is gilad shalit a POW?
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http://english.aljazeera.net/focus/2010 ... 01841.html
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
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 international 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
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.
'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
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.
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
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 international 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
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.
'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
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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the Shilat family and their supporters need to realize that their son is worth more to the Israeli government as a captive than if he is released. If the Israelis really wanted him free they would have done it years ago.
Senator Mark Daly (Kerry), one of 35 parliamentarians who joined the flotilla, agreed to carry a letter for Gilad from his parents, and deliver it to UN officials inside Gaza. Israel lied and said that they refused to deliver the letter.
Israel claims that we refused to deliver a letter and package from POW Gilad Shalit's father. This is a blatant lie. We were first contacted by lawyers representing Shalit's family Wednesday evening, just hours before we were set to depart from Greece. Irish Senator Mark Daly (Kerry), one of 35 parliamentarians joining our flotilla, agreed to carry any letter and deliver it to UN officials inside Gaza. As of this writing, the lawyers have not responded to Sen. Daly, electing instead to attempt to smear us in the Israeli press. We have always called for the release of all political prisoners in this conflict, including the 11,000 Palestinian political prisoners languishing in Israeli jails, among them hundreds of child prisoners.
http://www.freegaza.org/en/home/56-news ... m-flotilla
just like i hope the thousands of Palestinian's (including children by the way), who are being held in Israeli Prisons illegally, while they are subjected to serious violations of their rights, are released and returned home safely.
hamas should free Gilad.
Israel should free the thousands of prisoners they are holding.
and stop pretending that my distaste that i direct at the Israeli Government is purely based on the with-holding of prisoners. it's just one of the many disgusting acts that they subject the palestinians to every single day.
clear enough for you?
you know yosi you seem to be living in some magical world where common sense does not apply. can you take me there? you don't have to tell me where it is but maybe somehow i'll just end up there
Outlaw, thank you for adding personal insults to the thread. Helpful as ever. Blindfolds perhaps? You know like, "oh hi dude from the red cross, we'll be taking you to see Gilad Shalit, but only on the condition that we can keep his location secret, so here, put on this blindfold," or even just "...so here, get into the back of this windowless van." Is that common sense enough for you?
Also, I like Captain Fantastic. It has a certain ring. It's like Captain America merged with Mr. Fantastic. Would that make me super flexible and stretchable, and also give me an unbreakable discus shield? Cause that would be pretty sweet. Although I think a mix of The Human Torch and Wolverine would be better, but I'm not sure what to call it. Hmm...any suggestions?
something like this?
and the world will suffer from momentary lapses of being reminded of just how awesome you are, no longer.
It's also lacking the Human Torch element. Maybe if his menorah claw had lit candles...?
1) Am I the only one who sees a double standard here. On the one hand, he claims that Shalit is a POW and therefore can be with held visitations by the red cross and his family can not send packages to him, but on the other hand, when Israel with holds these same things from Gaza based prisoners it is considered a violation of human rights????
2) To all those who criticize Israeli leadership for not accepting the German brokered deal, you do realize that in exchange for Shalit, Hamas is demanding the release of hundreds of prisoners including dozens that have murdered numerous Israeli citizens in terrorist attacks throughout the years or have organized such attacks? You have to be blind not to see why Israel is reluctant to release such prisoners.
2010: 9/7/10 - Bilbao
2012: 26-27/6/12 - Amsterdam ~~ 29/6/12 - Werchter ~~ 4-5/7/12 - Berlin
2014: 25/6/14 - Vienna ~~ 26/6/14 - Berlin
Jail ordeal of hundreds of Palestinian children arrested for throwing stones. Rights groups express concern at the rising number of juveniles as young as 12 who are held behind bars and 'treated like terrorists'
With more than 300 Palestinian children being held in Israeli prisons, human rights groups and Palestinian officials are increasingly concerned about the actions of the Israeli military.
The Israeli group B'Tselem said that security forces had "severely violated" the rights of a number of children, aged between 12 and 15, who had been taken into custody in recent months.
