The Legal—And Moral—Battle To Bring Home Hadar Goldin & Oron Shaul

A campaign is gaining momentum to have captive fallen soldiers from the 2014 war recovered from Hamas and returned to Israel

On August 1, 2014, a 72-hour United Nations- and United States-brokered humanitarian ceasefire between Israel and Hamas went into effect at the height of a war which had already raged for more than three weeks and would ultimately last fifty days, killing some 2,000 Gazans (half of whom were combatants) and more than 70 Israelis.

Less than two hours after the truce started, a group of Israel Defense Forces soldiers working on decommissioning a Hamas attack tunnel in Rafah—located in the southern Gaza Strip—was ambushed. Terrorists emerged from the subterranean passageway, heavily armed, and murdered Major Benaya Sarel and St.-Sgt. Liel Gidoni.

Lt. Hadar Goldin—or, more accurately according to a subsequent investigation, his body—was captured by Hamas gunmen despite Israeli recovery efforts which allegedly included the implementation of the controversial ‘Hannibal Directive,’ the razing by the military of an entire area to prevent, at all costs, an IDF soldier’s abduction.

Ten days earlier, on July 20, Hamas operatives fired an anti-tank missile at an IDF armored personnel carrier in Gaza City’s Shejaia neighborhood, the site of some of the conflict’s fiercest urban warfare. Moments earlier, Oron Shaul, one of seven soldiers in the carrier, had vacated the vehicle to conduct repairs. As with Goldin, Hamas would subsequently take possession of Shaul’s slain body.

From the very beginning Hamas disregarded the Geneva Conventions—the international legal framework outlining the rules of war—by violating the ceasefire, according to Professor Irwin Cotler, a former Canadian justice minister and renowned human rights expert. “The UN has a responsibility because part of its mandate as a trustee of international law is to ensure that the rules of engagement are observed,” he told The Media Line.

In the ensuing three-plus years, Hamas has ignored one obligation after another, “the first being simply to provide information on the status of the fallen soldiers, and second to return the bodies of those killed to their families,” which Prof. Cotler described as a fundamental tenet of humanitarian international law. Hamas has declined even to inform the International Committee of the Red Cross as to the whereabouts of—never mind grant access to—the remains of both Hadar and Oron.

The Palestinian Authority is also being accused of complicity, given the recent reconciliation agreement signed between Hamas and PA President Mahmoud Abbas’ Fatah faction. “They are an address to which [protestations] can and should be made,” Prof. Cotler noted. “The PA to this day has done nothing to ensure that Hamas is providing information, has done nothing to ensure that the bodies are being returned to the families in Israel. So they are also in standing violation of international humanitarian law.”

By contrast, Hamas considers its actions legitimate, arguing the Palestinians remain under occupation despite Israel having fully withdrawn its military and civilian presence from the Gaza Strip in 2005. “The Israeli occupation launched an unprecedented attack [in 2014] and destroyed the enclave. The Israelis were coming to kill our kids and demolish our houses and hospitals, so the situation is different,” Hamas spokesperson Abdul-Latif Qanou contended to The Media Line.

The official failed to acknowledge, however, that in the run-up to the IDF’s aerial campaign in Gaza, Hamas had fired hundreds of rockets at Israeli population centers and orchestrated the kidnapping and murder of three Israeli youths, which, at the time, was widely considered the straw that broke the camel’s back, leaving Jerusalem with no choice but to retaliate. Moreover, Qanou also disregarded the Israeli insistence that it had reluctantly launched its ground incursion only after the extent of the threat posed by Hamas’ attack tunnels stretching into Israeli territory was made evident.

Ever since, the Israeli government has engaged in backchannel negotiations with Hamas in an effort to retrieve the remains of Goldin and Shaul, in addition to securing the release of three living Israelis—Avera Mengistu, Hisham al-Sayed and Jumaa Abu Ghanima—all of whom are believed to suffer from mental illness and crossed into the Strip on their own accord. However, Gaza’s rulers have refused to bend on their reported insistence that Jerusalem first release re-incarcerated Palestinians originally freed in the 2011 exchange for IDF soldier Gilad Shalit, who was kidnapped and held in Hamas captivity for five years.

In that deal, Israel swapped more than 1,000 Palestinians jailed for security crimes for Shalit, evidencing the importance the government and military place on every soldier as part of an unwritten code with the public stemming from the fact that army service in the Jewish state is compulsory. Even so, the trade left a sour taste in the mouths of many Israelis, making the prospect of a future lop-sided agreement to retrieve the bodies of Hadar and Oron politically unpalatable.

Given the stalemate, the Goldin family in 2016 launched a campaign to internationalize the issue. This past December, Hadar’s mother, Leah, travelled to New York to address the United Nations Security Council. “Our son was not the victim of a war, he was the victim of a ceasefire, a UN-sponsored ceasefire,” she asserted at the special session dedicated to the issue. “Three years after he was taken, our son’s grave remains empty. Not one member of the UN has taken real action.”

