it decides to recognize the rights of detainees.
by Irit Katriel
On Thursday, 8/23, the Israeli high court ruled in favor of an appeal made by Sheik Abdel Karim Obeid and Mustafa Dirani, two Lebanese who are under administrative detention (arrest without trial) in an Israeli prison. They asked to be allowed to meet with representatives of the Red Cross.
Yediot of 8/24 reported that 'humanitarian' reasons were cited as the way the judges justified their ruling: "the time that has passed increases the weight of the humanitarian factor and decreases that of the security factor". The time that has passed is 12 years for Obeid and seven years for Dirani.
Obviously, something is missing in this report. Court rulings should be based on laws, not on the judges' humanitarian whims.
So I went to http://www.court.gov.il and looked at the text of the ruling (8 pages, Hebrew). It does mention the Geneva Convention. It says there two options: the first is that the Geneva convention applies, and the second is that it doesn't (the court apparently doesn't know, or doesn't want to decide).
If it doesn't apply, then the administrative arrest laws determine that visits by anyone other than family members or an attorney depend on the good will of the security establishment.
Assuming that the Geneva convention does apply, the court quotes article 5 of it which states that:
"Where in occupied territory an individual protected
person is detained as a spy or saboteur, or as a
person under definite suspicion of activity hostile
to the security of the Occupying Power, such person
shall, in those cases where absolute military security
so requires, be regarded as having forfeited rights
of communication under the present Convention."
Nowhere in the ruling is there any mention of article 63a:
"Subject to temporary and exceptional measures imposed
for urgent reasons of security by the Occupying Power:
(a) Recognized National Red Cross (Red Crescent, Red
Lion and Sun) Societies shall be able to pursue their
activities in accordance with Red Cross principles, as
defined by the International Red Cross Conferences.
Other relief societies shall be permitted to continue
their humanitarian activities under similar conditions;"
which mentions temporary, exceptional, urgent.
Anyway, the reasonable way to proceed is to ask whether article 5 applies, that is, whether "absolute military security so requires" that Obeid and Dirani will be denied visits by the Red Cross. If the answer is negative, the convention obliges the court to rule in favor of their appeal.
But this isn't what the ruling said. It said that a balance should be made between the humanitarian and the security considerations. The security considerations are, of course, confidential. The court has decided that the humanitarian factor wins. A full page is then devoted to the difficulty of the decision, to the dilemma of whether humanitarian considerations should be applied to Dirani and Obeid, as members of evil terror organizations. Their reply is: "Israel is a state of law, Israel is democratic, respects human rights, carefully weighs humanitarian considerations ... because mercy and humanity is in our nature as a Jewish and democratic state," etc, etc, etc ...
Not the law, but rather Jewish "compassion" is what guides the legal system.
It would be a little less embarrassing if this text wasn't in the context of a 12 year long administrative detention.
Irit Katriel is an Israeli activist, currently living in Germany.