Analysis: Sanctions on Hamas prisoners: Can two wrongs make a right?

Can we really permit ourselves to descend to the same level of Hamas' brutality by applying a "tit for tat" standard?

By ALAN BAKER
palestinian prisoner mothers 248 88 (photo credit: )
palestinian prisoner mothers 248 88
(photo credit: )
Once again Israel finds itself challenged by a legal, diplomatic and moral dilemma, with a potential outcome that can only be termed "lose-lose." Hamas, on the one hand, blatantly and openly violates the most accepted and basic humanitarian norms by holding Gilad Schalit incommunicado somewhere in the Gaza Strip, preventing the International Red Cross or his family from visiting him, and denying such minimal rights as the transfer of letters and parcels. While this annoys us all intensely, the international community doesn't seem to be too bothered. Israel, on the other hand, grants Hamas detainees the conditions required by international law pursuant to commitments to which Israel is party, including Red Cross and family visits, medical supervision and other standard basic rights. Moreover, whether pursuant to Israeli law or otherwise, these prisoners get additional freebees such as academic studies and access to radio and television. Here again, the international recognition and acknowledgement of this enormous discrepancy is minimal, if at all. The legal logic is clear. "Pacta sunt servanda" - commitments pursuant to international obligations must be observed by Israel. This is what guarantees our place as a member of the international community and our acceptance by the civilized world. One would think that the international community, were it not so biased against Israel, would acknowledge and recognize Israel's humanitarian standards vis-a-vis Hamas detainees. But this may just be too much to expect. The moral aspect is also clear. Can we really permit ourselves to descend to the same level of Hamas' brutality by applying a "tit for tat" standard, and exacting a policy of absolute reciprocity against their detainees? The answer, it seems, is no less clear. Even if Israel were to deny Red Cross access and suspend other basic rights, it wouldn't bother the Hamas in any way. Hamas leaders just don't care. They evidently do not have the same level of concern for the welfare of their detainees that Israel does. One does not read of demonstrations by family members to press the Hamas authorities into negotiating in favor of their detainees. In fact, reciprocal ill-treatment and restrictions by Israel would only be utilized by Hamas and its apologists throughout the free world as a springboard for further anti-Israel incitement and propaganda. The UN Security Council and General Assembly, not to mention the UN Human Rights Council, and the various UN Human Rights envoys, would be infused with new energy and eagerness to launch a series of emergency conferences, reports and condemnations of Israel. Do we really need this now? But with a view to achieving some element of balance, and to make it clear to the outside world that once again Israel is being unfairly judged and discriminated against, one could logically call for restricting the rights of Hamas detainees to the bare international minimum. As for the additional benefits granted prisoners under Israeli law, some consideration should be given to an immediate amendment of this legislation so that Hamas detainees can be denied many of those "extra" benefits enjoyed by other inmates in Israeli prisons. At least in this way, in our own eyes and perhaps in the eyes of those that seem so bent on criticizing us, we will not be radiating weakness and need not consider ourselves, in the words of Justice Minister Daniel Friedmann, to be "suckers." The writer, a partner in the law firm of Moshe, Gicelter & Co., formerly served as legal adviser to the Foreign Ministry and as ambassador to Canada.