International humanitarian law categorically prohibits hostage-taking. On April 12, 2000 Israel's highest court ruled that the administrative detention of Lebanese nationals as "bargaining chips" -- hostages -- was illegal under Israeli domestic law, making Israel's continued detention of Lebanese nationals Sheikh `Abd al-Karim `Obeid (held since 1989) and Mustafa al-Dirani (held since 1994) as hostages a violation of Israeli domestic law as well. On June 11, 2000, in a transparent attempt to legitimize an illegal situation, the Israeli Cabinet unanimously approved draft legislation entitled "Imprisonment of Combatants not Entitled to Prisoner-of-War Status Law, 5760-2000". The legislation passed its first reading in Israel's Knesset on June 21, 2000. The draft legislation not only fails to end `Obeid and al-Dirani's illegal detention, it opens the way to sweeping human rights violations against them and others by appearing to legitimize prolonged, arbitrary detention.
Article 1 of the draft law declares the law to be consistent with the Geneva Conventions (1), while Article 2 gives the Commander of the General Staff of the Israel Defense Force powers to detain indefinitely, without charge or trial, "a person who belongs to a force fighting against Israel or a person taking part, directly or indirectly, in hostile activities of the said force," but who is not a prisoner of war under the Third Geneva Convention.
However, under international humanitarian law, all detainees who are not entitled to protection as prisoners of war are nevertheless protected under the Fourth Geneva Convention(Relative to the Protection of Civilian Persons in Time of War)(2). Those protections include the prohibition of hostage-taking (Article 34), the prohibition against individual or mass forcible transfer (Article 49), and the requirement that internment (detention without charge or trial) "may be ordered only if the security of the Detaining Power makes it absolutely necessary" (Articles 42 and 78).
Hostage-taking is unacceptable under any interpretation of international humanitarian law, and like the prohibition of torture, is never subject to derogation. Human Rights Watch views with alarm Prime Minister Barak statements that the draft legislation is "aimed at ensuring that we can detain people from organizations fighting us for as long as our people are held by those groups,' and more specifically, is intended to continue Israel's illegal detention of Lebanese nationals Sheikh `Abd al-Karim `Obeid and Mustafa al-Dirani. This intention is borne out in Article 13(A) of the legislation, which includes "transitional provisions" that extend its application to "a combatant who is not a prisoner of war who is held by state authorities on the date of its commencement."
Similarly disturbing is the sweeping language of the draft legislation, which may permit the indefinite internment of persons who pose no threat to state security, a violation of both international humanitarian law and international human rights law (3). For example, Articles 2 and 3(A) allow imprisonment based on the IDF Chief of Staff's assertion that an individual "belongs to a force combating Israel or [is] a person taking part, directly or indirectly, in hostile activities of the said force." Judicial review is limited to determining whether a detainee "is a combatant who is not a prisoner of war." (Article 4) The legislation fails to provide the Minister of Defense with guidelines for determining that a particular force is hostile, is engaged in hostile activities, that hostile activities have not ended, or even that it is a force. This raises serious concerns that the legislation could be used to detain individuals based on their political beliefs, and not for any actual acts they have committed. The draft law provides no mechanism for reviewing or challenging such decisions, as the Minister of Defense's determination "shall serve as decisive proof in this matter." (Article 9)
Sheikh `Abd al-Karim `Obeid and Mustafa al-Dirani are protected persons under the Fourth Geneva Convention, and subject to the protections of the International Covenant on Civil and Political Rights (ICCPR). Their kidnaping from Lebanon and prolonged incommunicado detention, including periods of prolonged solitary confinement, violate both the ICCPR's prohibition of arbitrary detention (4) and the Fourth Geneva Convention's prohibition of hostage-taking and forcible transfer(5). Hostage-taking, unlawful transfer, and unlawful confinement are also grave breaches of the Fourth Geneva Convention, that is to say, war crimes. Human Rights Watch calls on the Israeli government to immediately release Sheikh `Abd al-Karim `Obeid and Mustafa al-Dirani, and to publicly commit not to use any other individuals as hostages. Israel has a legal obligation to ensure that no one in its custody is deprived of rights guaranteed them under international humanitarian law and international human rights law. Legislation like the "Imprisonment of Combatants no Entitled to Prisoner of War Status Law" are concessions to political expediency that undermine both the rule of law in Israel and the integrity of international law, and should not be allowed to stand.
1. Article 1. The objective of this law is to incorporate in Israeli law the imprisonment of combatants who are not entitled to prisoner-of-war status, in a manner consistent with the provisions of international humanitarian law, particularly the Geneva Conventions of 12 August 1949.
2. The Fourth Convention provides protections to persons "who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals" and who are not protected by any of the other three Geneva Conventions (Article 4).
3. Article 9 of the ICCPR prohibits arbitrary detention. Indefinite detention is by its nature arbitrary. Israel's derogation from its Article 9 obligations is limited to only those measures that "are of an exceptional and temporary nature" (Human Rights Committee General Comment 5) and do not "depart from the requirement of effective judicial review of detention." (Human Rights Committee, CCPR/C/79/Add.93 para. 21) Articles 42, 78, and 79 of the Fourth Geneva Convention allow the internment of protected persons only if imperative reasons of security make it necessary.
5. Articles 34 and 49 of the Fourth Geneva Convention prohibits hostage-taking and individual or mass forcible transfer, respectively. Both violations are also a grave breaches, or war crimes, under Article 147 of the convention. Under Article 146, all state parties to the convention have a legal obligation to "enact effective penal sanctions for persons committing, or ordering to be committed" grave breaches, and to investigate and prosecute those persons.
