Under Cover of Darkness: Ten Years Game with Human Lives as “Bargaining Chips”
 and the Supreme Court
Eitan Barak*

An Israeli Supreme Court’s ruling (a censored version of which was released to the
public in March 1998) expressly authorizing holding ten Lebanese detainees as “bargaining chips” for the release of Israeli POWs and MIAs raised a wave of criticism around the world and in the Israeli human rights community.
Despite the cloak of secrecy imposed by the security authorities, the author explores the whole affair of which the court’s ruling is only the tip of the iceberg.

The ten detainees who are the subject of this particular case are among a larger group of twenty- one Lebanese who have been held in Israeli prisons for more than a decade.  Many of them have even served their full sentences and are still being held in prison, heretofore, under a variety of legal pretexts, and all for the same reason.  The security establishment, especially the intelligence agencies, have determined that these people should be held as “bargaining chips” in negotiations for the release of Ron Arad, the Israeli pilot who was captured in Lebanon over twelve years ago, and from whom it was last heard about ten years ago.

The author demonstrates the way by which the security authorities have denied and blocked access to any information regarding this affair, despite various efforts to penetrate the veil of denial.  Then, the whole legal picture over the past decade is analyzed, throughout explorations of various appeals and petitions.  Particularly, I demonstrate how the Supreme Court has legalized that unlawful affair, and explain theoretically why it has happened.  The majority opinion of the Court is examined, showing it to lack a sound constitutional basis, and delved within the political context in which the Court has been operating.

The author argues that only the new approach, which views Courts as a political
Institution with all that entails, can explain how it is that a Court, considered to be liberal, in a democratic country, finds itself approving the holding of human beings as hostages. The author’s conclusions are that the political context places a trap on which the Court cannot escape, but, ironically, the detainees and the security authorities are similarly trapped in their own political contexts.  Moreover, the affair constitutes an illuminating example of the new approach and the Court has performed perfectly its designated political tasks in this unbelievable affair.  In particular, providing legitimacy to the security authorities actions and detracting the waves of criticism.

* Eitan Barak, Attorney, Graduate Student in the Ph. D. program, Department of Political Science, Tel  Aviv University