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Armed groups in Gaza and Lebanon should immediately release the three Israeli soldiers held as hostages since last summer, Human Rights Watch said today. Israel should also release Hamas legislators and ministers apparently taken in reprisal.

Corporal Gilad Shalit, a 20-year-old Israeli soldier, was captured by the armed groups of Hamas, the Popular Resistance Committees and the Army of Islam during a June 25, 2006 attack on an Israeli military base near the border with the Gaza Strip. On June 30, 2006, these groups issued a statement demanding the release of 1,000 Palestinian prisoners held by Israel in exchange for Shalit. Four days later, they threatened that they “would consider the soldier’s case to be closed” if those demands were not met.

On the first anniversary of Corporal Shalit’s capture, Hamas posted an audiotape in which he spoke of his deteriorating health. This was the first clear evidence in a year that he was even alive. The International Committee of the Red Cross (ICRC) has said that it has not had access to Shalit.

“For a full year, Corporal Shalit’s family had no news from him. Two other Israeli soldiers are still being held incommunicado,” said Sarah Leah Whitson, Middle East director of Human Rights Watch. “The groups holding these soldiers hostage must release them immediately.”

Sergeant Eldad Regev and Sergeant Ehud Goldwasser were captured on July 12, 2006 by Hezbollah forces with the declared aim of exchanging them for Lebanese and other Arab prisoners held in Israel. Media reports indicate that the two soldiers were critically wounded during their capture, and it is not known whether they remain alive. Hezbollah has made no statements in this regard and has not permitted the ICRC access to the detainees.

The absence of news and anguish over the fate of a person being held incommunicado can cause family members great suffering. The laws of war seek to ensure that all persons deprived of their liberty are able to communicate with their families and have access to humanitarian assistance. In such situations, the ICRC can play an essential humanitarian role through its offers to visit all persons deprived of their liberty with a view to verifying the conditions of their detention and restoring family contacts. The groups holding the Israeli soldiers should grant the ICRC immediate access to them.

The laws of war also prohibit the taking of hostages. Hostage-taking is defined as threatening to harm or continuing to detain a person to compel a third party to do or abstain from doing something as a condition of release. International law requires warring parties in conflicts not of an intergovernmental character to release detainees as soon as the reasons for their detention cease to exist. Such a reason cannot be an unlawful one. Because Hamas and Hezbollah have made it clear that they are holding the three Israeli combatants until the release of many Israeli-held detainees – that is, as hostages – they must release these detainees immediately.

Since illegality by one side does not justify illegality by the other, Human Rights Watch also urged Israel to refrain from any unlawful practices to gain the release of the Israeli hostages. Four days after the capture of Corporal Shalit in Gaza, the Israeli army on June 29, 2006 detained eight Hamas cabinet members and at least 20 Hamas members of the Palestinian Legislative Council in the West Bank, according to the New York Times. Six of them were subsequently released.

Israel charged the Hamas legislators who are still detained with “membership in an illegal organization,” but there is evidence suggesting that they are being held to gain the release of Corporal Shalit. On June 29, 2006, hours after the Hamas members were arrested, the Associated Press quoted Israeli Foreign Ministry Spokesman Mark Regev saying: “If the Palestinians act now to release Corporal Shalit and hand him back to us ... we would immediately initiate a dramatic reduction in tension.... He is the primary issue, he is the primary reason for the crisis.” That same day, Associated Press reported that, when asked if the Hamas officials would be freed if Shalit were released, Major General Yair Naveh, the head of Israel Defense Forces’ central command, responded: “I think so. The decision to arrest them came from the political level ... and I think the political level’s perspective could change.” However, many other Israeli officials have denied that the Hamas members were arrested to gain Shalit’s release.

In addition, according to the Jerusalem Post and other media reports, during the armed conflict in Lebanon in 2006, Israeli forces moved the bodies of at least 13 killed Hezbollah fighters to Israel potentially to be used in negotiations with Hezbollah, a practice that violates the laws-of-war requirement that parties to a conflict must endeavor to facilitate the return of the remains of the deceased to their home countries or next of kin.

“It was only after Corporal Shalit’s capture that Israel started arresting Hamas legislators and ministers who had participated in Israeli-sanctioned Palestinian elections in January 2006,” said Whitson. “Israel’s response to hostage-taking should not include arbitrary arrests.”

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