In correspondence with Human Rights Watch, the Government of Israel stated that the Lebanese in Israeli custody "were involved in terrorist activities in Lebanon" and "are being held lawfully."60 However, numerous past statements by Israeli government officials suggest strongly that it holds two detainees hostage.
Soon after the July 28, 1989 capture and transfer to Israel of Sheikh Abd al-Karim Obeid, Israeli authorities tied the operation directly to efforts to force Lebanese militia to resolve the fate of missing airman Ron Arad. Shortly after the pre-dawn raid, IDF spokesperson Col. Raanan Gissin publicly hinted at such a link: "Clearly, when you capture one of [Hizballah's] top leaders, it can deter terrorism, and you also have a certain amount of leverage in your hands."61 Gissin accused Obeid of being a "preacher and instigator in carrying out attacks against Israel" as well as "the main figure in the [Hizballah] organization especially in southern Lebanon."62 The Israeli government also alleged Obeid's involvement in the kidnaping of William Higgins, a United States Marine Lieutenant Colonel seconded to the United Nations Interim Force in Lebanon.63 Hizballah would neither confirm nor deny to Human Rights Watch whether Sheikh Obeid was a member of that movement.64
In the same operation, Israeli forces also captured Hashim Ahmad Fahs and Ahmad Hikmat Obeid, Obeid's bodyguards. Since that time, Sheikh Obeid has been held incommunicado in an undisclosed location or locations, while Ahmad Hikmat Obeid and Hashim Ahmad Fahs have been held in various detention centers, most recently in Ayalon detention center in Ramleh.
The connection between the apprehension and the MIAs was explicit when then-Prime Minister Yitzhak Shamir's government stated four days after the raid that Sheikh Obeid's release could only come as part of a comprehensive exchange of Shi`a prisoners held by Israel for Israelis held by Shi`a groups in Lebanon.65 Similarly, after U.S. citizen Joseph Cicippio was freed after over five years of being held hostage in Lebanon, and in response to rumors of a comprehensive exchange of captives and remains held by Israel and Lebanese groups, Uri Lubrani,the Israeli Government Coordinator of Lebanon Affairs, stated: "We will release Obeid only after we receive our POWs and MIAs. We have also said that we will release all of the Lebanese prisoners after a deal."66
In another raid, on May 12, 1994, Israeli troops took Mustafa al-Dirani from his home outside Israel's occupation zone. Al-Dirani was head of security of Amal, a Lebanese political movement whose military wing in October 1986 captured Israeli Air Force navigator Captain Ron Arad after he bailed out of his plane over Sidon. Al-Dirani subsequently left Amal to form another group, known as "Faithful Resistance."67 According to the Israeli government, al-Dirani transferred Arad into the new group's custody at that time, and later handed him to Iranian Revolutionary Guards stationed in Lebanon. The government also stated that Arad has never been visited by his family or the ICRC and is currently held in an unknown location; his fate remains unknown.68 He was last heard from in October 1987 when his family received a photograph and a letter from him saying that he was in good health.69
Then-Foreign Minister Shimon Peres emphasized shortly after al-Dirani's capture that the raid was motivated by a desire to seek information about Arad. Then-Prime Minister Yitzhak Rabin was quoted by reporters in Tel Aviv as stating that Israel had ordered the raid because "we have to find every hint of a direction for acting that will give us information [on Arad]."70
Israeli officials have since then continued publicly to make the release of Sheikh Obeid and al-Dirani contingent on progress toward resolving the fate of Israel's remaining missing in action. In the course of a meeting with an Amnesty International delegation to Israel on February 9, 1996, Israeli Deputy Minister of Defense Ori Orr responded to the delegates' questions regarding Obeid and al-Dirani's legal status and their whereabouts, stating "We will release them when we have more information about Ron Arad."71 Since seven and two years, respectively, had passed since the capture of the two persons in question, it may be concluded from Orr's comments that Israel was hoping to obtain such information not from the detainees themselves, but from other parties to the conflict interested in expediting their release.
