October 1997 Vol. 9, No. 11 (E)
WITHOUT STATUS OR PROTECTION
Lebanese Detainees in Israel
THE DETAINEES 13
WITHOUT STATUS OR PROTECTION 18
The applicable standards 19
"Every person in enemy hands must have some status" 19
Derogation from the Fourth Geneva Convention and "state expediency" 19
EMERGENCY POWERS AND ADMINISTRATIVE DETENTION 20
Closed hearings and non-disclosure of the basis for detention 21
Administrative detention and international standards 22
Release "with the minimum delay possible" 22
The right to counsel 22
CONDITIONS OF DETENTION 25
The interrogation center called "Sarafand" 25
The torture and ill-treatment of Lebanese detainees 25
Access to family visits and correspondence 27
Denying access to families 29
Denying the ICRC access 30
DETAINEES IN THE CONDITION OF HOSTAGE 31
THE UNITED STATES GOVERNMENT'S POSITION 34
APPENDIX A:Interrogation of Lebanese detainee Ali Banjak 37
APPENDIX B:Response of the government of Israel to Human Rights Watch's inquiries regarding Lebanese detainees in Israel and Israelis missing in Lebanon 41
This report concerns twenty-one Lebanese imprisoned in Israel and the conditions and indefinite prolongation of their detention. These detainees have been held for up to ten years, some of them in secret locations, denied even the guarantees of due process and humane treatment required by the laws of war. Some of them "disappeared" after their transfer to secret detention in Israel, their custody denied for up to two years by Israeli officials. All of the detainees were initially held incommunicado, in conditions in which ill-treatment and torture by Israeli security forces is known routinely to occur. Two of the detainees continue to be held in utter secrecy and isolation in undisclosed locations; one of them has been in this situation since 1989. Others among these prisoners completed prison sentences in Israel up to nine years ago: orders for their deportation upon release were suspended without explanation and their long imprisonment under administrative orders began. All of the twenty-one were captured inside Lebanon by Israeli troops or Lebanese militia with close ties to Israel, such as the Lebanese Forces and the South Lebanon Army SLA).
The prisoners in question were all detained in the context of the ongoing conflict between Israel and Lebanon. All are alleged by Israel to have been members of or associated with Lebanese groups engaged in armed opposition to Israel's occupation of southern Lebanon or in attacks on Israel itself. Israel has explicitly conditioned the release of two of the detainees on the release of, or the receipt of information about, Israeli soldiers missing in Lebanon, and has on a number of occasions expressed its willingness in principle to exchange other Lebanese detainees for missing and captured Israeli soldiers. All are now held in administrative detention, under orders handed down in secret proceedings in which even information on specific evidence or allegations against them has been withheld on security grounds, making it difficult to rebut or challenge their credibility. Orders prolonging their detention are issued in intervals of up to six months. Israeli courts ratify these orders in hearings in which the detainees can take no effective part. This report examines the treatment and continued detention of these detainees in the light of international standards. It does not address the legal issues surrounding the actual capture of these prisoners.
The government of Israel responded to Human Rights Watch's request for information on the status of each of these prisoners with a short, general statement that reads in part:
Israel is holding a number of Lebanese detainees. All are members of, or associated with, the Hizballah, a fanatic Iranian backed terrorist umbrella organization of Shiite Muslim groups and individuals. Hizballah's stated objectives include eliminating the State of Israel. These detainees were involved in terrorist activities in Lebanon.
All detainees are being held lawfully in Israel. They are represented by lawyers, and their detention is subject to regular judicial review. [See Appendix B for full text of letter.]
The status of these twenty-one individuals and developments in their cases have been shrouded in secrecy. Eleven of the Lebanese prisoners were detained in 1986 or 1987 and sentenced by military courts on a range of charges under domestic Israeli criminal law-including military training, participation in attacks against Israeli forces in Lebanon, membership in banned organizations, and weapons possession-to between one and-a-half and eight years' imprisonment. Upon completion of their sentences, up to nine years ago, their imprisonment continued. Initially held "awaiting deportation," they have been held since then under the regime of administrative detention. Israeli authorities have not formally disclosed the grounds for their being administratively detained rather than deported.
Ten of the other Lebanese in Israeli custody have been held under administrative detention orders since they were brought to Israel in three separate operations. On July 28, 1989 Sheikh Abd al-Karim Obeid, a prominent young Shi`a cleric, was taken from his home in Jibchit in a pre-dawn raid by airborne Israeli commandos. In the sameoperation, Israeli forces also captured his bodyguards, Hashim Ahmad Fahs and Ahmad Hikmat Obeid. Since that time, Sheikh Obeid has been held incommunicado in an undisclosed location or locations, while Fahs and Ahmad Obeid have been held in various known detention centers and are currently held in Ayalon detention center in Ramleh. Sheikh Obeid is alleged by Israel to be a principal leader of Hizballah, the Lebanese Shi`a political movement whose armed wing, the Islamic Resistance, opposes Israel's occupation of Lebanese territory and also launches military strikes into northern Israel.
