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Is Gilad Shalit a prisoner of war?
By Ali Abunimah
In a stunt labelled the "True Freedom Flotilla" Gabriella
Shalev, Israel's ambassador to the UN, other diplomats
and Zionist activists set sail last week on New York's
Hudson River towards UN headquarters.
Their goal was to draw attention to Gilad Shalit, the
Israeli soldier captured by Hamas four years ago as he
was enforcing Israel's occupation and blockade of the
Gaza Strip.
Shalev reportedly carried an "aid" package containing
underwear, eyeglasses and food intended for Shalit.
Malcolm Hoenlein, the executive vice chairman of the
Conference of Presidents of Major American Jewish
Organizations, the Zionist umbrella group that organised
the event, complained that the International Committee of
the Red Cross (ICRC) has been prevented from visiting
Shalit, while Israel allegedly allows "some 15,000 to
18,000 tonnes of humanitarian aid" into the besieged Gaza
Strip each week.
Shalit has been deprived of his "most basic rights,
including visits by representatives of international
organisations" such as the ICRC, and the right to
receive packages or letters from home, Asaf Shariv,
Israel's consul-general, echoed.
Deflecting criticism
Since criticism of its raid on the aid flotilla, Israel
has renewed its focus on Shalit. Following the outrage
over Israel's killing of activists aboard the Gaza Freedom
Flotilla in international waters on May 31, the intensified
focus on Shalit is Israel's bid to deflect criticism of
its unrelenting imprisonment of more than 1.5 million
people in the Gaza Strip, half of whom are children who,
unlike Shalit, remain anonymous to world media and leaders.
But does Israel have a point? Is Hamas violating Shalit's
most basic rights by denying the ICRC direct access to
him, by refusing family contact, and even by keeping him
captive in the first place?
In a recent interview, Béatrice Mégevand-Roggo, the ICRC's
head of operations for the Middle East stated that her
organisation was working with "intensity" to secure
permission for an ICRC representative to visit Shalit or
at least for his family to exchange correspondence with
him.
"Hamas has so far firmly rejected all of our pleas"
Mégevand-Roggo said, adding that on June 14, the ICRC
"said publicly that Hamas, by not allowing contact
between Mr Shalit and his family, was violating
international humanitarian law".
Notably, however, the ICRC did not say that holding Shalit
as a prisoner, or even denying the ICRC the right to visit
him are violations of international law, which appears to
indicate that the ICRC considers Shalit to be a prisoner
of war (POW).
His status would therefore be governed by the Third Geneva
Convention Relative to the Treatment of Prisoners of War.
Security considerations
Under Article 125 of this convention, the ICRC's ability
to visit a POW is not unconditional but, "subject to the
measures which the detaining powers may consider essential
to ensure their security or to meet any other reasonable
need ...."
As the ICRC's Mégevand-Roggo points out, Hamas, the
detaining power in this case, "has said publicly that
security considerations prevented it from allowing the
ICRC to visit Shalit".
From Hamas' perspective, the risk of allowing a visit is
obvious: revealing the location of the POW would run the
risk of an Israeli military attack either to attempt to
rescue him, or to harm Hamas' military structures and
personnel.
Both Israel and Hamas would undoubtedly have at the top
of their minds, Israel's 1994 attempt to rescue Nachshon
Wachsman, a US-Israeli dual national and member of the
Israeli army captured by Hamas fighters in the West Bank.
In that case, Hamas had threatened illegally under inter-
national law to kill Wachsman unless Palestinian prisoners
were freed.
It had however extended its deadline for Israel to agree
to an exchange and, as The New York Times reported at the
time, mediators speaking to both sides thought they had
struck a deal when Israel decided to launch a military
rescue instead.
Wachsman, an Israeli officer, and three Palestinians were
killed in the poorly-executed Israeli assault.
Israel claimed that Wachsman had been shot dead by his
captors as Israeli soldiers attacked the house where he
was held with explosives.
Hamas seeking recognition
Harming Shalit would damage Hamas' bid to gain inter-
national Recognition. Under the Third Geneva Convention,
Hamas is obligated to do all it can to protect a POW's
life, something the organisation seems now to recognise.
