The Palestinians have presented the capture of Shalit as a "desperate tactic to obtain the release of kidnapped Palestinian political prisoners". If that was the goal, then this tactic as clearly failed, at least so far. Could it eventually succeed? Possibly. Does that mean that Hamas should stand firm and refuse to release Shalit? I don't think so. In fact, I think that the continuous detention of Shalit is fundamentally wrong.
What is at stake here goes far beyond the individual drama of Shalit and the many hundreds of Palestinians kidnapped by Israel which, while certainly important, do not somehow void all the political and moral issues underlying Hamas' actions.
If there is something like an "Israeli contribution to international law" it is definitely the constant, systematic and self-righteous disregard for any and all forms of international law by all the Israeli governments since the founding of the Israeli state to today. From the massive use of torture at home and abroad (remember the infamous Khiam prison in South Lebanon?), to the bombing of civilians in Palestine and Lebanon, from the regular violations of international borders, to the murder of UN officials, from the deliberate creation of pollution during the 2006 war to the killing of opponents without trial (aka "targeted assassination") - the Israelis have put themselves far above and beyond any pretense of legality a long time ago. In fact, it is painfully clear that there is *nothing* the Israelis would refrain from doing because it is illegal; that's simply not how they think. It would be extremely naive to expect a criminal and outlaw Apartheid state to behave according to any internationally accepted norms of civilized behavior. So much is clear.
But what about Hamas?
For all the propagandistic labelling of Hamas as a 'terrorist group' Hamas is, in reality, a national liberation movement with a rather checkered track with regards to international law. While there is no doubt whatsoever that the use of violence against an occupying force is legal, Hamas did conduct and support operations which were clearly aimed at Israeli civilians. While it is true that in a militarized society like the Israeli one the concept of 'civilian' is somewhat ambiguous, and while it is true that any use of violent force has the potential of harming non-combatants, the laws of war have a requirement of proportionality which states that a) non-combatants cannot be deliberately targeted and b) that the likely harm to civilians resulting from a military operation must be justified by the importance of the target. Yes, that is vague and open to interpretation, but no matter how hard I try I cannot see that bombing of buses filled with civilians can be justified under such principles. Let's face it: Hamas did commit terrorist acts in the past.
That being said, Hamas' violations of the laws of war pale in comparison with the numerous atrocities of the Israelis, so I am not putting too much blame on Hamas for its 'less than pristine' track record in this matter. The case of Gilad Shalit is, I submit, fundamentally different.
Unlike Ehud Goldwasser and Eldad Regev, Shalit cannot be considered a POW, at least not under international law since the conflict between Israel and Hamas is does not fall under the category of "international war". Still, the Common Article 3 of the Geneva Convention does apply to any conflit situation, as does international humanitarian and human rights law. But that is really a rather legalistic way of looking at things. Common sense tell us something even more obvious: Shalit is detained as a hostage to obtain a release of other hostages. While an exchange of prisoners between Hezbollah (acting as the de-facto army of Lebanon) and Israel could be viewed as an exchange of POWs and while a detention of IDF POWs by Hezbollah until such an exchange takes places could be considered as legal or, at least, semi-legal, no such arguments can be made in the case of Shalit.
In fact, the lawyers of B'Tselem have clearly indicated that the holding of Shalit is a war crime and that he should be released unconditionally and immediately (btw - if one considers that the laws of war do not apply in the case of Shalit, then the applicable law is human rights law which also prohibits the taking of hostages).
In the case of Shalit, Hamas is committing a clear violation of international law which cannot be justified by the importance of a military objective (the release of Palestinian hostages is not, by definition, a military objective). Furthermore, in deliberately disregarding international law Hamas will find itself in the bad company of Israel and the USA whose defiance of civilized norms of behavior will become less unique, less abject, at least in the eyes of a public opinion still dependent on the corporate media to make up its mind. I know, I know, Israel holds many hundreds of hostages and Hamas holds just one. But who outside the Middle-East can even name a single Palestinian hostage? The "hostage Shalit" becomes a flag, a cause and, most importantly, a veil behind which the Israelis can conceal the large number of hostages they hold. Thus, holding Shalit is not only illegal, it is also counter-productive. Even worse, I believe that it is also immoral.
No matter what the Israelis do to the Palestinians I cannot accept a logic which makes one man pay for the sins of others. Before being an IDF corporal and a bargaining chip, Shalit is first and foremost a man. Unless somebody is incurably racist, anyone would have to recognize that this fundamental quality of being our fellow human being is what should matter most to us when thinking about his plight and the plight of his family. Of course, Shalit is no 'more human' than the hundreds of Palestinians taken hostage by the Israelis, they too deserve as much sympathy from us as he does. But neither is Shalit 'less human' or somehow less deserving of sympathy and compassion.
How can the two year detention of one human being be justified by the lofty goal of releasing other human beings?! Is this a case of the end justifies the means? Those who would answer 'yes' should remember that history shows that the means always end up defining the end.
Hamas appears to be unable to secure the freedom of many Palestinian hostages, but it can secure the freedom of one Jewish young man. Does it matter to this religious organization whether the freed person is Jewish or Palestinian? Does it matter that by releasing Shalit Hamas would loose a powerful bargaining chip?
Since Hamas is a religious organization, please allow me to make a purely religious case for the release of Shalit.
God does not command us to achieve outcomes, not in the Torah, not in the Bible and not in the Qur'an. There is no commandment beginning with the words "Thou shalt achieve...". God's commandments are inevitably focused on our *individual actions* rather then on the possible results of these actions. Simply put, God tells us "do the right thing no matter what and let Me worry about the outcome". It would be outright bizarre for a religious person to say that "if we release Shalit our fellow Palestinians will never be released". What about God's all-mighty Hand?! If God wants to liberate a hostage, any hostage, He can just make it happen and he does not need any 'help' from well-intentioned human beings who, to make things only worse, actually commit a grievous sin with the hope that the end result will somehow justify it. No, God commands us to live piously, to equally love one another regardless of faith or ethnicity and to refrain from committing evil acts. Any truly religious person should accept that God can do anything and that all that is asked of us is to accept His will, even if it is difficult to understand.It is our task to free those we can free, and it's God's task to free those whom we cannot free. At least that is what a religious person or organization should accept as self-evident. Since Hamas cannot free the Palestinian hostages, it should free the one person it can set free: Shalit.
The holding of Shalit is thus illegal, counter-productive and immoral, in particular from a religious point of view. While I can understand what Hamas hoped to achieve when it captured Shalit two years ago, I see no possibly further justification for his detention: keeping him any longer is needlessly cruel and a disgrace for those who hold him.
Gilad Shalit should therefore be released immediately and unconditionally.