Astoundingly, the prisoner swap deal struck between Hamas and Israel is being marketed as an unprecedented act and a generous offer by Israel when on Tuesday it will release (albeit in stages) 1027 Palestinians in exchange for one Israeli soldier captured almost six years ago. Pro-Israel pundits are racing to illuminate Israel's high price for its citizens. This facet is so out of context as it completely ignores the 43 years occupation of Palestinian lands and the inhumane treatment Palestinians have endured.
Everyone knows the name of the Israeli soldier and we have all seen his picture, but the world knows little about the story of the nameless, faceless Palestinians who will be set free in addition to the almost 6000 more still languishing in Israeli jails. Depicted en masse as terrorists, the great majority of the Palestinian prisoner population never engaged in military or criminal activity against Israel. Their crime is that they engaged or were accused of resistance to the military occupation. Unlike the Israel soldier who was trained to kill, most jailed Palestinians never trained or used a gun against anyone. Far from providing justice for Palestinians, the Israeli military legal system functions as a foundational control mechanism over Palestinian life in all realms. Jailing Palestinians, among other punitive measures, is a systematic tool used to further the aims of the military regime, which seeks to subdue an entire population of five million Palestinians. A lawyer who defended Palestinian prisoners in Israel described the military as a comprehensive structure that can only be understood in the light of the real Israeli goal ". . . gradually to drive out the local Palestinian population and to annex the territory."
It is a sad commentary on the occasion when even Jewish religious leaders exalt the nobility of Israel's action so as to suggest that Palestinians are either cowards ready surrender in large numbers or that a Jewish life is more valuable than that of a Palestinian. In reports of how much Israelis care about their soldier, there is somehow the inference that Palestinians do not cherish their loved ones in the same way.
I spent several weeks this summer in the West Bank. It requires little effort to meet a freed Palestinian prisoner or a family of one still inside the Israeli military jails. With more than 6,000 Palestinians incarcerated by Israel right now and more than 700,000 jailed since Israel's 1967 occupation of the Palestinian territories, those stories soon come into the frame - mention of a father, a brother taken away; a swallowing of pain; a distant gaze determined to bring a beloved, absent face into focus.
According to recent data, close to 6000 Palestinians are in 28 Israel military jails. Prison experience is an expected right of passage for Palestinians. It is a common feature of Palestinian life under occupation. From the routine night raids that drag family members away, to the opaque military trials, the detention of children (7,000 since the year 2000) and the torture reported by Amnesty to take place in Israeli prisons, it all adds up to a system of control and debilitation.
The Fourth Geneva Convention establishes the right of an occupying force to legislate military orders and amend existing legal structures to ensure "security and public order'. However, according to sociologist Lisa Hajjar in her excellent book " Courting Conflict: The Israeli Military Court System in the West Bank and Gaza ," Israel has tended to emphasize that the convention is not binding on the state in the occupied territories on a de jure basis. Therefore, Hajjar argues, the Fourth Geneva Convention has been drawn upon to justify the making of the law but has been rejected as a framework for the content of the law.
Israel adheres to the script of countries that try to crush national struggle: criminalize protest; use widespread arrests to show who is in charge and categorically refuse to count any prisoners as political. Those Palestinian detention figures are shockingly high - but then, the Israeli occupation has been shockingly long, and its permeation into Palestinian life just as deep. According to Amnesty International's 2011 Annual Report : "Palestinians in the [occupied territories] subject to Israel's military justice system continued to face a wide range of abuses of their right to a fair trial. They are routinely interrogated without a lawyer and, although they are civilians, are tried before military not ordinary courts."
The same Amnesty report states: "Consistent allegations of torture and other ill-treatment, including of children, were frequently reported. Among the most commonly cited methods were beatings, threats to the detainee or their family, sleep deprivation, and being subjected to painful stress positions for long periods. Confessions allegedly obtained under duress were accepted as evidence in Israeli military and civilian courts."
One of the most inhumane procedures Israel uses is known as administrative detention to imprison Palestinians without charge or trial. There are currently about 270 Palestinians being held in administrative detention. One Palestinian served six years under such a law before he was released.
But it is not only adults who must suffer under Israel military rule. Children are also subjected to Israeli military tribunals. As of August 2011, there were 180 Palestinian minors being held in Israeli prisons. Of those, 34 were between the ages of 12-15. Palestinian children are frequently arrested in the middle of the night by Israeli soldiers, taken away without their parents, and roughly interrogated without a guardian or lawyer present. According to a recent report by the Israeli NGO " No Legal Frontiers ," which followed the cases of 71 Palestinian children as they made their way through the Israeli military court system: "The most common offense was throwing stones and Molotov cocktails? In most cases, the object was not actually thrown, did not hit a target, or cause any damage. In no case was serious harm caused. In 94% of cases, the children were held in pre-trial detention and not released on bail. In 100% of cases, the children were convicted of an offense. 87% of them were subjected to some form of physical violence while in custody."
Therefore, it is not Israel's generosity or concern for the lives of its own citizens but rather the military regime that best explains the apparent asymmetry in the prisoner swap. The moral equivalency argument is misplaced because Israel has the capacity to arrest and jail far more Palestinians than the occupied Palestinian population. Israel has built a regime of military occupation where the Palestinians are its natural enemy, where every Palestinian is "a security threat' and where the legal system is designed not to serve justice but to further the aims of suppression of a restless and disenfranchised population. While the families of the Israel soldier and the Palestinians will rejoice at being reunited with loved ones, the Palestinians tragedy will persist until they are also seen as humans.
Related:
For details data and coverage of Palestinian prisoners in Israel, go to the website of the Israel's based human rights organization, Btselem: http://www.btselem.org/statistics/detainees_and_prisoners . See also "No Legal Frontiers, http://nolegalfrontiers.org/en/general-information/military-prisons
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