Why Hamas should release Gilad Shalit

It will be two years this June since the daring capture of the Israeli corporal Gilad Shalit by the military wing of Hamas, the Izz ad-Din al-Qassam Brigades, in the course of an attack on an IDF position near Gaza. Following this embarrassing incident, the Israelis tried everything they could, including the mass murder of civilians in Gaza, to force Hamas to release Shalit, but to no avail. Numerous diplomatic efforts were also made by various parties to secure Shalit's release, but they all failed due to the Israeli refusal to release the many hundreds of Palestinian hostages it holds under a variety of pretexts.

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.

Israeli minister proposes trading Barghuti for Shalit

Al-Manar TV reports: An Israeli occupation minister said on Tuesday the Jewish state should exchange detained Palestinian Intifada leader Marwan Barghuti for an Israeli soldier captured by Gaza resistance fighters more than a year ago.
"Marwan Barghuti has a good chance of becoming the next Palestinian leader," Benjamin Ben-Eliezer, infrastructure minister and member of Israeli powerful security cabinet, told army radio.
"His release could allow the political negotiations to advance and bring about the liberation of Gilad Shalit," the Israeli occupation soldier was captured in a deadly cross-border raid by Palestinian fighters on June 25, 2006.
"All those who are thinking of Israel's security realize that there is no alternative to liberating Marwan Barghuti, as he is the strongman on the Palestinian side," he said.
Barghuti is the West Bank leader of Palestinian president Mahmud Abbas's Fatah party and is widely regarded as the inspiration behind the Intifada that erupted in September 2000. He was arrested in 2002 and convicted in 2004 of five counts of murder and one of attempted murder resulting from three martyrdom attacks and an aborted attack. He is currently serving five life sentences. Barghuti's detention has not diminished his appeal on the Palestinian street - in January 2006 he was re-elected to parliament and is widely regarded as a possible successor to Abbas. Ben Eliezer said Barghuti's conviction should not prevent Israel from holding talks with the charismatic leader.
Israeli occupation officials said a prisoner exchange for Shalit had been agreed through Egyptian mediation with Hamas but that the talks broke down after the Islamic resistance movement controlled Gaza in mid-June.

Will Marwan Barghouti be exchanged for Gilat Shalit?

Ynet news reports that, according to Marwan Barghouti's wife, Fadwa, her husband might be released from jail as part of a deal that would include the release of kidnapped IDF soldier Gilad Shalit.

If true, this is interesting as it was reported that Shalit was captured by Izz ad-Din al-Qassam Brigades (the military wing of the Palestinian governing party Hamas), the Popular Resistance Committees (which includes members of Fatah, Islamic Jihad, and Hamas), and a previously unknown group calling itself the Army of Islam.

Considering that Shalit is held somewhere in Gaza and that Hamas was a key player in his capture, his release cannot be obtained without Hamas approval.

It thus appears that Fatah and the Olmert administration are quietly negotiating with Hamas. More importantly, Barghouti himself, who is the top Tanzim commander and, therefore, a senior Fatah member, is also negotiating with Hamas through his Israeli captors (such as Former Israeli Deputy Defense Minister Ephraim Sneh secretly met Monday with Marwan Barghouti at the Hadarim Prison).

Such a deal would be in everybody's interest and if Barghouti was freed there could at least be a hope for further negotiations between all the parties. Without such a development, the violence will only continue.

Fighting breaks out in Gaza between Hamas and Army of Islam

The Ma'an news agency reports that clashes erupted in Gaza City on Sunday night between the Army of Islam, with the powerful Dughmosh clan, and the Hamas movement.

Army of Islam said that Hamas and the Executive Force injured the group's leader, Khattab Maqdisi, before abducting him. In retaliation, Army of Islam kidnapped ten Hamas members.

"A group affiliated to Khattab opened fire at members of the Executive Force before fighting erupted and Khattab was abducted," Hamas said.

