Free Gilad Shalit Now

How the Palestinian statehood bid may impact the imprisoned young Israeli -- and vice versa.

A teenage Israeli soldier named Gilad Shalit was abducted from Israeli territory by Hamas terrorists on June 25, 2006. More than 1,900 days later, Gilad - now 25 years old - is still in captivity. He is held incommunicado, denied even a single visit from the International Committee of the Red Cross. The last time that Gilad's family heard from him was two years ago. His whereabouts today are unknown.

Holding Gilad Shalit hostage under such gruesome conditions is a war crime in blatant violation of international law.

On September 8, 2011, Gilad Shalit's family members made a heartfelt appeal to the United Nations press corps to keep the story of Gilad's inhumane captivity from being forgotten. "Not a minute goes by that we do not feel the terrible pain of separation from our son," said Gilad's father, Noam Shalit. "Not a minute goes by that we do not feel overwhelming anxiety about his well-being and fear for his life."

On September 7th, Noam Shalit met with the U.S. ambassador to the United Nations, Susan Rice. Ambassador Rice issued this statement following the meeting:

I expressed to Mr. Shalit the solidarity of the United States with him and his family, and I reiterated our strongest condemnation of his son’s detention. As I have said repeatedly in the UN Security Council, Hamas must immediately and unconditionally release Gilad Shalit.

Rice's statement is good, as far as it goes. But she should have also singled out Palestinian Authority President Mahmoud Abbas for criticism.

As far back as July 2006, Abbas said he was doing his utmost to secure the release of kidnapped Gilad Shalit. In April 2007, he promised that Gilad Shalit would be released "soon." Now, in September 2011, the Shalit family's request for a meeting with Palestinian UN representatives while the family members are in New York - sent through French UN mission channels - was denied without any explanation.

Palestinian President Abbas is either a liar or an increasingly irrelevant figurehead (or maybe a combination of both). His government won't even extend the courtesy of allowing a visit of Palestinian UN representatives with the Shalit family, more than four years after Abbas' empty promise that Gilad would be released "soon."

There are two promises Abbas is intent on keeping. The first is to move forward with the agreement he signed with the Hamas terrorist organization to share power in a new Palestinian government. The second is to move forward with the Palestinian bid for recognition as a UN member state.  “Whatever the pressures are," Abbas said at his presidential compound in Ramallah on September 8th, "I think we are going to the UN . . . this month to submit our application for membership of the UN. When we are a state, we will be a state under occupation. . . and we will talk accordingly and negotiate accordingly.”

While a U.S. veto at the Security Council is expected to block the Palestinians' bid for full UN member state status, they are likely to go to the General Assembly to obtain "observer state" status, on par with the Vatican, allowing them to join various UN agencies and treaties. Even if the Palestinians succeed in only obtaining an upgrade to an observer state status, they are counting on the fact that they will then be permitted to sign and become a treaty member of the International Criminal Court (ICC), which would entitle them to bring trumped-up war crime and genocide charges against Israeli officials.

Ironically, as the Shalit family pointed out in a letter sent this month to UN member states, the Rome Statute establishing the International Criminal Court stipulates that the unlawful taking of hostages is a war crime and that "the 'Elements of Crimes' promulgated by the International Criminal Court  make it clear that an integral element of such a war crime is the intentional use of a hostage for the purposes of extortion."

If the Palestinians get their wish and become a state party to the ICC, they may find themselves on the receiving end of a prosecution for war crimes based on Gilad's abduction and inhumane detention, as well as on the rocket attacks launched from Gaza against Israeli civilians.

It is an open legal question whether a General Assembly vote granting "Palestine" observer state status would be enough to permit it to join the ICC, however. United Nations legal officials have refused to respond to requests from reporters for clarification of UN Secretary General Ban Ki-moon's discretion, if any, regarding his handling of documents that must be filed first with his office requesting that the Palestinian observer state become party to the ICC's Rome Statute. Must he immediately pass the documents on to the court for review, or does he have the authority to delay their transmission to the ICC if he has reason to believe that there are defects in the documents?

Although rumors are circulating that Ban Ki-moon has requested an opinion on his authority from his legal staff, it will not make much difference at the end of the day. Ban Ki-moon would be under enormous political pressure to transmit the Palestinian documents immediately to the ICC for the ICC's own review. Moreover, the Palestinians would undoubtedly end-run the UN Secretary General if they felt they were being stonewalled and take their case -- in their new Observer State capacity -- directly to the ICC where they would expect a positive reception.

The Shalits' letter to UN member states is an appeal to the world's conscience - if there is such a thing. "We count on the heads of the United Nations member nations, as well as their respective ambassadors to raise their voices on behalf of Gilad - held illegally in dreadful captivity," they wrote in their letter. They argue that the Palestinians lack the moral right to obtain any upgrade in their international status - in the United Nations, ICC or any other international forum - while they continue to detain Gilad in blatant violation of international law.

When asked if he would like to see a provision about his son included in any draft resolution on Palestine statehood, Noam Shalit replied that his "interlocutors" had promised to convey the issue to their capitals.

If the Shalit family's reception by members of the UN press corps is any indication, they will have a tough time succeeding with their message. Although the family members made it clear that they were not speaking for the Israeli government, but only as private citizens on behalf of their loved one, several correspondents insisted on equating the plight of Palestinian prisoners in Israeli jails with Gilad's captivity. These reporters questioned Gilad's father why he would not show the same compassion for the families of these prisoners as he expects others to show for Gilad's plight.

Noam Shalit handled the reporters' moral equivalency argument in a calm and dignified manner. First, he did express compassion and said that he had tried in vain to make contact with affected Palestinian families. Second, he pointed out that at least 1000 Palestinian prisoners in Israeli custody could have been released in exchange for the release of Gilad, but the Palestinians refused Israel's offer. They preferred to hold Gilad as a bargaining chip to extract even more concessions. Third, while Hamas has refused access to Gilad by the International Committee of the Red Cross, and has allowed minimal contact with his family over the last five years, Israel provides the Red Cross with regular access to its prisoners. Moreover, family members of Palestinian prisoners are given access on at least a monthly basis.

The Palestinians' imprisonment of Gilad Shalit for more than five years under inhumane conditions, in clear violation of international law, is yet another action that disqualifies them from joining the community of nations. Abbas, who promised Gilad Shalit's release more than four years ago, is as guilty as his governing partner, Hamas, for Gilad's continued incommunicado imprisonment.

Free Gilad Now!