A law for Shalit
Depriving Hamas prisoners of family visits would be proportionate - as long as even limited visits by lawyers and Red Cross representatives were still allowed.
The 1,130 days that have passed since Gilad Shalit was seized by Hamas and secreted in an unknown location have not erased him from Israelis' hearts. The online social network launched last week, called "the army of Gilad's friends," and the ongoing demonstrations outside Defense Minister Ehud Barak's home provide further proof of this. At the same time, secret negotiations are taking place behind the scenes, and every once in a while scraps of information about them are published.
The three years that have passed since Shalit was torn away from his home and his country, during which no real information about him has been obtained - or has been published, at least - have not undermined the "lull" with Hamas in the Gaza Strip or any other deals that might have been made. A year ago, the High Court of Justice properly rejected a petition by the Shalit family that sought to bar implementation of any deals with Hamas until Gilad is returned, as this is a type of "political decision" under the government's province. Nevertheless, Justice Edmond Levy stressed that the Shalits have a right to be "treated fairly by the government."
It is against this background that we ought to assess last week's decision by the Ministerial Committee on Legislation to once again refrain from ruling on the so-called "Gilad Shalit Bill," which would deprive Hamas members imprisoned in Israel of family visits as long as Hamas refuses to permit anyone from visiting Shalit. According to rather vague media reports, the defense establishment opposes the bill - mainly on the grounds that its passage might undermine negotiations for the release of the kidnapped soldier.
The bill was cosponsored by 20 Knesset members, most of them from right-wing parties. It states that a prisoner who is a member of a given terrorist organization would not be allowed visits from anyone except his lawyer, plus a Red Cross representative once every three months, as long as the terrorist organization in question holds an Israeli citizen or resident captive and does not allow that prisoner to receive visits.
The bill highlights an absurd and disproportionate situation: Gilad Shalit is languishing in captivity without any visitors, while Hamas prisoners who carried out devastating terror attacks enjoy family visits and various other benefits. When Gaza residents were no longer able to visit relatives jailed in Israel due to Israel's inability to make the necessary security arrangements with Hamas, the families petitioned the High Court, basing their claims on the Geneva Conventions. Yet the Israel Prison Service does not prevent these prisoners' relatives from making visits if the necessary security arrangements can be made - for instance, if the prisoner has Israeli Arab relatives.
Israel's war against its enemies, in the unforgettable words of the late justice Haim Cohen, must never be waged using our enemies' methods. Yet at the same time, it is unreasonable to sanction such a complete lack of reciprocity on a humanitarian issue like family visits. Even if one argues that such visits are mandated by the Geneva Conventions, whose humanitarian provisions have been accepted by all Israeli governments, Knesset legislation can override a right granted by these conventions when an organization such as Hamas sees itself as unbound by their provisions, or by any other obligation.
Depriving Hamas prisoners of family visits would be proportionate - as long as even limited visits by lawyers and Red Cross representatives were still allowed - given that the Shalit family is deprived even of this elementary right. Moreover, the bill's purpose is worthy: to secure the basic right of family visits for Israeli citizens at the mercy of terrorist organizations, or at least to secure information about their welfare.
In the absence of any fuller explanation, it is hard to be persuaded by the defense establishment's claim that the bill would do more harm than good because it would undermine the sensitive negotiations underway for Shalit's release. But even if that turns out to be true, the government could still formulate a different policy than the one now in place - one that would obligate both the relevant ministers and the prison authorities.