POWs or Illegal Combatants?

Two weeks before the outbreak of the Second Lebanon War, Muhammad Sarour was called by his Hezbollah commanders to reserve duty, and was sent to participate in a course at one of the organization's bases in the Bekaa. The course was suspended because the war broke out and its trainees were dispersed. Sarour returned to his village of Aita al-Shaab in South Lebanon, where he met Hussein Saliman, whom Hezbollah had placed in charge of the village's defense. Saliman gave him several weapons, including anti-tank missiles, and deployed him in one of the outposts on the city's outskirts.

Israel Defense Forces soldiers, who captured Aita al-Shaab on August 4, took both Sarour and Saliman captive. Five days later they also captured Maher Qurani, who had been armed with anti-tank missiles and was deployed in an ambush east of the town of Shihin. Since then the three of them, who are still held at Hasharon Prison, are at the center of a very interesting diplomatic and legal discussion surrounding the relationship between Hezbollah and the Lebanese government.

'Illegal combatants'

The State Prosecutor's Office considers Sarour, Saliman and Qurani to be "illegal combatants," and therefore tried them according to regular civil criminal law. On September 18 they were indicted in the Nazareth District Court. The three were accused of a long series of criminal offenses, including "providing service to an illegal association," "weapons training in Iran and Lebanon without government permission," "conspiracy to commit a crime," and "conspiracy to commit murder" for their activities in connection with Hezbollah's preparations to kidnap IDF soldiers Eldad Regev and Ehud Goldwasser on July 12 - the incident that sparked the war - and for participating in an attack on an IDF outpost in the village of Ghajar in November 2005.

Attorneys Smadar Ben Nathan and Itay Hermlin, who are representing the Hezbollah detainees on behalf of the Public Defenders' Office, rejected the claim that they are illegal combatants, and maintain that the indictments should be overturned because all the acts mentioned in them were carried out "in the context of fighting" and because the accused "were taken into Israeli captivity in the context of their activity as combatants." The attorneys insist that the three are entitled to the status of prisoners of war, including all the ensuing rights according to the Geneva Convention. (The lawyers also filed an appeal to the District Court, to enable the detainees to receive regular visits by Red Cross representatives - a right that has been denied them since their arrest.)

The District Court judge rejected the view of the attorneys out of hand, so Ben Nathan and Hermlin petitioned the High Court of Justice. The High Court rejected their petition, but decided, as stated by Justice Elyakim Rubinstein, that the Nazareth District Court should conduct a practical discussion of the attorneys' arguments, and that it would take place in the context of the discussion of the parties' preliminary claims - in other words, even before the start of the discussion of the indictment itself. The discussion has been set for April 10.

Hezbollah's independence

The three Hezbollah fighters claim that their organization has very close ties to the Lebanese government and in effect constitutes an inseparable part of the armed forces. Israel rejects this claim, and states that Hezbollah operates independently, has no ties to the Lebanese Army and is subordinate to the Iranian government far more than to the Lebanese government.

The parties agree that the status of the three Hezbollah members will depend on the court's reply regarding the relations that prevailed between Hezbollah and the central government in Lebanon during the war: If the court decides that, during the war Hezbollah operated as "part of the Lebanese armed forces," Israel will be forced to recognize the Hezbollah fighters as POWs. If it decides, on the other hand, that Hezbollah operated independently and was not in any way subordinate to the Lebanese Army, the three prisoners will be forced to relinquish their demand for POW status.

In order to establish their claim that Hezbollah was part of the official Lebanese armed forces, Hermlin and Ben Nathan are using a statement issued by Prime Minister Ehud Olmert on the day the war broke out, as well as assertions included in the professional opinion Reuven Paz prepared for them. In the 1980s, Paz served as head of the research department of the Shin Bet security service and he now manages the Project for the Research of Islamist Movements (PRISM) at the Interdisciplinary Center in Herzliya. He also serves as an adviser to agencies in the U.S. administration that are studying Islamic terror.

