The Israeli Supreme Court this week upheld the basic legality of the Ansar detention camp in south Lebanon, where some 5,000 out of an original 9,000-plus detainees are still being held. The high court rejected a request by several of the detainees that they be recognized as prisoners of war.
At the same time, the court held that the Fourth Geneva Convention does apply to them — and hence the court made it clear it wanted the State to enable detainees to meet with their lawyers when they sought to do so. This has not been the practice in Ansar until now.
The Supreme Court’s ruling was written by Deputy President Meir Shamgar, who, as Judge Advocate-General and later as Attorney General, made a major contribution in the late 1960’s and 1970’s to the development of legal norms and practices governing Israel’s behavior in occupied territories. Shamgar is considered an expert in international law and especially the law of war.
The court rejected the POW status demand on the grounds that the applicant-detainees could not prove they fulfil such requirements as wearing a uniform, bearing weapons openly, observing the rules of warfare, and constituting a “party to the conflict” within the terms of international law. Israel has consistently refused to grant or recognize POW status to PLO personnel.
Regardless of the decision on POW status, the court continued, the Fourth Geneva Convention should apply to the Ansar detainess. This meant, Shamgar wrote, that the Israel Defense Force authorities are duty-bound to conduct itself in a manner “appropriate to civilized people. “Elements of this were the right to appeal, access for the International Red Cross to the camp (both of which are fully granted) — and the right to consult with attorneys (which will be granted henceforth).
The court added that, in pursuit of its legitimate security concerns, the IDF had full right and power to detain people in the territory it occupies (subject to the application of the “civilized behavior” requirements).
The court rejected out of hand an argument by the State attorneys that the Ansar issue was not subject to judicial review because the detainees were not Israeli citizens, not apprehended in Israel, not detained here, and their detention was an “act of State.”
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