Opinion; Subjects: ISRAEL, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-18950(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 60/2021 concerning Amal Nakhleh (Israel)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work, 1 on 29 July 2021 the Working Group
transmitted to the Government of Israel a communication concerning Amal Nakhleh. The
Government has not replied to the communication. The State is a party to the International
Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/60
General Assembly
Distr.: General
15 December 2021
Original: English
A/HRC/WGAD/2021/60
2
Submissions
Communication from the source
4.
Amal Nakhleh, born in 2004, is a Palestinian boy in his final year of secondary school.
He is the holder of an ID issued by the Palestinian authorities, and he usually resides in the
occupied West Bank city of Ramallah.
a.
Context
5.
According to the source, Palestinian children in the occupied West Bank, like adults,
face arrest, prosecution and imprisonment under an Israeli military detention system that
allegedly denies them basic rights. The source adds that military law has applied to
Palestinians in the West Bank since 1967, when Israel occupied the territory following the
Six-Day War.
6.
The source notes that international human rights law and international humanitarian
law, which apply to the Occupied Palestinian Territory, restrict the jurisdiction of Israeli
military courts and guarantee basic safeguards for a fair trial. The source adds that even
though Israel has ratified many of the core international human rights treaties, and, as a result,
has bound itself to act in accordance with those treaties, Israeli authorities persistently
disregard and fail to comply with international law. Although trying civilians in military
courts should be exceptional, Israel is allegedly the only country in the world that
automatically and systematically prosecutes Palestinian children in a military court system
that lacks fundamental fair trial rights and protections. Since 2000, an estimated 13,000
Palestinian children have reportedly been detained by Israeli forces from the occupied West
Bank and held in the Israeli military detention system, and Israel prosecutes an estimated 500
to 700 Palestinian children in military courts each year.
7.
According to the source, in October 2015, Israel renewed the practice of
administrative detention against Palestinian children in the West Bank for the first time in
four years. Since then, 36 Palestinian minors, all male, have reportedly been detained
pursuant to administrative detention orders. The source notes that under international
humanitarian law, in situations of international armed conflict, administrative detention is
permitted in strictly limited circumstances in only the most exceptional cases for “imperative
reasons of security” when there is no other alternative.2 It also notes that administrative
detention should never be used as an alternative to filing charges or for the sole purpose of
interrogation or as a general deterrent for future activity.3
8.
The source makes reference to the Convention on the Rights of the Child, which Israel
ratified in 1991, and highlights that article 37 of the Convention requires that children: should
only be deprived of their liberty as a measure of last resort; must not be unlawfully or
arbitrarily detained; and must not be subjected to torture and other cruel, inhuman or
degrading treatment or punishment. However, ill-treatment of children deprived of their
liberty is allegedly widespread, systematic and institutionalized, and it includes some form
of physical violence following arrest as well as verbal abuse, humiliation or intimidation. The
source adds that the children were often arrested at their homes by Israeli forces in the middle
of the night; that the majority of the children were arrested without notifying their parents of
the reason for the arrest; that most of them had no parent present during the interrogation;
and that the Israeli police did not properly inform them of their rights. The source also notes
that Israeli military law provides no right to legal counsel during interrogation, and that
although some children have been allowed to speak briefly with an attorney prior to
interrogation by phone, it is insufficient. The source further alleges that interrogators use
physical violence, abuse of power, threats and isolation to coerce confessions from some of
these children.
2 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva
Convention), art. 78.
3 The source refers to opinion No. 24/2016. It also refers to CCPR/C/ISR/CO/3, para. 7;
CAT/C/ISR/CO/4, para. 17; and CAT/C/ISR/CO/5, para. 22.
A/HRC/WGAD/2021/60
3
b.
Arrest and detention
9.
The source reports that on 21 January 2021, at around 3.30 a.m., Mr. Nakhleh was
arrested at his home by Israeli military forces. While no reason was provided at the time of
his arrest, Mr. Nakhleh had previously been charged with stone throwing, a specific “security
offence” under Israeli military law.4 He denied the allegations. Israeli military prosecutors
have stated that they have a secret file on Mr. Nakhleh that justifies his administrative
detention.
10.
