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From the field

The Gaza Strip - 25 June 2007: B'Tselem: Hamas must secure Gilad Shalit's release immediately

On 25 June 2006, a band of eight armed Palestinians crossed from the Gaza Strip into Israeli territory, near Kibbutz Kerem Shalom, and attacked an army post and tank. During the ensuing battle, two members of the band - Muhammad Farwaneh and Hamed a-Rantisi - and two Israeli soldiers - Hanan Barak and Pavel Slutzker - were killed. The soldier Gilad Shalit, who was in the tank at the time of the attack, was abducted by the band and taken, apparently wounded, to the Gaza Strip.

The identity of the organization that carried out the attack, or of the persons who dispatched the band, is not known for certain. According to media reports, the attack was a joint effort of three organizations: the Popular Resistance Committees, the 'Iz a-Din al-Qassam Brigades, and the Islamic Army. A few days after the attack, the media reported that Shalit's abductors demanded, in exchange for Shalit, the release of one thousand Palestinian prisoners being held in Israeli prisons. The abductors' demand contained an implied threat (and in some of the reports the threat was explicit) to execute Shalit if their demand was not met. Subsequently, extensive negotiations, mediated by Egypt , began between the Hamas leadership, which represented the abductors, and Israel on the details of the exchange. The negotiations continued on and off for many months, but the sides did not reach an agreement.

The location where Shalit is being held is unknown. According to various Hamas spokesmen, Shalit is being held in proper conditions. However, these claims have never been verified, given that the abductors have not allowed representatives from the International Committee of the Red Cross, or from any other international organization, to visit Shalit.

International humanitarian law recognizes, subject to certain conditions, the right of parties taking part in hostilities to capture combatants of the opposing side and hold them until the hostilities end, but only with the objective of removing them from combat. States may also arrest combatants belonging to the other side, and under certain conditions civilians as well, who are suspected of having committed criminal offenses, for the purpose of prosecuting them.

Contrarily, seizing a person (civilian or combatant) and holding him forcibly with the objective of pressuring the other side to meet certain demands is absolutely prohibited, and is considered hostage taking. This act is much more grievous when it is accompanied by a threat to kill or injure the hostage if the hostage-takers' demands are not met. Furthermore, breach of the prohibition is deemed a war crime, for which everyone involved in the act bears criminal responsibility. The circumstances in which Shalit was abducted and has been held clearly indicate that he was taken hostage.

Regardless of the question of the legality of the seizure or status of the person who is seized, international humanitarian law states that every person is entitled to be treated humanely and in a dignified manner by the opposing side, whatever the circumstances. Prisoners of war are entitled to a variety of other rights, among them to right to receive visits by the ICRC. Given that Shalit is entitled to the status of POW, denial of his right to these visits also constitutes a flagrant breach of international law. Moreover, the refusal to allow visits and cutting Shalit off totally from the outside world raise the grave suspicion that he is being treated improperly, in particular regarding the medical treatment he has, or has not, received for his injury.

For these reasons, the Hamas leadership, as the persons holding actual control of the security apparatuses in the Gaza Strip, has the duty to act order to bring about Shalit's unconditional release immediately. Until his release, the persons holding him must treat him humanely and enable representatives of the ICRC to visit him.