Families of the Israeli nationals kidnapped by Hamas on Saturday have come together and formed a joint campaign to secure the release of their loved ones. The families were quick to internalize the lessons that were learned the hard way during the years-long campaign to secure the release of Israeli soldier Gilad Shalit and previous MIAs (as reported by Shomrim). They realize that they are in a race against time and that they cannot wait for the government to come to its senses, so they have already set up a nongovernmental organization to raise money for their campaign.

A legal team that includes high-profile lawyers like Raz Nizri and Dan Eldad are currently registering an association to coordinate the campaign, on the understanding that it will likely be a hugely costly project and that, even if individuals and organizations work pro bono, there will still be expenses like flights overseas, legal costs and perhaps even a public campaign in Israel. The campaign for the release of Shalit was managed by a trust fund handled by the Herzog, Fox and Ne’eman law firm.

The campaign is also setting up a database of the names of the hostages and their families, to save the various government ministries time. For example, it is providing information to the Welfare Ministry, which wants to make sure that every family is assigned a social worker. Volunteers from the world of high-tech are setting up the technological infrastructure for the database, which will have to meet strict standards of data protection and privacy in order to be registered.

Another thorny legal issue was raised when movie director and singer Shaylee Atary asked to fast-track identification of the body of her husband, Yahav, who was killed in Saturday’s attack. She wanted to retrieve and freeze his sperm so that she could carry his child in the future. By the time the sperm was retrieved, however, it was no longer viable. The families’ legal team also helped Atary with this issue. Shomrim covered the legal and moral dilemma of post-mortem sperm retrieval in a recent article with Bloomberg Businessweek.

Nizri and Eldad are both former officials from the Justice Ministry, who have moved into private practice within the past two years. In addition to his position as deputy attorney general of public-constitutional law, Nizri was also appointed deputy attorney general of management and special duties. He attended cabinet meetings dedicated to the release of Gilad Shalit and was involved in the legal aspects of sending Palestinian security prisoners who were released in exchange for Shalit back to prison if they violated the terms of their pardon.

"There are certain countries that Hamas depends on financially. Tehran is not the only actor that allows Gaza to survive."

Eldad was the head of the economic investigations department in the State Attorney's office and served as acting State Attorney for three months. In the private sector, he was one of the legal team representing Gal Hirsch – the IDF commander who resigned in the aftermath of the Second Lebanon War and the abduction of two soldiers by Hezbollah – in a tax evasion case. Hirsch was appointed this week by Prime Minister Benjamin Netanyahu to coordinate the cross-governmental response to missing Israeli citizens.

As someone with experience from the financial world, Eldad explains what action the families’ legal team is planning to interfere with Hamas’ sources of funding. “There are certain countries that Hamas depends on financially,” he tells Shomrim. “With all due respect to Iranian support, Tehran is not the only actor that allows Gaza to survive. There are countries that transfer money directly and there are countries which are used to transfer funding – and we will ask for their support, too. Countries that want to prove that they are part of the law-abiding world and the international community must show that they do not legitimize Hamas. We will promote moves on the international stage to define Hamas’ actions as crimes against humanity and war crimes.”

What have you managed to do so far?

“We are only now getting organized. We will work with the Justice Ministry and the IDF’s legal team. A lot of lawyers have reached out to us, asking to help.”

What about a petition to the Supreme Court, ordering the government not to implement the so-called Hannibal Procedure, which would be tantamount to sacrificing the hostages in favor of retributive attacks?

“The Hannibal Procedure is a controversial military directive which should not be applied in the case of civilians. The legal side is not significant in that discussion. As far as a Supreme Court petition is concerned, we’re not there yet and I don’t know if we will ever be. I’m not thinking about that.”

"Countries that want to prove that they are part of the law-abiding world and the international community must show that they do not legitimize Hamas. We will promote moves on the international stage to define Hamas’ actions as crimes against humanity and war crimes.”

‘They are all hostages. Civilians and soldiers alike’

The legal avenues available to the families, which focus mainly on pressuring and sanctioning Hamas, will play second strong to the mediation efforts that Israel will have to employ. Prof. Yuval Shany from the Hebrew University of Jerusalem and Dr. Tamar Hostovsky Brandes from the Ono Academic College are experts in international law. They are among a group of Israeli jurists who sent an open letter to various United nations bodies, urging them to work for the release of the abductees – whom they insist on referring to as “hostages,” even if some of them are soldiers.

“We do not recognize the right of Hamas, as a terrorist organization, to hold soldiers,” Hostovsky Brandes says. “So, the phrase ‘prisoner of war,’ which refers to soldiers being held captive by a state, does not apply here. As far as we are concerned, they are all hostages. Civilians and soldiers alike. They are being held in violation of international law and they must be released immediately, irrespective of what is happening on the ground.”