Upon arrest, Mr. Nakhleh’s detention was promptly extended for 72 hours by an
Israeli military court judge at the State party’s Ofer military court, and on 25 January 2021,
a six-month administrative detention order was issued against him and accepted by Israeli
military authorities. The duration of the order was reduced by two months by the Israeli
Military Court of Appeals in March 2021. Mr. Nakhleh was expected to be released on 20
May 2021. However, on 20 May 2021, an Israeli military court judge extended Mr. Nakhleh’s
administrative detention for an additional four months; it was set to expire on 19 September
2021.
11.
Since his arrest, Mr. Nakhleh has been detained at Megiddo prison, located in Israel,
north of the occupied West Bank.
12.
The source reports that Israeli forces had previously arrested Mr. Nakhleh on 2
November 2020 and charged him with throwing stones. On 24 November 2020, an Israeli
military judge ordered Mr. Nakhleh released on bond. On 10 December 2020, the Israeli
military prosecution appeal was rejected by the Israeli Military Court of Appeals, and Mr.
Nakhleh was subsequently released. At the time, Israeli military prosecutors said that if Mr.
Nakhleh was released, they had a secret file on him which would justify an administrative
detention order against him. As noted above, he was then subsequently detained by Israeli
military authorities on 21 January 2021, 42 days after his release, and an administrative
detention order was issued against him based on Israeli Military Order 1651, which permits
administrative detention for a period of up to six months, subject to indefinite renewals.5
13.
The source notes that neither Mr. Nakhleh nor his lawyer have been provided with
access to any evidence against him. Mr. Nakhleh’s detention is thus based on secret
information.
14.
In terms of domestic remedies, Mr. Nakhleh reportedly appealed the administrative
detention order issued against him in the Israeli military court. As noted above, the original
six-month administrative detention order was reduced by a two-month period, but he still
remains detained in Israeli custody. Given the lack of access to an independent and impartial
tribunal, no additional domestic measures have been taken by Mr. Nakhleh or his legal
counsel.
c.
Health condition
15.
According to the source, Mr. Nakhleh suffers from myasthenia gravis, a rare chronic
autoimmune neuromuscular disease that causes weakness, including in the muscles used for
breathing and swallowing. His condition requires ongoing medical treatment, and he must
take medication regularly and without interruption.
4 In this respect, the source notes that Palestinian children are predominantly charged with throwing
stones in the Israeli military court system. Under Israeli military law, the primary military order
relevant to the arrest and detention of Palestinian children is Military Order 1651, on the subject of
security provisions. Military Order 1651 addresses a range of issues, including the authority to arrest
and imprison Palestinians for so-called security offences, such as causing death, assault, personal
injury or property damage, kidnapping, and harming a soldier. Throwing stones is included as a
specific offence pursuant to chap. G, sect. 212, of Military Order 1651. Throwing an object, including
a stone, at a person or a property, with the intent of causing harm to the person or property, carries a
maximum penalty of 10 years in prison; and throwing an object, including a stone, at a moving
vehicle, with the intent of damaging it or harming the person travelling in it, carries a maximum
penalty of 20 years in prison.
5 The source makes reference to Military Order 1651, sect. 273(A) (as amended by Military Order
1571).
A/HRC/WGAD/2021/60
4
16.
The source underlines the potential risk of harm and the specific context of Mr.
Nakhleh’s detention. It also notes that owing to his status as a minor, the continued detention
of Mr. Nakhleh by the Government of Israel presents a serious threat to his health, including
his physical and psychological integrity.
d.
Analysis of violations
17.
For the reasons stated above, the source submits that Mr. Nakhleh’s arrest and
detention violate the fundamental guarantees enshrined in international law, falling under
categories III and V of the categories applicable to the consideration of cases by the Working
Group.
i.
Category III
18.
The source submits that in depriving Mr. Nakhleh of his liberty, Israeli authorities
have violated basic and fundamental due process rights and protections relating to the right
to a fair trial, which amounts to an arbitrary detention.
Detained without a warrant and not informed of reason for arrest
19.
