Prisoner exchanges between Israel and militant groups have a history going back four decades, but the deal this week to exchange Hamas hostages for the release of Palestinian prisoners stands out in a number of ways.
Unlike past exchanges, the obligations on Israel cover the release of just Palestinian women and children that it has incarcerated, totalling at least 150 according to the terms of the agreement. The eligible group ranges from a 14-year-old boy to a 59-year-old grandmother. Hamas has, in return, committed to release 50 civilian women and children being held captive in Gaza after the group’s October 7 attack on the Jewish state.
The total numbers pale in comparison to previous prisoner releases: Israel freed more than 1,000 Palestinians in 2011, including high-ranking Hamas officials, in exchange for a single Israeli soldier, Gilad Shalit.
Israel freed 39 Palestinian prisoners on Friday, after 13 Israeli hostages were released from Gaza. But the staggered releases are not without controversy.
Some Israeli critics have asked why people jailed for attempted murder might be freed, while others question why Palestinian children are in Israeli prisons at all for crimes including stone-throwing.
Why are there Palestinian women and children in Israeli detention?
More than 6,800 Palestinians are at present imprisoned by Israel for various security offences, according to the Israel Prison Service. Human rights groups estimate that almost a third are held under indefinite “administrative detention” with no trial or official charge.
Most of those who are convicted were tried in an Israeli military court, where evidence is usually classified to protect intelligence sources. The conviction rate is close to 99 per cent due to the prevalence of plea deals, according to Jessica Montell, executive director of Israeli human rights group HaMoked.
“Holding hostages is blatantly illegal and a war crime and, of course, Hamas should have released them unconditionally. But it’s also important for the Israeli government to release prisoners and detainees to achieve that worthy goal of releasing hostages,” Montell said.
Israel has for decades imposed a strict security regime in the occupied West Bank and East Jerusalem, with night-time arrest operations and crackdowns on protests commonplace even prior to the outbreak of the war in Gaza.
Israel has insisted that such measures are necessary to “fight terrorism”, and has since October 7 embarked on a widespread military operation in the West Bank against Hamas and other militant groups.
This has also swept up unaffiliated Palestinians for offences such as social media posts and “incitement”. About 1,500 Palestinians in the occupied West Bank have been detained and more than 200 killed in the past two months, according to Israeli human rights groups.
Who decides who will be released?
About 300 Palestinians are potentially eligible for release, according to a list compiled by Israel’s justice ministry. About three dozen are women, while the remaining 250 or so are males aged 18 and younger. All are from the West Bank and East Jerusalem, where they will return should they be the ones freed.
The decision of who will be released rests with Israel’s Prime Minister Benjamin Netanyahu as well as defence minister Yoav Gallant and former defence minister Benny Gantz — all members of Israel’s war cabinet. No individual convicted of murder was included among those deemed eligible.
What is known about the detainees?
There are some prominent examples. One is a 14-year-old Palestinian boy from East Jerusalem arrested in July for “rock throwing, bodily harm and property damage”.
Another is Hanan Salah Abdullah Barghouthi, a 59-year-old from the West Bank who is related to a prominent Palestinian politician. She was arrested in September for unspecified harm to “state security”.
Some cases have been particularly tricky for Israeli authorities. One teenage Palestinian girl, Nafoz Hamad, now 16, was convicted of attempted murder in a 2021 stabbing attack in the East Jerusalem neighbourhood of Sheikh Jarrah. Hamad is serving a 12-year sentence and, if released, would return to her home on the same street as her Israeli victim, a mother of five.
Hamas has celebrated the latest prisoner releases. Ismail Haniyeh, its Qatar-based political leader, said in a televised speech on Friday: “The enemy had thought they would be able to release their captives by brutal force, but eventually they capitulated to the will and demands of the resistance.”
Under what conditions could more detainees be released?
The release of the Palestinians will, like the Israeli hostages, be implemented in daily instalments over the coming days, during which both Israel and Hamas agreed to suspend the fighting in Gaza.
More eligible Palestinian inmates could be freed if the truce is extended beyond the initial four-day timeframe that began on Friday. For every 10 additional hostages Hamas releases daily, Israel would then release a further 30 Palestinian prisoners and continue to hold fire for up to five additional days.
Yahya Sinwar, Hamas’s leader in Gaza, is believed by Israeli and western intelligence services to be handling the hostage negotiations personally. Sinwar, who was himself released in a prisoner exchange deal with Israel in 2011, has vowed to fellow Palestinian inmates that he would secure their release.
In his only public comments since the war started, Sinwar last month said Hamas was “ready to conduct an immediate prisoner exchange deal” with Israel, under which all the hostages would be released in exchange for all Palestinian prisoners in Israeli jails.
Despite the strong public support in Israel for a return of all the hostages, such an agreement would be politically controversial in Israel, especially on the nationalist right. Far-right ministers in Netanyahu’s coalition this week voted against even the initial partial agreement, arguing that more “pressure” should be brought to bear on Hamas.