Helping to Correct the World

Eyal Gross
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Eyal Gross

Last month the High Court of Justice ruled that representatives of the International Committee of the Red Cross must be permitted to visit Sheikh Abd Al-Karim Obeid and Mustafa Dirani, two Lebanese who have been incarcerated in Israel since 1989 and 1994, respectively. In his judgment, the president of the Supreme Court, Justice Aharon Barak, emphasized that the State of Israel is a democracy that respects human rights and gives due weight to humanitarian considerations. Justice Itzhak Englard noted that upholding the humanitarian rules is a form of "correcting the world," to which Israel is committed.

The legal commentator of Ha'aretz, Prof. Ze'ev Segal, wrote an analysis in which he took issue with the court's decision ("Do unto others as they do unto you," August 27, 2001). According to Segal, the High Court's decision creates asymmetry in the matter of permits for visits of Red Cross officials and the "initial impression" is that the court's ruling "is not a reasonable decision."

Segal even hints that the decision implies that the human dignity of Dirani and Obeid takes precedence over that of the Israelis who are being held prisoner in Lebanon, and he argues that the justices did not take into account the principle of mutuality, which is a basic element in international relations. "The members of organizations that consistently violate international conventions cannot turn around and use those same conventions to justify the application of the clauses they contain to their own particular case," Segal wrote.

Segal's argument is defective in several spheres. First, he offers no explanation of how visits by representatives of the Red Cross to Dirani and Obeid adversely affects the human dignity of the Israeli abductees or undercuts the possibility of obtaining their release.

However, the main point is this: By arguing the existence of asymmetry, Segal creates symmetry between Israel and terrorist organizations in that he thinks that the state should act according to the standards set by those groups. Unfortunately, there is more than a grain of truth in this symmetry. During the 1990s, Israel refused for some years to permit the Red Cross to visit nine Lebanese who were held as "bargaining chips." This, beyond the fact that Dirani was deprived of this right, as was Obeid, apart from a certain period.

Those Lebanese nationals were held in Israel even though they were innocent of any wrongdoing, and the Supreme Court ruled that they had to be released and that it was illegal to incarcerate them (some of them were abducted only because they had the bad luck to be in the vicinity when Sheikh Obeid was grabbed, and one of them was apparently about to be married and had come to receive the sheikh's blessing on the eve of his wedding).

The incarceration of these hostages without permitting them to be visited by the Red Cross, and on top of this, hiding the fact of their presence in Israel and not providing any information about them, took place before the abduction of the Israelis by Hezbollah in October 2000 - though after the abduction of the Air Force navigator Ron Arad.

In the case of the Lebanese hostages - both regarding Dirani and Obeid, and regarding the others, who have since been released - Israel thus behaved in a manner appropriate to a terrorist organization. It took hostages (including minors), some of whom had committed no offense, concealed and denied their incarceration in Israel for a lengthy period, and deprived them of visits by Red Cross representatives for years.

In light of this behavior, is Israel not entitled - as is implied by the arguments adduced by Segal himself - to demand, in the name of international law, that its rules be followed in connection with the Israelis being held in Lebanon? The fact is that according to the mutuality principle that Segal invokes, Israel has no right to complain about the behavior of Hezbollah. Segal ignores these facts.

However, contrary to what Segal maintains, the principle of mutuality is not applicable in the case of human rights and humanitarian justice: Countries are obliged to uphold human rights and abide by the provisions of international law in these spheres irrespective of the question of mutuality. The affair of the abductees in Israel and in Lebanon proves the justness of this principle, as without it we would be dragged into a situation in which each side would accuse the other, and with some justice, of not upholding the binding provisions and would use this as an excuse not to uphold them, either.

The judgment in the case of Dirani and Obeid is one of those instances, of which there are too few, in which the High Court of Justice declined to capitulate to the security authorities when their arguments were unreasonable. Thanks to that stand - assuming it will not be changed - the world will be "corrected" a bit, though only a bit.

The writer is a lecturer in constitutional law and international law at Tel Aviv University.