49 of 300 Palestinians to potentially go free are from Hamas

High Court rejects petition that sought to delay hostage release deal

Almagor terror victims group argued that the agreement repeats the mistakes of the 2011 Shalit deal, but justices rule only the government has authority in such policy decisions

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

The High Court of Justice hears petitions against the government's incapacitation law, September 28, 2023. (Chaim Goldberg/Flash90)
The High Court of Justice hears petitions against the government's incapacitation law, September 28, 2023. (Chaim Goldberg/Flash90)

In a unanimous decision, the High Court of Justice rejected on Wednesday evening a petition filed by the Almagor organization against the deal to bring back 50 Israeli hostages from captivity in Gaza, asserting that only the government has the authority to make such agreements and insisting the court cannot intervene in such matters.

The decision paves the way for the exchange deal, under which Israel will release 150 Palestinian security prisoners in return for its hostages, to go ahead starting Thursday morning. The names of 300 Palestinian prisoners to be potentially released were published earlier by the government.

In its petition, Almagor requested that the court order the government to demonstrate that the deal does not endanger Israeli lives; argued that having some but not all hostages released violated the right to equality; and asserted that the deal violates the recommendations of a government commission on the issue of returning hostages, and that it therefore lacks the authority to make such an agreement.

Justice Alex Stein rejected Almagor’s arguments that the deal violates the right to equality of hostages being left behind, saying that it was a moral responsibility to return captives and citing the medieval rabbinical scholar Maimonides.

“This difficult matter is entirely in the realm of considerations of war and peace, and foreign policy, which are in the hands of the government. This is a clear-cut issue of policy that the court cannot address, something we have emphasized repeatedly in a number of rulings,” wrote Stein in the opinion of the three-justice panel.

Stein wrote that the court felt the pain of the victims of terrorism that Almagor was representing in its petition, but said that the pain of the hostages and their families was also acute.

“The daily suffering of the hostages and the pain felt by their families, their friends, and the masses of Israeli citizens who fear for the fate of the hostages is also deep, sincere, and true,” he said. “However, the unbearable responsibility to measure pain against pain, suffering against suffering, in situations such as that before us is given over to the government of Israel — to it and not to us.”

In its petition filed Wednesday afternoon, Almagor also argued that the hostage deal posed a threat to Israeli security and warned that it repeated mistakes made during the 2011 Gilad Shalit deal.

Almagor requested that the court delay the implementation of the deal, claiming it violated the terms of the Shamgar Commission report on returning captives, partially published in 2012, which stipulated that only a small number of prisoners held by Israel can be released per Israeli captive being returned.

The ratio of Israeli hostages to Palestinian prisoners in the current deal is one to three, much lower than other hostage agreements such as the Shalit deal, in which the single Israeli soldier was exchanged for 1,027 Palestinian prisoners.

A man and a child walk past portraits of Israeli hostages held in Gaza since the October 7 onslaught by Hamas, in Tel Aviv on November 21, 2023, amid the ongoing war between Israel and the Palestinian terror group. (Ahmad Gharabli/AFP)

One key argument Almagor made in its petition was that the heads of the army and other security services who approved the Shalit deal said that it did not pose a threat to Israeli security.

Terrorists released in that deal did, however, go on to perpetrate numerous terror attacks against Israel, including current Hamas leader Yahya Sinwar, who oversaw the preparations and planning for the October 7 atrocities.

Almagor pointed out that the High Court, in response to its petition against the Shalit deal, described the organization’s argument that the exchange posed a threat to Israeli security and could encourage further hostage-taking as “the most serious claim” in the petition.

Almagor said that the defense officials at the time of the Shalit deal had “gambled” with Israeli security and that “their deeds led to the bloodbath of Israeli citizens and security forces.”

Israelis with family members held abducted by Hamas terrorists in Gaza since October 7 attend a Knesset National Security Committee hearing, November 20, 2023. At center is Gil Dickmann, whose cousin, Carmel Gat, is one of the hostages. (Yonatan Sindel/Flash90)

It asked the court to insist that the government demonstrate that the current deal does not endanger the lives of Israeli civilians and those of IDF soldiers held by Hamas.

Additionally, Almagor asked the court to halt the deal on the basis that the government “does not have the right to discriminate between blood and blood,” arguing that by agreeing to a deal in which many hostages are being left behind, it is violating the right to equal treatment derived from Basic Law: Human Dignity and Liberty.

“If the government is deciding on a deal to release hostages, it must return all of them down to the last one within the framework of the deal — otherwise it would deal a fatal blow to the principles of equality, when we are talking about equality in the right to live,” argued Almagor.

The petition was the final obstacle within the Israeli political and legal system for the hostage deal, whose implementation appeared set to begin on Thursday morning.

The 300 names

An AFP examination of the 300 names of Palestinians potentially to be released in the deal found that 33 were women, 123 were boys under 18, and 144 were 18-year-old men.

The youngest was 14-year-old Adam Abuda Hassan Gheit from east Jerusalem, who was arrested in May for “hostile sabotage activity, attacking a police officer and throwing stones”.

The oldest was a 59-year-old woman called Hanan Salah Abdallah Barghuti, who was arrested in September for “Hamas activity including money transfers”, it said.

The list identified 49 as members of the Hamas terror group, 60 as belonging to Fatah, the party which leads the Palestinian Authority in the West Bank, and 17 as being affiliated with the Popular Front for the Liberation of Palestine (PFLP) terror group. The others had no affiliation specified.

AFP contributed to this report.

Most Popular
read more: