Israel Court Bars ‘Bargaining Chip’ Detentions

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In a landmark decision, Israel’s Supreme Court ruled Wednesday that the state cannot continue to hold a group of Lebanese detainees as “bargaining chips” to secure the freedom of missing or captured Israeli soldiers.

The decision reversed a ruling by the court in 1997 that had provided the first official admission of the practice. The latest ruling was hailed by human rights activists and legal experts here as marking an end to detentions that many have denounced as “legalized hostage-taking,” but it was greeted with disappointment by relatives of the missing Israeli soldiers.

In a brief summary of the 6-3 ruling, the court said Israeli law does not authorize the state to hold people in administrative detention--under which suspects can be jailed indefinitely without trials or charges--if they do not pose a threat to national security.


“The court has recognized that Israel has been punishing people for things that they are not responsible for and that’s against every moral value and international legal standard,” said Zvi Rish, an Israeli attorney who represents the 15 Lebanese--virtually all of whom have been detained for more than a decade.

The ruling was the latest in a string of significant high court decisions, many of which appear to reflect a loosening of Israeli society’s traditional concerns about national security and a strengthening of the role here of civil and human rights.

Rish said he expects the ruling to apply to all of the detained Lebanese, although not all were named in the appeal. Prison officials said that 13 of them will be freed in the next few days but that the two most prominent prisoners, Sheik Abdel Karim Obeid and Mustafa Dirani, will remain in custody.

The army said it will not release Obeid, a Shiite Muslim spiritual leader who was kidnapped by Israeli commandos in 1989, or Dirani, who was the security chief for the Shiite Amal militia in southern Lebanon when he was abducted in 1994.

Israel’s left-leaning justice minister, Yossi Beilin, asserted that the continued imprisonment of the two men is justified “because they themselves were involved in the issues at hand,” evidently the capture or detention of the missing Israelis. Obeid and Dirani pose a continuing threat to Israel and cannot be considered “bargaining chips,” Beilin said.

Israel has acknowledged that it has kept the men imprisoned in hopes of using them to win the release of missing Israeli soldiers, including Ron Arad, an airman who was captured after his plane was shot down over Lebanon in 1986. At least three other Israeli soldiers who disappeared during Israel’s 1982 invasion of Lebanon also are being sought.


Rish, who expressed sorrow for the families of the missing soldiers, said Israel could not be sure that Arad or the others are still alive.

But relatives of the missing Israelis, who have held out hope for years, said they felt betrayed by Wednesday’s court decision.

“A man who was sent to defend the homeland was taken captive, and today they are releasing people who were meant to be bargaining chips for his return home,” Arad’s mother, Batya, said in an interview with Israel Radio. “The Supreme Court abandoned Ron today.”

There is no doubt that the ruling represents a stunning reversal by the court, particularly by its respected president, Aharon Barak, who wrote both Wednesday’s decision ordering the release of the “bargaining chips” and the 1997 ruling that permitted their detention.

In the 1997 decision, which was released four months later in 1998, but with portions blacked out under censorship rules, the judge wrote that the continued detention of the Lebanese was a serious offense to human rights.

But, he wrote, that damage was necessitated “by the reality of security and of state. It reflects the appropriate point of balance . . . between the individual liberty and the need to protect the security of the state.”


Wednesday’s 50-page decision had not yet been cleared for publication, although officials said it will be released soon. The court instead offered a three-paragraph summary of the ruling, in which it ordered the freedom of the eight petitioners, “in the absence of any other cause for their detention.”

But several human rights activists and legal experts noted that the decision is one in a recent series of rulings by the court, often on sensitive or controversial issues on which it had declined to rule for years.

In September, the court banned Israeli security agents from using coercive interrogation methods on Palestinian prisoners, practices that human rights activists had long denounced as torture. More recently, in a case brought by an Israeli Arab family, the court ruled that the government may no longer allocate land on the basis of religion or ethnicity. Last week, it ruled against the government again, allowing scores of Palestinians to return to their homes in caves from which they had been ousted by the Israeli army.

“It’s clear that in the last six or seven months, the Supreme Court has undergone a major change in its traditional views on national security and human rights,” said Dan Yakir, the legal counsel for the Assn. for Civil Rights in Israel. Yakir said he believes that the rulings reflect a changing climate in Israel on human rights that is prompted by the Arab-Israeli peace process.

Celebrating Wednesday’s decision, Yakir, whose association brought the first “bargaining chip” case before the court, called it the “only acceptable outcome for a democratic society premised on the protection of basic human rights.”

But Rish, the attorney who worked on the issue for eight years and filed numerous petitions before the court, said he remains frustrated that the Lebanese were arrested in the first place, without legal grounds, and held for so long. “Who is going to give them back these 14 years of their youth and young adulthood?” he said.