The family of one 13-year-old boy from Hebron who was arrested on 27 February by a military patrol and detained for eight days have brought a legal case against the authorities. The teenager, Al-Hasan Muhtaseb, described how he had been interrogated without a lawyer late into the night, forced to confess to throwing stones, made to sign a confession in Hebrew that he couldn't read, jailed with adults and brought before a military court. He was only released on bail eight days later, after considerable legal effort by several human rights groups. As he had signed a confession, he still faces a possible indictment for throwing stones – a charge that usually brings several months in jail but carries a maximum penalty of 20 years' jail.
Although most international attention focuses on diplomatic sparring in the Middle East, it is cases such as this teenager's arrest that are the reality for Palestinians living under Israeli military occupation. The surprise about the teenager's experience is not that it is exceptional, but that it is a common occurrence.
As of the end of February, 343 Palestinian children were being held in Israeli prisons, according to Defence for Children International (DCI), which took up the Muhtaseb case. Israel routinely prosecutes Palestinian children as young as 12 and the Israeli legal system treats Palestinians as adults when they turn 16, but Israelis become adults only at 18. Ill-treatment and torture of Palestinian children are "widespread, systematic and institutionalised", DCI said in a report last year.
Al-Hasan Muhtaseb was arrested early in the afternoon as he and his 10-year-old brother Amir were walking home through Hebron, in the occupied West Bank, after visiting their aunt.
"Two soldiers came to us and told us: 'Come over here.' We went to them," said Al-Hasan, a slight boy, neatly dressed, who barely looks his 13 years. "They took my brother and I don't know where they took him. I was sent inside the station and I never saw him after that."
They were detained separately. Amir was released later that night, deeply traumatised. "He was in a very, very bad psychological state," said his father, Fadel Muhtaseb, 45. "He had wet himself. He was terrified." The boy said he had been held with his eyes covered by a hat in a room where there was also a dog, which he could hear panting.
Al-Hasan was interrogated at an Israeli military post in Kiryat Arba, a Jewish settlement in Hebron. "I was asked: 'Did you throw stones? Did you hurt the soldiers or hit their vehicles? How close were you to the soldiers? Why were you throwing stones?'," he said. Eventually he had admitted throwing stones, although in an interview last week Al-Hasan said it was untrue: on that day he had not thrown stones, although earlier in the week he had.
He had been made to sign a statement in Hebrew, a language he doesn't speak or read. He was blindfolded and taken to Ofer military prison, where he arrived at 3.30am. "There were no other children," he said. "I was afraid." Three days after his arrest he appeared at a military court. But his father, who works as a tiler, could not afford the 2,000 shekels (£350) bail. "My father told them he couldn't pay this much money," said Al-Hasan. His father, who sat next to him through the interview, burst into tears.
Last Sunday the boy was freed under a bail arrangement in which his father faces arrest if his son does not appear at the next summons. "Even if he were throwing stones, he is only 13," said Fadel. "They treated him like a terrorist. They claim they are democratic and human, but they are not."
The Israeli Defence Force defended the arrest, saying Israeli troops were acting to prevent violence. Both boys are now incontinent and Amir has been hospitalised. "He wakes up in the middle of the night screaming," said Fadel. "We try to comfort him, but he's getting worse and worse."
The Palestinian Authority highlighted the case of the two Muhtaseb brothers, saying Israel was breaching international law and has recently seemed to take a stronger stance against the more routine challenges of the occupation, including the effect of the West Bank barrier. Israeli security forces have warned of a broader crackdown if the protests escalate.
http://www.guardian.co.uk/world/2010/ma ... ted-israel
This does not contradict what I wrote above. The decline of the german brokered deal by Israel was based on the fact that there are a number of mass murderers on the list of prisoners that Hamas wants released. Are you saying that Israel has no right to imprison people who murder her citizens in cold blood?
The anti-Israeli people here keep calling for Israelis to be brought up on charges of crimes against humanity, violation of human rights, massacring civilians and so on, but stay completely silent when the Palestinian side does the same.
2010: 9/7/10 - Bilbao
2012: 26-27/6/12 - Amsterdam ~~ 29/6/12 - Werchter ~~ 4-5/7/12 - Berlin
2014: 25/6/14 - Vienna ~~ 26/6/14 - Berlin