During the August 27 meeting in Washington between Prime Minister Naftali Bennett, US President Joe Biden and senior US administration officials, among the subjects discussed was Israel’s preconditions for the reconstruction of Gaza.
Bennett stressed Israel’s requirement that prior to any reconstruction of Gaza there be an immediate commitment by Hamas to an effective termination of rocket fire against Israel, as well as an end to the stockpiling of rockets by Hamas.
The prime minister also stressed the additional and central Israeli requirement for progress on a deal – the return of two Israeli citizens and the bodies of two IDF soldiers held as hostages in Gaza by Hamas and its associated terror organizations.
During the discussion, US Secretary of State Antony Blinken made the surprising and even shocking observation that the issue of the return of the Israeli captives should not be a prerequisite for basic humanitarian matters, such as enabling passage into Gaza of fuel and electricity.
From this remark it would appear that Blinken does not regard repatriation of Israeli civilian hostages and the remains of Israeli soldiers as a “humanitarian matter.” He evidently prefers to consider the passage of fuel and electricity as meriting greater humanitarian priority and value over anything else.
This shocking observation conveys a distorted and incorrect message to the leadership of the Hamas terror organization, implying US support for relegating the genuine humanitarian issue of Israel’s missing civilians and dead bodies in favor of establishing an equivalence with mundane issues of transfer of fuel and electricity.
Such an equivalency runs counter to all accepted humanitarian norms and is indicative of a double standard in the thinking of the secretary, and possibly of the State Department, inasmuch as his view represents that of the department.
The right of families to know the fate of their relatives missing in armed conflict and the obligation to handle human remains with dignity and to return them to their families are basic, internationally accepted humanitarian norms and obligations that apply to all, in all circumstances.
Such norms have been developed over the years and stipulated in international law and practice by conventions, resolutions and recommendations of various humanitarian bodies.
Recent instruments adopted by International Red Cross conferences and European and UN Human Rights bodies include the 2006 “International Convention for the Protection of All Persons from Enforced Disappearance”, affirming the right of families to know the fate of their relatives missing in connection with armed conflict, as well as the obligation to handle human remains with dignity and to return them to their families.
UN Security Council Resolution 2474, unanimously adopted in 2019, calls upon parties to armed conflict to take all appropriate measures to actively search for persons reported missing, to enable the return of their remains and to account for persons reported missing “without adverse distinction.”
This landmark call for the return of missing persons and the remains of those killed “without adverse distinction” clearly emphasizes the importance for all involved parties of refraining from making such return conditional on other negotiating items, including obviously the passage of fuel and electricity.
These rights and obligations exist beneath and beyond specific, tactical or strategic issues arising during negotiations for any political or military deal or settlement between conflicting parties. They cannot and should not be conditioned on such mundane issues as provision of fuel and electricity.
Clearly, trading the return of missing soldiers and civilians for other less humanitarian negotiating items is tantamount to ignoring or downgrading the basic humanitarian obligations to unconditionally return missing soldiers and civilians.
The return of Israel’s missing civilians and the remains of its soldiers should override all other matters in contacts between Israel, UN, Egypt, Qatar and Hamas. It should not be relegated, conditioned or linked to negotiating issues such as civil economic and humanitarian development projects in the Gaza Strip or transfer of funds to Hamas.
Since the obligation to repatriate the missing is fully accepted by the international community and is an inherent element in the world’s great religions, it is incumbent upon all countries and organizations to do everything in their power to bring the missing soldiers and civilians back to their families without any condition or adverse distinction and without any political connection.
One might hope Blinken will be correctly briefed by his advisers as to the genuine, internationally accepted humanitarian priorities and refrain from sanctioning a false and dual standard regarding Israel’s missing civilians and remains of its soldiers.
The writer served as legal adviser to the Foreign Ministry and ambassador to Canada. He presently heads the international law program at the Jerusalem Center for Public Affairs.