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Repatriating Israeli Captives Is a Humanitarian Right Under International Conventions

avatar by Alan Baker / JNS.org

Opinion

Leah Goldin, mother of late Israeli soldier Hadar Goldin, whose remains are being held by the Hamas terrorist organization in the Gaza Strip, attends a press conference on Aug. 5, 2018. Photo: Hadas Parush/Flash90.

JNS.org – During the Aug. 27 meeting in Washington between Israeli Prime Minister Naftali Bennett, US President Joe Biden and senior American officials, among the subjects discussed were 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 to return two Israeli citizens and the bodies of two Israel Defense Forces soldiers held hostage 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.

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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.

This shocking observation conveys a distorted and incorrect message to the leadership of the Hamas terror organization, implying US support for downgrading the genuine humanitarian issue of Israel’s missing civilians and dead bodies, in favor of establishing an equivalence with the mundane issue of the 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 United Nations 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, called 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 to refrain 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, the 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 that Blinken will be correctly briefed by his advisers as to the genuine, internationally accepted humanitarian priorities, and will refrain from sanctioning a false and dual standard regarding Israel’s missing civilians and remains of its soldiers.

Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.

This article was first published by the Jerusalem Center for Public Affairs.

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