In another raid, on May 12, 1994, Israeli troops took Mustafa al-Dirani from his home fifty miles from Israel's occupation zone in south Lebanon. 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 later left Amal to form another group, known as "Faithful Resistance," and is alleged to have transferred Arad into the custody of the new organization at that time.) Israeli officials have publicly made the release of Sheikh Obeid and al-Dirani contingent on progress toward resolving the fate of Israel's missing in action (MIA).
Obeid and al-Dirani have been held for years without contact with the International Committee of the Red Cross (ICRC) or visits from their families; 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 acknowledged to be in Israeli custody.
Israeli officials have consistently said the arrest and detention of the two was motivated in part by its efforts to obtain the release of, or information about, military personnel missing in action in Lebanon or their remains. Israeli personnel still missing are Arad, the Israeli Air Force navigator; Zecharia Baumel, Zvi Feldman, and Yehuda Katz, three members of Israeli tank units who went missing during a battle against a Syrian armored unit in Lebanon's Beqa` Valley in June 1982; and naval commando Itamar Iliya, who died during a failed commando raid in September 1997. Ron Arad was captured alive, though the Israeli government says that it is not aware of his location or of the identity of his present captors and has received no news of him since October 1987. Statements by Israeli officials in past years and as recently as September 5, 1997 suggest that Lebanese detainees in addition to Obeid and al-Dirani might be set free in exchange for the release of Israeli MIAs or the return of their remains, and the release of captured fighters of the SLA, a proxy force financed and trained by the Israel Defense Forces (IDF). Previous exchanges of this kind have been arranged through international negotiators.
The continued detention of Obeid and al-Dirani has been expressly tied by Israeli authorities to the fate of Israel's missing in action. The harsh and unparalleled conditions of isolation in which Obeid and al-Dirani are being kept, too, appears to be part of a strategy to increase its leverage with Hizballah and other Lebanese groups. Human Rights Watch-as well as other human rights organizations-have concluded that the two men are in effect being held as hostages: their treatment as well as their eventual freedom has been conditioned on the acts of others. This is discussed further below.
Six other prisoners were captured in two separate incidents in late 1987 by the Lebanese Forces, the then-powerful military arm of the Maronite Christian Phalangist Party. They were handed over to Israeli forces sometime in 1990 and for nearly two years "disappeared": Israel denied that the six were in its custody until January 1992 when the ICRC discovered their whereabouts. An IDF spokesperson then admitted their presence and since then they have been held in administrative detention. All six are currently in Ayalon detention center in Ramleh.
The conditions of detention
In addition to the exceptional abuse inherent to long-term incommunicado detention, at least several of these detainees are believed to have undergone physical abuse during interrogation, according to information collected by Amnesty International and other organizations. For example, Bilal Dakrub complained that during his detention insouth Lebanon, SLA members, acting on the orders of an IDF officer, tortured him with electric shocks, according to Amnesty International. In Israel, he was deprived of sleep for long periods, hooded, and forced to stand with his hands above his head for hours at a time. In the extreme cases of secret detention and "disappearance" suffered by some of the Lebanese detainees in the first years of their captivity, and the prolonged incommunicado detention still suffered by Obeid and al-Dirani, the psychological conditions of their imprisonment alone may constitute cruel, inhuman or degrading treatment or punishment. Torture is a grave breach of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (Fourth Geneva Convention) and a war crime.
The Lebanese detainees are held in various Israeli detention centers inside Israel. Israel holds them apart from common criminals and, when the detention center they are in also houses security detainees and prisoners from the West Bank and Gaza Strip, they are usually held with them. Eighteen of the Lebanese prisoners who are the subject of this report are held in Ayalon; the other whose whereabouts is known, Ghassan al-Dirani, is reportedly held in the Ayalon prison hospital. While these detainees have in recent years been held in "open" detention centers and have been able to receive visitors from local support groups, Israeli authorities have recently placed obstacles in the way of organizations that have sought to contact or visit them. Since September 1996 the Mandela Institute, a Ramallah-based Palestinian nongovernmental organization that monitors the plight of Palestinian and Arab security prisoners and detainees in Israeli and Palestinian Authority custody, and the Society of the Friends of Detainees and Prisoners (SFDP), a Nazareth-based prisoner support group, have not been able to visit the eighteen detainees currently in Ayalon, even though they have in the past been granted access to them.
