The judges noted that in decisions like this the government had greater discretionary powers while the High Court's jurisdiction was extremely limited and reserved for exceptional circumstances.
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Earlier Wednesday the State Prosecutor's Office asked the High Court of Justice to reject the petition filed against the government's decision to release Israeli-American citizen Ilan Grapel from Egypt in return for 25 Egyptian inmates incarcerated in Israel.
In its response to the petition, the state said, "It is a pure diplomatic procedure as the considerations that should be taken into account are of a political-diplomatic nature and are at the heart of the executive branch's authority."
The state firmly rejected a central claim made by the petitioners – MK Michael Ben-Ari and the 'Our Israel' movement – by which the decision was not binding since it was reached in the security cabinet. "The government is permitted to decide that certain decisions are to be voted on in the cabinet."
From left: MK-Ben Ari, Baruch Marzel and Itamar Ben-Gvir at court on Wednesday (Photo: Gil Yohanan)
According to the state, "There is no need to speak at length about the importance of the ties between Egypt and Israel and the preservation of trust between the two countries at this point in time and in general."
In its reply, the state clarified that the cabinet made all the relevant considerations about the benefit in Grapel's release, including the diplomatic ones related to the relationship with Egypt and the fact that a relatively small number of prisoners who were not involved in terrorist operations would be released.
The cabinet unanimously approved the deal on Tuesday, by which Grapel – who has been held in Egypt for over four months on espionage charges – will be released in exchange for 25 Egyptian prisoners.
The deal includes three minors and does not include any security prisoners. Grapel is set to be released Thursday.
As in all such prisoner exchange deals, the State afforded a 48-hour window for the public to contest the deal.
MK Ben Ari moved to have the deal suspended based on what he called the cabinet's lack of authority over the matter: "Grapel chose to defy a travel advisory issued for Egypt because of his radical leftist ideology and of his own free will."
The petition further argues that the cabinet "exceeded its authority," by approving the deal, and that it constitutes "a matter of State and between states that should be decided by the Knesset."
The petition also claims that "releasing (25) terrorists in exchange for Mr. Grapel is disproportionate and unreasonable."
While the petitioners concede to the fact that the while they are aware that the High Court of Justice does not interfere in decisions of such political nature, the Grapel deal is different that the Shalit deal. The Shalit deal as also contested in court prior to its execution.
"This is a grown man, an American national, who took it upon himself to intervene in matters that were none of his business. He was aware of the risk he was taking. The Israeli media ran numerous travel advisories warning against travelling to Egypt, but Mr. Grapel decided to ignore them," the petition said.
"Given the circumstances and with the release of dangerous terrorists in the balance, one must ask – shouldn’t a citizen be held accountable for his actions? Should the State of Israel be obligated to bear the devastating consequences… of the release of these criminals for the sake of securing the release of someone who willingly chose his destination."
Grapel is expected to return to the US following his release. The prisoner exchange deal was sanctioned by Shin Bet Chief Yoram Cohen, Police Commissioner Yohanan Danino and Prison Commissioner Aharon Franco, as well as by Military Intelligence and Foreign Ministry officials.
The Almagor Terror Victims Association is also expected to file a petition against the deal.
Raanan Ben-Zur contributed to this report
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