Gilad Schalit, POWs and the laws of reciprocity

In an unequal conflict such as the one Israel is waging against Hamas, is Israel legally entitled to restrict the rights of Hamas detainees in order to pressure its leaders to grant Schalit his?

By ROBBIE SABEL
Gilad Schalit 311 (photo credit: Courtesy)
Gilad Schalit 311
(photo credit: Courtesy)
The issue of reciprocity in an ‘unequal’ armed conflict raises perturbing questions of law and morality. An ‘unequal’ conflict is one in which a regular army that complies with the laws of war is in confrontation with irregular fighters who deliberately flout them.
RELATED:Killed Hamas operative was involved in Schalit kidnapping
One case in question is Israel's armed conflict with Hamas and the latter’s treatment of Gilad Schalit. According to the basic tenets of war, Gilad Schalit is defined as a Prisoner of War (POW) and as such is entitled to humane treatment. This includes keeping him in a camp as opposed to a prison and never subjecting him to solitary confinement.
Schalit is further entitled to unsupervised visits by a Red Cross representative and contact with his family by mail via the Red Cross. He is also allowed to receive parcels from home, again via the Red Cross.
In flagrant violation of the laws of war, Schalit has been denied all of these rights. The International Red Cross has protested, but has thus far been unsuccessful in eliciting any cooperation from Hamas.
At the same time Israel holds hundreds of Hamas combatants in detention in Israel. Although they are not entitled to POW status under international law, they are granted all the rights of detainees under the Fourth Geneva Convention. These rights include meeting with lawyers and unsupervised visits with representatives of the Red Cross. The combatants that have not been convicted of any crimes are detained in camps, not prisons, and the conditions there are similar to those in POW camps.
The question therefore, is whether Israel is entitled to restrict the rights of Hamas detainees in order to pressure Hamas to grant Schalit his.
It can be argued that the laws of war are inadequate when dealing with a situation in which one party implements them while the other violates them. International law, and in particular those connected with war, have very limited means of enforcement, and the element of mutuality is often the only motivation for hostile parties to respect these laws.
Countermeasures are a recognized act of enforcement in international law and in armed conflict they are referred to as “reprisals.” These are defined as "acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the laws of war, for the purpose of enforcing future compliance." It has been argued that it was the fear of reprisals that led to the Axis States refraining from using poison gas during the Second World War.
Apart from a number of absolute prohibitions such as the murder of POWs, the right to carry out acts of reprisal has been recognized in the past. This right was the legal basis that justified the aerial bombardment of German cities by the Allies during the World War II.
However, a more recent treaty from 1977 on the laws of armed conflict rejects the element of reciprocity in most cases. In response to this treaty which forbids attacks of reprisals on civilians, the British government added a reservation which stated that the UK retains the right to attack civilians in reprisal, in order to force the enemy to cease its own attacks.  Giving the enemy forewarning is also stipulated in the reservation. 
So can Israel restrict the rights given to the Hamas detainees? The rule is that basic human rights must be granted without being tied to reciprocity. Thus, although opponents deliberately violate such rights, a decent democratic society should nevertheless grant them in all circumstances. Let’s not forget also that Hamas would most likely be callously indifferent if Israel restricts the benefits granted to their own detainees.
Israel can restrict rights that are not basic - such as the right to receive visitors - but basic rights remain inviolable. As former Supreme Court president Aharon Barak astutely noted, "democracies fight with one hand tied behind their backs."
The writer teaches international law at the Hebrew University and is the former legal adviser to the Israel Foreign Ministry.