The detainees and their families faced special problems related to the transfer of detainees to Israel. Under an agreement between Israel and the ICRC, Israel generally notifies the ICRC of Lebanese detainees' arrests on the twelfth day of detention. However, in at least nine cases involving Lebanese detainees (including six cases detailed in this report), Israel refused to acknowledge the presence of detainees within its custody for over a year. While preferable to no reporting agreement, the provision allowing detentions to go unacknowledged for up to twelve days regularized a regime in which prisoners were largely devoid of protection during that period. The absence of independent safeguards in such situations, when there can be no outside monitoring of a prisoner's treatment, creates conditions in which torture, ill-treatment and deaths in custody are facilitated. In February 1996, the Israeli State Attorney's office announced new arrangements for notification without delay to a telephone number given by the detained person.
Although most of the Lebanese detainees are now allowed visits, the travel restrictions between Israel and many of the states in which the detainees' families live often deprive them of direct contact with family members. Sheikh Obeid and Mustafa al-Dirani have a harsher regime. They have been denied any family visits since their arrests in 1989 and 1994 respectively, and have been permitted to receive and to send just one three-line letter each.
While the arrest of most of the Lebanese mentioned in this report occurred eleven or more years ago, the capture deep inside Lebanon of persons suspected of membership in Hizballah and their transfer to Israel continues. Appendix A of this report describes the August 1996 capture of Lebanese detainee Ali Banjak. Banjak alleges to have been tortured by the IDF during thirty days of military interrogation while held incommunicado at an IDF base inside Israel identified to him as "Sarafand." Banjak described a days-long routine of beatings, slappings, threats, and being forced to straddle a wooden pole on which he was raised and dropped. A doctor in attendance is alleged to have authorized further torture even after the detainee was vomiting blood.
Without status or protection
Israel has denied its Lebanese detainees laws-of-war protection 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 and which are generally considered customary international law). Israel has in fact 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 for reasons seemingly unrelated to the original cause of their detention.
The secrecy attached to the operations in which most of the Lebanese prisoners were detained, interrogated, and transferred to Israel cloaked a series of abuses. For Sheikh Obeid and Mustafa al-Dirani this isolation has continued, in violation of international standards that apply in peacetime and in war. Incommunicado detention has itself been identified as a condition that facilitates forced "disappearance," extrajudicial executions and deaths in detention, and the practice of torture, as well as confinement in conditions that in themselves constitute cruel, inhuman or degrading treatment or punishment.
Accountability for violations of fundamental rights which can never be suspended is also obscured by the secrecy of incommunicado detention and the unchecked power of the forces into whose hands the detainee falls. Such core rights are upheld in both international human rights law-such as the International Covenant on Civil and Political Rights, to which Israel is a party-and the laws of war. A prisoner sealed off from the outside world for weeks, months, or years, has no one to appeal to for protection from abuse and no access to the remedies of domestic and international law. Israel's judiciary has provided no effective check on the abuse of incommunicado detention in these cases.
The matter of administrative detention itself is regulated by both international human rights law and international humanitarian law. The latter, however, provides 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.
The applicable standards
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 1949 conventions.
In at least some of the cases under review, the applicable standards of humanitarian law have been flouted by the violation of:
C the right to humane treatment;
C the right to a fair trial for those charged with penal offenses;
C the right to due process of law safeguards in administrative detention so that no one is arbitrarily detained;
C the right to receive visits from the ICRC;
C the right to correspond; and
C the right not to be held in the condition of hostage.
The minimum standards of humane treatment are not optional to the detaining power. When an objective situation of international armed conflict and occupation exist, these standards must apply.
The terms of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (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 as prisoners of war, and Lebanon has not formally declared them to have been a part of that state party's armed forces.
Israel's practice, after transferring its Lebanese detainees to Israeli territory, has been to treat them neither as prisoners of war nor as civilians. Lebanese detainees in Israel have been subjected to prosecution under Israeli criminal law for their actions in Lebanon as well as to indefinite detention under Israel's administrative detention legislation. The treatment of these detainees while still in Lebanon and while incommunicado in Israel should, moreover, have been protected by the central injunction of the laws of war that all those who have been captured or who surrender should be treated humanely. These norms apply without distinction to the treatment of combatants and civilians alike.
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. 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:
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that that is a satisfactory solution-not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view. [Emphasis in original.]
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. While neither regular combatants nor protected civilians, international humanitarian law provides a protective regime for such real or presumed fighters 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." Applicable also to occupied territories, Article 5's paragraph 3 requires that "such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived by the rights of fair and regular trial prescribed by the present Convention."
