Saturday, June 27, 2009

Free the Prisoners, and Let Their Rights Be Respected

Some folks thought that I should have posted about the third year anniversary of IDF soldier's Gilad Shalit's capture/kidnapping by Hamas. I suppose the implication is that if I don't, then I only care about the Palestinian prisoners being held by Israel. Of course, I didn't post about them either.

So let's make things clear. First of all, all prisoners being held by both sides should have their rights' respected. Neither side does that. Israel does not recognize captured militants as soldiers, but as enemy combatants, who have only minimal rights. Israel may confer "privileges" on these militants, and often she does. But these are not considered enforceable rights. Hamas, of course, has done much less than Israel, including not letting Israel know whether Shalit is alive, much less let him have Red Cross visits. Both sides are guilty on this, and Hamas more than Israel, when it comes to Red Cross visits, and other fundamental rights of prisoners.

I condemn Hamas for its specific violations of Shalit's rights, but Israel's actions pain me more, since they are done in my name. When Hamas kidnaps an Israeli soldier to use as a bargaining chip, I consider that barbaric. When Israel does the same, I consider it also barbaric, but in this case, the barbarism is done by my country, and not by a political/military organization that doesn't purport to represent me.

Thanks to a High Court ruling, Israel no longer kidnaps foreign civilians and holds them indefinitely to use as bargaining chips. But the security services have near carte blanche to round up the usual suspects whenever they want, including political leaders and folks who have been fingered by Palestinian collaborators, etc. Yes, administrative detainees must be brought before a judge, but the procedure is closed, and while it is a bit better than what Bush-Cheney did, it is still an affront to decency.


Richard said...

I don't mind posting about Gilad Shalit's captivity as it is wrong. But for anyone who decries yr not posting about this I want to know what they've done or said about those democratically elected Hamas members of the Palestine legislature who've languished in jail for 3 yrs. They weren't even combatants like Shalit. They were simply pawns in a failed Israeli strategy to destroy Hamas & Palestine's democractically elected gov't.

1/3 of Hamas' legistlators have been kidnapped. How many Israelis are crying for them?

Avram said...

I don't get why people 'remind' bloggers to post about subjects. Let's take for example Anonymous and his request for you to post about Shalit.

1) This is your blog, you write about things that are important to you, or things that interest you, when you can. So you didn't post about Shalit, that doesn't mean you don't care. It just means you didn't. If every time you get called up for not posting on something good/bad, you'd have the world's most popular blog. You didn't post about Michael Jackson! The shame!

2) As an upcoming journalist friend of mine said (he's a loud critic of Zionism and Israel), "If they want pro-Israel stuff more often, there's plenty of blogs that offer that. Mine doesn't"

Oh well, just my two cents.

shmuel said...

just want to correct a fact - administrative detainees in israel are subject to judicial scrutiny every three months in an open military tribunal (very often their family members are present). what remains non-public is some of the intelligence that the judge sees and for security reasons is not available for the scrutiny of the detainee or his attorney. as one who has been many times a participant in a tribunal i can say with complete confidence that wherever possible the detainee will be tried rather than administratively detained, and only in cases of extreme security risks will there be no trial. that is why the judicial review is so important, and much to the annoyance of the shabak (security service) who find the interference of judges annoying, judges interfere a lot!
on another point, hamas "soldiers" are not recognised as pows for the sinple reason that they don't act according to the geneva convention and are therefore not entitled to enjoy its privilages - they don't carry there weapons openly, or wear uniforms, and don't afford their prisoners the rights granted by the geneva convention - israel thus has no international legal obligation to give them pow rights.
this may still leave moral issues unsolved, but keeps israel within an international legal framework.

Jerry Haber said...


The IDF judicial review is by definition a questionable/sham process since it is by a military court of the occupier of the arguable longest occupation in modern history. It annoys the Shabak? I am sure it would annoy Dick Cheney, too.

Your point is well-taken about international law, which defines Hamas soldiers as illegal combatants. That is another reason why a Palestinian state with an army is a necessity. But if Israel doesn't treat Hamas prisoners as POW's, Hamas is also under no legal oblication to treat Gilad Shalit as a POW.

It is called reciprocity, which is the basis of the conventions concerning POW's.

Finally, you didn't say anything about jailing Hamas legislators for political reasons. I guess you agree there.

Jerry Haber said...


Let's defer the discussion of the Hebrew Republic to my post thereon. I just would note here that you must have a different edition of the book, because none of what you say is in it. You don't agree? Be patient and hold off a bit.

Anonymous said...

The thing about Gilad Shalit is that whether or not he is eligible to POW status, his kidnapping and incarceration are in clear violation of the international law prohibition on the taking of hostages. Take a look at Btselem's press release on the issue:

"B’Tselem today (25.06.09) repeats its demand that Hamas release Gilad Shalit immediately. The circumstances of Shalit’s capture three years ago and the behavior of his captors clearly indicate that he is legally a hostage. Hostage taking is absolutely prohibited under international humanitarian law, and is defined as a grave breach of the Geneva Convention.

The leadership of Hamas is obligated to release Shalit immediately and unconditionally. Until he is released, those holding him must grant him humane treatment, allow him to be in contact with his family and allow representatives of the International Committee of the Red Cross to visit him.

