Deal makers and deal breakers

The reports published in the past two weeks assume that a deal with Hamas to free abducted Israel Defense Forces soldier Gilad Shalit is close. There is room for caution based on past precedents, though the deal could have been struck two years ago. Very little has changed since basic understandings were reached via the offices of the head of Egyptian Intelligence, Omar Suleiman, at the time. Hamas, according to Arab sources, had demanded that 1,000 prisoners be freed but the list was eventually scaled down and left Israel with the impression that Hamas would settle for a deal of a few hundred Palestinian prisoners, who would be released in two stages. Israel, in return, surrendered its stubborn rejection of any notion that it would free terrorists who had "blood on their hands." The gap between the two sides had already been narrowed.

The problem, however, was and remains that Hamas is demanding the release of terrorists who were involved in planning and launching the most murderous terrorist attacks in the second intifada - at the Sbarro restaurant in Jerusalem, the Maxim restaurant in Haifa, the Park Hotel in Netanya and the Dolphinarium in Tel Aviv. They are also demanding that the secretary general of the Popular Front for the Liberation of Palestine in the West Bank, whom Israel considers responsible for the decision to assassinate Rehavam Ze'evi, be released.

Against the backdrop of what seems to be a stalemate in contacts, a petition was distributed last month on the Internet calling on the government to prevent visits to Hamas prisoners in Israeli jails until Hamas permits the International Red Cross to visit Gilad Shalit. The petition is phrased in crudely and contains such sentences as "the Red Cross and all the 'bleeding hearts' run to examine every phosphorus bomb that fell in all kinds of holes that were bombed."

The petition, penned by Yoram Y. of Haifa, was signed by tens of thousands of people. He explains that his decision not to identify himself stems from his fear about his workplace. At the same time, he does not hide the fact that his motives are political. He says this is the reason he used phrases meant to insult the left in Israel. If only for that reason, the author of the petition deserves to be roundly censured. But that does not in itself negate the need for a serious debate over the crux of the petition.

According to the spokesman of the Prisons Service, more than a quarter of the 8,000 Palestinians security prisoners imprisoned in Israel are Hamas members. All of them, no matter their organizational or political affiliation, are entitled to visits by their families and representatives of the Red Cross. Israel does not recognize the terrorists as prisoners of war but treats them in accordance with Geneva Convention principles concerning prisoners and civilians in occupied territories.

Smadar Ben-Natan, an attorney who has represented Palestinian and Lebanese prisoners, explains that Israel has a clear interest in respecting the Geneva Convention and the Red Cross. It needs them when Israeli soldiers fall prisoner, and it considers itself one of the enlightened members of the family of nations which respects international law - unlike Syria, which does not allow the Red Cross to visit prisoners.

However, Israel has in the past refused Mustafa Dirani and Sheikh Obeid - who were abducted from Lebanon at the end of the 1980s and jailed in Israel as administrative detainees - the right to visits from their families and the Red Cross. The aim was to use them as "bargaining chips" to garner information about missing navigator, Ron Arad.

After 12 years in jail, the two petitioned the High Court of Justice, which in 2001 rejected the state's claim that visits by the Red Cross could be used as a bargaining chip. Then Supreme Court president, Aharon Barak, wrote in his ruling that "the State of Israel is a democracy that respects human rights and views humanitarian considerations with great seriousness. Respect for a human being is dear to us, even if he is an enemy," he wrote.

In the wake of the High Court ruling, the Imprisonment of Illegal Combatants Law was passed; it states that terrorists are entitled to enjoy visits of the Red Cross. However the law recognizes certain extraordinary cases, in which such visits can be withheld out of security considerations.

Interior Minister Meir Sheetrit proposed about six months ago that all the Hamas prisoners be refused the right to visits from relatives and from the Red Cross until Gilad Shalit is permitted similar visits. However Attorney General Menachem Mazuz and the Justice Ministry are opposed to this idea on the grounds that Israel is a signatory to international treaties and must therefore honor them.

In effect, even though it hasn't been reported as such, Israel has been preventing visits by family members of Hamas prisoners from Gaza since the disengagement in 2005. The ban on visits is said to be in place for security reasons. Some believe this ban should extend to Hamas prisoners from the West Bank as well.

This would be a way for Israel to clarify it makes a distinction between the Palestinian Authority and Hamas prisoners. It is possible to make an even finer distinction in the form of a gesture toward Mahmoud Abbas, and to free hundreds of PA prisoners. Sources in the PA are concerned a deal to free Shalit without any parallel gestures and moves in the direction of the PA will strengthen Hamas and increase its popularity.

The international or moral damage of a decision to prevent all Hamas prisoners from receiving visitors would be limited and could be defensible even before the High Court. Besides human rights organizations, it is unlikely anyone, not even the Red Cross, would condemn Israel for a decision taken out of security considerations - one not applicable wholesale to all Palestinian prisoners.

An approach of this kind would send a clear message about the principle of reciprocity - so long as Hamas does not allow the Red Cross to visit Gilad Shalit, Hamas prisoners will also not enjoy that privilege. A decision of this kind would receive diplomatic legitimacy. Since the war in Gaza, Hamas has in effect, even if not in principle, enjoyed international recognition as a sovereign group. That means that it, too, is obliged to act like a state.