The Israeli government is under mounting pressure to negotiate the release of more than 200 Israelis held captive by Hamas in Gaza in exchange for thousands of Palestinians caged in Israeli jails and prisons under a militarized judicial regime that human rights groups say is a central element of apartheid in occupied Palestine.
Hamas has said its militants captured dozens of Israeli soldiers and civilians during the October 7 surprise attack on southern Israel in order to negotiate the release of Palestinian political prisoners held in Israeli jails and prisons. About 1,400 Israeli military personnel and civilians were killed during the operation known as “Al-Aqsa Flood,” and the Israeli military retaliated with a brutal siege, bombing campaign and ground invasion of Gaza that has sparked an ongoing humanitarian catastrophe.
Hamas’s military wing recently said it would hand over all remaining Israeli captives in exchange for Israel emptying its jails and prisons – “all Palestinian prisoners.” Hamas already handed over four hostages (two elderly Israelis and two Americans) and announced vague plans on Tuesday to release others hailing from foreign countries who would be useless in a prisoner exchange.
Well-known Israeli journalist Gideon Levy recently published an op-ed in the major Israeli newspaper Haaretz calling for the speedy release of 5,000 Palestinians imprisoned by Israel — a number that has only grown over the past three weeks — in exchange for the Israeli hostages reportedly hidden in tunnels under Gaza.
B’Tselem, a prominent Israeli human rights group whose members are among the victims on both sides of the Gaza border fence, has consistently called on Hamas to immediately release all of the hostages from Gaza while pressuring the Israeli government to negotiate their release in exchange for Palestinian political prisoners. The group says thousands of Palestinians are incarcerated and convicted without “due process or any opportunity to defend themselves” in the Israeli occupation’s notorious military court system.
“Even if it had a fair, objective military court system that truly sought justice, Israel would still be obliged to reach a prisoner release deal in order to free the captives,” B’Tselem members said in a statement. “Abandoning them is an immoral choice the state must not make. Dozens of lives are at stake.”
On Monday, Hamas released a video purporting to show three hostages sharply criticizing the Israeli military’s failure to protect them on October 7 and demanding a ceasefire and prisoner swap.
Prime Minister Benjamin Netanyahu and other Israeli leaders dismissed the Hamas statements and video as propaganda and rejected calls for a ceasefire and prisoner swap on Monday, only two days after meeting with desperate family members who are camped out across the street from the defense ministry in Tel Aviv demanding Israel prioritize the release of hostages.
Instead of a ceasefire and prisoner swap, the Israeli military is doubling down on the war on Gaza, where more than 8,500 Palestinians have lost their lives in airstrikes and an ongoing ground invasion that has devastated entire communities and displaced upwards of 1 million people. Hamas said last week that 50 hostages were killed in Israeli airstrikes, although the number could not be confirmed.
The Israelis and others taken hostage on October 7 have received global media coverage, but what do we know about the Palestinian prisoners who could be exchanged for them if Hamas and Israel were to reach a deal?
Hedi Viterbo, an associate law professor at Queen Mary University of London who studies the incarceration of Palestinian children, tackled this question in a series of social media posts this week.
“First of all, more than a thousand (non-citizen) Palestinians are currently imprisoned in Israel without charge or trial, in so-called ‘administrative detention’,” Viterbo said on X, the website formerly known as Twitter. “Neither they nor their attorneys know the allegations against them.”
“Administrative detention” is one of the most controversial elements of the Israeli occupation’s military court system for Palestinians in the occupied territories, which is separate from the civilian court system for Israeli citizens.
In the occupied West Bank, a military order empowers Israeli commanders to incarcerate Palestinians under “administrative detention” for up to six months, a period that can be extended over and over by the commander and military judges, effectively allowing Israel to incarcerate Palestinians for years on end without a conviction.
“Extensions are reviewed by an Israeli military court, behind closed doors, based on secret materials not disclosed to the defense attorney,” Viterbo said. “Israeli military judges don’t verify the secret allegations against Palestinians.”
As B’Tselem reports:
In administrative detention, a person is held without trial without having committed an offense, on the grounds that he or she plans to break the law in the future. As this measure is supposed to be preventive, it has no time limit. The person is detained without legal proceedings, by order of the regional military commander, based on classified evidence that is not revealed to them. This leaves the detainees helpless — facing unknown allegations with no way to disprove them, not knowing when they will be released, and without being charged, tried or convicted.
“Without a fixed prison sentence, these Palestinians can’t anticipate their release from prison and plan their lives accordingly,” Viterbo said. “They’re kept in a stressful cycle of hope toward each judicial review, and despair following continued incarceration.”
As of October 1, 1,264 Palestinian political prisoners were being held under administrative detention, the largest number in 30 years. However, 1,680 Palestinians have been arrested in the occupied West Bank and East Jerusalem since October 7, and an additional 620 Palestinians are now being held under administrative detention, according to the Commission of Detainees Affairs.
Palestinians living under Israeli occupation are “born without civil rights” and do not enjoy the freedom of association and assembly under military orders that ban unpermitted public gatherings since the occupation began in 1967. Israel has also criminalized hundreds of political parties and human rights groups along with many aspects of Palestinian life, according to Human Rights Watch.
