How an IDF official sent Schalit deal terrorists back to jail for life
Sending them to administrative detention was problematic: Lt.-Col. Maurice Hirsch came up with a solution
Lt.-Col. Maurice Hirsch, the British-Israeli IDF chief prosecutor for Judea and Samaria, was personally responsible for convincing the government and the Shin Bet (Israel Security Agency), on June 14, 2014, to send dozens of Palestinian terrorists, who had been released in the 2011 Gilad Schalit prisoner exchange, back to jail for life, instead of for only a few months of administrative detention.
Hirsch told the story to The Jerusalem Post, in his exclusive first interview to be published since he stepped down as chief prosecutor on January 31.
Israel’s dramatic decision, which it announced on June 16, 2014, to seek to send around 60 Palestinians back to prison, many for life, for violating the terms of their Schalit deal parole, represented a titanic policy shift.
It shocked Hamas and much of the world in the midst of Operation Brother’s Keeper, the search for three teenagers abducted and murdered by the terrorist organization, and was as close as Israel and the West Bank have come to war in years.
It was criticized by human rights lawyers, including Merav Khoury, who said the whole idea and legal proceedings were a fraud and a historic abuse of the released prisoners. But according to Hirsch it saved lives.
What has been known publicly until now is that the decision was made as the Shin Bet searched desperately to find the Jewish teenagers: Gil-Ad Shaer, Naftali Fraenkel and Eyal Yifrah, who were kidnapped by Hamas operatives Marwan Qawasmeh and Amar Abu-Isa on June 12, 2014.
What has never been reported is that originally, these 60 Palestinians were mostly slated for short administrative detention stays, possibly as little as a few months, after which they would have been released.
In an extensive interview with the Post, Hirsch went into extraordinary detail about his communications with Israeli intelligence and security forces, giving a play by play of events over that critical weekend in which his idea shifted the fate not only of those 60 Palestinians, but of Israeli and Palestinian policy and relations for the July-August 2014 Gaza war (Operation Protective Edge) and into the future.
The terrorists who perpetrated the kidnapping were eventually gunned down, on September 23, 2014, and the mastermind of the operation, Husam Kawasme, was arrested, tried, convicted and sentenced to three life sentences in prison.
Sending back most of the nearly 60 Palestinians to jail for violating their parole was cited by Hamas as one of the reasons for the war with Israel that started on July 8, 2014, and for the Islamist organization rejecting cease-fires and continuing the war for the 50 days it ran until August 26, 2014.
Hamas’s attempts to get them released has been a regular topic of the intermittent, indirect communications between Israel and Hamas since then.
How did Hirsch push the scales of fate in an unexpected, and hitherto unreported, direction?
He describes how his involvement in responding to the kidnapping to the three Jewish teens unfolded, “On Friday... there was some type of a suspicion that there had been a kidnapping, but the details were very unclear... I had a number of telephone conversations with the relevant people from the security forces, both army personnel and other security forces, to discuss what would be the potential response that would be needed.
“As the Sabbath drew closer [Hirsch is Shabbat observant and would not answer his telephone other than for emergencies], I agreed with one of my counterparts in one of the security agencies... that should... the situation develop into a full-blown kidnapping..., obviously he could phone me on the Sabbath and... I would carry my phone with me,” Hirsch continued.
On Saturday afternoon, Hirsch “received a telephone call as I was coming out of synagogue in the morning, from one of the legal advisers of one of the security agencies to discuss...” that the kidnapping was verified, and the army needed to arrest Palestinians potentially involved in terrorist acts.
During that conversation, Hirsch recounted, “we discussed the basic elements of administrative detention..., [which] requires a basic level of danger that is posed by an individual person... Setting the bottom limit of administrative detention is something we did in that conversation.”
He said, “I was basing myself on almost 16 years of involvement in the subject of administrative detention. Throughout the years of my army service... I have dealt with thousands of cases of administrative detention. And my ability to draw the line as to what the basic level of danger which would need to be proven... was something that only someone of my experience would have been able to do.”
On Saturday night, the army started a wave of arrests.
Asked if he had given the order for the IDF to make the arrests as regarding legal requirements, the former chief West Bank prosecutor said, “Without question, yes. The basic criteria for arresting people was decided by myself.”
On Sunday, he said, “we received... many recommendations to hold terrorists in administrative detention .... Our job was to... screen and make sure that each one of those people... met the criteria, and to ensure that the basic requirements of administrative detention were upheld.”
Hirsch explained that “one of the basic requirements of administrative detention... is that there be no other alternative in order to prevent the danger that person poses to society and to the security of the region.”
He continued, saying, “One of the recommendations... related to a prisoner who had been released in the Schalit deal... The information gathered... indicated that he had indeed breached the conditions of his release.
“We can approach a committee that is equivalent possibly to the parole board... and claim that that person had breached the conditions of his release and therefore he had to return to serve the rest of the sentence... from the original trial,” Hirsch added.
He noted that “this specific person was brought to me because of his background, and I then said to the security forces, this person cannot go to administrative detention. But we should approach the committee to cancel the conditional release in order to return him to prison.”
Analyzing the circumstances of the discussion, he said, “Obviously the security forces hadn’t thought of this option previously, for had they thought of that option before I brought it up, they would naturally have brought this person with the recommendation to bring him before that same committee .... The security force... much appreciated my suggestion..., my initiative.”
Asked why there are no documents proving this suggestion originated him, Hirsch said, “Because the recommendations that we receive [from security forces] regarding detainees who are recommended for administrative detention are transferred on a safe security computer system that prevents any type of... information seeping out, because of the very sensitive nature of the security information.
“That system doesn’t include an ability for us [the IDF legal division] to respond to that email,” he added.
So how did he make the recommendation to the Shin Bet?
Hirsch explained, “We have safe telephones for our use. A red phone... that is indeed actually red. I spoke to the security forces... on the telephone as we often and always do, and that is how the suggestion then traveled on.”
Continuing, Hirsch said, “The next thing we hear on the subject was that the government of Israel decides to rearrest those prisoners released in the Schalit deal who had breached their terms of release. Some 60 different prisoners were rearrested.”
Hirsch summarized that of the 60, he dealt with 48 cases. One case was dismissed and the Palestinian was released, he said.
But in around 90% of the 48 cases, Hirsch appeared in court and requested and succeeded in convincing a special committee to send the Palestinians back to jail, including 15 to serve at least life sentences.
Hamas had demanded that Israel release the rearrested Palestinians from the Schalit prisoner exchange in order to halt the 2014 Gaza war, and Israel had instead sent approximately 90% of them back to jail.
Hirsch was asked whether these same Palestinians would have been back on the street after a short time if not for his suggestion.
He responded, “100%. Including those who were returned to serve life sentences... Administrative detention requires that you prove immediate danger posed by that person, whereas breach of a parole allows you to send a person back to jail to serve the rest of his sentence without any other cause.”
This article is the first of a series on the IDF courts in the West Bank.