The Nazis, Schalit, and Hamas war crimes

Schalit is being denied basic human rights, including access to the Red Cross - something that even the Nazis permitted for Allied POWs. Israel must start making more noise to the world about this heinous violation of international law.

Gilad Schalit in video 311 (R) (photo credit: Reuters)
Gilad Schalit in video 311 (R)
(photo credit: Reuters)
If Israel turns the public diplomacy issue regarding Gilad Schalit into a straightforward demand for his release, Hamas could respond that they are willing to comply provided Israel agrees to the price.
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The release of 400 murderers in exchange for Schalit may be a disproportionate and exorbitant demand, but it is not in itself a war crime. However, keeping Schalit incommunicado for five years is a heinous violation of the law. And while public abhorrence of Schalit’s ongoing detention is understandable, demonstrations that call for his release are, to a certain extent, playing into the hands of Hamas.
Instead, the public should be demonstrating against the conditions under which Schalit is being detained. By denying him access to representatives of the International Red Cross, Hamas is violating the basics of humanitarian law. To put this virulence into perspective, it’s worth noting that even Nazi Germany permitted Red Cross access to Allied prisoners of war (however, not to civilians in concentration camps).
Hamas behavior towards Schalit is "inhuman treatment;" defined by the Geneva Conventions as a "grave breach" of the laws of war. Such breaches oblige all states to prosecute or extradite the offenders. Israel should supply all friendly states with a list of the Hamas leaders responsible for the inhuman treatment of Schalit, accompanied with a reminder of their obligation to prosecute or extradite the perpetrators. Egypt and other Arab states should also be reminded of their international obligations not to be party to a war crime.
This issue should be the top priority for public diplomacy; Israel must focus its efforts into lobbying for clear statements from international statesmen and religious leaders. The International Committee of the Red Cross (ICRC) has protested against the treatment of Schalit, but on such a minimal level that the world is not even aware of it. The Red Cross professionals in Geneva certainly know how to make a noise when they want to. There is no record online of any statement made by the ICRC’s president on the Schalit case, and neither do the records of the International Red Cross Conferences contain any resolutions. This is inexcusable. Israel must request from the highly influential American Red Cross Society to intervene in Geneva on Schalit’s behalf.
The issue should be raised by Israel at the UN Security Council in New York. In accordance with international law, when no state takes action against war criminals, the UNSC can empower the International Criminal Court at The Hague to prosecute persons responsible for war crimes, including that of "inhuman treatment."  The UNSC has done this in the past against the presidents of Sudan and Libya.
Unfortunately, it is improbable that the UNSC will call for prosecution, but that should not stop Israel from raising the issue at the Council and asking democratic states to support the request.
In its treatment of Schalit, Hamas is committing a deliberate and malicious war crime. The international community must be made aware of this, and treat Hamas leaders as the war criminals they are.
By extension, if the Palestinian Authority eventually takes over the jurisdiction and responsibility of the Gaza Strip, they should be aware that they will become responsible for this virulent war crime.
The writer teaches international law at the Hebrew University and is the former legal adviser to the Israel Foreign Ministry.