1.   Suleiman Ramadan
2.   Mustafa Jawad Taubeh
3.   Ali Taubeh
4.   Rabah Fayez Abu-Faour
5.   The Center for Individual Rights
     Represented by Adv. Tamar Peleg-Sryck
     12 Hatanaim St., Tel-Aviv
6.   The Association for Civil Rights
     Represented by Adv. Dan Yakir et al.
     P.O. Box 35401 Jerusalem 91352

          The Petitioner

- versus -

     The Minister of Defense
     Represented by the State Attorney
     Ministry of Justice, Jerusalem

          The Respondent

Statement on Behalf of the State Attorney's Office

1.   This petition addresses three applications, as follows:

a.   An application for the release of Petitioners 1-4 who are
incarcerated at al-Khiam prison in South Lebanon;
b.   An application by Adv. Tamar Peleg-Sryck to meet with the
Petitioners in the al-Khiam installation;
c.   Applications by Petitioners 5-6 to conduct a visit at the al-Khiam
installation in order to inspect the conditions of imprisonment and the
condition of the detainees there.

2.   The Respondent will ask the honorable Court to reject the petition
for the reasons that are set forth hereinbelow.

The Petition should be rejected forthwith due to the Court's lack of
authority to discuss the matter
 

3.   The said application is based on several assumptions that are
designed to support the Respondent's authority to decide on the remedies
that are sought in the petition. The Petitioners argue, that Israel is
responsible for the welfare and fate of Petitioners 1-4, for three reasons:

a.   Due to Israel's effective control of South Lebanon, and/or
b.   Due to its authority over the SLA; and/or
c.   Due to its involvement in what is done in the al-Khiam installation.

     The Petitioners attempt to support these reasons in their Petition,
by means of various documents. The Respondent will argue, that the
assumptions in the Petition lack factual grounds, and therefore the
conclusion therefrom is not judicially based. In these circumstances the
petition should be rejected forthwith.
4.   The al-Khiam installation is located in South Lebanon, several
kilometers north of the Israeli border. This installation is maintained by
the South Lebanon Army (SLA). This installation serves both for
interrogating and imprisoning detainees. The interrogators, the wardens and
all personnel in the installation are Lebanese, who serve in the SLA.

5.   No IDF soldiers or other Israelis are in the installation, they do
not manage it nor do they conduct interrogations there.

6.   The al-Khiam installation generally serves for holding people whose
main activity was aimed at sabotaging the SLA or undermining security in
the Security Zone, although some of their activity was sometimes directed
also against the IDF.

7.   The Respondent does not dispute that there is cooperation in
various security areas between the security establishment of the State of
Israel and the SLA, with both forces constantly facing hostile forces in
South Lebanon, and that the State of Israel is interested in strengthening
the SLA in its war opposite the said hostile forces.

     Along with that, although the parties consult together concerning
the arrest and release of people in the al-Khiam installation, the question
of the continued detention of Petitioners 1-4 by the SLA, as well as that
of the rest of the prisoners in the al-Khiam installation, is under the
responsibility and judgement of the SLA, and not within the authority of
the Respondent.

8.   In this connection, it would not be amiss to stress, that since in
the Security Zone there is no effective Lebanese system for maintaining
security, and since the Lebanese government encourages acts of warfare
against the IDF and the SLA, the SLA is forced to take various actions in
order to maintain the security of the people and the area, including the
arrest and interrogation of people.
 
 

9.   In these circumstances, in which the Petitioners are held in
Lebanon in an SLA detention installation, and the question of their
continued detention is within the responsibility and judgement of the SLA -
the issue of the Petitioners' release from detention, as well as the issue
of the Petitioners' visit to the installation, is not within the authority
of the honorable Court according to Article 15 of Basic Law: The Judiciary.
Therefore the petition should be rejected forthwith for this reason alone.

10.  The honorable Court has already ruled on this issue in High Court
of Justice 4887/98 Assaf v. The State of Israel (not published):

"... It is known, that the authority of this Court extends to civil
servants, but does not apply, neither for this purpose nor for any other
purpose, to the members of the South Lebanon Army."

     MJ/1 Photocopy of the ruling of the High Court of Justice in
4887/98, which for some reason was not attached to the petition, attached
hereto and marked MJ/1.

