Amira Hass
Haaretz (Opinion)
February 20, 2013 - 1:00am

The High Court of Justice will debate today a petition dealing with Ayman Sharawna, one of the prisoners released in Shalit deal, who was also the first to be re-arrested in January 2012. In fact, the High Court is being requested today to act to neutralize yet another yet another act of sabotage and erosion of principles of fair process by military law.

As usual, the erosion in these principles begins with the weak link. This time it’s a security prisoner, easily despised and his rights easily ignored, a Hamas activist convicted in connection with a terror attack in Be'er Sheva. He was sentenced to 38 years in prison, 10 of which he served before being released as part of a political deal to secure the release of Gilad Shalit.

Three months after the two were released, the Palestinian was re-arrested. The IDF and Shin Bet argue that he returned to undertake "forbidden security activity" based on confidential evidence. Neither the suspicions nor the evidence were presented to attorneys Ahlam Hadad and Nery Ramati, who filed the petition. Thanks to a particular legal brew, Sharawna is due to complete his term, and in a form of administrative detention, to spend the next 28 years in prison.

The military legislators took a page from civil law, borrowing the damaging clauses concerning releasing prisoners with suspended sentences. At the same time, they ignored the balances in civilian law. They copied from the tradition of administrative detention (imprisonment without trial), and more than anything else, were inspired by the rage of political and defense officials, who believed Hamas managed to twist their arm. Thus, in 2009, two changes were made to the security decree clauses 184 and 186, and decree 1651, which deals with reprieves.

And this is how we have a military release committee, consisting exclusively of officials from the same apparatus that convicted the prisoner in the first place (and does not include social workers or education officials, as its civilian counterpart does.) In fact, the military law allows the arrest of a person until a military release committee decides if an offense has been committed (a civilian committee has no authority to arrest people), with automatic punishment and no need for a conviction.

The IDF and Shin Bet can hide behind "confidential evidence," just as in administrative detention, but without the judicial review every several months, and we also have the committee's lack of power of discretion: The committee, according to new changes in the decree and in contrast to a civilian committee, must return the released prisoner to jail for the entire term. And even if a new indictment is submitted, based on new evidence; and even if the offense is not considered serious by the occupying power's laws, who tend to see every Palestinian as guilty unless proved otherwise, and create offenses from seemingly daily actions such as talking to someone in the grocery store or participating in a demonstration; if convicted, the released prisoner will be sent back to prison, possibly for decades.

It would be naive to believe that the callous arbitrariness, opposed to all principles of fair process, does not also pollute civilian law. The fact that these changes were conceived of and introduced while the negotiations for Shalit's release were underway proves the IDF and Shin Bet were already prepping a trap door, a way to get the prisoners back into prison, especially those who had been sentenced to longer terms but were not deported abroad or to the Gaza Strip.

This is much more than a legal matter. In fact, between the lines, the High Court will debate a belligerent Israeli culture of vengeance, and its destructive influence on the relations between the two peoples living in this land.

The Palestinians, in turn, might just take home the message that whether it comes to their national rights or to the release of prisoners, Israel will always find a way to shirk agreements. And that message only bolsters the theory that there is no point wasting time on peace negotiations with the Israelis, or searching for a historical compromise with them.


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