Incarcerating human rights, reincarnating int'l law

The recent Schalit bill and the abduction of Dirar Abu Sisi bring the role of int'l legal norms, their rationale and their limits to the forefront.

April 12, 2011 23:10
3 minute read.
Gazan engineer Abu Sisi in court.

Dirar Abu Sisi 311. (photo credit: REUTERS)


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Almost five years after his abduction, Gilad Schalit, the IDF soldier held by Hamas in Gaza with no visits by his family or the International Red Cross, remains in the headlines. Not due to any progress in negotiations, but because of the question of the role of international law.

Dirar Abu Sisi, a Palestinian civil engineer, was recently abducted by Israel while en route to Kiev for alleged connections with top Hamas echelons and reportedly in possession of information linked to the fate of the missing soldier. The Palestinians complain that Abu Sisi’s abduction constitutes a violation of international law. On news regarding the Schalit issue and law, the Knesset has recently decided to advance a bill to restrict family visits and other privileges to Hamas prisoners held in Israeli jails.

These two issues bring the role of international law, its rationale and its limits to the forefront. True, a series of international human rights provisions render the Israeli policy in the case of Abu Sisi problematic. But if Schalit would be led to freedom as a result, shouldn’t the law make an exception? Adolf Eichmann was brought to justice in Israel the same way. Could someone argue that it would have been better for him not to have been abducted in Argentina?

SIMILARLY, THE Schalit bill may contain international legal flaws. The requirement of family prison visits stems from the Geneva Conventions and UN General Assembly Resolutions. While the latter are not binding in principle, and thus Israel can claim it is not obliged to abide by them, the issue regarding the Geneva Conventions is more complex, especially if – as claimed – these visits reflect international norms, which Israel must always respect, regardless of whether it has ratified the treaty that includes such norms.

Yet, given the bill’s rationale – exertion of pressure on Hamas to release Schalit – should the lawmakers’ perspective be utterly rejected?

In fact, the bill should not necessarily be perceived as a negation of international law, but as its ultimate affirmation. Unlike Hamas, which has denied family visits through total non-compliance with the Geneva Conventions, Israel has opted to adapt those conventions to the exigencies of the situation. Thus, visits by lawyers and the International Red Cross are not subject to any restriction. These arrangements, perhaps too few to reverse the bill’s flaws, may yet signal a new approach by Israel’s parliament toward international law.

Only recently, the Knesset’s Speaker correctly asked for a legal opinion on whether governmental permission for the deployment of Egyptian troops in Sinai was subject to parliamentary approval as an amendment to the Israel-Egypt peace agreement – a bilateral international treaty.

Israel has many times been accused of not respecting international law. Yet often – as in the case of the security barrier – the country’s Supreme Court has taken international law into account and the Israeli government has formulated commissions and opened investigations to examine possible violations of international law, especially after the Goldstone Report and the Gaza flotilla incident.

Amid this climate, neither the Abu Sisi operation nor the Schalit bill should be seen as flagrant violations of international law. Morality and humanity sometimes remind us that norms were enacted to serve people, and not the other way around. If international law’s limits are also taken into consideration, albeit a bit paradoxically, through the restriction of human rights and liberties, an era of broadening the law’s scope in Israel’s policy and legislative measures may be dawning.

The writer has served in the Knesset legal department in charge of international and constitutional issues.

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