According to the source, children deprived of their liberty have the right to be
informed of the reason for their arrest. Articles 9 (2) and 14 (3) (a) of the International
Covenant on Civil and Political Rights and article 40 (2) (b) (ii) of the Convention on the
Rights of the Child expressly guarantee that children deprived of their liberty are to be
informed of the reasons for their arrest and promptly informed of the charges against them.
20.
The source reports that on 21 January 2021, at around 3.30 a.m., Israeli forces arrested
Mr. Nakhleh at his home in Ramallah. No warrant or other decision by a public authority was
shown or provided to Mr. Nakhleh or his family, and Israeli authorities provided no reason
for his detention at the time of his arrest.
21.
The source adds that since his arrest on 21 January 2021, Israeli authorities have not
charged Mr. Nakhleh with a crime and have not informed him, in detail sufficient to challenge
his detention, of the nature and cause for his detention, which is a violation of his right to be
informed of the reason for arrest.
Right to be tried without undue delay or challenge legality of continued deprivation of
liberty
22.
The source notes that according to article 9 (3) and (4) of the Covenant and article 40
(2) (b) (iii) of the Convention on the Rights of the Child, children deprived of their liberty
have the right to have the matter determined without delay by a competent, independent and
impartial authority or judicial body in a fair hearing in accordance with the law, which
protects a child’s right to effectively challenge the legality of any continued deprivation of
liberty.
23.
The source underlines that where administrative detention is used in situations not in
contemplation of prosecution on a criminal charge, the practice presents severe risks of
arbitrary deprivation of liberty. Thus, administrative detention must not last longer than
absolutely necessary.6 The detention must end as soon as an individual alleged to have posed
a real threat to State security stops posing a real threat. The longer administrative detention
lasts, the greater the onus on the detaining authority to prove the reasons for the internment
remain valid.7 There must also be prompt and regular review by an impartial and independent
court or tribunal.8
24.
The source submits that the Israeli military authorities have not filed formal charges
against Mr. Nakhleh and at the time of the submission by the source, he had spent several
6 Human Rights Committee, general comment No. 35 (2014), para. 15.
7 The source refers to International Committee of the Red Cross, “Internment in armed conflict: basic
rules and challenges” (Geneva, November 2014), p. 9; opinion No. 24/2016, para. 18; and Human
Rights Committee, general comment No. 35, para. 15.
8 Human Rights Committee, general comment No. 35, para. 15.
A/HRC/WGAD/2021/60
5
months in detention without charge or trial. The source adds that Mr. Nakhleh and his
attorney are unable to effectively challenge the legality of his detention because Israeli
military authorities have denied them access to the secret information relied upon by the
Israeli military court judges to issue and confirm the two administrative detention orders
against him to date. As noted above, the detention order was recently renewed.
25.
According to the source, the longer Israeli authorities detain Mr. Nakhleh, the greater
the onus on them to establish that the reasons for the internment remain valid and that he
remains a present, direct and imperative threat.9 However, despite the burden on Israel to
demonstrate that Mr. Nakhleh posed and continues to pose a threat in order to justify his
detention without charge, Israeli military authorities have not provided sufficient detailed
evidence establishing that Mr. Nakhleh either previously or currently continues to pose a real
and imperative threat to State security.
26.
The source also submits that failure to provide access to detailed secret information
relied on by the State to justify the deprivation of liberty prevents any effective challenge
concerning the legality of Mr. Nakhleh’s continued detention and results in a violation of his
right to have the matter determined without delay.
Israeli military courts are not independent and impartial tribunals
27.
The source notes that aside from the denial of fundamental due process rights, it is
doubtful whether the use of military courts to try civilians – particularly minors – can ever
satisfy the requirements of international human rights law to a fair trial before an independent
and impartial tribunal. Article 14 (1) of the Covenant and articles 37 (d) and 40 of the
Convention on the Rights of the Child, as well as international humanitarian law, guarantee
persons deprived of their liberty the right both to challenge their detention and to be tried by
a competent, independent and impartial tribunal. Furthermore, the Committee on the Rights
of the Child has declared that the conduct of criminal proceedings against children within the
military justice system should be avoided.10
28.
With reference to other cases considered by the Working Group,11 the source notes
that Mr. Nakhleh’s administrative detention orders have been approved by Israeli military
court judges that are active duty or reserve officers in the Israeli military, and subject to
military discipline and dependent on superiors for promotion.
