The Culpability of Egypt – if Israel Makes an Issue of it

The London-based newspaper Al-Hayat reported on September 5th that the kidnapped Israeli hostage, Gilad Shalit is now in Egypt as part of a deal to release him. The paper reported that Shalit was brought to Egypt a short while ago in return for guarantees that Israel would release 800 Palestinian prisoners in three stages.

Al-Hayat also reported that Hamas retracted its demand that Shalit be released at the same time as the prisoners.

Palestinian Authority Chairman Abu Mazen said that a prisoner exchange agreement has been reached in which Gilad Shalit will be returned to Israel. In an interview with a Bahraini newspaper, Abu Mazen said Shalit will be transferred to Egypt and held there until Israel carries out its part of the deal.

No Israeli government official would comment on this report.

However, if it is true that Shalit is in Egypt, there will be far reaching legal implications

Egypt, as a sovereign nation state, with a peace treaty with Israel, would have trouble explaining how it is that their government would not hand over a citizen from a neighboring state who had been abducted by a terrorist organization.

Israeli legal authorities are now conferring on the implications what it would mean if, indeed, an abducted Israeli citizen is in the custody of the Egyptian government.

Such a situation would transform Egypt into a state which collaborates in kidnapping.

International law would require Egypt to hand over the hostage, regardless of any commitment given to the terror organization that had kidnapped the hostage.

A leading international lawyer in Jerusalem gave his perspective:

We have a peace treaty with Egypt. We have formal diplomatic relations with Egypt. If the Egyptian government takes possession of our soldier and refuses to release him on our demand, then Egypt will be in violation of customary international law. States at peace do not hold each other’s soldiers against their will.

HOWEVER… Israel has to demand his release. If Israel says it’s OK for Egypt to hold Shalit for some duration, then Egypt is not violating international law. In essence, Egypt will be holding Shalit in escrow: Egypt as a third party demonstrating that Shalit is alive and can be released, but holding him until the agreed upon terms have been fulfilled — until however many prisoners Israel has agreed to let go prior to his release have been let go.

The key here, then, once Egypt has Shalit, is GETTING THE ISRAELI GOV’T TO DEMAND HIS RELEASE. Egypt is under absolutely no obligation under international law to honor the demands of the kidnappers, who have released Shalit to Egypt’s possession. Israel can say, “You’ve got him, now give him to us, without stipulations or delay.” Then if Egypt balks it’s time to put pressure on Egypt. Egypt — which may well say things about how it has to act as an honest broker and this will ruin trust — would have no legal grounds to stand on if it tried to keep Shalit following an Israeli demand for his release and there could be threats of international repercussions.