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Shalit captors 'should release him on humanitarian grounds'

Jan. 11, 2010 1:45 P.M. (Updated: Jan. 19, 2010 1:02 A.M.)
Part 16 of a series recounting the findings of South African jurist Richard Goldstone's UN Fact Finding Mission on the Gaza Conflict.

Bethlehem – Ma'an – On 11 January 2009, Hamas deputy Moussa Abu Marzouq stated that as of a result of Israel's then-ongoing assault on Gaza, captured Israeli soldier Gilad Shalit "may have been wounded, and he may not have been. The subject no longer interests us."

"We are not interested in his well-being at all, and we are not giving him any special guard since he is as good as a cat or less," Abu Marzouq added, in an apparent effort to intimidate Israeli forces who were still pounding the coastal enclave for the 18th day straight.

Shalit, a member of the Israeli military, was captured in June 2006 when a squad drawn from three groups – the Popular Resistance Committees, the Al-Qassam Brigades and the until then unknown Army of Islam – excavated a tunnel under the Gaza-Israel border and attacked the Kerem Shalom military base inside Israel, blowing up a tank, killing two soldiers and capturing a third, Corporal Shalit.

Among the subjects of Richard Goldstone's UN fact-finding mission was Shalit's continued detention, as well as some of the immediate consequences for uninvolved Palestinians.

In reaction to Shalit's capture, the report notes, Israel conducted a number of targeted assassinations of alleged fighters belonging to Hamas and other groups; arrested eight Palestinian Authority cabinet ministers, 26 members of the Palestinian Legislative Council and other West Bank leaders; attacked key civilian infrastructure in Gaza, such as the main power plant, the main bridge in central Gaza and PA offices; tightened the economic isolation; and carried out major armed thrusts into Gaza for the first time since August 2005.

Goldstone's mission asked the de facto government in Gaza to confirm the status of Shalit. In their reply, which the mission says it considered to be unsatisfactory, the Gaza government denied being involved in any way with the capture and detention of the Israeli soldier and stated that they are not in possession of any information regarding his current status.

The report notes that negotiations, through intermediaries, continue with regard to the exchange of prisoners between the Israeli government and Hamas representatives, and that in October 2008, a Hamas spokesman stated that "the Shalit case is dependent on prisoners swap ... He will never be released if the Israeli occupation does not release Palestinian prisoners whom Hamas wants free ..."

During its investigations in Gaza, Goldstone's mission heard testimonies indicating that during the military operations of December 2008 – January 2009, Israeli soldiers questioned captured Palestinians, some of whom were used as human shields, about Shalit's whereabouts.

In addition, the soldier's father, Noam Shalit, appeared before the mission at its public hearing in Geneva on 6 July 2009. He informed the investigators of his extreme concern about the condition of his son, who has not been able to communicate with his family and has not been allowed to receive Red Cross visits. Shalit expressed concern about the health and psychological status of his son after more than three years of captivity and appealed for his release.

Addressing the mission directly, Shalit stated: "I know that this mission is determined to give the victims of the recent conflict in Gaza an opportunity to make their voice heard. So – with your kind permission – I would like to use this distinguished forum – the United Nations – first to address you and then to address the people of Gaza and, in particular, the people holding my son Gilad.

"Honorable members of the mission, a few weeks ago you were in Gaza. You met the Hamas hierarchy. According to the Ma'an News Agency, [Gaza Prime Minister] Ismail Haniyeh welcomed your mission deploring what he viewed as Israel's grave violations of international law. The same news agency reported that the mission thanked Mr Haniyeh for his cooperation in facilitating its work. Sirs and Madam, if this cooperation is indeed genuine then the same Hamas hierarchy should honor your eventual findings – whatever they may be.

"And I have no doubt that after you read my written submissions, you will determine that my son's violent abduction and his continuing detention subject to extortion is, equally, a violation of international law. After you hear the cassette recording of my son's voice – released on the first anniversary of his capture – you will be shocked by the callous cynicism of his captors and the grief that his words have caused me and my family. These are words that he was forced to read. You will also find, without a doubt, that the refusal to allow him access to the Red Cross, if not a war crime is, at least, a gross act of inhumanity and an aggravating circumstance.

"Members of the mission, the same Geneva Convention of 1949 which this mission will use to judge the legality of the Israeli attack on Gaza forbids the holding to ransom of an individual – whether he be soldier or otherwise. The same Rome Statute of the International Criminal Court by which the Palestinian Authority seeks to charge the Israeli hierarchy condemns the Hamas leadership no less for the crime of taking hostages – soldiers or otherwise. The same court in The Hague where the Palestinian Authority pursues [former Israeli Prime Minister Ehud] Olmert may equally investigate [Hamas leader-in-exile Khalid] Masha'al who – with his Jordanian nationality – falls squarely within the jurisdiction of this institution.

"But what is the purpose of this honorable mission? Is it really to lay the basis for a future criminal prosecution? Or is it, perhaps, to effect reconciliation? Know that the minds and hearts of the Israeli people are with my son on a daily basis. His release – which it is within your power to promote – will bring about such reconciliation.

'I would like to address the Palestinian victims'

"And now, with you permission, I would like to address the Palestinian victims of Operation Cast Lead. People of Gaza, I do not come before this mission as a representative of the Israeli state. I come neither to condemn nor to justify the recent Israeli operations in Gaza. I am not a politician nor do I care for politics. I am a civilian and the father of three.

"I last saw my son Gilad on Wednesday, 21 June 2006 when he returned to the military service which his country obliged him to perform by law. A few days later, his patrol was sabotaged by armed Palestinians, two of his fellow soldiers were killed before his very eyes and he was abducted. He was 19 years old at the time. A shy boy with a nervous smile and a studious disposition. Like many his age, all that occupied him were his studies and sport.

