Summary:
All Palestinians are hopeful that a new deal would be concluded to swap prisoners between Hamas, which captured two Israeli soldiers during the last summer war in 2014, and Israel, similar to the 2011 “Devotion of the Free” Deal.
At a time when there is no conclusive information regarding the fate of the two missing Israeli soldiers, the indications coming from Hamas and Israel raise questions and suggest one of the two soldiers at least is still alive.
Although the Israeli Knesset passed a law to prevent the release of prisoners, the nature of Israeli conduct, on the political, security, strategic, and social levels, does not indicate that there has been a major shift in Israeli strategy in this regard and suggests the move in the Knesset was a tactical one.
The outcome of the issue will vacillate between deadlock that could last several years, and a positive scenario based on new information regarding the two soldiers, which would impose a dramatic development, stirring public pressure for the Israeli political and military leadership to go along with a deal.
Lessons from the history of previous deals
Israeli Behavior and Exchange Deals
The Fate of the Two Missing Soldiers
The Palestinian people and thousands of prisoners languishing in occupation prisons are following with keen interest every detail related to the two Israeli soldiers captured during the 2014 Israeli war on Gaza Strip (GS). The soldiers are identified as Staff Sergeant Oron Shaul, who was captured east of Gaza City on 20/7/2014, and Second Lieutenant Hadar Goldin, captured east of Rafah city on 1/8/2014. The hope is that this would lead to a new prisoner swap deal similar to “Devotion of the Free” Deal made on 11/11/2011.
However, talk about a new deal faces many complications, as Israel continues to state that the soldiers were killed or missing in action. This paves the way for many questions and scenarios, which we will try to address in this assessment.
Until the end of the first quarter of 2015, around 6,500 Palestinian and Arab prisoners are incarcerated in 23 prisons inside Israel, including 500 administrative detainees imprisoned without trial, 300 children under 18, and 22 women. The number of sick prisoners is 1,200, including 130 with chronic diseases like cancer, diabetes, and total or partial disability, where all suffer medical negligence policy.
Prison administrations carry out repeated raids and harassment of prisoners, including excessive searches, provocative measures, insults, verbal abuse, and deliberate ransacking of the prisoners’ quarters. In addition, punitive rules and measures are imposed, such as the force-feeding of prisoners on hunger strike, and the special law blocking the release of prisoners sentenced to life.
The Israeli authorities continue their policy of arrests in the West Bank (WB) and Jerusalem. In 2014, more than 7,000 arrests were carried out, and in the first quarter of 2015, more than 1,000 arrests and investigations were conducted.
It also re-arrested 74 prisoners, who had been freed in the deal involving Gilad Shalit (Devotion of the Free), releasing only eight of them later. Up to 35 of these prisoners have had their previous sentences reissued.
Lessons from the history of previous deals
The history of prisoner exchange deals between the Arabs and Israel date back to after the 1948 war, and the most recent deal took place in 2011. Thirty-eight deals were concluded during this period. The first deal was concluded by Egypt in February 1949, and the last deal was the Devotion of the Free in November 2011.
The Devotion of the Free deal was probably the most important prisoner swap in the history of Palestinian and Arab deals, in terms of the number of prisoners released including some with very long sentences.
By examining previous deals, we can say that the occupation and the resistance both learned many lessons, and tried to benefit from them, as follows:
First: At the Israeli Level
* The attempt to close the missing soldiers’ case by declaring them killed in action and holding official funerals for them, to relieve popular pressure on the political and military establishments and prevent Hamas from scoring any achievement.
* Stepping up intelligence efforts to find a lead regarding either one of the missing soldiers, where:
– The Shin Bet, through its Unit 8200 (the Israeli Sigint National Unit—ISNU), scoured social media sites and forums to lure Palestinians with a view to find a lead on missing soldiers case.
– Patients, merchants, students, and visitors were interrogated intensively at the Erez Crossing between GS and Israel regarding the missing soldiers.
– Agents and collaborators were mobilized across GS, putting Hamas leaders and operatives under surveillance, to find any information or lead to the missing soldiers.
* Luring Hamas into revealing the information it has regarding the fate of the missing soldiers. For example, Shin Bet Chief Yuval Diskin made statements falsely suggesting a deal with Hamas was imminent, whereas nothing indicates there have been any negotiations between the two.
* Taking extreme precautions to prevent any soldier from being captured by preventing soldiers from travelling to Palestinian areas and changing instructions given to soldiers operating in border areas with GS.
* Passing a law preventing the release of Palestinian prisoners.
Second: At the level of Hamas
* Hamas managed the issue of the missing soldiers and the prisoner swap deal away from the media.
* Stressing that each piece of information in this issue has a price that Israeli must pay.
* Al-Qassam Brigades has dealt with the issue patiently. It has not spoken at all about any details concerning the two missing soldiers.
* Using psychological warfare in relation to the missing soldiers to put pressure on the Israeli public and embarrass the political and military leaderships in Israel.
* Hamas has frequently stressed that it would not conclude any new deal before the Israel abides by previous agreements, especially in relation to not re-arresting freed prisoners.
Israeli Behavior and Exchange Deals
We can say that the Israeli behavior regarding prisoner exchange deals has changed tactically, but not strategically.
To clarify, Israel was hit by a political and strategic setback following the Devotion of the Free Deal, appearing like it had caved to the resistance’s “blackmail” in the eyes of the Israeli and international public opinion. This has forced Israel to take precautionary tactical measures in an attempt to save face and spare the Israeli official position consequences like those produced by the prisoner swap deal with Hamas.
