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THE ELECTRONIC INTIFADA

Ali Abunimah

June 25, 2010

Is Israel right to complain that Hamas has denied Red Cross visits to Gilad Shalit?

The latest Israeli hasbara tactic to combat growing international opposition to Israel's criminal blockade of the occupied Gaza Strip is to complain that the International Committee of the Red Cross (ICRC) has been prevented from visiting the Israeli soldier captured by the Palestinian resistance organization Hamas in 2006 while he was enforcing the military occupation and siege of the Gaza Strip.

Indeed, a representative of the ICRC stated last week with respect to the Israeli soldier Gilad Shalit's case, that the organization has been working hard to secure two things: (a) a visit to Shalit by ICRC representatives, and (b) direct contact between Shalit and his family.

The representative said:

Our efforts have lost none of their intensity, despite the fact that Hamas has so far firmly rejected all of our pleas. It is unacceptable to hold a soldier captive without allowing him contact with his family, as required under international humanitarian law. We particularly regret that political considerations so far appear to have carried more weight than humanitarian concerns.

She adds:

We have stepped up our contacts with the Hamas authorities, for example at high-level meetings held recently in Gaza and Damascus. We have requested access to Mr Shalit and tried to obtain information about his condition. We have also requested that Hamas hand over to Gilad Shalit thousands of letters and greeting cards sent to him by various organizations as well as by schoolchildren and other individuals. We deeply regret that all these requests have been rejected. We have also been constantly reminding his captors of their obligation under international humanitarian law to protect his life, to treat him humanely and to let him have regular and unconditional contact with his family.

The ICRC representative always maintains a clear distinction between (a) ICRC visiting him and; (b) contact between Shalit and his family:

Whatever the reasons behind its decision to deny Gilad Shalit regular contact with his family, Hamas has an obligation under international humanitarian law to allow such contact. Hamas said publicly that security considerations prevented it from allowing the ICRC to visit Shalit. Security considerations cannot, however, justify a refusal to permit the exchange of news between Gilad Shalit and his family for almost four years.

It would appear ? at the very least from the way the ICRC is treating his case ? as well as from other relevant facts, that Shalit can be considered a prisoner of war (POW). If so, his status would fall under the Third Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949

Under this Convention, the right of the ICRC to visit prisoners of war is not unconditional ? and note that the ICRC never claims such an unconditional right. Under Article 125 of the Third Geneva Convention, such visits are "Subject to the measures which the Detaining Powers may consider essential to ensure their security or to meet any other reasonable need... ."

Security, according to the ICRC, is precisely the justification Hamas has given for denying visitation. The risk of allowing such visits is obvious: revealing the location of the Israeli POW would run the risk of an Israeli military attack either to attempt to rescue him, or for any other purpose.

Israel has a history of such military adventurism, such as its failed attempt to rescue another Israeli soldier in 1994, which ended up killing the prisoner and several others.

So there is nothing illegal about Hamas denying ICRC direct access to Shalit given the high risk of Israeli military attack ? which would include from past experience ? mortal danger to the POW himself. Indeed, as the Detaining Power, Hamas would be in violation of its obligations under the Convention if it knowingly and irresponsibly exposed Shalit to the danger of Israeli military attack.

Furthermore, under the Third Geneva Convention, Hamas not obliged to release any Israeli POW until the "end of hostilities" or unless the POW is severely injured or mortally ill. As Israel has affirmed from its side, a "state of hostilities" exists between Israel and Gaza (what Israel has termed an "enemy entity"), it cannot demand the release of a uniformed soldier who was a combatant in the armed conflict at the time of his capture until Israel agrees that hostilities have ended.

So unless Israel gives a firm public assurance that it would never attempt a military rescue of the POW, it has no grounds whatsoever to complain that ICRC has not been allowed to visit.

As regards denying Shalit family contact, in the form of letters and parcels, there Israel appears to be on slightly stronger ground. But Israel is being disingenuous here. Part of the "rules of the game" it has established in previous German-brokered prisoner deals with the Lebanese resistance, all information is itself a tradeable commodity. If Israel repudiates these rules, and also agrees to abide by international law with respect to Palestinian prisoners, then we would be able to take more seriously its complaints about the denial of family contact as well.

But as we know, Israel violates its own obligations to the hundreds of Palestinian prisoners from Gaza that it is holding.

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?" the ICRC representative states:

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.

Under international humanitarian law and human rights law, everyone is entitled to respect for their family rights. People held captive must therefore be given the opportunity to have regular contact with their loved ones. 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. The ICRC has repeatedly called for the resumption of family visits to Gaza detainees and will continue to do so.

While Shalit, as a uniformed combatant of an occupying army captured during hostilities, is almost certainly a prisoner of war, it needs to be emphasized that not all Palestinian prisoners in Israeli jails are POWs. The vast majority would be civilians subject to the protections of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War ? which Israel also constantly violates ? while those captured as part of resistance organizations described in the Third Geneva Convention may be POWs.