"The murderous attack that took place this morning," Olmert said on the day Hezbollah kidnapped Ehud Goldwasser and Eldad Regev, "is not a terrorist act. It is a military act by a country, Lebanon, against the State of Israel, on its sovereign territory. The Lebanese government, of which Hezbollah is a part, is trying to undermine regional stability. Lebanon is responsible, and Lebanon will bear the results of its actions."

The State Prosecutor's Office, say the attorneys for the Hezbollah members, is now denying the prime minister's unambiguous words uttered at the outbreak of the war.

Paz's opinion is based on a large number of citations of senior Lebanese officials, who were trying to describe the place of Hezbollah (or in the Lebanese political jargon: "the national resistance") in the context of the official Lebanese campaign. Paz cites, among others, President Emil Lahoud ("Hezbollah is the national resistance force, which complements the power of the Lebanese Army"); Prime Minister Fouad Siniora ("The Lebanese resistance is a faithful and natural expression of the right of the Lebanese people to defend its land and its honor in light of Israeli belligerence, threats and aspirations"); former defense minister Abdul Rahim Mourad ("Considering Lebanon's meager resources, reinforcing the resistance is the desirable method for reinforcing the country's military strength"); and Chief of Staff Michel Suleiman ("Reinforcing the resistance is one of the central principles of the Lebanese military doctrine").

"The Lebanese situation is very dynamic," says attorney Hermlin, "and since the war Hezbollah ministers have resigned from the government and the nature of the relations between Hezbollah and the central administration have changed somewhat. But for the purpose of the legal proceeding with which we are dealing, what is crucial is the situation that existed during the war, and in the situation of those days I have no doubt that Hezbollah functioned as part of the Lebanese armed forces."

The prosecution, on the other hand, claims that Hezbollah is a terror organization and therefore should not be considered part of the legitimate armed forces of Lebanon. "Hezbollah," the prosecution's representatives wrote to the court, "is a terror organization, plain and simple, whose members are responsible for the deaths of hundreds of Israeli citizens, while coarsely trampling the rules of warfare. This organization operates with the intention of destroying the State of Israel and killing its citizens, and does not reject the deliberate murder of innocent civilians, while exploiting the civilian population in Lebanon as a 'human shield' for its members."

The deputy prosecutor of the Northern District, attorney Moran Margalit, and the director of the criminal department in the district prosecutor's office, attorney Mirit Stern, also base their position on an opinion written by the deputy head of the research department of IDF Military Intelligence, a man whose classified name is not mentioned in the documents submitted to the court.

"Hezbollah," they wrote on the basis of his opinion, "does not constitute a part of the armed forces of Lebanon. It does not operate according to the instructions of the Lebanese government and its members are not appointed to their positions by the government. The organization constitutes an independent military force, an Iranian satellite, which operates in Lebanon independently and plays a 'double game' there - between the Lebanese institutional system and its own independent goals. The answer to the question as to whether Hezbollah constitutes a part of the Lebanese armed forces is not dependent on statements made in the media, but on a profound factual examination of whether, as an armed force, Hezbollah operates according to the instructions of the Lebanese government and is controlled by it. The plaintiff claims that the answer to this question is negative."

The question as to whether Sarour, Saliman and Qurani will be recognized as POWs or will be tried as criminals will therefore be decided according to the stand adopted by the court in the controversy surrounding the status of Hezbollah in Lebanon. But the question of the status of the three in Israel also has another aspect, which was subtly and delicately raised before the court by attorney Hermlin. Although Israel's legal stance accords with its diplomatic stance - that Hezbollah is a terror organization not entitled to any international recognition whatsoever - this position is liable to undermine the chances that the two IDF soldiers held captive by Hezbollah will be returned.

"We will not be able to end this chapter," wrote Hermlin in a paper summing up his legal arguments for the court, "without taking into account the wisdom of presenting the involvement of the accused in the war as a criminal act and having them stand trial as criminals, instead of holding them as POWs. This comes at a time when Israeli soldiers are being held in Lebanon, and the clear Israeli interest is to entrench the institution of POWs. At a time when Israeli soldiers are being held in Lebanon, the court should strengthen the status of the institution of POWs rather than weaken it." In its reply, the prosecution refrained from referring to this aspect of the affair.