The spokesperson of Hamas, Sami Abu Zuhri, said "we received information that Khattab, and groups affiliated to him, intended to vandalise areas of Gaza City. After he opened fire at the Executive Force, Khattab was arrested.

"At the same time the Dughmosh family abducted ten university students, who may be Hamas loyalists."

With regards to whether Khattab was injured, Abu Zuhri did not give a clear answer. He said "Hamas will investigate the issue and secure law and order, preventing any group from dragging Gaza back into the state of chaos."

Army of Islam, which was established in 2006 in the Gaza Strip, has conducted a number of operations, including the abduction of BBC reporter, Alan Johnston. Johnston continues to be detained.

The group is also one of the partners in the kidnapping of Israeli soldier, Gilad Shalit.

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Might this be linked to a Hamas lead rescue operation to free Alan Johnston and Gilad Shalit?

B'Tselem: Hamas must secure Gilad Shalit’s release immediately

B'Tselem statement:

On 25 June 2006, a band of eight armed Palestinians crossed from the Gaza Strip into Israeli territory, near Kibbutz Kerem Shalom, and attacked an army post and tank. During the ensuing battle, two members of the band – Muhammad Farwaneh and Hamed a-Rantisi – and two Israeli soldiers – Hanan Barak and Pavel Slutzker – were killed. The soldier Gilad Shalit, who was in the tank at the time of the attack, was abducted by the band and taken, apparently wounded, to the Gaza Strip.

The identity of the organization that carried out the attack, or of the persons who dispatched the band, is not known for certain. According to media reports, the attack was a joint effort of three organizations: the Popular Resistance Committees, the 'Iz a-Din al-Qassam Brigades, and the Islamic Army. A few days after the attack, the media reported that Shalit's abductors demanded, in exchange for Shalit, the release of one thousand Palestinian prisoners being held in Israeli prisons. The abductors' demand contained an implied threat (and in some of the reports the threat was explicit) to execute Shalit if their demand was not met. Subsequently, extensive negotiations, mediated by Egypt , began between the Hamas leadership, which represented the abductors, and Israel on the details of the exchange. The negotiations continued on and off for many months, but the sides did not reach an agreement.

The location where Shalit is being held is unknown. According to various Hamas spokesmen, Shalit is being held in proper conditions. However, these claims have never been verified, given that the abductors have not allowed representatives from the International Committee of the Red Cross, or from any other international organization, to visit Shalit.

International humanitarian law recognizes, subject to certain conditions, the right of parties taking part in hostilities to capture combatants of the opposing side and hold them until the hostilities end, but only with the objective of removing them from combat. States may also arrest combatants belonging to the other side, and under certain conditions civilians as well, who are suspected of having committed criminal offenses, for the purpose of prosecuting them.

Contrarily, seizing a person (civilian or combatant) and holding him forcibly with the objective of pressuring the other side to meet certain demands is absolutely prohibited, and is considered hostage taking. This act is much more grievous when it is accompanied by a threat to kill or injure the hostage if the hostage-takers' demands are not met. Furthermore, breach of the prohibition is deemed a war crime, for which everyone involved in the act bears criminal responsibility. The circumstances in which Shalit was abducted and has been held clearly indicate that he was taken hostage.

Regardless of the question of the legality of the seizure or status of the person who is seized, international humanitarian law states that every person is entitled to be treated humanely and in a dignified manner by the opposing side, whatever the circumstances. Prisoners of war are entitled to a variety of other rights, among them to right to receive visits by the ICRC. Given that Shalit is entitled to the status of POW, denial of his right to these visits also constitutes a flagrant breach of international law. Moreover, the refusal to allow visits and cutting Shalit off totally from the outside world raise the grave suspicion that he is being treated improperly, in particular regarding the medical treatment he has, or has not, received for his injury.

For these reasons, the Hamas leadership, as the persons holding actual control of the security apparatuses in the Gaza Strip, has the duty to act order to bring about Shalit's unconditional release immediately. Until his release, the persons holding him must treat him humanely and enable representatives of the ICRC to visit him.