Mahmoud Zahar, a senior Hamas official in Gaza, told a
visiting South African delegation in April in relation to
Shalit: "We have not and will not kill captive Israeli
soldiers. Our morals and our religion prevent us from
doing that."
Given its attempts to gain international recognition
and respectability, Hamas will almost certainly not
deliberately harm Shalit and Israel's lack of urgency
suggests it knows that too.
Hamas, conceivably, could be in violation of its
obligations if it revealed Shalit's location to
facilitate an ICRC visit and thus knowingly exposed
him to the danger of an armed Israeli attack.
The only situation in which it might be safe for Hamas
to consider allowing a visit to Shalit is if Israel
gave an unambiguous public undertaking that it would
never attempt a military rescue.
Since that is unlikely, and could probably not be trusted
anyway, an ICRC visit should not be expected any time
soon.
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'State of hostilities'
But is it not illegal for Hamas to hold on to Shalit in
the first place? If, as the ICRC seems to consider him,
Shalit is a POW, then the answer is no.
Under the Third Geneva Convention, a detaining power
is not obligated to release any POW until the "end of
hostilities," unless the POW is severely injured or
mortally ill.
Since Israel insists that a "state of hostilities" exists
between itself and the Gaza Strip (which it has declared
an "enemy entity"), it obviously cannot demand the
unconditional release of a captured combatant soldier.
Of course Hamas could release Shalit before the end of
hostilities if it wanted to do so, and it has insisted
repeatedly that it does in exchange for Palestinian
prisoners held by Israel.
But early this year, Binyamin Netanyahu, the Israeli prime
minister, reneged (according to some reports under American
pressure) on a prisoner exchange deal brokered by German
intelligence.
Shalit's propaganda value
For the Israeli government, a captive Shalit is a valuable
propaganda asset. The only point on which Israel appears
to have a strong case is the denial of regular contact
between Shalit and his family as stipulated in the Third
Geneva Convention.
Hamas has provided some information, for example a video
last year in which Shalit, appearing physically healthy,
spoke to his family.
But Israel is as usual being disingenuous.
While Shalit is a POW subject to the Third Geneva
Convention, most Palestinian prisoners in Israeli jails
are civilians from the occupied territories subject to
the protections of the Fourth Geneva Convention Relative
to the Protection of Civilian Persons in Time of War.
Some, belonging to resistance organisations of the kind
described in the Third Geneva Convention, may meet the
criteria of POWs.
Regardless, they all have rights Israel has routinely
violated.
In response to the question "Is Israel entitled to ban
family visits to detainees from Gaza held in Israel,
given that Hamas is not allowing access to Gilad Shalit?"
ICRC representative Mégevand-Roggo affirms: "Both Israel
and the Palestinian factions have obligations towards
those they detain, and they cannot relieve themselves
of these obligations on grounds of lack of reciprocity.
This principle is at the very heart of humanitarian law."
According to Mégevand-Roggo: "An ICRC programme enabling
Palestinian families to regularly travel to see close
relatives detained in Israeli prisons has been accepted
for decades, and the ICRC has always accepted the security
controls that were imposed."
"But the programme has been suspended for families from
Gaza" despite regular ICRC calls on Israel to resume them.
Israeli officials have stated publicly that the denial of
visits to Palestinian prisoners and other measures against
the entire population are intended as a form of pressure,
in other words, collective punishment - a grave crime
under international law.
Avigdor Lieberman, the Israeli foreign minister, for
example, said early in June that Israel should not lift
its blockade of the Gaza Strip until Hamas allows an ICRC
visit to Shalit.
The tragedy of the Shalit case is not just that Israel is
using it to divert attention from the collective punishment
of Palestinians, but that Shalit could already have been
home long ago if Israel's leaders had not reneged on the
German-brokered deal.
It seems that for the Israeli government Shalit is more
useful for his propaganda value as a captive, in stunts
like the "True Freedom Flotilla," than he would be as a
free man reunited with his loved ones.
--------------------------
Ali Abunimah is author of One Country, A Bold Proposal to
End the Israeli-Palestinian Impasse and co-founder of The
Electronic Intifada
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