29.
The source thus submits that non-observance by Israel of international norms relating
to the right to a fair trial and the documented bias of its military court system demonstrate
that Mr. Nakhleh’s detention amounts to arbitrary detention in accordance with category III.
ii.
Category V
30.
The source also asserts that while Israeli military law gives military courts the
authority to try any person located inside the occupied territory as long as they are aged 12
years or older, Jewish settlers who reside within the bounds of the West Bank in violation of
international law are subject to the Israeli civilian legal framework. Accordingly, Israel
operates two separate and unequal legal systems in the same territory. No Israeli child comes
into contact with the Israeli military court system.
31.
The source notes that treaty bodies have expressed concern about the discriminatory
arrests and detention of Palestinian children. In 2012, the Committee on the Elimination of
All Forms of Racial Discrimination urged Israel to end its practice of administrative
detention, noting that it was discriminatory and constituted arbitrary detention.12 The source
also notes that with regard to recent reviews of Israel, the Human Rights Committee and the
Committee against Torture, in their concluding observations, expressed particular concern
about the continued practice of using administrative detention against Palestinians on the
9 The source refers to International Committee of the Red Cross, “Internment in armed conflict: basic
rules and challenges”, p. 9; opinion No. 24/2016, para. 18; and Human Rights Committee, general
comment No. 35, para. 15.
10 CRC/C/OPAC/USA/CO/1, para. 30 (g).
11 The source refers to opinions No. 24/2016, No. 58/2012 and No. 3/2012.
12 CERD/C/ISR/CO/14-16, para. 27.
A/HRC/WGAD/2021/60
6
basis of secret information.13 The source further notes that the Working Group has previously
echoed concerns of the United Nations Children’s Fund and the Committee on the Rights of
the Child with regard to the widespread detention of Palestinian children and the practice of
prosecuting them in an Israeli military court system.14
32.
The source submits that the detention of Mr. Nakhleh fits a pattern and practice by
Israeli authorities of using administrative detention against Palestinian children on the basis
of their Palestinian identity to punish rather than prevent an imminent threat where there is
not enough evidence to charge and prosecute the child in the Israeli military courts.
33.
The source thus submits that Mr. Nakhleh’s detention by Israeli authorities amounts
to arbitrary detention under category V because his deprivation of liberty constitutes a
violation of international law for reasons of discrimination based on national, ethnic and
social origin.
Response from the Government
34.
On 29 July 2021, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure. The Working Group requested
the Government to provide, by 27 September 2021, detailed information about the current
situation of Mr. Nakhleh and to clarify the legal provisions justifying his continued detention,
as well as its compatibility with the obligations of Israel under international human rights
law, and in particular with regard to the treaties ratified by the State. Moreover, the Working
Group called upon the Government of Israel to ensure his physical and mental integrity.
35.
The Working Group regrets that it did not receive a response from the Government to
its communication; nor did the Government request an extension of the time limit for
providing a reply, as provided for in the Working Group’s methods of work.
36.
The Working Group notes with concern the silence of the Government in not availing
itself of the opportunity to respond to the allegations made in the present case and in other
communications.15 Indeed, the Government has not provided a substantive response to the
Working Group’s communications since 2007, or nearly 15 years.16 The Working Group
urges the Government to engage constructively with it on all allegations relating to the
arbitrary deprivation of liberty.
Discussion
37.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
38.
In determining whether Mr. Nakhleh’s detention was arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the Government if
it wishes to refute the allegations.17 In the present case, the Government has chosen not to
challenge the prima facie credible allegations made by the source.
39.
As a preliminary issue, the Working Group wishes to address the submission by the
source concerning the application of the Fourth Geneva Convention to the present case. The
Working Group recalls that its mandate is limited to questions relating to arbitrary detention
13 CCPR/C/ISR/CO/4, para. 10; and CAT/C/ISR/CO/5, para. 22.
14 The source refers to opinion No. 24/2016, paras. 23–24.
15 Opinions No. 8/2021, No. 12/2020, No. 84/2019, No. 73/2018, No. 34/2018, No. 86/2017, No.
44/2017, No. 31/2017, No. 3/2017, No. 24/2016, No. 15/2016, No. 13/2016, No. 43/2014, No.