The denial of Shalit's right to these visits constitutes a blatant violation of international law, and casts doubt over claims that Shalit’s wellbeing has been maintained."

3 years incommunicado?!? POW or not, that's a breathtaking violation of human rights and a direct contravention of international humanitarian law. Read: War crime.

Anonymous said...


Judicial review is definitely better than the creation of a legal black hole.

But the process in administrative detention proceedings in the OT doesn't begin to meet the most basic requirements of due process. The fact that most, if not all, of the evidence is withheld from the detainee makes it impossible for him to defend himself or to counter the charges against him. Even the best judge in the world, with the best of intentions, cannot assure a just outcome under such circumstances. It is process guaranteed to produce errors, injustice, and abuse of power.

There are currently about 450 Palestinian administrative detainees held by Israel, some for several years, who have never been given a fair, meaningful legal process.

You write that "wherever possible the detainee will be tried rather than administratively detained, and only in cases of extreme security risks will there be no trial." For a discussion of the conceptual error inherent in such an argument, see

(in Hebrew)

Jerry Haber said...


I am glad you agree with me and my original post, Free the prisoners. Just not exactly sure what you added to it.

shmuel said...

Point taken about the due process - obviously it's not ideal, and the question that always remains is how much can human rights be sacrificed for the sake of saving lives (definately or maybe). It's well known that all countries "civilized" or other will use some form of force (=torture?) when investigating terror suspects - can this ever be morally justified? No, but if I feel that the lack of morality will save a life, then morality may be put on hold! Same for administrative detention - I'm torn sometimes at the breach of human rights, but on balance, I sleep ok at night knowing that the price tag was reasonable and that a judge who I respect and assume to be reasonable, even if he does belong to the occupier, had a good look at all the info and realises that there was no safer option. I genuinely believe that the power is not generally abused and is on a downward trend (in 2000 there were thousands of detainees, now "only 450" and going down).
As for the "political" Hamas leaders who were imprisoned (some by me - I also aquitted two of them after hearing evidence) - they were prosecuted for being members of Hamas, the law doesn't distinguish between political membership and military membership (except for the punishment meted out). One can argue as to the political sense in arresting "the enemy's" political leadership (Arafat was never arrested, Marwan Bargouti was), but if proven that they are Hamas associated, then the law is clearly broken. As usual Israel makes all the political mistakes it could possibly make, and anyone with a head on its shoulders knows that Hamas will eventually be a partner to peace talks, but meanwhile the Hamas political wing still openly supports terror tactics even if it lets the "youngsters" do its dirty work. In Northern Ireland it worked eventually after arresting political IRA leaders - let's hope here too.

Anonymous said...


Just one point: You mention that administrative detention hearings take place in an open, public military tribunal. But ad. detention hearings are held, by default, in closed chambers!

Margaret said...

Richard refers to "those democratically elected Hamas members of the Palestine legislature who've languished in jail for 3 yrs." You respond: "As for the "political" Hamas leaders who were imprisoned...prosecuted for being members of Hamas...if proven that they are Hamas associated, then the law is clearly broken...the Hamas political wing still openly supports terror tactics." Would you explain what law or laws the Palestinian legislative representatives were convicted of breaking, and to what penalty they were sentenced?

shmuel said...

administrative detention hearings are not held in closed chambers, not by default or otherwise. the proceeding is that the attorney questions the prosecutor with the accused and family present, as to the reason for the detention, and he answers to the best of his knowledge without breaching security considerations. the prosecuter will then hand a confidential report from the shabak to the judge, which only he looks at, and the judge may also ask to speak to the shabak rep who wrote the report. after considering the findings the judge will deliver a public, explained decision as to why he accepts, rejects or modifies the request for detention.
as for the hamas political leaders, their offense is/was belonging to an illegal organisation - such as hamas, jihad islami, popular front, etc. fatah is no longer illegal. this means anyone associated with hamas, and these leaders never denied it, have committed a crime in the eyes of israeli law. the fact that they were democratically elected has no bearing on the offense but may have been mitigating as to the punishment meted out.
incidently, it's the same law( "takanot hahagana" - can't recall the english term) that outlawed the irgun and stern gang by he british, and the jdl (kach) by the israelis. most of those convicted (about 75% of those prosecuted) got about 3 years imprisonment and have since been released (most recently aziz duweck)

Anonymous said...

Regarding closed chambers, see sec. 8 of the Administrative Detention Order (Temporary Provision), נוסח משולב, no. 1591 from 2007:

(A) Proceedings according to this order will take place in closed chambers.
(B) Subject to (provisions on secret evidence) the detainee may be present at any hearing pertaining to him.

Or in Hebrew:
(א)הדיונים בהליכים לפי צו זה יתקיימו בדלתיים סגורות
(ב) בכפוף לאמור בסעיף 7(ג) רשאי העציר להיות נוכח בכל דיון בעניינו.

Margaret said...

Thank you, Shmuel.

Unknown said...

There seems reason to question whether "the same law" is being utilized in the same way. The three forces comprised the Jewish Agency’s Haganah led by David Ben Gurion, the LEHI, the Stern Gang led by Nathan Yellin-Mor, and the Irgun led by Menachem Begin, who in his book “The Revolt” bragged that he was “Terrorist Number One.”