On The Palestinian Hostages

Hasan Ahmad Omar     Al-Hayat     2003/07/12

Ever since the Palestinian Authority regained control over parts of its land in the West Bank and Gaza, after the Oslo Accords, Israel has been planning to reoccupy these Palestinian territories. The opportunity arose when Ariel Sharon made his provocative visit to Al Aqsa Mosque, which triggered the second Intifada.

However, the Israeli reoccupation and brutal practices that followed contradict the fourth convention of the 1949 Geneva Accords, which imposes on the Israelis as an occupying force to preserve the heritage and religious freedoms of the Palestinians. Moreover, the annex-protocol that was enacted in 1977 prevents the occupier from committing any act against the historical sites or artwork. The Palestinian Authority should have demanded that the UN activate the Geneva Convention and put to trial Ehud Barak and Ariel Sharon for violating the rights of Palestinians as described by the international conventions.

Today, the Palestinians must ask the UN to investigate Sharon's violations of the convention, when he allowed Jews and others to commit sacrilege in the court of Al Aqsa Mosque, which appears as a provocation to trigger yet a third Intifada. Another serious violation is Israel's detention of some 8,000 Palestinian prisoners, of whom no more than 350 have been released.

An article published in Al-Hayat on July 7, caught my attention in this respect. It was written by Abdulwahab Badrakhan, and described the Palestinian prisoners as "hostages." Indeed they are hostages according to international law. And those who took them by force in order to compel the Palestinian Authority to carry out a certain act, or to abstain from carrying out certain acts, such as stop the resistance, are in serious breach of international law based on the 1979 agreement against the taking of hostages. This agreement also calls for international cooperation against such acts, which are classified as international terrorism.

That agreement is considered as an amendment to the 4^th Geneva Convention, which emphasized in its preamble the equal rights of peoples to self-determination as well as the duty of countries to respect the resolutions of the UN General Assembly. Consequently, it is clear that in its treatment of the Palestinians, Israel is not acting as a state, and cannot be considered to be practicing self-defense according to international criteria. It is in fact committing an aggression against a people that is subject to its military force. Moreover, the argument that Israel is a state based on the 1948 partition resolution 194, which is dependent upon fulfilling that recommendation and the repatriation of the Palestinian refugees, and respecting the special status of Jerusalem, is invalid. This argument could have been valid until 1960, when the UN General Assembly resolution 1514, (D-15), revoked the partition resolution, thus ending Israel's existence as a state because it considered it a form of colonization.

Yet while Israel realized that fact in 1960, the Arabs did not. Thus, the Arabs were surprised, unlike the Israelis, when Yitzhak Rabin demanded in 1993 that Yasser Arafat recognize Israel's right to exist as a state in the region, and that President George Bush make the same demand in 2002, in addition to accepting the two-state solution. Some believed that President Bush aimed at undermining the right of return of the Palestinians, while they forgot the 1960 UN resolution.

Thus, it was hardly surprising that the convention against the taking of hostages exempted the abduction of the soldiers of occupation and saw it as a legitimate act and not as one of international terror (article 12). Still, it is interesting that the agreement in question is considered in reaction to the taking of American hostages in Iran following the revolution in that country. Moreover, the reservation expressed in article 12 was intended to avoid any contradiction with the right to self-determination.

It is important to maintain the description of the Palestinian prisoners as hostages since they are being kept by Israel in violation of the said international convention. Israel has to release them unconditionally, while the international criminal court should put those who kidnapped them on trial for violating international law.

Consequently, if Hamas, or any other Palestinian group, threatens to kidnap Israeli troops in order to exchange them, it would not be committing an act of terror but an act of legitimate resistance based on article 12 of the Geneva Convention against the taking of hostages.

Mr. Omar is an Egyptian legal advisor and expert in international law.