As Israel and Hamas inch closer to a temporary ceasefire in Gaza, one of the key sticking points has been the number of Palestinian prisoners to be released in exchange for Israeli hostages, of which about 130 are still being held – although some are thought to have died.
Why is the prisoners’ ratio so crucial in the current negotiations? The answer lies in recognising the centrality of the prisoners’ issue when it comes to mediating the broader conflict.
As I have documented in my book, The Palestinian Prisoners Movement, rates of Palestinian imprisonment are notably high. Approximately 40% of the Palestinian male population have been detained or imprisoned at least once. At present, there are as many as 8,000 Palestinian prisoners and detainees in Israeli prisons, the highest number in more than 14 years.
There are two main ways that Palestinians become imprisoned in Israel. The first is via conviction in Israel’s military court system. This is the main judicial mechanism for Palestinians living in the occupied West Bank. The conviction rate in these courts is more than 99%, with the majority of convictions based on “confessions” given during interrogations before most detainees have access to a lawyer.
Yet even plea bargains can yield long sentences – throwing stones, for example, carries a minimum sentence of three years but can be punishable by up to 20 years.
While a minority of prisoners have been convicted of armed violence or terrorism, other charges have included online incitement, organisation of nonviolent protests or demonstrations and, of course, affiliation with Hamas or other banned groups.
The second main mechanism by which Palestinians are held is through a policy called “administrative detention”, which Israeli human rights group B’tselem describes as “incarceration without trial or charge, alleging that a person plans to commit a future offence”. No evidence is disclosed, and there is no time limit to the detention period.
Although some detainees are held for several days or weeks, nearly 80% of those incarcerated under administrative detention historically have been held for more than six months. Some have been held for years. While international law stipulates that administrative detention should be used sparingly, more than 3,000 Palestinians were being held in administrative detention as of January 2024.
Why is the issue so important?
Due to the widespread nature of detention and incarceration, nearly all Palestinians have a friend or relative who has been imprisoned. This is especially the case in rural areas and refugee camps, where raids by Israeli troops are common.
As I have documented, there is ample solidarity with prisoners among Palestinian communities – this crosses the lines of politics, class, religion and locale. Detainees are typically viewed by their communities as heroes who are resisting the occupation.
By contrast, most Israelis view all prisoners as terrorists and consider the state’s use of incarceration and detention as necessary for Israel’s security. Now – in the aftermath of the brutal Hamas October 7 attack – most Israelis reject any moral equivalence between Palestinian detainees and Israeli hostages, and a majority oppose a full prisoner release in exchange for the hostages.
Nevertheless, Israel has demonstrated willingness to negotiate on prisoner releases in the past. In 2011, Israel controversially freed over 1,000 prisoners in exchange for captured soldier Gilad Shalit. In 1983 and 1985, Israel released thousands of Palestinian prisoners in exchange for Israeli soldiers.
Where do things stand now?
In the November ceasefire, Hamas and Israel agreed to a three-to-one ratio – three Palestinian prisoners for each Israeli (or international) hostage released. This has resulted in 240 detainees being freed for 80 hostages. More than 170 of these Palestinian prisoners were still awaiting trial – 90% of them were teenage boys aged 16–18, and the other 10% were adult women.
In the current negotiations, Hamas has called for the release of all Palestinian prisoners. Israel has refused this demand – but over the course of negotiations, the two sides have reportedly settled on a ten-to-one ratio. Consequently, under the proposed deal, 400 Palestinian prisoners will potentially be released in exchange for 40 Israeli hostages.
It is likely that Hamas will push for the release of high-profile prisoners in this exchange. These could include Marwan Barghouti, a long-time prisoner who many Palestinians view as a potential future president.
Hamas and Israel have yet to agree to a final deal. But it’s clear the details of the prisoners’ release will be the linchpin of any agreement.
In many ways, the prisoners’ issue encapsulates the intangible elements that lie at the roots of the broader conflict: the need for security among Israelis, and the yearning for liberation among Palestinians. Negotiations on prisoner releases can open deep-seated tensions on how to balance between those priorities, but they also reveal rare opportunities for occasional compromise.