Israel Prisoner Issue: Legality in the Spotlight

Israel’s controversial legal justification for continuing to hold about 760 Lebanese Muslim prisoners has become even more complex since the nation withdrew the last of its major combat units from southern Lebanon early this month.

The hijackers of TWA Flight 847 have demanded freedom for the detainees--captured by Israeli occupation forces in Lebanon’s south and transported across the border to an Israeli prison in Atlit on the Mediterranean coast--as the price of freedom for 40 American hostages from the flight now being held in Beirut.

While vowing that it will not put pressure on Israel to yield to terrorist demands, U.S. officials have publicly recalled that they opposed, as a violation of the Geneva Conventions, the transfer of the prisoners at the time it was carried out in April. Thus Israel, in this view, has a moral duty to free the Atlit detainees without regard to the current hijacking case.

That American position is interpreted here as a form of subtle pressure on the Israelis to give in to the hijackers, while allowing Washington to maintain its public stance of never yielding to terrorism. Israeli officials have said that, barring a public appeal from the Reagan Administration to speed up the release, they will eventually free the Atlit detainees on the basis of their own assessment of the security situation in southern Lebanon.

But whether the United States intends pressure or not, it has focused the spotlight on Jerusalem’s legal argument for what it has said from the beginning would be the “temporary” detention of the Lebanese prisoners taken to Israel.

Because even those south Lebanese who took up arms against the occupying Israeli army were not members of any legally constituted armed force, they are considered to be civilians for purposes of determining their rights under military occupation.

Article 78 of the Geneva Convention of Aug. 12, 1949, which deals with protection of civilians in time of war, gives an occupying power the right to intern civilians “for imperative reasons of security.”

Article 49 says that “deportations of protected persons from occupied territory to the territory of the occupying power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” However, the same article has a loophole. It says that an area may be evacuated “if the security of the population or imperative military reasons so demand.”

And it adds that “such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement.”

Also, Article 83 of the convention prohibits an occupying power from establishing internment centers “in areas particularly exposed to the dangers of war.”

When the withdrawing Israeli army in April evacuated the area around Ansar, Lebanon, where it was holding 1,168 Shia Muslim and other prisoners, there was no other safe place to move them but to Israel, according to Ruth Lapidot, a former legal adviser to the Israeli Foreign Ministry and professor of international law at Hebrew University. That, she argued in an interview, constituted a “material reason” under the definition of Article 49.

Unusual Terminology

A problem with that argument is that what has been happening in southern Lebanon for most of the last three years defies description as conventional warfare. The Israelis do not even recognize Lebanese resistance fighters as guerrillas, instead calling them “terrorists.”

Also, while being careful not to declare themselves to be completely out of Lebanon, Israeli defense officials say they have withdrawn all but a handful of their men, as they were instructed to do by a government decision of Jan. 14.

Once there is no longer a military occupation, Lapidot conceded, “I would say the Geneva Convention would not apply anymore, neither for the rights nor for the obligations of both Israel and the Shias.”

However, she contended that even if the war is deemed over, Israel may have the right to continue holding the transferred prisoners under “general international law,” and particularly under Article 51 of the U.N. Charter, which gives any state the right of self-defense.

Lapidot said that while application of Article 51 is subject to interpretation, “it is usually agreed that a state can use force in order to prevent others from using force against it.” If the prisoners are considered a potential security risk to Israel, it would thus be legally entitled to continue holding them, she said.

Whether they constitute a potential threat is a matter of opinion.

Israeli defense sources say that while the detainees have never been tried for any crime, they are not innocents.

Referring to attacks on Israel’s proxy force, the South Lebanon Army, one source said, “Many of them were involved in carrying out terrorist activities (in Lebanon) against our forces or the SLA. According to Israeli intelligence reports, the source added, some “have blood on their hands.”

Yet, even Gen. Antoine Lahad, commander of the South Lebanon Army, a militia financed and trained by Israel, suggested last week that the detainees would be no threat if released.

Almost 500 other former Ansar internees have already been set free, and their release has not affected the security situation in southern Lebanon, Lahad told Israeli military correspondents at his headquarters in Marjayoun.

“Generally, we find that once a man has spent time in detention, he does not return to terror activity,” Lahad said.