Prisoners’ dilemma: Swap stirs controversy

Scholars say Hamas violated international law by complying with Israel’s demand to deport 40 prisoners [Reuters]

Jubilant crowds danced through the streets of Gaza after the announcement of a deal to swap 1,027 Palestinian prisoners for captured Israeli soldier, Gilad Shalit.

But the future remains uncertain for 40 detained Palestinians, who will be deported to an un-named country, in a move critics say violates international law.

Mousa Mohammed Abu Marzouk, deputy chairman of Hamas’s political bureau, hailed the prisoners’ release, and told Al Jazeera that the detainees will first go to Egypt before being sent to a third country.

“We don’t know which countries they will end up in. There is no agreement yet on where they will settle,” he said. “The Israelis have nothing to do with where they end up, and the negotiations will be directly with the countries that host them.”

“Part of the agreement is the freedom of their families to join them wherever they are,” Abu Marzouk added.

Osama Hamdan, a senior Hamas official in Beirut, told Al Jazeera that: “The most pressing issue right now is to have them free.” Other aspects of the deportation plan can be decided later, he said.

Violation of international law

While the prisoner swap has been greeted with optimism, some scholars and activists have expressed reservations.

Professor Richard Falk, United Nations Special Rapporteur on Palestinian Human Rights, said: “It is considered illegal under international humanitarian law to deport and transfer prisoners during occupation by the occupier. Because Hamas agreed to this arrangement, in some ways it is indirectly complicit.”

However, the fate of 40 detainees may be less important than the fact that after failing in the past, Israel and Hamas have come to a concrete agreement.

Deportation was “talked about throughout the deal and that is one of the areas where Hamas has shown greater flexibility,” Daniel Levy, a senior analyst at the New America Foundation and former advisor to Israeli cabinet ministers, told Al Jazeera.

Following news of the swap, Hamas highlighted the fact that they were able to negotiate a better deal than earlier reports had suggested.

But others are not entirely convinced, saying the deal could set a dangerous precedent.

Palestinians prepare for the homecoming of detainees

“This transfer and deportation of protected persons goes against the Geneva Conventions,” Shawan Jabarin, general director of Al Haq, a Palestinian human rights organisation, told Al Jazeera.

This latest deportation is just another step in Israel’s policy to drive Palestinians out, Jabarin said. “Generally, the Israelis try and make deals with ordinary prisoners to get them to agree to stay out of Israel.”

“[The Israeli] philosophy behind that is that if you live outside, you won’t come back and you will take your family with you.”

Transferring the detainees from Egypt to a third country does not guarantee their security.

The third country can “grant them asylum, or treat them as refugees, or even deport them,” Falk said.

In July of this year, reports emerged in Israel that negotiations of a prisoner swap had resumed, and at least 80 detainees were rumoured to be released and deported. Ghazi Hamad, a senior Hamas official, told Al Jazeera that while not all demands had been met, Hamas had “succeeded in reducing the number of people who will be deported or expelled,” from the West Bank to Gaza or abroad.

Although Hamas was under pressure to allow the deportation of some detainees, “the fact that the number is 40… shows that they managed to at least whittle the number down,” Dr Laleh Khalili, senior lecturer in Middle East Politics at the School of Oriental and African Studies in London, told Al Jazeera. “What comes next really depends on the extent to which the deportee resumes their political activities outside Palestine.”

“Nevertheless, one of my first reactions to the news of prisoner release was, ‘will they be released so that they can be assassinated?'”

Hamas would not comment on the future of all the detainees at this stage.

“We are not currently talking on behalf of the 40 detainees because they are not all from Hamas,” as some belong to other Palestinian factions, Hamdan said. “Their decisions will be taken by the different Palestinian organisations which they belong to, who need to take into consideration their families as well.”

For Israel, the decision to banish these prisoners is based on the view that they constitute a security risk.

By deporting 40 prisoners,”we are trying to limit the security implications and this is part of the negotiation process,” Miri Eisen, former Israeli government spokesperson and intelligence officer, told Al Jazeera. “Their terrorist cells may still exist in Judea and Samaria and the Gaza strip.”

‘In one week’

According to senior Hamas officials, the detainees will be freed in two phases; the first phase will see the release of 450″ in one week”, including all Palestinian women currently in Israeli jails. The second phase will see the release of another 550, which will happen “in two months”.

From the 450, several hold Israeli citizenship; 45 are reside within the 1948 borders, 45 come from occupied East Jerusalem, and one is from the Golan Heights.

Hamdan said that Israel had agreed not to harrass detainees who hold Israeli citizenship.

This is not the first time deportation has been used in negotiations between Israel and the Palestinians. In 1992, Israel deported 415 Palestinians considered to be affiliated with Hamas to south Lebanon following the killing of six Israeli soldiers.

Al Jazeera’s political analysis on the prisoner swap deal

During the second Intifada, in 2002, a secret agreement under international auspices was brokered following an Israeli military siege on the Church of Nativity in Bethlehem where Palestinian fighters had sought refuge. The result was the deportation of 39 Palestinians; 26 to Gaza, and 13 others abroad, scattered around Europe.

While details regarding the upcoming deportation are still unclear, previous instances have shown “the effect of these deportations can be quite counter-intuitive” for Israel, Khalili said, adding that the deportations in 1992 saw a flourishing in relations between those exiled and Hezbollah, the Lebanese resistance movement.

Despite uncertainties regarding the futures of the detainees who will be deported, Abu Marzouk pointed out that this deal has forced Israel to succumb to certain issues that had previously always been off-limits in negotiations.

“All the conditions that the Israelis imposed on previous prisoner swaps, whether they had to do with Lebanese or Palestinian prisoners, have been broken,” the Hamas official said. “In this swap, prisoners with Israeli passports, as well as those with ‘blood on their hands’ have been included in the release. These were previously Israeli taboos, and now those taboos have been broken.”