The international community must acknowledge their return is an obligation, not a bargaining chip.
By ALAN BAKERA HAMAS member in a tunnel during the 2014 war(photo credit: REUTERS)
For the last five years, since the most recent bout of fighting between Israel and Hamas, the remains of two Israeli soldiers, Hadar Goldin and Oron Shaul – both abducted by Hamas in violation of a UN-mandated and European Union- and United States-supported humanitarian ceasefire – are still being illegally held by Hamas, together with two Israeli civilians, Avera Mengistu and Hisham al-Sayed.Tragically, and contrary to internationally accepted humanitarian norms, the repatriation of the soldiers’ remains, as well as the return of the civilians to their families in Israel, has been placed on the bargaining table in ongoing, indirect contacts with Hamas, mediated by the UN and Egypt, aimed at reaching a long-term ceasefire deal or settlement.The right of families to know the fate of their relatives missing in connection with armed conflict, the obligation to handle human remains with dignity and to return them to their families, are basic, humanitarian, customary international norms and obligations that apply to all, in all circumstances.These rights and obligations exist beneath and beyond specific, tactical or strategic issues arising during or following armed conflict and during negotiations for any political or military deal or settlement between conflicting parties.They cannot and should not be used as bargaining chips, and their repatriation cannot be conditioned on any prisoner-exchange deal.Conflicting parties engaged in seeking and negotiating ceasefires, truces and security and economic packages to bring an end to a conflict do not have the prerogative to pick and choose from among humanitarian obligations related to repatriating missing persons as to which might be politically or economically convenient or propitious for them.All those parties engaged in any aspect of settling a dispute – whether the conflicting parties themselves, or those states and international organizations engaged in assisting, mediating or facilitating aid packages – all are equally obligated to accept, comply with and implement the basic humanitarian obligations to unconditionally recover missing soldiers and civilians.Since the kidnapping of the soldiers was in open and blatant breach by Hamas of a UN-sponsored ceasefire, it is all the more incumbent upon the UN, and specifically on the secretary-general’s special coordinator for the Middle East peace process, former Bulgarian foreign and defense minister Nickolay Mladenov, to use all means to ensure repatriation of the soldiers and civilians without connecting such repatriation to any deal.Clearly, trading the return of missing soldiers and civilians for other less humanitarian negotiating items, is tantamount to ignoring or downgrading the basic humanitarian obligations to unconditionally return missing soldiers and civilians. All involved in such inhumane trade in effect are violating humanitarian norms.The international norms affirming the right of families to know the fate of their relatives have been developed over the years and stipulated in international conventions, resolutions and recommendations of various humanitarian bodies within international law and practice.
SOME 45 years ago, in November 1974, the UN General Assembly adopted a resolution on assistance and accounting for persons missing or dead in armed conflicts, echoing the generally accepted humanitarian norms and “recognizing that one of the tragic results of armed conflicts is the lack of information on persons – civilians as well as combatants – who are missing or dead in armed conflicts”.The resolution went on to declare “the desire to know the fate of loved ones lost in armed conflicts is a basic human need which should be satisfied to the greatest extent possible, and that provision of information on those who are missing or who have died in armed conflicts should not be delayed merely because other issues remain pending”.The Assembly called upon parties to armed conflicts, regardless of their character or location, both during and after the end of hostilities, to “provide information about those who are missing in action, to locate and mark graves, to facilitate disinterment and return of the dead and to provide information about those missing in action”.More recent recommendations and resolutions adopted by international Red Cross conferences, the UN Human Rights Commission and by the European parliamentary bodies, as well as a 2006 “International Convention for the Protection of All Persons from Enforced Disappearance” (to which Israel is not party), reaffirmed the prohibition of enforced disappearance and the right of families to know the fate of their relatives reported missing in connection with armed conflict, as well as the obligation to handle human remains with dignity, and to return them to their families.On June 11, 2019, the UN Security Council added its own authoritative and significant voice in a unanimous, landmark Resolution 2474, calling upon parties to armed conflict to take all appropriate measures to actively search for persons reported missing, to enable the return of their remains and to account for persons reported missing “without adverse distinction.”The resolution reaffirms the “importance of allowing families to know the fate and whereabouts of their missing relatives, consistent with applicable international humanitarian law, which is of crucial humanitarian importance,” and goes on to urge parties to armed conflict to collect, protect and manage all relevant data and documents on missing persons; to search for, recover and identify the dead; to return remains, wherever possible, to their relatives.Similarly, the Security Council urged all parties to allow safe and unimpeded access of humanitarian personnel, including those engaged in the search for and identification of missing persons or their remains, as soon as circumstances permit. It encourages UN special representatives, envoys, coordinators and advisers to take into account, while implementing their respective mandates, the issue of missing persons as a result of armed conflict.The Security Council’s call for the return “without adverse distinction” of missing persons and of the remains of those killed, clearly emphasizes the importance for all involved parties, especially UN mediator Mladenov, of refraining from making such return conditional on other negotiating items.In the indirect contacts with Hamas, through intermediaries such as the UN’s special representative and Egypt, all involved parties are obligated to abide by the international humanitarian obligations, and specifically not to enable use of missing soldiers and civilians as bargaining chips in any deal.SUCH USE is an abuse of the feelings and sensitivities of the families, as well as a clear violation of accepted and obligatory norms of humanitarian law prohibiting any precondition or linkage of repatriation of missing persons to political, security or economic issues between the sides.The return of Israel’s missing soldiers Goldin and Shaul, as well as Mengistu and al-Sayed held by Hamas, must be in a category all of its own. It overrides all other priorities in contacts between Israel, UN, Egypt and Hamas. It should not be relegated, conditioned or linked to negotiating issues, such as civil economic and humanitarian development projects in the Gaza Strip, transfer of funds to Hamas, or release of those imprisoned for committing acts of terrorism.The obligation must be, first and foremost, and prior to anything else, to provide the families with information on the missing soldiers and civilians and to bring about their repatriation.All other issues may be negotiated and inter-linked, but not the return of our missing soldiers and civilians, who should be above and beyond any potential deal or arrangement.Since this obligation is fully accepted by the international community, and is an inherent element in all the world’s great religions, it is incumbent upon all countries and organizations to do everything in their power to bring the missing soldiers and civilians back to their families, without any condition or adverse distinction, and without any political connection.The author is a former legal adviser to Israel’s Foreign Ministry, and former Israeli ambassador to Canada. He is presently director of the international law program at the Jerusalem Center for Public Affairs.
