Cpl. Gilad Shalit is not a prisoner of war and is therefore not entitled to the full protection that international law affords POWs, according to Hebrew University international-law expert Yuval Shani.
Kidnapped IDF soldier Cpl. Gilad Schalit.
Photo: AP
"The Third Geneva Convention applies to states, and therefore only grants the status of POW when both parties in the war are states, or at least entities that are close to states," Shani told The Jerusalem Post on Wednesday. "In the case of Shalit, the group that is holding him is not a state nor does it act on behalf of a state, or apparently on behalf of an entity which is close to being a state."
Nevertheless, Shani continued, this was not to say that international law would not provide any protection to Shalit. There was an article in each of the four Geneva Conventions dealing with prisoners taken captive in conflicts which were not of an international nature, he said.
Thus, for example, Article 3 of the Third Geneva Convention dealing with prisoners of war regarding armed conflict not of an international character states that "persons taking no active part in the hostilities… shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth." The article bans violence against life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; using prisoners as hostages; outrages upon a captive's personal dignity, in particular humiliating and degrading treatment; and the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court.
Prisoners captured in non-international conflicts are not entitled to many of the benefits afforded POWs, including the right to be held as a cohesive group in a special facility for prisoners of war, to meet with doctors and ministers and to receive visits by the Red Cross.
The rules applying to the care of prisoners by non-national forces were much more vaguely worded, Shani continued. But it seemed clear this category of prisoners must be allowed to have contact with the outside world and cannot just "vanish."
Shani said he thought the reason for the distinction between the two types of captured fighters was that states were better organized and could more easily implement the court's directive. But guerrilla groups or other forces could not provide such a high standard of conditions for POW as states could, and therefore the demands made of such groups were left more general and vague.
By the same token, however, Israel was also not obliged to treat captured Palestinian terrorists as POWs, continued Shani, because the Geneva Accords regarding POWs only apply when two states fight each other. He added that Israel indeed did not observe all of the provisions of international law when it captured and held terrorists.
