It is legally and morally acceptable to suspend security prisoners' privileges.
By ASHLEY PERRYPrisoners 224.88(photo credit: AP)
With the Israeli government voting in favor of an upcoming prisoner exchange with Hizbullah and Gilad Schalit's release in advanced negotiations, it is time to look at Israel's present paradigm for gaining the release of its soldiers in enemy hands.
Everyone from the prime minister down often declares that the Israeli government "will take all steps to bring the MIAS back home." But instead of once again releasing terrorists unapologetic for their atrocities, such as Samir Kuntar, there is a way to acquire vital information and eventually secure the release of the MIAs that the government has not even attempted.
The groups who hold these soldiers terrorize the soldiers' families and, indeed, all of Israel by withholding information on their health and treatment. Human rights groups like B'Tselem have declared that "holding Gilad Schalit is a war crime" and that "until he is released, those holding him must grant him humane treatment and allow representatives of the ICRC to visit him. The fact that Schalit's right to these visits has been denied constitutes a blatant violation of international law."
This stands in stark contrast to how Israel treats its security prisoners, even those convicted of the most heinous of terrorist acts.
Convicted murderers like Marwan Barghouti are provided with enough comfort that they manage to run a quasi-political empire from their cells, with important figures visiting them regularly. Kuntar himself, who crushed a young girl's head with his rifle butt, has been allowed to marry twice during his incarceration - with regular conjugal visits.
BUT ISRAEL has legal options.
In the wake of the 1967 war, Israel's legal system determined that international law, embodied by The Hague Regulations of 1907 and Fourth Geneva Convention of 1949, did not apply to the captured West Bank and Gaza because they were not previously under independent sovereignty. However, Israeli legal opinion decided that while not binding, these conventions would guide Israeli actions in the territories. So while not applying de jure, the "Israeli government's administration of the territories would be in accordance with the humanitarian provisions of the convention on a de facto basis."
This was the opinion of the then attorney-general Meir Shamgar, who created the legal framework of the Israeli military government in the administered territories. Even at the time, many criticized Shamgar's decision.
THE GENEVA Convention requires that prisoners receive large quantities of food, cigarettes on demand, full medical treatment, regular visits by the Red Cross, mail and family visitations.
Yet even according to the convention, many of these rights may be suspended if the authorities believe there is just cause on the basis of "security reasons." Thus Israel has the legal possibility to suspend many of the privileges - obligations which in any case it has voluntarily taken on itself - if there is security justification.
The manner in which kidnapped soldiers are held and the terrorizing effect it has on the Israeli people suggest that relating the condition of kidnapped Israeli soldiers to the conditions of designated prisoners in Israeli jails is a security issue.
Last year, former Prisoner of Zion Ida Nudel and the Shurat HaDin Israel Law Center filed a petition to the High Court of Justice demanding it order Internal Security Minister Avi Dichter to withhold visitation rights of Hamas and Hizbullah prisoners in Israel.
The petition argued that the prisoners should not be allowed visitation so long as the Red Cross was prevented from seeing kidnapped IDF soldiers Gilad Schalit, Eldad Regev and Ehud Goldwasser.
Another proponent of this idea, Kadima minister Ya'acov Edri, said: "There is no doubt that one of our most significant tools to achieve the release of our soldiers is the Palestinian and Hizbullah prisoners. As a former deputy to the minister of internal security, I know the meaning of preventing family visits to Palestinian prisoners, or Red Cross visits to Hizbullah prisoners."
Passed at the end of the Second Lebanon War, United Nations Security Council Resolution 1701 (among others) states that international law calls for "the unconditional release of the abducted Israeli soldiers."
The government has the legal and moral wiggle-room to suspend prisoner privileges as it sees fit, especially when countenanced for security reasons. While not particularly palatable, we are left with few other options.
It is high time the government lived up to its promises to do everything possible to release its captives and instituted a new way of thinking that benefits the people of Israel over convicted terrorists.
The writer is editor of the Middle East Strategic Information project at the Jerusalem Center for Public Affairs and a regular blogger at JPost.com Blogs' The Sephardi Perspective
if(catID != 151){
var cont = `Take Israel home with the new Jerusalem Post Store
