Just as it is Israel’s self-adopted responsibility to protect its citizens when in captivity, it must protect them even more so when safely at home.
This week’s prisoner exchange is not especially unique in the sense that Israel has conducted numerous exchanges over the years.
Since the War of Independence, Jewish civilians and soldiers have been captured by the Syrians, Jordanians, Egyptians, Hizbullah and Hamas.
But Gilad Schalit’s release from captivity after five long years is especially momentous since his kidnapping gripped the nation and touched many hearts around the world.
Schalit’s captivity placed Israel’s internal moral and emotional struggle concerning POWs in the spotlight again. It also highlighted Israel’s security concerns over releasing prisoners responsible, directly or indirectly, for the murder of innocent men, women and children.
Now that Israel has achieved its goal of bringing Schalit back home, the time has arrived for Israel to batten down the hatches and bundle up for a “Palestinian Winter,” as it is highly likely that many of the prisoners released will now return to terrorism.
For the time being at least, Israel needs to go on the “passive-offensive.”
It must beef up roadblocks, intensify intelligence- gathering and get tough on the Palestinian Authority to ensure quiet is maintained.
On the international level, Israel must be prepared to defend itself on the legal front in the event it must pursue one of the recently released terrorists. In this likely scenario, Israel will no doubt come under heavy criticism from the international community.
For its part, the IDF must make clear the necessary precautions soldiers should take when patrolling vulnerable border areas. It must also clarify the procedures to be taken in the event another soldier is captured.
The government must heed the recommendations set out by the Winograd Committee after the Second Lebanon War in 2006, and construct a policy on how to deal with kidnappings and subsequent prisoner exchanges.
ISRAEL SHOULD deny Palestinian prisoners the rights and privileges they have become accustomed to until now.
There is no reason prisoners need to have television, hotel-quality food, and family or conjugal visits.
The International Committee of the Red Cross (ICRC) outlines prisoners’ rights in conflict: “POWs must be treated humanely in all circumstances. They are protected against any act of violence, as well as against intimidation, insults, and public curiosity.
International humanitarian law also defines minimum conditions of detention covering such issues as accommodation, food, clothing, hygiene and medical care.”
Human rights groups often claim Israel’s detention of Palestinians is unlawful but the ICRC specifically outlines that “Those detained for participation in hostilities are not immune from criminal prosecution under the applicable domestic law for having done so.”
Though Prime Minister Binyamin Netanyahu revoked education privileges for prisoners in June, it was former prime minister Ehud Olmert who, after failed negotiations to secure Schalit’s release in 2009, appointed a ministerial committee headed by then-justice minister Daniel Friedmann to explore legal means by which prisoners’ conditions could be worsened.
It is essential that the government finish the security fence as soon as possible to prevent terrorist infiltration.
More urgently, the international community must gather together to amend international humanitarian law. The laws dealing with conflict were written in the days of conventional warfare and have little relevance today.
The ICRC allows that the “rules protecting prisoners of war (POWs) are specific and were first detailed in the 1929 Geneva Convention.
They were refined in the third 1949 Geneva Convention, following the lessons of World War II, as well as in Additional Protocol I of 1977.”
The ICRC explains that, “During World War I the Hague provisions proved to be insufficient in view of the dangers originating from air warfare and of the problems relating to the treatment of civilians in enemy territory and in occupied territories.
The International Conferences of the Red Cross of the 1920s took the first steps towards laying down supplementary rules for the protection of civilians in time of war.”
What this means is that the rules are heavily outdated, especially now, when we find ourselves in an unprecedented era of terrorism; but these laws can be updated as necessary to make them relevant to today’s wartime dilemmas.
Questions that Israel must answer every day are never properly, if at all, addressed in international law. The rules of engagement or distinction are blurred. How does a state deal with combatants in civilian clothes? What type of force is considered “disproportionate”? Where do preemptive attacks fit in and how is their legality determined? How can a state deal with a constant barrage of rocket and mortar fire targeting its civilians? Ultimately, it is up to Western nations, including Israel, to convene and discuss a new set of rules of engagement with the enemy.
As of this writing, Gilad Schalit was expected to be home safe and it is now time to focus on how Israel will prevent, and if necessary cope with, the next abduction on every level.
As a consequence of bringing Schalit home, Israel likely strengthened terrorists’ resolve to carry out future attacks, and just as it is Israel’s self-adopted responsibility to protect its citizens when in captivity, it must protect them even more so when safely at home.