     In this connection, it would not be amiss to note, that accepting
the petition, contrary to the previous ruling of the Court, would
practically mean, that all activities of the SLA soldiers are subordinate
to the judicial review of the honorable Court, and opening the doors to
petitioners who would complain about acts that take place outside the
State's borders and not by civil servants or IDF soldiers.

On the Judicial Framework for Defining Watime Seizure
11.  Regulation 42 of the auxiliary regulations of the Hague Convention
of 1905, which constitutes practiced international law, that has been
absorbed into the law of our land, determines when a territory is
considered to be under wartime seizure:

"Territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised."
(Our emphasis - M.B.)

12.  From the language of Regulation 42 it arises, that a territory is
considered to be under wartime seizure when it is actually under military
authority. The wartime seizure covers an area that is territorially limited
to the area in which there exist two accumulated conditions:

     a. The authority of a military government has been established;

     b. The said authority is applicable.
 
 

13.  When the IDF was present in Lebanon in the years 1982-5, during the
Lebanon War, and it established and managed a detention camp for Lebanese
detainees, the Court ruled that even without establishing a special
military framework for the needs of military government, the said territory
should be considered to be a territory over which the army took control in
a practical and effective manner as being under wartime seizure (High Court
of Justice 102/82 Tsemel et al v. The Minister of Defense et al, Verdicts
37 (3), 365, 373). The said ruling was given with regards to a period
during which there were in Lebanon military forces many times larger than
the IDF forces that are currently in Lebanon, in much larger areas of
Lebanon, and when the army held thousands of detainees in what was for all
intents and purposes a military installation. This factual basis does not
exist at this time, neither with regards to the IDF's presence in Lebanon,
nor with regards to the al-Khiam installation.

Israel does not have effective control over South Lebanon
14.  It is known, that IDF forces have been in South Lebanon since 1982.
In 1985 the government adopted a resolution concerning the redeployment of
the IDF forces for securing Israel's northern border, which contained,
among other things, the following:

"... Stage 3 - The IDF will be deployed along the international border
between Israel and Lebanon which maintaining the South Lebanon Zone (SLA)
in which local forces (SLA) will operate with support from the IDF."

15.  Following the said government resolution, most of the IDF forces
left Lebanon and the deployment of the forces in South Lebanon was also
changed, with the main goal of the IDF forces being defending the northern
border. In addition, the IDF also operates the Lebanon Liaison Unit (LLU),
which provides civilian aid to the residents of South Lebanon. Among other
things, this is done out of the assumption, that the said aid also serves
the defense of the northern border.

     The government's resolution reflects a policy of support for the
local Lebanese force (SLA), which operates in the Security Zone, and which
bears a heavy security burden, not a desire to maintain full Israeli
control of the territory.

16.  The territory of the South Lebanon area is about 790 square
kilometers. Approximately 75,000 Lebanese residents live in this area, and
there are about 70-75 villages and three towns.

17.  The IDF maintains a permanent presence in a very small number of
military outposts in the Security Zone. Most of the military outposts in
the South Lebanon area are manned by SLA soldiers. In addition, from time
to time the IDF carries out various activities also outside the outposts,
in order to prevent terrorist activities by hostile elements. The IDF does
not maintain army bases in settled areas in South Lebanon, except for three
locations.

     The significance of the above is, that the nature of the IDF's
presence in South Lebanon is completely different than the presence that
the IDF maintained up to 1995 in Judea, Samaria and Gaza, where the army
maintained a permanent presence in the heart of the Palestinian civilian
centers, as part of implementing effective control of the territory.

18.  As far as concerns the size of the forces acting in South Lebanon,
it should be noted, that from the documents that the Petitioners attached
to the petition it arises, that in 1997 there were about 2,500 SLA soldiers
in South Lebanon, in contrast to more than 1,000 IDF soldiers. (Appendix
P/11 of the petition, p. 134-5). The significance of this is, that the
largest force that is active in South Lebanon is in fact the SLA force.

19.  One of the examples for the absence of effective control of the
territory is in fact the circumventing roads that the IDF built in South
Lebanon. These roads were built in order to circumvent the Lebanese
villages and to enable military forces to move without entering them, due
to the danger that is inherent in driving within the villages and the
increased friction with the Lebanese population that this would cause.
Building the roads indicates the ability to conduct the physical act of
building a road in order to increase the soldiers' security, but at the
same time it testifies to the absence of effective control by the IDF in
the populated territory of settlements in South Lebanon.

