Noam and Aviva Schalit appealed Monday to the French judicial system to hold Hamas, including its Damascus-based leader Khaled Mashaal, responsible for kidnapping their son Gilad and keeping him hostage in Gaza for the past five years.

If their legal effort in France is successful, arrest warrants could be issued against members of Hamas, including Mashaal.

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Noam and Aviva can file a legal suit in France because Gilad holds dual French- Israeli citizenship.

French law is applicable to anyone who is a French citizen, even if the criminal act against him occurred outside of France, explained an attorney for the Schalit family in Israel, Nick Kaufman.

He said within the French justice system there are certain judges who are mandated to conduct investigations into criminal proceedings involving French nationals.

“The judge can order the law enforcement agencies to open an investigation and instruct them on how to go about it,” Kaufman said.

He added that the legal instrument has been used in other instances, including against nine aides to the president of Rwanda Paul Kagame for a 1994 assassination of the previous president of that country Juvenal Habyarimana. Three French citizens were killed in the attack.

One of the Schalit family’s attorneys in Paris, Patrick Klugman said that such a case was more effective in France than in Israel because of the kind of legal agreements France has with the Arab world.

The 14-page legal brief that Noam and Aviva filed in Paris on Monday, was presented to the dean of instruction judges, who had eight to 10 days to appoint one or two judges to lead the investigation into Schalit’s kidnapping, Kaufman said.

The investigation is done in conjunction with French police and other law enforcement agencies. Should the judges conclude that members of Hamas were responsible, they would then issue arrest warrants, he said.

The legal brief did not name Schalit’s kidnappers and asked simply that members of Hamas be investigated.

But the attorneys did state that they held Mashaal responsible, along with other members of Hamas.

Alexander Meir Benezra, an Israeli lawyer who specializes in French law, said the judge had the authority to conduct the investigation on Israeli soil as well as in Gaza. He added that refusal by Hamas to cooperate with such an investigation could lead to its leadership being tried in a French court, even without their presence.

He added that the move was the right one even if it was late in coming.

“We are appealing to the French legal system, as a neutral and independent entity,” Noam Schalit said.

“Such an appeal is not possible in Israel. As Israeli- French citizens, we asked the [French] court that investigates crimes to investigate the people who kidnapped my son Gilad, and who are holding him hostage for the last five years in total isolation, without anyone expect his captors seeing him, and without any basic human rights.”

He said he had turned to the French court after his son’s captors had for years “ignored all the international calls to free [Gilad] on a humanitarian basis” including from the European Parliament, the US Congress, the German parliament, French President Nicolas Sarkozy, US President Barack Obama and German Chancellor Angela Merkel.


The Hamas captors have also reefed to accept a compromise proposal for a prisoner swap offered them by a German mediator, Noam said.

He and his wife have turned to the French courts amid media rumors of possible advancements toward a deal to free his son, who was kidnapped along the Gaza border on June 25, 2006.

On Sunday, Defense Minister Ehud Barak discussed Schalit during a telephone conversation with Field Marshall Muhammad Tantawi of Egypt. Along with Germany, Egypt has also acted as a third party negotiator between Israel and Hamas.

Also on Sunday, Prime Minister Binyamin Netanyahu told the cabinet that freeing Schalit would be a good way for Hamas to show that it wants peace with Israel.

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