Israel has denied its Lebanese detainees protection under the laws of war either as prisoners of war or as civilians, refusing to meet even those minimum humane standards of protection common to the four Geneva Conventions (standards that largely coincide with the nonderogable standards at the core of human rights law andare generally considered customary international law). Rather, Israel has denied the Lebanese detainees any clear status-as if they were outside the protection of international law.
Without status or protection, some among these detainees have suffered forced "disappearance"; torture; incommunicado detention without limit; and denial of access to families and legal counsel. All have endured the prolongation of their detention indefinitely seemingly for reasons unrelated to the original cause of their detention.
The applicable standards
International human rights law and international humanitarian law provide standards limiting the application of administrative detention. The latter provide the standards most relevant to the cases of Arab detainees transferred to Israel and subject to administrative detention orders. As the twenty-one Lebanese were detained in the context of an international armed conflict, in territory under partial occupation by Israel, humanitarian law provides binding normative standards governing their treatment.
Israel is a party to the four Geneva Conventions of 1949, but has not ratified the 1977 optional protocols to them. Lebanese territory is under partial occupation by Israel and so Israel must be held to its binding obligations as a state party to the four 1949 conventions.
"Every person in enemy hands must have some status"
Israel appears to accord the Lebanese detainees no particular status under the laws of war. It is as if the detainees are without status of any kind-imprisoned beyond the protection of international standards. Such situations were contemplated in the ICRC's Commentary on Article 4 of the Fourth Geneva Convention, on its field of application, in which it was explained that the body of humanitarian law was devised so that this would never occur.21
The terms of the Third Geneva Convention, which protect combatants who fall into the hands of the enemy as prisoners of war, have not generally been considered to apply to the cases of detainees in Lebanon who did not form part of a conventional armed force. Israel has refused to consider the detainees allegedly associated with Hizballah or Lebanese militia groups to be prisoners of war (and thus protected by the Third Geneva Convention), and Lebanon has not formally declared them to have been a part of that state party's armed forces.
Derogation from the Fourth Geneva Convention and "state expediency"
The normative standards that apply expressly to the case at hand are those set out in the Fourth Geneva Convention. Israel identifies all of the detainees as "terrorists," and alleges they are members of forces which do in fact continue to fight Israeli forces in Lebanon under a situation of occupation as well as through cross-border raids. That such active fighting by organized forces continues is clear, even though the Lebanese state and its regular forces have only occasionally carried out military resistance to Israel's continued occupation. International humanitarian law provides a protective regime for real or presumed fighters who are neither regular combatants nor protected civilians when they fall into the power of a party to the conflict.
Article 5 of the Fourth Geneva Convention, on derogations, outlines the exceptions under which persons protected under the convention "shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State." The test of such derogation is "that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State . . ." Article 5's paragraph 3 requires that "such persons shall nevertheless be treated withhumanity and, in case of trial, shall not be deprived by the rights of fair and regular trial prescribed by the present Convention."
The ICRC Commentary on paragraph 3 of Article 5 explains that the requirement of a fair and regular trial will be ensured,
in occupied territory, by applying the provisions of articles 64 to 75. While there are no special provisions applying to the territory of the Parties to the conflict, the rule contained in article 3 common to the four Geneva Conventions would apply: the court must afford "all the judicial guarantees recognized as indispensable by civilized peoples."
While noting that Article 5 allows restrictions in exceptional cases even to the right of communication, the Commentary stresses that "restrictions are to be raised as soon as possible; there can be no doubt that the reasons which may exist for keeping certain people in solitary confinement are, in most cases, of a temporary nature."
The ICRC's comment on Article 5 stresses its exceptional and regrettable nature, while reaffirming the limits to its concession to state expediency:
[The Article] is an important and regrettable concession to State expediency. What is most to be feared is that widespread application of the Article may eventually lead to the existence of a category of civilian internees who do not receive the normal treatment laid down by the Convention but are detained under conditions which are almost impossible to check. It must be emphasized most strongly, therefore, that Article 5 can only be applied in individual cases of an exceptional nature, when the existence of specific charges makes it almost certain that penal proceedings will follow. This Article should never be applied as a result of mere suspicion.
Israel, in the cases cited here, has taken the principle of state expediency to the extreme, and in doing so has violated the spirit and the letter of international humanitarian law. The treatment accorded some of the Lebanese prisoners reflects a de facto denial of even the minimal protection required in such exceptional cases.
21 Jean Pictet, ed., Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), p. 51 (hereinafter Commentary to the Fourth Geneva Convention).