58/2012, No. 20/2012, No. 3/2012, No. 9/2010, No. 5/2010, No. 23/2001, No. 31/2000, No. 18/2000,
No. 17/2000, No. 16/2000, No. 4/1999, No. 11/1998, No. 10/1998, No. 9/1998, No. 8/1998, No.
24/1996, No. 18/1996, No. 17/1996, No. 16/1996, No. 26/1993, No. 18/1993, No. 17/1993 and No.
36/1992. The Government submitted responses to the Working Group’s communications in relation
to opinions No. 26/2007, No. 3/2004, No. 24/2003 and No. 16/1994.
16 In relation to opinion No. 86/2017, the Government requested and received an extension of time in
which to respond to the Working Group’s communication but did not submit a substantive response.
17 A/HRC/19/57, para. 68.
A/HRC/WGAD/2021/60
7
and that, in considering such questions, it is required to make primary reference to
international human rights law. The Working Group considers that, in the light of the
evidence in the present case, it can reach a conclusion on the arbitrary nature of the
deprivation of liberty of Mr. Nakhleh without having recourse to international humanitarian
law.18
Category I
40.
While the source has not argued that the detention of Mr. Nakhleh is arbitrary under
category I, the Working Group notes that the source has submitted that Mr. Nakhleh, a 17-
year-old boy, was arrested at his home in the middle of the night on 21 January 2021, and
that he was not provided with an arrest warrant or notified of the reasons for his arrest. The
Government had the opportunity to explain the circumstances of Mr. Nakhleh’s detention
and the legal basis for it, but it has chosen not to do so.
41.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal
basis, it is not sufficient that there is a law which may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case through an arrest
warrant.19 Indeed, the international law on deprivation of liberty includes the right to be
presented with an arrest warrant, which is procedurally inherent in the right to liberty and
security of person and the prohibition of arbitrary deprivation, under articles 3 and 9,
respectively, of the Universal Declaration of Human Rights, and under principles 2, 4 and 10
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment. 20 Any form of detention or imprisonment should be ordered by, or be
subjected to the effective control of, a judicial or other authority under the law, whose status
and tenure should afford the strongest possible guarantees of competence, impartiality and
independence, in accordance with principle 4 of the Body of Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment.
42.
In the present case, Mr. Nakhleh was arrested without such a warrant. In addition, the
authorities failed to explain the reasons for his detention in breach of the requirements of
article 9 of the Covenant. The Working Group therefore concludes that the detention of Mr.
Nakhleh violated article 9 (1) and (2) of the Covenant. This was also a violation of article 40
(2) (b) (ii) of the Convention on the Rights of the Child, which expressly guarantees that
children deprived of their liberty be informed promptly and directly of the charges against
them.
43.
Moreover, the Working Group notes the uncontested allegations that in March 2021,
the Israeli Military Court of Appeals reduced the order of six months’ administrative
detention imposed upon Mr. Nakhleh by the Israeli military court. He was thus expected to
be released on 20 May 2021. However on that day, instead of being released, he was subjected
to a new administrative detention order by an Israeli military court judge. Mindful of the lack
of a Government reply to this allegation, the Working Group considers that the new order,
imposed on 20 May 2021, was effectively aimed at circumventing the reduced order imposed
by the appeal court in March 2021 and thus defied the order of a court of higher instance.
The Working Group therefore considers that the detention of Mr. Nakhleh beyond 20 May
2021 further violated article 9 (1) of the Covenant. Indeed, to hold otherwise would mean
that States would be able to hold individuals indefinitely, with endless renewals of their
administrative detention.
44.
Furthermore, the Working Group notes the uncontested allegations that since his
arrest on 21 January 2021, Israeli authorities have not charged Mr. Nakhleh with any crime
and have not informed him of the nature and cause for his detention. The Working Group
18 The Working Group has adopted a similar approach, for example, in opinions No. 52/2020, para. 75;
and No. 68/2020, para. 59.
19 See, e.g. opinions No. 79/2018, No. 35/2018, No. 93/2017, No. 75/2017, No. 66/2017 and No.
46/2017.
