High time for Israel’s legal ‘coming out’

The just case and cause of Hadar Goldin, z”l, abducted and murdered in 2014 by Hamas, in violation of a UN and US-mandated, EU-supported cease-fire, provides an excellent looking glass for the imperative of Israel’s “coming out” in the legal arena. It offers an important opportunity to practice what Western liberal democracies have preached for decades regarding the significance of the rule of law in practice, not just in theory. It equips the international community with tools to harness the power and potential of human rights law, with the aim of exposing the cynical use and hypocritical abuse made by all those that do not in fact pay it any deference.

In December 2017, the United Nations Security Council (UNSC) held a special briefing regarding “Humanitarian Aspects of Missing and Captive Persons in Gaza” in the Goldin case. Nonetheless, to date, Hamas is in standing violations of international humanitarian law, as they continue to withhold Hadar’s remains in brazen contempt for fundamental precepts of human rights and human dignity, as expressed in the Geneva Conventions and Customary International Humanitarian Law. Despite the passage of time, nothing has changed.

Though all participating member nations at the UNSC gathering affirmed these crucial international humanitarian law principles and called for the repatriation of the remains of Hadar Goldin, another year has passed. Though there was not a single dissenting voice, there has been silence since. Though the International Committee of the Red Cross at the time clarified that “intentionally withholding information about fallen soldiers or missing persons” – as Hamas continues to do – is a standing violation of the most fundamental principles of international humanitarian law,” nothing has been done. Therein lies the power and herein lies the pity.

Israel, a sovereign and democratic state, has accepted responsibility in many realms for the development, advancement, defense and safety of its citizens. It has done so successfully on many fronts. At 70, having developed a world-renowned legal tradition celebrated only last week, it is time that the State of Israel comprehend and internalize the significance of taking responsibility for the development of legal mechanisms available as an equal and law-abiding member of the community of nations.

It is time for Israel to develop a coherent, systematic and holistic policy, creatively utilizing all available legal apparatuses. It is time to step out of the docket of the accused, to stop responding and reacting, and to apply the legal intellect and experience that has evolved and resolved pressing complex challenges and has successfully created mechanisms for balancing competing rights. It is time that Israel develop a lucid legal strategy and tactic that advances the cause of justice, and elucidates it when necessary, utilizing the universal language of rights.

Hadar Goldin is but a case study that sheds light on the imperative for the proposed paradigm shift. It is Hadar’s case that can perhaps expedite or facilitate a “coming out” from the conceptions in which we are imprisoned in, a paradigm that time and again places Israel in the docket of the accused.

The Goldin case is a powerfully clear case study for the Machiavellian reality to which we are witness, namely a paradigm in which terrorism seems to win; in which, empowered by its success, the bully of the neighborhood, reportedly conditioning “a cease-fire” on a monthly payment of $15 million, is de facto assisted by the going paradigm to create a ‘protection racket’; in which reactive, harmful legislation, presumably enacted to uphold and protect fundamental values, itself demonstrates that we are trapped in a mistaken paradigm.

If nothing else, perhaps it is the Goldin case and cause that can serve to underscore why Israel cannot afford to continue to accept and uphold this paradigm. It is clearly not working, as barrages of rockets, incendiary balloons and kites are launched, followed by one-sided “cease-fires” when ammunition runs out of the weather does not cooperate.

FURTHERMORE, THE assertion that there have been no casualties on the Israeli side is simply false. It relies on random acts of heroism of civilians, most recently illustrated by a brave mother and her disciplined children, who successfully saved themselves and all of us from an inevitable violent escalation.

Apart from the sheer arbitrariness that should not be relied upon, the physical, emotional and moral well-being of entire communities are dramatically compromised; the funds invested in saving lives instead of in health care, employment and education, are de facto used against Israel. Ironically, the fact that no Israelis die, sustains the current paradigm, ultimately empowering Hamas’s terrorist rule, to hold both Israelis and their own citizens hostage.

In addition to Israel, and in view of international daily events that serve as acute reminders of the imperative for moral clarity at an age captivated by moral ambiguity, all those committed to the values enshrined in international humanitarian law cannot afford to maintain this paradigm. As Hadar constitutes a test case for so many other pressing issues, it seems entirely plausible that Israel is the test case for challenges that many countries sharing her basic values face or will face.

Therefore, all those that cherish human rights have a responsibility to uphold and protect the law indiscriminately; to enable Israel to question the current paradigm that serves and rewards terrorist strategy, withstanding pressures or supposed short term self-serving interests; to recognize that there are challenges which Israel faces that test democracy at its very core that require Israel step out of the docket of the accused; to support Israel in the creation and utilization of an alternate paradigm which includes legal mechanisms that hold those in standing violations and in breach of legal, moral principles, to account.

Every day that passes further illustrates that the message must be explicit and unequivocal. Specifically in regards to Gaza, the Israeli and global effort to reach a “humanitarian cease-fire” cannot advance until equal concern is expressed regarding the human rights of Hadar Goldin and his family; until such time that “humanitarian law” is applied across the border, including Hadar’s return from Gaza to Israel for decent burial, in accordance with international law, Islamic and Jewish laws and basic human decency. The ongoing oversight in this regard is symptomatic of the current paradigm, and it stands in the way of truly advancing the humanitarian mission for Gaza.

Such a paradigm shift should include explicit condemnation of Hamas and the putting of this murderous terrorist organization in the docket of the accused. In so doing, Israel, the Security Council, member states, and indeed the entire law-abiding international community, would be pursuing an effective remedy and addressing current challenges, not only for the just case and cause of Hadar, but for the current and future assaults that threaten their very own integrity, undermining the very raison d’etre for their creation.

The writer is a PhD candidate in law at the Hebrew University of Jerusalem, a research fellow at the International Institute for Counter-Terrorism and a board member of Tzav Pius.