In this light, the harsh, arbitrary and unparalleled conditions of isolation in which Obeid and al-Dirani are being kept appear to be part of an Israeli strategy to increase its leverage with third parties. The two have been held for years without contact with the ICRC; they have had practically no correspondence with their families; and they are held apart from other detainees in undisclosed locations. To our knowledge, Israel has provided no justification for this regime of isolation, which appears harsher than that experienced by any of the other Lebanese detainees in Israeli custody.
The detention and treatment of Sheikh Obeid and al-Dirani must be viewed in the context of Israel's persistent efforts to secure the release of Arad and its other MIAs. In addition to carrying out the arrests describedabove and making direct and public exchange offers to parties it believed held their MIAs,72 Israel has sought the intervention of different intermediaries, including then-United Nations Secretary-General Javier Perez de Cuellar, the ICRC, and more recently Bernd Schmidbauer, the German intermediary, seeking to promote a prisoner exchange between Israel and the party or parties holding Israeli MIAs or their remains. In some cases, these have resulted in the release of prisoners and the repatriation of remains by Israel, the SLA, and resistance groups based in Lebanon, such as one that occurred on July 21, 1996 between Israel, the SLA, and Hizballah.73
Hostage-taking is a serious violation of basic norms regulating international and internal armed conflict and is prohibited at any time and in any place whatsoever. It is a grave breach of the Fourth Geneva Convention, and as such constitutes a war crime. All parties to that convention have an obligation to try persons responsible for acts of hostage-taking. Hostage-taking also figures among the acts prohibited in Article 3, common to the four Geneva Conventions, in non-international armed conflicts: what is often described as "the Geneva Conventions in miniature."
The ICRC Commentary on the Fourth Geneva Convention, Article 34, defines hostages "[g]enerally speaking," as "nationals of a belligerent State who of their own free will or through compulsion are in the hands of the enemy and are answerable with their freedom or their life for the execution of his orders and the security of hisarmed forces."74 The ICRC's authoritative Commentary on Protocol I, Article 34, in turn, provides an updated definition, describing hostages as "persons who find themselves, willingly or unwillingly, in the power of the enemy and who answer with their freedom or their life for compliance with the orders of the latter and for upholding the security of its armed forces."75 Protocol I, concerning the protection of victims of international armed conflict, includes the prohibition on hostage-taking as one of the minimum humanitarian standards required to protect persons who are in the power of a party to an international armed conflict.76
Under these standards, where a party to a conflict conditions the treatment or release of a detainee as a means to pressure a third party to act in a certain way, such as to release or provide information about a missing or captured soldier, that detainee is a hostage. International humanitarian law requires that the condition of being a hostage must cease immediately. The prohibition on the holding of hostages is absolute and stands even if the group whose behavior the party is attempting to affect is itself holding individuals hostage.
61 "Raid into Lebanon Defended by Israel; Leader of Iran-Backed Hezbollah Accused of Role in Terrorist Attacks," Los Angeles Times, July 30, 1989, p. 1.
62 "Raid into Lebanon Defended by Israel," p. 1.
63 Amnesty International, "Israel's Forgotten Hostages," p. 11. Higgins was captured in February 1988. Three days after Obeid's arrest, the Oppressed of the Earth organization issued a statement stating that it had hanged Higgins to avenge the seizure of Obeid, and released a videotape showing a man dangling from a rope with his feet tied and his mouth gagged. "Lebanese Group Says U.S. Hostage Hanged; Threat Against Second," Reuter, July 31, 1989.
64 Letter from Mohammad al-Saad, Hizballah, to Human Rights Watch/Middle East, June 16, 1997. Hizballah would only state that "Sheikh Abd al-Karim Obeid is one of the eminent [religious] scholars engaged in struggle [al-ulema' al-afadhil al-mujahidin] and is the Imam of Jibchit village." Ibid.