“It’s hard to find a legal justification for obligating the state to act or to refrain from acting in response to pressure from citizens. This is a struggle that is playing out in the public arena"

“The aim is for them to issue a public statement,” Shany explains. “And then that the UN committee which deals with forced disappearances will issue a public statement calling on Hamas to free the hostages. It’s not a legally binding order, more of a public call. It has issued similar statements in the past about other Israeli hostages.”

And no one was particularly moved by them

“We are dealing with a terrorist organization, which does not adhere to legal norms – and that’s a problem. But this tool has huge public importance in terms of working with countries that can influence Hamas.”

What about the UN Security Council?

“That is another arena we will work in. It could impose the kind of sanctions on Hamas that we have never seen before in the international arena. For example, it could prevent third countries from helping Hamas, as happened in the past with the so-called Islamic State (ISIS).”

Does the comparison with ISIS go beyond psychological warfare. Does it also have legal significance?

“Yes, but it’s not simple. Russia has the power of veto in the Security Council, which it could very well use, as it has done in the Syrian context.”

Biden did not wait around for the Security Council. He announced that the United States would be by Israel’s side on Tuesday.

“Correct. If a country comes under attack, other countries can come to its assistance, but sometimes there are questions over whether it was actually an attack or whether it was an attack that warrants self-defense, since the aggressor is not defined as a state. A mandate from the Security Council could clear up whatever legal questions might arise. American support is always vitally important when it comes to discussions in international forums. Europe, too, because when it comes to human rights, the European Union is a key player.”

"There’s also an arrest warrant out for Putin. These warrants are never implemented unless they are backed by political or military power"

What can we learn from Ukraine in this context?

“The Security Council did not manage to pass any resolutions on Ukraine, but there were some important resolutions in the General Assembly, which condemned Russian crimes and created a database of the damage done so that, when the fighting ends, the victims will be able to file restitution claims against Russia. Absurdly, our ability to enforce international law when it comes to the two extremes – a superpower like Russia and a terrorist organization like Hamas – is very limited. And still Russia has been subjected to rigid sanctions. Flights were canceled, assets have been frozen and diplomatic relations have been downgraded. Commercial entities have also stopped operating on Russian soil.”

What other forums can you work in?

“The International Criminal Court in The Hague has already announced that it is looking into the Hamas attack. It does not need to wait for Israel to demand indictments, because the Palestinians joined the ICC eight years ago, so it had the authority to investigate allegations of crimes by Palestinians in the West Bank or the Gaza Strip. But even if indictments are filed against those involved in the abductions, it’s not a magic solution. There’s also an arrest warrant out for Putin. These warrants are never implemented unless they are backed by political or military power. But, here too, they have value on the diplomatic and public fronts.”

"When it comes to the two extremes – a superpower like Russia and a terrorist organization like Hamas – is very limited. And still Russia has been subjected to rigid sanctions. Flights were canceled, assets have been frozen and diplomatic relations have been downgraded."

‘Prisoner-exchange deals are common during wartime’

What, then, about legal activity within Israel? How can the hostages’ families counter the policy whereby the Israeli says that a deal for their return can only happen once the fighting is over?

“It’s hard to find a legal justification for obligating the state to act or to refrain from acting in response to pressure from citizens,” Hostovsky Brandes explains. “This is a struggle that is playing out in the public arena. One could, in theory, argue that certain actions would cause disproportionate harm to civilians, but that is a very vague argument under the laws of war and does not specifically address a state’s obligations when it comes to hostages.”

“I don’t know whether the policy of ‘First we fight’ is real or a smokescreen behind which negotiations are taking place,” says Shany. “There are legal elements to the questions of what Israel is doing to protect the lives of the hostages and when it will engage in negotiations that will lead to a prisoner-exchange deal – but they are not legal questions at their core. Whether and how to conduct such a deal is a perfect example of a policy decision that must be taken by elected officials. It is, however, very normal to conduct prisoner-exchange deals while the fighting is ongoing. There are treaties dealing with prisoners of war which specifically refer to such deals. I am sure that the policy of fighting first and then dealing with the hostage is not a position in principle that can be defended.”

Do you think anyone will be allowed to visit the hostages, given that no one was allowed to see Gilad Shalit for years?

“It’s possible. Now the discourse is different. What happened on Saturday can be categorized as a crime against humanity and Hamas can fairly be compared to ISIS. That gives events a different political, legal and public context from anything we have known until now. I believe that organizations and bodies that have been rather indifferent to human rights violations when the victims were Israelis – which argued that reality is complicated and that Israel also violates human rights – now understand that what happened on Saturday is on a very different level of atrocity. Therefore, I think we will see more international involvement than in the past.”