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Thursday, December 03, 2009

I'm confused (as usual)

Picture the following scenario:

A kidnapper has a hostage at gunpoint and is barricaded inside a house or place of business.

The crime scene is surrounded by police S.W.A.T teams. 

After several tense hours, the hostage negotiator manages to convince the kidnapper to release the hostage to an attorney (i.e. a 'neutral third party') pending the granting of the ransom request and safe passage for the kidnapper out of the country.

The kidnapper's attorney walks into the building, and after a few tense minutes, walks out again accompanied by the hostage.

What happens at this point? 

Here are a few questions to ponder:

  1. Once the hostage is safe are the authorities obligated to follow through with the payment of ransom and the granting of safe passage to the kidnapper?
  2. As an officer of the court, is the attorney obligated to turn over the hostage to the police immediately.
  3. If the attorney doesn't turn over the hostage and insists on holding on to him until the authorities live up to their end of the bargain, does the attorney now become an accomplice to the kidnapping?

The reason I've asked you to engage in this little thought experiment is that this is precisely the scenario that is being played out with Gilad Shalit (or is about to be, depending on which reports you trust).

Gilad Shalit was kidnapped in a blatant terrorist attack.  The kidnapping was a crime by any standard and under any legal definition.  It was not part of a declared or undeclared military operation.  The kidnappers were not part of any recognized army, nor did they wear uniforms, rank or identifying insignia (as required by the Geneva Convention) to be considered soldiers in combat. 

The terrorist organization which ordered the kidnapping (Hamas) is not recognized as a government body by anyone and has no rights under international law to formulate foreign policy (i.e. enter into treaties and raise or maintain a military force).

That Israel has been negotiating with Hamas has no bearing on Hams' status any more than a kidnapper's status is elevated by the ongoing dialog with the police hostage negotiator.  When police negotiate with a 'garden variety' kidnapper , those negotiations do not elevate the kidnapper's status above that of common criminal, or grant him special legal status whereby unreasonable terms would have to be honored after the hostage has been freed. 

There are credible reports that Gilad Shalit has been (or will soon be) transfered to the custody of the Egyptian government pending the last stages of the exchange of nearly 1000 terrorist.

What I can't quite figure out is why Israel (or any country) should be obligated to follow through with deals struck (under duress) with extortionists and terrorists once the hostage has been safely released to a third party?

How is it that Egypt (roughly parallel to the attorney in the scenario above) is able to continue the hostage's imprisonment without being considered an accomplice to the crime?  Aren't they obligated under any international conventions to free the hostage as soon as he is in their hands?  Aren't they subject to enormous pressure from the U.S. based on the large amount of foreign aid they receive (second only to Israel) to live up to such conventions?

I'm honestly confused as to why this proposed exchange of terrorists for our soldier is being viewed by the world (and even by the Israeli government!) in the same light as, say, the exchange of POWs at the end of a war.  

As stated earlier, Hamas has no standing under international conventions of war.  They did not observe any of the requirements for the treatment of POWs (e.g. visits from representatives of the International Red Cross, inspection of living conditions and health audits. etc.) and certainly nobody has ever alleged that Palestinian prisoners held in Israeli prions have POW status (even though Israel has granted access to its security prisoners and guaranteed living conditions consistent with international norms).

This kidnapping was a crime, plain and simple.  It was carried out by private individuals with no authority to enact treaties or claim diplomatic privilege.  Why has everyone forgotten this?

And most important, if/when Gilad is in Egyptian custody, how is it possible that that country will be allowed, under international law, to continue his imprisonment until Israel (the police in the scenario above) agrees to complete a devil's bargain struck during a hostage situation at the point of a gun?

I can't wait for someone to make sense of this for me!

Posted by David Bogner on December 3, 2009 | Permalink


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You are talking about a one time deal. If Egypt releases him without Israel living up to their end of the bargain, there can never be another deal in the future. Or the next deal has to be done with other conditions and they may choose to deliver a dead body at the end.

Posted by: Mark | Dec 3, 2009 10:27:50 AM

Once the hostage is safe are the authorities obligated to follow through with the payment of ransom and the granting of safe passage to the kidnapper?

