According to the Jerusalem Center for Foreign and Security Affairs, the hostage deal includes the release of at least 73 terrorists with Israeli citizenship or residency, who are expected to be returned to the country.
The list of terrorists slated for release as part of the deal to free 33 hostages in Gaza is deeply troubling, writes Lt. Col. (res.) Attorney Morris Hirsch, reflecting on his time in the Military Prosecutor’s Office and his work with terror victims following his retirement. “I know many of these terrorists personally,” he writes.
It is impossible to ignore the significant harm to the security of the state and its citizens that may result from the release of these individuals, Hirsch continues. During the cabinet discussion preceding the deal’s approval, the head of the Shin Bet highlighted that 82% of those released in the October 18, 2011 Gilad Shalit deal returned to terrorism. This alarming statistic is compounded by over two decades of ongoing failures by Israel’s interior ministers to address the issue effectively.
The list of terrorists set for release as part of the deal includes at least 73 individuals who hold Israeli citizenship or residency. Among them, 21 are serving life sentences for murder. Eight of these terrorists are to be released within Israel’s 1949 armistice lines, while the rest will be deported, although the exact destinations remain unclear. Five of the eight are affiliated with Hamas, and the other three with Fatah. All were arrested between 2001 and 2003, during the wave of terror attacks initiated by the Palestinian Authority starting in September 2000.
According to Israeli law, the Minister of the Interior has the authority to revoke the citizenship or residency of any individual who has violated the country’s laws and committed terrorist offenses. This power has been in place for many years, and it would be both right and appropriate to exercise it for any citizen or resident convicted of a terrorist crime.
The list of terrorists set to be released under the current deal highlights a significant omission, as these individuals still retain their Israeli citizenship or residency despite their convictions, asserts Hirsch.
This refers to the terrorist Nissim Zaatari, who was one of the planners and executors of the attack on Line 2 in the Beit Israel neighborhood of Jerusalem in August 2003. 23 people were murdered in that attack, including Shmuel Taubenfeld and Shmuel Zargari, who were just one year old at the time.
Along with Nissim Zaatari, Fahmi Mashahara will also be released to Israel. Mashahara, together with his brother Ramadan Mashahara—who is set to be deported—planned and carried out the attack on Line 32A near Gilo in June 2002. That attack resulted in the murders of 19 people.
THE JUDICIAL OBSTACLE
While the authority to revoke the citizenship and residency of terrorists has been in place for many years, Israeli Attorneys General had long prevented interior ministers from using this power. This obstacle seemed to have been overcome in 2006 when the AG agreed to allow the interior minister to revoke the residency of certain terrorists, including three individuals who held Israeli residency and were appointed to ministerial positions in the Hamas government following the 2006 PA elections.
However, while the AG permitted the interior minister to act, the High Court of Justice did not share the same view. For more than a decade, the Supreme Court judges delayed hearings on the matter, ultimately ruling in 2017 to cancel the decision.
Subsequent amendments to the law were introduced to address the judges’ reservations, but these too faced difficulties. In the end, the insistence of the AGs on one particular point significantly weakened the law’s impact. They insisted that if a terrorist whose residency is revoked becomes stateless, the state must grant him or her permanent residency, or at the very least, a temporary one. This legal maneuver, supported by the High Court, ensured that terrorists would remain in Israel, regardless of the revocation of their residency, thereby effectively keeping them within the country.
A study titled, “Instrumentalizing Citizenship in the Fight Against Terrorism,” examining the arrangements in 190 countries around the world regarding the denial of citizenship for breach of trust revealed three very important points:
Of the 190 countries examined, 134 have provisions allowing for the deprivation of citizenship on grounds of breach of trust. In 98 of these countries, citizenship can be revoked even if it results in the individual becoming stateless. Furthermore, in 101 of the 134 countries, the decision to revoke citizenship is made by the head of state, government, or an authorized minister. Only in a small minority of countries—14—is the decision to revoke citizenship made by a court.
Shamima Begum was born in England to Bangladeshi parents. At 15, she left her family to join ISIS in Syria, where she quickly married an ISIS operative. When the UK authorities learned of this, the Home Secretary decided to revoke her citizenship, despite there being no proven or alleged involvement in terrorist activities by Begum. At the time, she was left stateless, with no other citizenship. Begum appealed the decision, and the case went through multiple legal proceedings, but the revocation of her citizenship remained in effect.