Prof. Cotler, who attended the UN event, told The Media Line that the delegates present identified with the pain and plight of the Goldin and Shaul families. They also recognized the ongoing breaches by Hamas of international humanitarian law and their responsibilities in this regard. The goal now is to translate public concern into concrete action.

To this end, Prof. Cotler and his associates, at the behest of the Goldins, are in the process of following up with UN member states, as well as lobbying countries that have limited leverage over Hamas, including Egypt and Qatar. The United States, which co-sponsored December’s Security Council session, likewise has its own means of applying pressure on the terror group, as evidenced by President Donald Trump’s decision this month to cut funding to the UN agency that attends to Palestinian refugees, many of whom reside in the Strip, and which also employs tens of thousands of Gazans.

Hadar’s parents have met numerous times over the past year to press their case with U.S. special envoy to the Middle East Jason Greenblatt, including last week in Jerusalem.

The Goldin family is also urging the Israeli government to do more, having petitioned the High Court in November to force the security cabinet to fully implement a “plan of action” adopted last year to place additional pressure on Hamas. In response, the government agreed to more strictly implement a ban imposed on the terror group’s members and their immediate relatives from making humanitarian visits to Israel.

Some argue that such steps are insufficient, given Israel’s total control over the flow of goods into Gaza, in addition to the enclave’s energy supply, air space, and other crucial infrastructure. Notably, Colonel (res.) Lior Lotan, who was heading the effort to recover POWs (prisoners of war) and MIAs (missing in action), resigned hastily in August after serving three years in the position. “Following his resignation,” the Goldin family wrote in a statement, “we feel that we have been abandoned by the government.”

Indeed, Leah Goldin views matters largely in black and white. “As the whole world aims to provide aid to Gaza, there should be a linkage with our humanitarian issue involving Hadar,” she affirmed to The Media Line. She emphasized that her family’s cause is just not only because the law is on its side, but also because Leah views her kin as living embodiments of the principles they are seeking to have enforced.

To accentuate this point, she recounted the role of Hadar’s twin brother, Tzur, during the 2014 war. “He was responsible for going into Gaza to rescue wounded soldiers as well as those killed. But at the same time, Tzur would rescue Palestinians caught in the cross-fire. So he was helping Palestinian families while our other son was kidnapped and held as a bargaining chip.”

Still others believe that Jerusalem is right to walk a fine line as, they argue, cutting off essential services or reducing the transfer of aid into the Strip could cause the humanitarian situation to further deteriorate, which, in turn, might prompt Hamas to provoke another major conflict. Furthermore, they point to other avenues that are being pursued to provide Israel with additional leverage.

In fact, some Israeli ministers have advocated a policy of holding the bodies of Palestinian terrorists killed while perpetrating attacks. The ostensible rational is twofold: namely, to use the remains as bargaining chips to recover Israeli captives—a policy applied almost uniquely vis-a-vis Hamas—and to prevent the glorification of “martyrs,” especially in public funerals which have effectively become radical demonstrations that incite to violence against Israel.

In December, the High Court, while ruling that the government cannot hold onto corpses as no existing Israeli law explicitly allows for this, gave legislators six months to standardize the withholding of Palestinian terrorists’ bodies—or otherwise be required to hand them over to the PA or Hamas. The parliament last Wednesday took initial steps towards abiding by the court decision, passing a bill (in the first of three readings necessary for it to become law) that would give local police commanders the authority to set conditions for transferring the bodies of perpetrators of terrorist attacks for burial.

Responding for Hamas, spokesperson Qanou insisted to The Media Line that, “Israel holds the bodies of Palestinians that are executed during commando operations. These freedom fighters are then used to pressure the Palestinian resistance.”

Prof. Cotler vehemently opposed what he sees as Qanou’s moral relativism. “On the one hand you have a terrorist organization like Hamas murdering and then abducting the remains of a fallen soldier in the course of the commission of terrorist acts. Let’s not forget that [the 2014 war] was itself the manifestation of a series of war crimes and crimes against humanity. In Israel’s case,” he continued, “it has seized bodies in defense of terrorism. Nor is it withholding information about the bodies that they have. And they are also saying that they will return those bodies as soon as Hamas fulfills its international responsibilities.”

For the Goldin family the road ahead will likely be long and winding, as evidenced by another story Leah related to The Media Line. In September 2016, a series of Hadar’s drawings—titled ‘The Final Peace’—was prominently presented at UN headquarters during the General Assembly. The display garnered global attention, with many world leaders showing their respect by visiting the exhibit. Conspicuously absent were then-U.S. secretary of state John Kerry and former UN chief Ban Ki-Moon, the two men who brokered the ceasefire during which Hadar was killed. They refused to attend, despite a personal plea by Israeli Prime Minister Binyamin Netanyahu.

Accordingly, Leah acknowledges—and is ready for—the many challenges that lie ahead. “We are at the beginning of our journey, as people don’t know anything about international humanitarian law. This is amazing because this year the UN will celebrate the 70th anniversary of [the Geneva Conventions].

“To secure our son,” she concluded, “we have to finally step out of the docket of the accused and become the prosecutor.”

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