No. It's perfectly legal for the police to lie to a criminal. We'll promise them the world if it ends the incident.

The answer to #2 is no. The answer to #3 is that the attorney becomes a kidnapper himself.

Posted by: sobersubmrnr | Dec 3, 2009 10:31:04 AM

Mark ... International commerce is conducted using Letters of Credit and other instruments / safeguards designed to allow parties that do not know/trust one another to be protected during the exchange phase of the transactions. This is done so that business can continue smoothly and that future transactions can be planned. The last thing we want is to ensure that this kind of transaction (i.e. kidnapping and payment of ransom) can go smoothly. Just the opposite, we want to make this so unprofitable and risky for Hamas that they will get out of the business of kidnapping since there is no profit in it for them!

sobersubmrnr... Okay, it's good to have the benefit of a cop's knowledge and experience (thank, you, by the way). Any lawyers out there want to weigh in?

Posted by: treppenwitz | Dec 3, 2009 12:01:36 PM

It would seem to me that Egypt, once they have custody of Shalit (were this to happen), would be obliged to immediately free him, just as you point out. When I heard that he was going to be transferred to Egypt, I just assumed that that meant that Hamas operatives were smuggling him to other Hamas operatives in Egypt, and that the Egyptian authorities were not involved (at least not officially, for all the points you mention).

Regarding Mark's point, it would then be up to Israel to decide whether or not to live up to any promises they made, weighing the costs for potential future deals into whether or not to honor the promises.

Posted by: Jonathan | Dec 3, 2009 12:02:01 PM

im with mark. like it or not, israel has to prepare for the worst, viz., a repeat kidnapping. now, whether we like it or not, israel has agreed to enter into negotiations with hamas. once israel has agreed to do so, and presumably will do so in the future, it is in israels and egypts best interests to play by the rules of engagement, as sick as they may be. they must keep their word.
we must remember that egypt has a different relationship with hamas than we do, and they have their own interests to look after.

Posted by: fred | Dec 3, 2009 2:18:58 PM

Although there isn't much respect paid to principles of due process or legality in Egypt anyways, I still wonder how this is even possible under their own law...

Posted by: Carsten | Dec 3, 2009 2:33:32 PM

Jonathan... No, Egypt has been acting on a governmental level as a mediator in this negotiation. The demand to transfer Shalit to Egyptian control during the final stages of the negotiation is (presumably) so that Hamas can't back out at the last minute or transfer him to someone else's control and then claim they can't produce him.

fred... and I reiterate my point, the likelihood that Israel will find herself in this situation again in the future increases, not decreases, as a result of playing by the rules.

Carsten ... Egyptian law is apparently a very flexible thing. How else can you explain the tons of weapons that arrive in their ports and cross their borders on the way to Gaza. Just think about the headache you have clearing packages from customs when they come from abroad. that's because you live in a country where there are laws and accountability. Egypt (and most Arab countries) have a wild west mentality when it comes to law and order.

Posted by: treppenwitz | Dec 3, 2009 3:01:43 PM

The case of the 3 bodies Israel received back in the swap with Hizballa is actually worse. Israel had position of the bodies (and did DNA tests) before handing over the Arab terrorists. I never understood why they didn't simply back out of the deal then are there.

Posted by: Chutznik | Dec 3, 2009 3:43:51 PM

FWIW, in my opinion, since Oslo there has been very little about Israeli-Palestinian negotiations that has made any sense at all.

But yes, this would seem to sink to a new level of absurdity.

Posted by: psachya | Dec 3, 2009 4:16:20 PM

And, if I might add, Yoni Netanyahu is probably turning over in his grave right about now.

Posted by: psachya | Dec 3, 2009 4:20:06 PM

Putting on my lawyer hat:

1. No obligation. Based on history, I expect Israel to be in this situation again. A reminder, there are others who are captive (or dead) who should not be forgotten.

2. Lawyer has an obligation to turn over the person to the police. The obligation would attach to the lawyer even if it was only evidence of a completed crime, let alone a crime in progress. I have had clients come in and drop evidence on my desk.

