Saturday, June 26, 2010

Is Israel right to complain that Hamas has denied Red Cross visits to Gilad Shalit?

By Ali Abunimah

".....It would appear – at the very least from the way the ICRC is treating his case – as well as from other relevant facts, that Shalit can be considered a prisoner of war (POW). If so, his status would fall under the Third Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949

Under this Convention, the right of the ICRC to visit prisoners of war is not unconditional – and note that the ICRC never claims such an unconditional right. Under Article 125 of the Third Geneva Convention, such visits are "Subject to the measures which the Detaining Powers may consider essential to ensure their security or to meet any other reasonable need... ."

Security, according to the ICRC, is precisely the justification Hamas has given for denying visitation. The risk of allowing such visits is obvious: revealing the location of the Israeli POW would run the risk of an Israeli military attack either to attempt to rescue him, or for any other purpose.

Israel has a history of such military adventurism, such as its failed attempt to rescue another Israeli soldier in 1994, which ended up killing the prisoner and several others.

So there is nothing illegal about Hamas denying ICRC direct access to Shalit given the high risk of Israeli military attack – which would include from past experience – mortal danger to the POW himself. Indeed, as the Detaining Power, Hamas would be in violation of its obligations under the Convention if it knowingly and irresponsibly exposed Shalit to the danger of Israeli military attack......"

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