20.  No one contests, that the IDF and the SLA coordinate their military
activity, since both forces are fighting the same enemy, and that the IDF
has influence over the SLA; however, the SLA also has its own judgement
concerning its military activity, and there are situations in which it
decides to conduct independent military activity, which is sometimes
opposed to Israel's security policy, for example:
a.   From time to time the SLA, in response to firing by Hizbollah,
fires at civilian population centers, contrary to Israel's policy and to
its interests and contrary to the understandings of the "Grapes of Wrath",
and following which complaints are lodged with the monitoring committee.

b.   On August 18, 1997, children, the orphans of an SLA commander, were
killed in the Jezzin area from a land mine that was set by Hizbollah; in
response, the SLA opened fire at the city of Sidon and caused several
casualties and injuries. On the following day Hizbollah fired dozens of
Katyusha missiles at the Galilee.

c.   On August 25, 1998, Hizbollah forces fired at an SLA force in the
Jezzin enclave, and in response the SLA fired at the town of Mashrara,
which is outside the Security Zone and wounded several civilians. In
response Hizbollah fired dozens of Katyusha missiles at the Galilee.

21.  The meaning of the above is, that the IDF not only does not have
effective control over the entire Security Zone, but also, that the extent
of its influence over the SLA is limited, in light of the obvious
difference between the two forces.
 

22.  Up to now we have addressed the military side of effective control.
In addition to this aspect, the IDF does not have effective control in
civilian areas in the Security Zone, nor is the IDF interested in such
control. Although the IDF has a unit that provides civilian aid to the
residents of the Security Zone, the said aid is very limited. Most of the
civilian activity is performed by Lebanese government agencies. The
Lebanese government continues to work in the Security Zone in different
ways, and examples of this activity will be specified hereinbelow.

23.  The central Lebanese government is active in South Lebanon, among
other things, in the area of public order. In Marj Ayoun there is a Kadi
[Moslem priest], who was appointed by the Lebanese government and receives
a salary therefrom, and he conducts judicial hearings on claims amongst
Lebanese. There is also a Lebanese court in the Jezzin enclave.

     In the Jezzin enclave, where an SLA brigade is deployed, there is
also the headquarters of the Lebanese Gendarmie (police). This police force
handles investigations of criminal offences that occur in the area. In
addition, the police are also active in the Security Zone. Charges are
brought before Lebanese courts. In the event that a resident of the
Security Zone is sentenced to a prison term - they serve the time in a
Lebanese prison.

24.  Other Lebanese government agencies also work in the Security Zone
in South Lebanon, and consider themselves to be obliged to continue
development works in the area. Among the activities of the Lebanese
government in the Security Zone, the following may be noted:

a.   The Lebanese Ministry of the Interior has governors in Marj Ayoun
and Hatsbaya and representatives in Bint Jebail, who handle the affairs of
residents of the Security Zone.

b.   The Lebanese Education Ministry maintains the education and school
system in the Security Zone: it determines the curriculum, finances the
teachers' salaries and maintains the schools.

c.   The Lebanese Health Ministry operates clinics in certain villages
in the Security Zone as well as small hospitals.

d.   Water is supplied to the residents, among other ways, through the
Lebanese water company. The Lebanese government handles the digging of
wells in the Security Zone, and the establishment of pumping stations and
systems of potable water, irrigation water and sewage.

e.   Electricity is provided, among other ways, by the Lebanese
electricity company.
 
 
 

f.   The registration of lands in the Security Zone is done by the
Lebanese government.

g.   The Ministry of Agriculture has established an agricultural school
in al-Khiam and conducts educational and assistance activity for farmers.

25.  The Lebanese government invests money in the Security Zone, and in
previous years its investment were sometimes, according to the estimate of
the security establishment, three times higher than the Israeli aid.

26.  The significance of the above is, that when it is said, that Israel
did not establish a military government in the Security Zone, this is not
merely a matter of semantics, but rather patterns of activity on the
ground, according to which the central Lebanese government continues to
work all the time in various areas with connection to the Lebanese
residents, and Israel does not prevent this in any way. This is, therefore,
a complex reality, that includes the involvement of different parties,
which is far-removed from effective control by the IDF and Israel in
general.