Human Rights Watch is one of several international organizations that define Israel’s systems for containing and controlling Palestinians as apartheid and in violation of international law. Omar Shakir, the group’s director for Israel and Palestine, said Israel has “a long record of arbitrarily arresting Palestinians and subjecting those in detention to mistreatment and other violations of international human rights law.”
“Draconian military laws allow Israel to jail Palestinians over exercising their basic rights, over involvement in protest, over association with groups opposed to Israel’s oppressive rule, over Palestinian expression on social media,” Shakir said in an interview. “And since October 7, we have seen a large increase in the number of detained people and more and more evidence of mistreatment in detention and custody.”
An estimated 1 million Palestinians have been detained or incarcerated by Israel since 1948, and hundreds of children are detained each year. In 2019, 73 percent of Palestinian children experienced physical violence after an arrest, and 88 percent of children were interrogated without a family member or lawyer present to help them, according to the Carnegie Endowment for International Peace.
Adults and students are also arrested for membership in banned political groups, with Israel rarely differentiating between elected Palestinian politicians and the armed wings of political parties. Khalida Jarrar, a 60-year-old member of the Palestinian Legislative Council, has been imprisoned on and off for years at a time due to her affiliation with the Popular Front for the Liberation of Palestine, but Israeli authorities never claimed she participated in armed resistance, according to Human Rights Watch.
“People held in administrative detention over the years have included human rights defenders, prominent Palestinian political figures, individuals held for exercising their basic rights, as well as Palestinians engaged in violent and nonviolent resistance to occupation,” Shakir said.
For Palestinian prisoners who do go to trial, the Israeli military courts have a 99 percent conviction rate. In 2017, only a small fraction of Palestinians were indicted for killing or intending to kill an Israeli citizen, while the majority were accused of minor offenses, such as “disturbing the peace” and traffic violations. Less than a quarter were indicted for alleged hostile “terrorist” activity.
“Most of these Palestinians have been convicted by Israeli military courts, whose conviction rate is 99.76 percent,” Viterbo said. “In other words, once their trial starts, Palestinians are almost destined for conviction.”
Some Palestinian political prisoners are members of Hamas and other militant groups, while others are charged with clashing with settlers or soldiers and other alleged hostilities against the Israeli state. If Israel were to agree to release some Palestinians in exchange for hostages in Gaza, Hamas may prioritize its own members in negotiations, which could go on for weeks or months.
“If the enemy wants to close this file of detainees in one go, we are ready for it,” said Abu Obeida, a spokesperson for Hamas’s Ezzedine al-Qassam Brigades, in a statement broadcast by the Hamas-run Al-Aqsa TV. “If it wants to do it step-by-step, we are ready for that too.”
Before October 7, about 5,200 Palestinians considered political prisoners were being held by Israel, but prisoner rights groups estimate the number of Palestinians detained and incarcerated has doubled to 10,000 since the war on Gaza began. Israeli forces have detained thousands of Gazan workers in military camps outside Gaza and launched a retaliatory campaign of raids, arrests and airstrikes across the occupied West Bank. There are reports of multiple Palestinians being jailed or expelled from universities for social media posts. Israeli soldiers started a TikTok trend featuring videos of arrested Palestinian men in blindfolds being humiliated or abused, which earned a segment on Israeli cable news.
Extremist settlers are taking advantage of the chaos to attack and displace vulnerable Palestinian farmers and families in the West Bank, and more than 115 Palestinians have been killed, including 33 children, according to the United Nations. More than 1,100 Palestinians were forced to leave their homes, including 121 people who saw their homes demolished by Israeli forces.
Conditions faced by thousands of Palestinian prisoners were deteriorating in the months leading up to the war on Gaza. Hunger strikes erupted across Israeli’s vast network of prisons and military jails earlier this year as Itamar Ben-Gvir, Israel’s far right national security minister, implemented punitive policies and closed prisoner-run bakeries that provided bread.
“There is regular mistreatment and torture of detainees with impunity,” Shakir said. “Hundreds of complaints of mistreatment and torture have been filed by Palestinian and human rights organizations, and there has been zero accountability for complaints.”
Palestinian prisoner rights groups have raised alarms about violent interrogation and aggressive raids inside Israeli prisons, where prisoners allegedly are left without enough food and medical care as prison guards search rooms and remove personal property, violently quell protests, isolate women and put prisoners in solitary confinement.
The Ministry of Detainees and Ex-Detainees Affairs warned last week of a campaign of starvation and “assassination” inside Israeli prisons. At least two recently arrested Palestinian men have died in custody, including one who was reportedly a member of Hamas.
Some family members of the hostages still held by Hamas in Gaza have said they support a prisoner swap and accused Netanyahu and other Israeli leaders of prioritizing politics and the military campaign over bringing back the hostages. Others appear to accept the position of Netanyahu and others in his war cabinet, who say negotiations with Hamas are off the table and the captives must be extracted by brute military force.
However, in a press conference in France on Tuesday, family members unanimously pleaded for a pause in the war on Gaza so the International Committee of the Red Cross could be allowed to check on the health of the hostages and confirm whether they are still alive.
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