20 Opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27.
A/HRC/WGAD/2021/60
8
therefore concludes that there has been a further breach of article 9 (2) of the Covenant and
article 40 (2) (b) (ii) of the Convention on the Rights of the Child.
45.
Finally, although Mr. Nakhleh appeared before a court upon arrest and was
subsequently administratively detained on 25 January 2021 by a decision of a military court
that he was able to appeal, the Working Group notes that Mr. Nakhleh was never provided
with the charges against him, as established above. This means that his right to challenge the
legality of his detention as provided for in article 9 (4) of the Covenant and article 37 (d) of
the Convention on the Rights of the Child was also violated.
46.
Noting all the above, the Working Group concludes that the arrest and subsequent
detention of Mr. Nakhleh was arbitrary and falls under category I as lacking legal basis.
Category III
47.
The source further alleges that the Government violated Mr. Nakhleh’s right to a fair
trial. The Working Group notes that this is a case of administrative detention, which does not
involve charges or trial within the criminal justice system, and that the fair trial guarantees in
article 14 of the Covenant would not normally apply. However, as the Human Rights
Committee has stated, the nature of the sanction must be considered, regardless of its
classification under domestic law, in determining whether the fair trial guarantees in article
14 apply in each case:
Criminal charges relate in principle to acts declared to be punishable under domestic
criminal law. The notion may also extend to acts that are criminal in nature with
sanctions that, regardless of their qualification in domestic law, must be regarded as
penal because of their purpose, character or severity.21
48.
The Working Group has adopted this reasoning in its jurisprudence, noting that the
provisions of article 14 of the Covenant on the right to a fair trial are applicable where the
sanctions imposed, because of their purpose, character or severity, must be regarded as penal,
even if, under national law, the detention is qualified as administrative.22 Without such an
enquiry into the nature of the sanction imposed, States could effectively circumvent their
obligations under the Covenant simply by characterizing their detention regime as
administrative under domestic law. This is particularly significant in the context of
administrative detention orders imposed in Israel, which appear to be used as a substitute for
criminal proceedings, rather than to prevent an imminent threat, when there is not enough
evidence to charge and prosecute an individual.23
49.
In its jurisprudence, the Working Group has found that in cases involving excessive
length of detention, the individual is to enjoy the same guarantees as in criminal cases,
including those under article 14 of the Covenant, even if the detention is qualified as
administrative under national law.24 In the present case, Mr. Nakhleh, a child of 17 years of
age, has been sentenced to six months of administrative detention in prison in conditions
similar to those imposed on individuals who are serving a criminal sentence. As a result, his
detention must be regarded as penal in nature, and the Working Group will therefore consider
whether his detention met the requirements of article 14 of the Covenant and other relevant
provisions. In doing so, the Working Group reiterates that the Government did not challenge
any of the allegations made by the source.
50.
The Working Group observes that Mr. Nakhleh, a civilian, had to appear before a
military court and indeed, it was a military court that imposed administrative detention upon
him. The Government has chosen not to address these allegations.
21 Human Rights Committee, general comment No. 32 (2007), para. 15. See also Perterer v. Austria
(CCPR/C/81/D/1015/2001), para. 9.2.
22 Opinions No. 73/2018, No. 31/2017, No. 43/2014, No. 58/2012, No. 45/2012, No. 20/2012 and No.
3/2012. See also A/HRC/37/42, para. 17; and deliberation No. 9 (A/HRC/22/44, sect. III), paras. 68–
69.
23 A/HRC/37/42, para. 21.
24 Opinions No. 49/2020, No. 12/2020, No. 73/2018 and No. 31/2017.
A/HRC/WGAD/2021/60
9
51.
In relation to the jurisdiction of the military courts, the Working Group has in its
practice consistently argued that the trial of civilians by military courts is in violation of the
Covenant and customary international law and that under international law, military tribunals
can only be competent to try military personnel for military offences.25 Recalling that Mr.
Nakhleh is only 17 years of age, the Working Group wishes to highlight in particular that the
Committee on the Rights of the Child has stated that the conduct of criminal proceedings
against children within the military justice system should be avoided.26
52.