"To all those who know him, he is gentle and sensitive to the suffering of others – a trait he has shown from an early age. At the age of 11, his teacher asked him to write a fable. His drawings and narrative have now been published. I am giving the mission a copy of this book. You can read it if you wish. The story of a shark and a fish who became friends against all the odds. Need I say more? Suffice to say that the will for peace and security can overcome fear and distrust.

"People of Gaza, do not overlook the circumstances of my son's service nor of his capture. He was not attacking your territory. He was not even in your territory. He was operating within the sovereign territory of the State of Israel – protecting the integrity of what was supposed to be a border of peace after a complete Israeli withdrawal.

"Your leaders say Gilad is a prisoner of war. I say he is an abductee. The difference is in the interpretation of the law. But even if your leaders hold my son as a prisoner of war – why will they not allow him the privileges which attach to such a status? Gilad has no contact with the outside world. Your leaders refuse him access to the International Committee of the Red Cross – the same Red Cross which regularly visits your people held captive in Israeli prisons. The same Red Cross which protests the violations of their rights to the Israeli government.

"People of Gaza, your leaders are fighting to return your sons and daughters from captivity. This is an understandable desire. You may agree with such a policy. Many of you, however, will realize that the fate of an entire prison population cannot depend on the ransom of one young man.

"Your leaders have committed a crime with respect to my son. They hold him to ransom and, by the same token, they hold all of you to ransom. For three years now, you have been held hostage to the inflexible demands of your leaders and their unwillingness to compromise. They issue demands which, I fear, the Israeli government will never meet. My son's fate is the means through which your leaders distract your attention from the destruction they have brought upon you. Is this humane? Are these the acts of an honorable regime?

"People of Gaza, do not ignore the root cause of our mutual suffering. You know that the injustice done to my son was the trigger for war. You also know that the release of my son is the key to peace and the lifting of the Israeli commercial blockade. A small gesture and a little effort on both sides can relieve the misery of many.

"President [Nicolas] Sarkozy of France recently told [Israeli] Prime Minister [Benjamin] Netanyahu that your leaders would not release Gilad until Israel freed prisoners. I am not a party to talks on prisoner release. I am not consulted on numbers and I have no say in the conduct of negotiations. Like many of you, all that concerns me is that the one I love returns home. Do those of you who are waiting for the return of those close to you care for the politics? Do you care for the posturing of your leaders? Or do you – like me – wish that this war and what caused it would never have happened?

"But if a prisoner exchange need be the course we are forced to adopt, let reason and moderation overcome excessive demands. Let not a stalemate in the negotiations prevail over the will of the people. Let not stubbornness triumph over compassion.

"People of Gaza – like many of you, we are suffering the consequences of the decisions and failures of others. Like many of you, my family and I have been caught up in a web of violence. Like many of you, I pay a heavy price on a daily basis. I know that you are short of food. Some of your loved ones have been killed – women and children, young and innocent.

"I understand your distress and sympathize with your grief. I have visited your wounded from Beit Hanoun and have witnessed, at first hand, the unnecessary suffering and the unspeakable atrocity of war. But even so, I do not compare suffering. As a parent speaking to a multitude of parents – I ask you to understand my family's anguish. As the days go by, we begin to despair. We despair of the day when we will see our son again. I know neither where he is held nor how he fares. Whether he is injured or whether he is even alive.

"And finally to the people holding my son: I urge you to release my son. You have the power to act with grace. Do it for the respectability that you wish the international community to accord you. Do it because you see yourselves as statesmen acting with humane intent. Do it for the sake of the respect you say you show this mission. Do it not for gain but do it, I beg you, because it is the just and right thing to do. But most important of all, do it for the peace and welfare of your own people."

Legal findings and conclusions

In its final analysis, the Goldstone report states that the four-member team "is of the opinion that, as a soldier who belongs to the Israeli armed forces and who was captured during an enemy incursion into Israel, Gilad Shalit meets the requirements for prisoner-of-war status under the Third Geneva Convention. As such, he should be protected, treated humanely and be allowed external communication as appropriate according to that Convention. The International Committee of the Red Cross (ICRC) should be allowed to visit him without delay. Information about his condition should also be provided promptly to his family."

In the report's section on recommendations for Palestinian armed groups, Goldstone urges:

(a) that Palestinian armed groups should undertake forthwith to respect international humanitarian law, in particular by renouncing attacks on Israeli civilians and civilian objects, and take all feasible precautionary measures to avoid harm to Palestinian civilians during hostilities;

(b) that Palestinian armed groups who hold Israeli soldier Gilad Shalit in detention should release him on humanitarian grounds. Pending such release they should recognize his status as prisoner of war, treat him as such, and allow him Red Cross visits.

The mission also said it was concerned by declarations made by various Israeli officials who have indicated the intention of maintaining the blockade until Shalit's release, considering "that this would constitute collective punishment of the civilian population of the Gaza Strip."

Israeli officials have repeatedly stated that easing the blockade is linked to Shalit's release. In February 2009, it appeared that the Israeli government had dropped its demand for Palestinian fighters to release Shalit before it would end the blockade. However, Eli Yishai, the then deputy prime minister, stated shortly thereafter that "Israel is facing a serious humanitarian crisis, and it is called Gilad Shalit, and... until he is returned home, not only will we not allow more cargo to reach the residents of Gaza, we will even diminish it."

Israel's then prime minister, Ehud Olmert, also stated that "we will not reopen the border crossings [into Gaza] and assist Hamas so long as Gilad Shalit is in their brutal prison." Israeli Prime Minister Netanyahu reiterated that position as recently as July 2009.
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