Israel's practice of routine extensions of administrative detention, particularly in those cases in which detainees have been held for many years after the completion of prison sentences, also appears to violate the terms of the Fourth Geneva Convention's provision by which administrative detention is meant to be an exceptional measure. Article 78 of the convention permits the occupying power to order the detention of an individual "for imperative reasons of security." The ICRC's authoritative Commentary to Article 78 stresses that "their exceptional character must be preserved."
Even if detained under the terms of Article 5 of the Fourth Geneva Convention-which the ICRC has criticized as a "regrettable concession to State expediency"-the government's practices have violated the requirement that administrative detention be a measure that is strictly exceptional.
While Israel is not a party to the protocols additional to the Geneva Conventions, authoritative guidance on the interpretation of these obligations can be found in Article 75 of the first 1977 Protocol Additional to the GenevaConventions of 12 August 1949 (Protocol I), entitled: "Fundamental Guarantees." These require that "persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article . . . ." Article 75(3) requires that any person "arrested, detained or interned for actions related to the armed conflict shall be informed promptly . . . of the reasons why these measures have been taken." Section 4 of Article 75, concerning the prosecution of penal offenses related to the armed conflict, requires respect for generally recognized principles of judicial procedure, and defines these at length.
In all circumstances, minimum humanitarian standards require that all persons detained or interned in connection with an international armed conflict, with the exception of cases of arrest or detention for penal offenses, "shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist" (Protocol I, Article 75(3)). Israel's requirement that all administrative detention proceedings be in camera, as well as its refusal to divulge the substance of these hearings, in themselves reflect the lack of safeguards against the arbitrary application of administrative detention. More strikingly, the very existence of cases of administrative detainees who, having served prison terms, remain in detention nine years after their sentences were completed without ever having a fair and public hearing during this period, illustrates the arbitrary nature of these measures. The routine extension of detention in these cases appears to obey strictly political imperatives. Consideration of the merits of the cases of individual detainees appears to have been subordinated to larger reasons of state.
The release, and implicitly, the treatment, of two of the detainees-Abd al-Karim Obeid and Mustafa al-Dirani-has been expressly conditioned by Israeli officials (including Uri Lubrani, Israeli Government Coordinator for Lebanon Affairs and then-Deputy Minister of Defense Ori Orr) on the acts of others: the resolution of the fate of Israeli MIAs including Arad. As a consequence, Human Rights Watch has concluded they are hostages in the terms of international law.
The condition of being hostage lies outside any lawful form of administrative detention and constitutes a grave breach of international law. Rather than being distinguished as arbitrary only by the absence of a lawful cause for its continuation, there is a clearly illicit motive for continued detention. In the two cases of this kind discussed in the report-those of Sheikh Obeid and Mustafa al-Dirani-senior officials have made clear that the detainees' personal responsibility for their actions has no bearing on decisions concerning their continued indefinite detention. Rather, government spokespersons have tied their fate to the actions or omissions of others. Hostage-taking is a grave breach of the Fourth Geneva Convention and a war crime: all parties to that convention have an obligation to try persons responsible for acts of hostage-taking.
The conditions of Obeid's and al-Dirani's secret and incommunicado detention add to the threat of their indefinite detention an implicit threat to their health and safety. This creates an oppressive situation for the prisoners themselves as well as a threat directed at their families and those the authorities are seeking to influence. The secrecy of the periodic reviews required under Israel's own legislation concerning administration detention, if they in fact occur, is a further mockery of due process. Moreover, if statements by senior officials concerning their continued detention are to be accepted, judicial review of their detention has clearly been subordinated to political decisions to hold the two as hostages in punitive conditions until others meet the conditions announced. As an urgent matter, Israel must bring the two detainees' situation into compliance with international standards, ending their years'-long incommunicado detention and lifting the conditions of hostage under which their imprisonment has been indefinitely prolonged. They should either be released or allowed the full guarantees of due process of law required by international humanitarian law.
A first step toward compliance with international standards with regard to all of the prisoners of concern in this report would be to grant each of them a fair and public hearing in which both their treatment in detention and the motive for their continued detention could be aired and injustices remedied. Israel should release without delaythose for whom no basis for detention or prosecution has been established in consonance with international standards. An independent investigation should in addition be facilitated by the government of Israel into the practices of forced "disappearance," torture, and prolonged incommunicado detention that have occurred in some of these cases. The goal of the investigation should be to establish the criminal liability of those responsible, provide compensation to those wronged, and develop safeguards against recurrence. Those conducting the investigation should be empowered to compel testimony by current and former security personnel and to make its findings public.