In early November 2014, the Israeli Knesset passed a law to prevent Palestinian prisoner releases for those serving life sentences. The law also bans reducing the sentences and restricts the Israeli government’s hands when it comes to using the prisoners as a political bargaining chip. It also reduces the powers of the Israeli president in granting them amnesty before their sentences are served, as usually happens when the Israeli political leadership approves a prisoner swap deal in accordance to legal procedures.
Nevertheless, Israel’s move to pass racist laws to prevent Palestinians from achieving any political gains in the future will clash with many political, security, strategic, and social obstacles that makes prisoner swap deals still feasible in the future.
Politically, the ruling Israeli elites have often made big concessions in relation to the swap deals, in complete contradiction with the official political discourse, meaning there is a huge disparity between the theoretical position and practice.
There is no doubt that the idea of swapping prisoners is acceptable in the Israeli culture, politically and socially, despite opposition from some parties.
At the security level, the Israeli security forces have pragmatic calculations and realize that prisoner swap deals are a necessity. For this reason, they push for concluding them and perhaps the position of the Shin Bet in support of a deal is the best proof of this assessment.
Strategically, Israel is not going to abandon the fundamental idea it built and nurtured at home and abroad, with respect to the high value of Israeli soldiers and its willingness to pay the highest of process in return for their freedom.
Based on this, and based on the fact that the law banning the release of prisoners sentenced to life is applicable to those sentenced in early November 2014 and after this date. Any future prisoner exchange deal could legally include prisoners sentenced prior to that date. Furthermore, the provisions of the law mention prisoners sentenced to life, meaning other prisoners who do not fall under this category and were arrested after the law in question was passed, could be included in a future deal a well.
Therefore, it is clear that the ground is paved in Israel for any deal at the strategic and legal levels without any real obstacles. The matter is only subject to tactical interests and considerations.
The Fate of the Two Missing Soldiers
There is no conclusive or reliable information on the fate of the two missing Israeli soldiers, and whether one or both of them are still alive. However, those following the positions of both Israel and Hamas will come out with the impression that both sides, especially Hamas, have something to hide in this regard.
Hamas’s enthusiasm for a prisoner swap deal similar to the Devotion of the Free Deal, and the Israeli reaction, raise the possibility of one or both soldiers being still alive. Nevertheless, no one can say for sure in light of the ambiguity and the fact that no conclusive information has been leaked regarding the fate of the soldiers.
Despite this uncertainty, there are only two possible assessments.
First Assessment:
a. Both soldiers are alive.
b. One of the two soldiers is still alive
This does not deny the possibility that one or both could be severely injured and/or disabled.
The other assessment holds that both soldiers are dead.
By objectively extrapolating and carefully analyzing the statements and positions issued by Hamas and the Israeli government in the last weeks and months, neither of the two assessments can be discounted, although there are indications coming from Hamas suggesting one of the two prisoners could be alive. This could be indeed the case or it could be part of the tactics of the negotiations process, meant to achieve the greatest possible extent of gains in the possible exchange deal.
Possible Scenarios
There are three possible scenarios for a potential prisoner exchange deal.
First Scenario is the prolongation of the talk about a deal, possibly for years according to some estimates.
This scenario is based on:
1. Strategic Considerations: The Israeli government does not seem to be in a hurry regarding a deal – the rationale being that the Shalit deal hurt the Israeli state and inflicted heavy strategic losses on it
2. Partisan Considerations: Some aspects of the deal are related to the stability of the governmental coalition inside Israel, and the impossibility of pushing towards making a deal as this could topple the coalition. For some components of government are opposed to paying the required price for the completion of the deal.
3. Political Considerations: Israel does not want to give Hamas any gains that could benefit it in the context of its disputes with the Palestinian Authority and Fatah.
4. Regional Considerations: Related to the great tension in the relationship between Hamas and the Egyptian regime.
5. Internal Considerations: The Israeli government is not currently coming under pressure at home and from the families of the missing soldiers, unlike what happened in the Shalit deal.
6. Informational Considerations: Israel considers its soldiers to have been killed or missing in action, and therefore is not enthusiastic about any deal in this regard.
Second Scenario: A positive major development would unfold gradually, shifting the deal talks from the current state of impasse to active discussions, leading to the conclusion of the deal in reasonable amount of time. Such a development could be the result of an improvement in the political climate influencing a deal, or if Hamas disclosed new information proving one or both soldiers are still alive. This would force the Israeli side to deal with the issue in a more serious and urgent manner.
Third Scenario: Israel finds some leads regarding the whereabouts of the Israeli soldiers. Israel dispatches commandos to free them. A risk that may succeed and remove the need for a deal, or it may fail, leading to further complications, where Hamas would raise the ceiling of demands and deal more strictly with the Israeli side. In light of the current impasse, lack of information, and the history of the Israeli handling of prisoner swap deals, which sometimes take years to conclude, the most likely scenario remains the first scenario.
Recommendations
1. Escalating media coverage of the prisoner swap deal, in order to incite the Israeli public to put pressure on its government
2. Rejecting the banishment of prisoners outside Palestine in any potential deal under any circumstances.
3. No relying on the time factor alone to serve the resistance’s position vis-à-vis the deal.
4. Not prolonging the time during which the deal is implemented, and implementing it in one batch and not two, unlike the Shalit deal.
5. Strengthening and fortifying the Palestinian demands by involving other Palestinian forces and factions, social segments, and national figures in the discussions to develop a unified position over the mechanisms and main features of the deal.
* Al-Zaytouna Centre would like to thank Mr. Mu’min Bsiso for contributing to the draft on which this Assessment was based.
The Arabic version of this Assessment was published on 6/6/2015 
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