In the present case, the Government had the opportunity to explain the reasons for
having Mr. Nakhleh appear before a military court but it failed to do so. The Working Group
therefore finds a breach of article 14 (1) of the Covenant and articles 37 (d) and 40 of the
Convention on the Rights of the Child.
53.
Moreover, the source has submitted, and the Government does not contest, that Mr.
Nakhleh’s administrative detention orders have been approved by Israeli military court
judges that are active duty or reserve officers in the Israeli military, and subject to military
discipline and dependent on superiors for promotion.
54.
The Working Group recalls that article 14 of the Covenant requires the court to be
independent and impartial and that the same is required by article 40 (2) (b) (iii) of the
Convention on the Rights of the Child in respect of a child. In this regard, in its earlier
jurisprudence the Working Group has already stated that the military courts of Israel
imposing such administrative detention do not satisfy this criterion.27 In these circumstances,
the Working Group finds a violation of Mr. Nakhleh’s rights under article 14 (1) of the
Covenant and article 40 (2) (b) (iii) of the Convention on the Rights of the Child.
55.
The source has also argued that Mr. Nakhleh’s detention was based on a secret file to
which neither he nor his counsel were given access. Although the Government had the
opportunity to respond to these allegations, it has chosen not to do so. The Working Group
recalls that although the right to access evidence is not absolute, it is the duty of the
Government to show that there were legitimate reasons for redacting access to evidence, but
it has chosen not to do so in the present case. In principle, access to the evidence that is at the
heart of the decision to detain a person, must be provided from the outset.28 Noting this and
in the absence of a rebuttal from the Government, the Working Group finds that Mr.
Nakhleh’s rights under article 14 (1) and (3) (b) and (e) of the Covenant and article 40 (2) (b)
(iv) of the Convention on the Rights of the Child were also violated.
56.
Noting all the above, the Working Group concludes that the violations of Mr.
Nakhleh’s right to a fair trial were of such gravity as to give his detention an arbitrary
character, falling under category III.
Category V
57.
The source has argued and the Government has chosen not to rebut that the detention
of Mr. Nakhleh is arbitrary and falls under category V as detention based on discrimination.
In this regard, the source submits that while Israeli military law gives military courts the
authority to try any person located inside the occupied territory as long as they are aged 12
years or older, Jewish settlers who reside within the bounds of the West Bank in violation of
international law are subject to the Israeli civilian legal framework. Accordingly, Israel
operates two separate and unequal legal systems in the same territory. No Israeli child comes
into contact with the Israeli military court system.
58.
In the present case, the Working Group notes that Mr. Nakhleh has been detained
previously, on 2 November 2020, when he was released on bond. According to the source
and uncontested by the Government, this did not meet the approval of the prosecution, who
then warned Mr. Nakhkleh that they had a secret file on him, which would allow his
administrative detention. Indeed, just over a month later, Mr. Nakhleh was arrested again.
25 A/HRC/27/48, paras. 67–70. See also opinions No. 66/2019, No. 32/2018, No. 28/2018, No. 30/2017
and No. 44/2016.
26 CRC/C/OPAC/USA/CO/1, para. 30 (g).
27 Opinion No. 24/2016, para. 21. See also opinions No. 58/2012 and No. 3/2012.
28 See opinions No. 77/2020, No. 67/2020, No. 29/2020 and No. 78/2019.
A/HRC/WGAD/2021/60
10
The Working Group deems this to be clear evidence of a pattern of behaviour on behalf of
the authorities towards Mr. Nakhleh.
59.
This resonates with a pattern noted by the Working Group in its jurisprudence
whereby the Israeli authorities use administrative detention to detain Palestinians, especially
males, on an indefinite basis without charge or trial.29 In the absence of any explanation from
the Government, the Working Group concludes that Mr. Nakhleh, who is Palestinian, was
detained on a discriminatory basis, namely his national, ethnic and social origin. The
Working Group considers that he was also detained on the basis of his gender, as there is a
clear pattern of targeting young males for detention.30 In these circumstances, the Working
Group finds that the Government has violated articles 2 and 7 of the Universal Declaration
of Human Rights and articles 2 (1) and 26 of the Covenant, as well as article 2 (1) of the
Convention on the Rights of the Child, and that the deprivation of liberty of Mr. Nakhleh was
arbitrary under category V.