27.  In light of the above, the Respondent will argue, that both from
the military aspect and from the civilian aspect, the IDF does not have
effective control over the entire Security Zone, and especially in the
al-Khiam installation, and therefore it cannot be said, that this
installation is under the authority of the Respondent or that of the State
of Israel.
 

The SLA is not subordinate to the IDF

28.  As was stated above, the SLA is comprised of 2,500 Lebanese
soldiers. They are headed by a commander, General Lahad. This army has a
common hierarchic military structure.. The SLA recruits soldiers who are
Lebanese living in the Security Zone.

29.  The State of Israel assists the SLA, among other ways, through
financing, training, weapons and maintenance. The IDF coordinates its
activity in the Security Zone with the SLA, since there is no other
possibility for effective and secure activity, when two military forces are
active in the same area. The IDF also tries to create a situation, in which
the activity of the SLA is compatible with the policy of Israel, for
example, so that there is no harming of innocent civilians.

30.  Along with that, as was stated above, from time to time the SLA
conducts military activity within and outside the Security Zone, according
to the conditions to which it is subjected, according to the judgement of
its commanders and [for] advancing its interests and goals.
 
 
 

31.  On the subject of the detainees in the al-Khiam installation, as
was clarified above and in response to the previous petition on this
subject (High Court of Justice 4887/98 Assaf) - the question of their
continued detention is under the responsibility and judgement of the SLA.
Although Israeli security forces bring their position on the issue of the
release of the detainees to the attention of the SLA, the decision on the
detention, as well as that of the release, of the detainees, is in the
hands of the SLA.
     Thus, for example, in the framework of the relations between the
IDF and the SLA, the SLA assists, by means of releasing detainees that it
holds for the purpose of returning our prisoners or bodies of IDF soldiers,
as recently occurred with regards to the body of soldier Itamar Iliya, RIP.
However, the decision on who is released and who is not, is ultimately made
by the SLA.

     In the recent prisoner exchange, the SLA released detainees who
were not on the list that Israel gave it, and also worked to include in the
list certain names, according to its judgement.

32.  In the framework of the cooperation between the State of Israel and
the SLA, about 18 months ago the SLA, at Israel's request, stopped the Red
Cross visits and family visits at the installation, during the period in
which Hizbollah held the body of Itamar Iliya RIP. These visits were
renewed after the return of the body of the commando soldier, and they now
take place regularly (P/32 of the Petition, p. 205). It should not be
concluded from this, that the SLA is under the authority of the IDF, but
rather, that there are relations of cooperation and mutual aid between the
parties, especially during periods of hardship of one of the parties.

33.  In Clause 54 of the petition it was claimed, that the SLA is
subjected to the authority of the IDF also in light of the fact that Israel
undertook on behalf of the SLA not to harm civilian targets in Lebanon, and
that it represents it in the sessions of the monitoring committee that
supervises the understandings of the "Grapes of Wrath" operation for
examining disagreements concerning the understandings document. This claim
has no grounds. Only states appear at the sessions of the monitoring
committee, not institutions such as the SLA or Hizbollah. Therefore, Israel
addresses the activity of the SLA when required, to the same extent that
the government of Lebanon addresses in the committee's session, the
activity of Hizbollah and other terrorist organizations, although these
organizations are not actually subject to its authority.

Israel does not manage the al-Khiam installation
34.  As was stated above, the al-Khiam installation is managed, operated
and guarded by the Lebanese who serve in the SLA. The interrogators who
work in the installation also belong to the SLA. The documents that the
Petitioners attached to the petition indicate that for some years there has
been no Israeli participation in interrogations within the al-Khiam
installation (appendixes P/5 P/8 and Paragraph 59 of the Petition).
 

35.  In Paragraph 61 of the Petition it was claimed, that it may be
concluded from the fact that detainees were released from the al-Khiam
installation in the framework of the deal for returning the body of Itamar
Iliya, RIP, that the State of Israel is the supreme manager and supervisor
of the installation. As was stated above, the release of detainees from the
installation was done in the framework of cooperation between the parties,
and the recognition of the SLA of the importance of the exchange for the
Israeli side. That was the reason for its response to the needs of the
State of Israel. The same applies to the matter of suspending the Red Cross
visits at the installation for a period of several months.