65 Joel Brinkley, "Israel Adamant on Terms to Free Abducted Sheik," New York Times, August 2, 1989, p. A10.
66 Alon Pinkas, "Freed Cicippio Arrives in Germany: US Deal with Iran Said Easing Hostage Release," Jerusalem Post, December 3, 1991.
67 Clyde Haberman, "Israelis Abduct Guerilla Chief from Lebanon," New York Times, May 22, 1994, p. A1.
69 Amnesty International, "Israel's Forgotten Hostages," pp. 4-5.
70 David Hoffman, "Israel Abducts Lebanese Guerrilla," Washington Post, May 21, 1994, A25.
71 Amnesty International, "Israel and the Occupied Territories: Human Rights Should Not Be Sacrificed in the Name of Peace," February 12, 1996 (AI Index: MDE 15/11/96).
72 In January 1992, Israeli Defense Ministry spokesperson Danny Naveh stated to the press: "I can reiterate our position: We are ready to release the Lebanese prisoners we have in return for the release of the Israeli missing and captive soldiers." Naveh's statement was in response to contemporaneous offers from Hizballah and Amal to the SLA and Israel to exchange captives and remains. Naveh added that the lack of information on Arad was what had held up any exchanges thus far. "Lebanon: Shi'ite Leader Offers Prisoner Swap with Israel," Reuter, January 12, 1992.
On March 26, 1993, Uri Lubrani, the Israeli Government Coordinator of Lebanon Affairs, offered to exchange Lebanese Shi`a prisoners held by Israel and the SLA, including those held inside Israel, for Israel's missing and captive soldiers, according to Lebanese Foreign Minister Faris Bouez. Letter from Faris Bouez, Foreign Minister of Lebanon, to Boutros Boutros-Ghali, United Nations Secretary-General, November 26, 1993.
In a memo sent to Amnesty International in Dublin, an [Israeli government official] stated that "the answer to the problem of the Lebanese prisoners lies in a comprehensive solution to the security issues facing us along the Lebanese border. The cessation of terror attacks launched from Lebanese territory against Israel and a full accounting of missing soldiers on all sides (including six Israeli servicemen) would undoubtedly go a long way towards solving this situation." Memorandum from Israeli Embassy in Dublin to Sophie Magennis, Amnesty International Irish Section, April 18, 1997.
The most recent suggestions of the possibility of an exchange came in September 1997 in the aftermath of a failed Israeli raid thirty kilometers north of the Israeli-occupied zone in south Lebanon by an elite commando unit which left twelve Israelis dead. While Israeli forces were able to recover the remains of eleven soldiers who died in the ambush, those of a twelfth were not recovered. Sheikh Hasan Nasrallah, leader of Hizballah, told a press conference he was prepared to swap the missing soldier's remains captured by his group for prisoners held by Israel. When asked about the offer on Israeli television, Israeli Prime Minister Binyamin Netanyahu said, "We will not give up trying to find him and bring back his remains. . . . We are ready to study all possibilities. For us a missing soldier is what counts. But we have to see if there is substance to Hezbollah's proposition." "Netanyahu suggests Lebanese prisoners for soldier's remains," Agence France-Presse, September 5, 1997. Four days later Jean-Jacques Fresard, the head of the ICRC delegation in Beirut, delivered a message from Israel regarding a possible exchange to Lebanese Prime Minister Rafiq al-Hariri. Al-Hariri also responded via Fresard. "Red Cross Mediating Hezbollah-Israel Exchange," Agence France-Presse, September 9, 1997. Al-Hayat, a London-based Arabic daily, reported that the Lebanese government, in coordination with Hizballah, would lead the negotiations on the Lebanese side and would rely on the ICRC as the main intermediary for the exchange. "First Red Cross Step in Remains-Prisoner Exchange," Al-Hayat, September 11, 1997, p. 3.
73 International Committee of the Red Cross, "Lebanon/Israel: mortal remains repatriated and prisoners released," Press Release 96/24, July 22, 1996.
74 Pictet, ed., Commentary to the Fourth Geneva Convention, p. 229.
75 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987), p. 874.