3. Lawyer would be criminally liable, either as an accessory or more likely as a conspirator.

Posted by: lrg | Dec 3, 2009 4:26:44 PM

With regards to the Hizbollah deal: yet another instance in which Israel acted more responsibly than any other country would have done, and the world ignores it.

Personally, I would never hold up my end of any bargain with Hamas.

Posted by: Bryan | Dec 3, 2009 4:51:41 PM

There is no logic to anything pertaining to the poorly named Israeli-Arab conflict, so a warped hostage situation is not going to surprise me in the least.

To wit:

- What other combatant would be obligated to supply the enemy with water, fuel and food?

- Why should a tiny country command such disproportionate obsession by a world audience, even well before the emergence of Arab oil and Islamofascism?

- Why should Israel return to the '67 borders as that conflict was the start of all problems? And if so, shouldn't they saddle Jordan with pockets of the West Bank and Egypt with Gaza?

- Why did Iraq lob missiles into Tel Aviv in 1991 when Israel had nothing to do with that conflict?

I could go on, but you and I don't have all day.

I think Mark makes a good point. Within the bounderies of all the twisted, tortured and perverted logic, if Israel wasn't forced to behave better than Hamas, then Hamas and Egypt would never honor any future endgame agreement for the next inevitable episode. (I can't believe I just wrote that)

Posted by: Ari | Dec 3, 2009 6:49:55 PM

I heard a suggestion that Israel release the prisoners in two batches: the "minor" prisoners - those who have not committed any terrorist acts (or, at least acts that have resulted in injuries or dead), and the "big guns" (ie, Barghouti), and have the bus with the "big guns" have an accident. Oh, oops, so sorry.

I personally think that once Egypt has Gilad Shalit and it's confirmed, Israel should just go in and get him, and to hell with the "deal". It's absolutely abhorrent that Egypt should "hold" Shalit until Israel lives up to her end of the bargain, and equally disgusting that the rest of the world is praising this deal. I can only (naively) hope that the praise and support for the deal is only on the face, until Egypt actually gets Shalit, and then everyone will support - demand? - that Shalit be returned.

This whole thing is just beyond belief.

Posted by: Alissa | Dec 3, 2009 11:43:52 PM

someone, somewhere, has to be working on a non-infectious "bug" with an incubation of about 14 days that could be used when releasing terrorists back into the wild... or, at least, a sub-cutaneous tracking device, you know -- to study the population. You didn't hear it from me though. ;o/

Posted by: Wry Mouth | Dec 4, 2009 7:08:08 AM

I think it's a gut versus brain issue. In my brain, we have to follow through with any bargain we strike, no matter how lopsided and unfair. In my gut, after we release those 1000 terrorists from prison and load them onto buses, as soon as those buses cross into Aza, I would love to see each and every one of the buses bombed into kingdom come leaving not a single one of those 1000 alive.

Posted by: Mark | Dec 4, 2009 12:38:24 PM

I think this is a realpolitik issue. Maybe legally and morally Israel is under no obligation to follow through with the deal, but on a practical level it seems important.

First, Israel has been working with Egypt and Germany as mediators in the negotiations. If Israel wants to cooperate with them on anything in the future, then it certainly needs to follow through with its end of the bargain.

Secondly, both Hamas and Israel have an interest in keeping their promises, at least as far as the swap negotiations go. If one side broke their end of the bargain, then the next round of negotiations, and there are bound to be some, are going to be that much more complicated.

If Israel doesn't want to honor the deal it makes, it would be better to simply not make a deal, and to try and get Gilad back with force.

Posted by: Jonah | Dec 7, 2009 12:28:05 PM

Jonah... again, I'm confused. Everyone seems to be worried that Israel might risk burning bridges by screwing Hamas (and even Egypt) in the deal. Please explain why we would want to make it easy to cross this bridge again. If Hamas sees that there is no future in kidnapping, maybe they'll get out of the business. If not, we ahve to draw a line some time and this seems as good atime as any.

Posted by: treppenwitz | Dec 7, 2009 12:52:19 PM

I think I talkbacked on a Jpost article that reported on some French doctors visiting Shalit in Gaza while Israeli planes watched from above... Why didn't they go in and get him there?

Posted by: Gidon | Dec 8, 2009 1:47:42 AM

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