36.  From the presentation of the facts in the Petition it arises, that
visits by Israelis to the installation are very rare, and most relate to
events that took place years ago (see P/35 newspaper interview with a
detainee who was released in 1993, P/36 newspaper interview from February
1991 with an anonymous Lebanese woman who does not specify the period
during which she was in the installation, as well as the affidavit of Suha
Bishara, Appendix P/6 of the Petition, who mentions that she was
interrogated by Israelis in 1992, Paragraph 62 of the Petition).

37.  Addressing the claim in Paragraph 65 of the Petition, it should be
stated, that the guards and interrogators in al-Khiam do not receive their
salaries directly from an Israeli officer, but rather from sources in the
SLA who distribute the salaries to the members of the SLA in the al-Khiam
installation.

38.  It should be mentioned, that indeed, information from the
interrogations at al-Khiam are transferred by the SLA to Israeli security
forces. In addition, several detainees underwent polygraph tests by the
Israeli side in the framework of the security cooperation between the
parties. However, there is no connection between this cooperation, which
derives from the common goal of fighting the elements that constantly
endanger the security of IDF soldiers and the northern area, and control
and management of the al-Khiam installation.

The facts concerning Petitioners 1-4
39.  On 19.8.98 the Military Attorney replied to the inquiry by Adv.
Tamar Peleg-Sryck and specified the reasons due to which the SLA is holding
Petitioners 1-4 in detention. From the factual information it arises, that
all of the Petitioners were involved in one way or another in terrorist
activity against the IDF and the SLA, and some of them even caused
casualties to the SLA. In these circumstances it is obvious, that the
release of the Petitioners might lead to endangering human life (Appendix
P/3, pages 49-50 of the Petition).

40.  In these circumstances, and in light of the absence of any
effective law enforcement system in South Lebanon that is able to protect
the lives of IDF and SLA soldiers, it is obvious that Israel has no
interest in working for the release of Petitioners 1-4.
 

Addressing the remedies requested in the Petition
41.  From the above it arises, that the Respondent has no legal
authority to work for the release of Petitioners 1-4 who are held at the
al-Khiam installation.

42.  Regarding the requests of Adv. Tamar Peleg-Sryck and Petitioners
5-6 to conduct a visit at the installation, as an aside it should be noted,
that this issue does not only concern the Respondent, who is not authorized
to decide on this issue; moreover, since security considerations are
involved. It is known, that Lebanon one of the list of states, travel to
which is considered to be a violation of the Law for Preventing
Infiltration (Offenses and Judgement)-1954. According to Regulation 5 of
the regulations in the appendix to the Ordinance for Extending the Validity
of the State of Emergency Regulations (Travel Abroad)-1948, the entrance of
an Israeli citizen into any of the states in the said list requires a
permit from the Minister of the Interior.
     From the Petition it arises, that Petitioners 5-6 did not make any
prior contact with the Minister of the Interior and did not request his
approval for leaving Israel for the purpose of entering Lebanon for the
purposes outlined in the Petition. Therefore, the Petitioners are certainly
not entitled to the remedies in the Petition.

43.  Addressing the remedies that concern Israeli elements entering
Lebanon, it should be stated, that if Petitioners 5-6 had submitted the
said request to the Minister of the Interior, the Respondent would have
opposed the request due to the security risk caused by Israeli citizens
entering the Security Zone.

44.  Addressing the purpose that serves as the basis for the request of
Petitioners 5-6 to visit the al-Khiam installation, [which is] their desire
to examine the conditions there due to the lack of clarity on this subject
(Paragraph 24 of the Petition). In addition to the position of the
Respondent concerning the lack of IDF control over the installation, it
should be said, that there are no real grounds for this claim. It is known,
that dozens of detainees were released from al-Khiam less than one year
ago, in the framework of the exchange, and these detainees can testify to
the conditions in the installation. In addition, representatives of the Red
Cross who come from Beirut visit the installation and maintain contact with
General Lahad, and it is also visited by the detainees' families.
Therefore, there is nothing preventing the flow of information concerning
the conditions of imprisonment in al-Khiam, and there is no necessity for
the Petitioners specifically to visit there in order to bring to light
information concerning the conditions in the installation.

45.  In light of the above, the honorable Court is requested to reject
the Petition forthwith.

46.  This statement is supported by the affidavit of Brigadier Eli
Amitai, commander of the Lebanon Liaison Unit.

April 22, 1999
Malchiel Balas
Head of High Court of Justice Affairs, State Attorney's Office
 
 

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