Wednesday, July 05, 2006

The Goose and the Gander

The Jerusalem Post explains how international law applies to the IDF soldier in Hamas captivity. Shalit is not a POW and not entitled to POW privileges.

IDF Cpl. Gilad Shalit is not a prisoner of war and is therefore not entitled to the full protection that international law affords POW's, Hebrew University international law expert Yuval Shani told The Jerusalem Post on Wednesday. "The Third Geneva Convention applies to states and therefore only grants the status of POW when both parties in the war are states, or at least entities that are close to states," said Shani. "In the case of Gilad Shalit, the group that is holding him is not a state nor does it act on behalf of a state, or apparently, on behalf of an entity which is close to being a state." ...

Prisoners captured in non-international conflicts are not entitled to many of the benefits afforded POWs, including the right to be held as a cohesive group in a special facility for prisoners of war, to meet with doctors and ministers and to receive visits by the Red Cross.


By the token of reciprocity, however, Israel is also not obliged to treat captured Palestinian terrorists as POWs, continued Shani, because the Geneva Accords regarding POWs only apply when two states fight each other. He added that Israel does not indeed observe all of the provisions of international law when it captures and hold terrorists.


Blogger Baron Bodissey said...

An Israeli soldier doesn't get the full protection of the Geneva Convention, but the scum at Gitmo do, thanks to SCOTUS.


7/05/2006 05:55:00 PM  
Blogger desert rat said...

That would only be true if the kidnappers were not State supported. If the kidnappers are not a known entity or individuals, cannot Israel assign them, de facto, to the Palistinian Authority.

Or does Israel need to go to Court to "prove" the connections?
Which Court?

Mr Bush has Authority to make War on whomever he thinks would attempt to replicate the attacks of 9-11, anywhere in the World against those he believes involved.

Cannot the Israeli grant themselves the same?

7/05/2006 06:04:00 PM  
Blogger wretchardthecat said...

Most things in the universe simply exist, without a by-your-leave from mankind. The notion that social approval is required to remain alive is a uniquely civilized concept, imaginable only by those who have somehow lifted themselves above nature. Animals and barbarians don't ask for a right to exist. They simply impose the fact of their existence upon you. And if they fail, then by the laws of barbarism and nature, they go extinct.

But today we live in a world where the snail darter has a right to exist where a Jewish human may not. But only because the Jewish human asked and environmentalists have answered on the snail darter's behalf. Hamas never solicited the opinion of Israel regarding their fitness for this world. And perhaps that's their greatest advantage.

7/05/2006 06:25:00 PM  
Blogger TigerHawk said...

What I don't know about the Geneva Conventions could fill libraries. However, the fact that they apparently apply only when all parties to a conflict are states suggests that I would be wasting my time to learn more about them. For the foreseeable future, most conflicts in the world will involve at least some non-state actors. The Geneva Conventions may be in great need of revision, but I doubt we would be unable to agree on what those revisions would be (OK, Belmont Club readers could probably agree, but the people of the world could not). The Geneva Conventions are a product of the day when states were willing to admit that they would be at war, and diplomacy occurred without realtime public scrutiny.

7/05/2006 07:15:00 PM  
Blogger TigerHawk said...

Oops. "I doubt we would be able..."

7/05/2006 07:16:00 PM  
Blogger Fat Man said...

Just shows what they know. why don't they ask somebody who really understands the geneva Convention like Justice Stevens.

7/05/2006 10:03:00 PM  
Blogger Utopia Parkway said...


The PA is not a state and is not a party to the Geneva conventions either. According to the GCs they cannot wage war and any prisoners they take are not POWs. They are however obligated to treat any prisoners humanely. What is the penalty for breaking these rules? In theory war crimes trials, like Nuremberg, the Hague, Saddam's current trials.


Some of the GCs are meant as a contract between states that war against each other in how to wage war humanely. Non-state groups are not affected by these rules. Other parts do explicitly provide protections that don't require that the parties be signatories. Also, since the 4th GC came into effect in 1950 other conventions and treaties have come into effect that are meant to protect prisoners and non-combatants even if they don't qualify for protections under the GC. These are usually called International Humanitarian Law. This includes things like the UN Convention against Torture.

Most of these should be subtitled "ways in which the Lilliputions will attack Israel and the US."

7/05/2006 10:06:00 PM  
Blogger Utopia Parkway said...

Israel's situation, for lack of a better word, is unique in legal history and (probably) International law doesn't cover its case. One hears a lot of talk about occupation and the protections granted by the 4th GC to occupied populations but Israel has never accepted that the 4th GC applies in their case.

The territories that Israel captured in 67 were never recognized by the international community as legally belonging to Egypt and Jordan. They had belonged to the Palestinian Mandate and were captured by Egypt and Jordan in the 1948 war. They had no legal basis for owning them. One can interpret UN resolution 242, the "land for peace" resolution, as saying that Israel has legal ownership of all the land it captured in 67 but that it should cede part of it in exchange for peace with its neighbors.

Legal opinions on all of this are usually biased. There is no non-political court that could rule on it. I think it's the case that the various peace treaties between Israel and its neighbors and the various agreements signed between Israel and the Pals are considered the binding law on the situation rather than the more general tenets of International law set down in the GCs.

7/05/2006 10:25:00 PM  
Blogger wretchardthecat said...

The story of Law has sometimes been intertwined with the saga of injustice. Trevalyan in The Fields of Athelry, Javert in Les Miserables, the Squatter in Waltzing Matilda, Simon Legree in Uncle Tom's Cabin. The problem in each case was never the truth; only a failure to communicate. Camus put it best:

"There always comes a time in history when the person who dares to say that 2+2=4 is punished by death. And the issue is not what reward or what punishment will be the outcome of that reasoning. The issue is simply whether or not 2+2=4."

And now that I know the Geneva Conventions do not protect Gilad Shalit, it is not Shalit who stands condemned.

7/05/2006 11:53:00 PM  
Blogger slimslowslider said...

The rule of proportionality the Swiss lectured Israel on, I guess does not apply to the French when Chirac threatened to use its nuclear weapons on anyone that committed terrroism on their soil.

7/06/2006 06:24:00 AM  
Blogger 49erDweet said...

Actually, "nothing" applies to the fwench. Didn't they - or maybe it was algore - invent "teflon"?

7/06/2006 08:31:00 AM  
Blogger What is "Occupation" said...

slimslowslider said...
The rule of proportionality the Swiss lectured Israel on, I guess does not apply to the French when Chirac threatened to use its nuclear weapons on anyone that committed terrroism on their soil.

and yet the PALESTINIANS want one israeli to equal 1000 palestinians...

so should it not also be that israel gets to kill 1000 palestinians PER israeli killed?

sounds fair...

7/06/2006 10:08:00 PM  

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