60.
The Working Group refers the present case to the Special Rapporteur on the situation
of human rights in the Palestinian territories occupied since 1967, for appropriate action.
Concluding remarks
61.
The Working Group recalls that detention of children in any setting should be a
measure of absolute last resort, which, as evidenced by the discussion above, has not been
met by Israel in the case of Mr. Nakhleh, who is a 17-year-old child. Moreover, the precarious
health situation of Mr. Nakhleh is of particular concern to the Working Group. In this regard,
the Working Group is obliged to remind Israel that all persons deprived of their liberty must
be treated with humanity and with respect to the inherent dignity of the human person in
accordance with article 10 of the Covenant. Denial of medical assistance constitutes a
violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules), in particular rules 24, 25, 27 and 30. The Working Group refers the
case to the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, for appropriate action.
62.
The present case is one of several cases brought before the Working Group in recent
years concerning the arbitrary deprivation of liberty in Israel. The Working Group notes that
many of the cases involving administrative detention in Israel and the Occupied Palestinian
Territory follow a familiar pattern of indefinite detention through consecutive administrative
detention orders without charges or trial (often based on secret evidence and often under
military jurisdiction), and with limited or no judicial recourse to review the lawfulness of the
detention.31 The Working Group recalls that under certain circumstances, widespread or
systematic imprisonment or other severe deprivation of liberty in violation of the rules of
international law may constitute crimes against humanity.32
63.
Finally, the Working Group would welcome the opportunity to work constructively
with the Government in addressing the arbitrary deprivation of liberty. On 7 August 2017,
the Working Group sent a request to the Government to undertake a country visit, including
to the Occupied Palestinian Territory, and awaits a positive response. In this context, the
Working Group recalls the invitation dated 12 September 2014 extended to it by the
Permanent Observer Mission of the State of Palestine to the United Nations Office and other
international organizations in Geneva to conduct an official visit to the Occupied Palestinian
Territory.
29 Opinions No. 12/2020, No. 73/2018, No. 34/2018, No. 86/2017, No. 44/2017, No. 31/2017 and No.
24/2016. See also A/HRC/38/15, paras. 118.159, 118.162, 118.164 and 119.4.
30 See e.g. opinion No. 12/2020.
31 Opinions No. 12/2020, No. 73/2018, No. 34/2018, No. 86/2017, No. 44/2017, No. 31/2017, No.
24/2016, No. 43/2014, No. 58/2012, No. 20/2012, No. 3/2012, No. 9/2010, No. 5/2010, No. 26/2007,
No. 3/2004, No. 23/2001, No. 17/2000, No. 16/2000, No. 11/1998, No. 10/1998, No. 9/1998, No.
8/1998, No. 24/1996, No. 18/1996, No. 17/1996, No. 16/1996, No. 16/1994, No. 18/1993, No.
17/1993 and No. 36/1992.
32 Opinion No. 47/2012, para. 22.
A/HRC/WGAD/2021/60
11
Disposition
64.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Amal Nakhleh, being in contravention of articles 2, 3, 7,
9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14 and
26 of the International Covenant on Civil and Political Rights, is arbitrary and falls
within categories I, III and V.
65.
The Working Group requests the Government of Israel to take the steps necessary to
remedy the situation of Mr. Nakhleh without delay and bring it into conformity with the
relevant international norms, including those set out in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights.
66.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Nakhleh immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law. In the current context of the global coronavirus disease (COVID-19) pandemic and the
threat that it poses in places of detention, the Working Group calls upon the Government to
take urgent action to ensure his immediate release.
67.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Nakhleh and to take appropriate measures against those responsible for the violation of his
rights.
68.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to: (a) the Special Rapporteur on the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health and (b) the Special Rapporteur
on the situation of human rights in the Palestinian territories occupied since 1967, for
appropriate action.
69.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
70.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Nakhleh has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Nakhleh;
(c)
Whether an investigation has been conducted into the violation of Mr.
Nakhleh’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Israel with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
71.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
72.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
A/HRC/WGAD/2021/60
12
73.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.33
[Adopted on 17 November 2021]
33 Human Rights Council resolution 42/22, paras. 3 and 7.