deteriorating any further,” Hirsch stated.
During that conversation, Hirsch recounted that, “we discussed the basic elements of administrative detention… [which] needs a basic level of danger that is posed by an individual person… Setting the bottom-limit of administrative detention is something we did in that conversation.”
He said, “I was basing myself on almost 16 years of involvement in the subject of administrative detention. Throughout the years of my army service…I have dealt with thousands of cases of administrative detention. And my ability to draw the line as to what the basic level of danger which would need to be proven… was something that only someone of my experience would have been able to do.”
On Saturday night, the IDF started a wave of arrests.
Asked if he had given the order for the IDF to make the arrests as regarding legal requirements, the outgoing chief West Bank prosecutor said, “Without question, yes. The basic criteria for arresting people was decided by myself.”
“The basic functioning of law enforcement is that you have intelligence information… coordination between the security forces and the IDF… Operation My Brother’s Keeper” started with his defining the line for administrative detention.
On Sunday, he said, “we received… many recommendations to hold terrorists in administrative detention… Our job was to... screen and make sure that each one of those people… met the criteria, and to ensure that the basic requirements of administrative detention were upheld.”
Hirsch explained that, “One of the basic requirements of administrative detention… is that there be no other alternative in order to prevent the danger that person poses to society and to the security of the region.”
He continued saying, “One of the recommendations… related to a prisoner who had been released in the Schalit deal… The information gathered… indicated that he had indeed breached the conditions of his release.”
“We can approach a committee which is equivalent possibly to the parole board… and claim that that person had breached the conditions of their release and therefore he had to return to serve the rest of the sentence… from the original trial,” Hirsch added.
He noted that, “This specific person was brought to me because of his background and I then said to the security forces, this person cannot go to administrative detention. But we should approach the committee for canceling the conditional release in order to return him to prison.”
Analyzing the circumstances of the discussion, he said, “Obviously the security forces hadn’t thought of this option previously, for had they thought of that option before I brought it up, they would naturally have brought this person with the recommendation to bring him before that same committee… The security force… much appreciated my suggestion… my initiative.”
Questioned about why there are no written documents proving this suggestion originated with Hirsch, he said, “Because the recommendations that we receive [from security forces] regarding detainees who are recommended for administrative detention, are transferred on a safe security computer system which prevents any type of…information seeping out, because of the very sensitive nature of the security information.”
“That system doesn’t include an ability for us [the IDF legal division] to respond to that email,” he added.
So how did he make the recommendation to the Shin Bet?
Hirsch explained, “We have safe telephones in our use. A red phone… that is indeed actually red. I spoke to the security forces… on the telephone as we often and always do, and that is how the suggestion then traveled on.”
Continuing to narrate, Hirsch said, “The next thing we hear on the subject was that the Government of Israel decides to rearrest those prisoners released in the Schalit deal who had breached their terms of release. Some 60 different prisoners were rearrested.”
Hirsch summarized that of the 60, he dealt with 48 cases. He said that one case was dismissed and the Palestinian was released.
But in around 90% of the 48 cases, he specially appeared personally in court and requested and succeeded in convincing a special committee to send the Palestinians back to jail, including 15 to serve at least life sentences.
Hamas had demanded that Israel release the rearrested Palestinians from the Schalit prisoner exchange in order to halt the 2014 Gaza war and Israel had instead sent approximately 90% of them back to jail.
While noting that “the final decision was that of the government of the state of Israel…,” Hirsch was asked whether these same Palestinians would have been back on the street after a short time if not for his suggestion.
He responded, “One hundred percent. Including those who were returned to serve life sentences… Administrative detention requires that you prove immediate danger posed by that person, whereas breach of a parole allows you to send a person back to jail to serve the rest of his sentence without any other cause.”
Critics will view Hirsch’s role as a stain on Israel’s human rights record and supporters will view him as having saved Israelis from terrorists, but there is no debating that his idea and decision led to a massive and fateful policy shift.
This article is the first of a series on the IDF West Bank Courts which will also be featured in Yonah Bob’s upcoming book on the subject focusing on the stories of two major figures each from the Israeli and Palestinian side, including Maurice Hirsch and Merav Khoury.