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.21-07346(E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninetieth session, 3–12 May 2021
Opinion No. 8/2021 concerning Layan Kayed, Elyaa Abu Hijla and
Ruba Asi (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 16 December 2020 the Working Group
transmitted to the Government of Israel a communication concerning Layan Kayed, Elyaa
Abu Hijla and Ruba Asi. 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/2021/8
General Assembly
Distr.: General
7 June 2021
Original: English
A/HRC/WGAD/2021/8
2
Submissions
Communication from the source
Layan Kayed
4.
Ms. Kayed is a 22-year-old Palestinian student who studies sociology at Birzeit
University, in Birzeit, a city in the occupied West Bank. Ms. Kayed has recently completed
the final year of her undergraduate studies (but is still to formally graduate) and she usually
lives with her parents. Ms. Kayed has had no previous engagement with the law and this is
her first experience with the Israeli military forces, courts and prisons.
5.
The source reports that, on 8 June 2020, at approximately 8.30 a.m., Ms. Kayed was
arrested at Za’tara checkpoint near Nablus while travelling to Ramallah with a family
member in their private car. She was subsequently searched and cuffed with restraints on
both her hands and legs before being transferred to a nearby facility, where she was asked
questions regarding her medical situation. It is unknown whether there was a warrant for her
arrest. Ms. Kayed was then returned to Za’tara checkpoint. Although she was given food and
water, the soldiers refused to uncuff her while she was eating or when she went to the toilet.
6.
The source adds that Ms. Kayed was then transferred to Hasharon prison, in Israel and
outside of the occupied West Bank. Specifically, she was taken to a section that holds both
civil (common law) Israeli prisoners and Palestinian political prisoners. Ms. Kayed was
placed in a cell with other Israeli detainees, both men and women. They allegedly subjected
her to abuse, which caused her distress.
7.
While at Hasharon prison, Ms. Kayed was reportedly confined to a cell under round-
the-clock video surveillance and her conditions of detention were poor. The cell and the
blankets in it were dirty, and there was an exposed toilet without a door. According to the
source, Ms. Kayed was never provided with clean clothes and received only two meals per
day. The food was reportedly inedible; although Ms. Kayed forced herself to eat it, it caused
her to vomit on several occasions.
8.
At nearly all times, Ms. Kayed was reportedly confined in the cell with another
Palestinian female detainee, although this was not always the same detainee, as Ms. Kayed
or the other detainee would be regularly moved from one cell to another. One of the female
detainees with whom Ms. Kayed shared a cell suffered from suicidal ideation; another
required psychological treatment, which caused distress to Ms. Kayed.
9.
While Ms. Kayed was detained at Hasharon prison, she was reportedly taken to Ofer
prison in the occupied West Bank for interrogation and investigation on 10 and 11 June 2020.
On 10 June 2020, she was reportedly interrogated for approximately one hour and a half,
during which time she was cuffed to a chair. She was also forced to undertake a DNA test.
On 11 June 2020, Ms. Kayed was interrogated for a second time, for approximately two to
three hours.
10.
The source reports that, while at Ofer prison, Ms. Kayed was confined to a windowless
cell and then transferred to another cell without bathroom facilities, including no toilet. Ms.
Kayed’s initial requests for food, water and the use of a toilet were refused. She was finally
given water and a small cup of yoghurt after she began to shout and was then taken to the
toilet by a female security guard. Before using the toilet, she requested the guard to uncuff
her hands, but the guard refused. After approximately one hour and a half, Ms. Kayed was
reportedly taken to a transfer vehicle where she was subjected to further degrading treatment,
as she was unable to get into the vehicle with her legs cuffed. As a result, she fell over and
Israeli male soldiers laughed at her, providing no assistance to help her into the vehicle.
11.
The source reports that, on 18 June 2020, 10 days after her arrest and detention, Ms.
Kayed was charged with: (a) being affiliated with the illegal group the Democratic
Progressive Student Pole (DPSP), contrary to section 85 (1) (b) of the Defence (Emergency)
Regulations (1945); (b) attending an illegal gathering, contrary to section 85 (1) (d) of the
same Regulations; and (c) throwing stones, contrary to section 212 (2) of Military Order 1651
(2009).
A/HRC/WGAD/2021/8
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12.
On 24 June 2020, Ms. Kayed was transferred to Damon prison, where she remained
in pretrial custody. At the time of the source’s submission, her most recent trial hearing was
scheduled for 7 December 2020.
Elyaa Abu Hijla
13.
Ms. Abu Hijla is a 21-year-old Palestinian student of law at Birzeit University. She
usually lives with her parents. At the time of her arrest, Ms. Abu Hijla was due to begin the
fourth year of her undergraduate studies. She is on the honour list of Birzeit University and
is therefore a visible individual at the educational institute. She has had no previous
engagement with the law and this is her first experience with the Israeli military forces, courts
and prisons.
14.
The source reports that, on 1 July 2020, Ms. Abu Hijla’s home in Ramallah was raided
by Israeli soldiers in the middle of the night. The soldiers searched Ms. Abu Hijla before
asking her to change her clothes. She was then handcuffed and taken to a waiting military
jeep. Once in the vehicle, the soldiers put a mask over her face and another mask just over
her eyes. It is unknown whether there was a warrant for her arrest. She was transported in the
military jeep to what was suspected to be Ofer prison.
15.
Upon arrival, Ms. Abu Hijla was reportedly questioned about her medical status by a
doctor while still in the military jeep and asked to sign a document, which she refused to do.
She was then removed from the military jeep and taken to a room, where she was kept for
one hour and a half. During that time, she was forced to lean on her knees while on the floor.
Her request for a chair was refused. While awaiting a transfer, Ms. Abu Hijla was reportedly
confined in a military surveillance tower for four hours. The temperature inside the tower
was very high. She was then transferred to Ofer prison in a military vehicle.
16.
The source reports that, upon arrival at Ofer prison, Ms. Abu Hijla was confined to a
small, windowless cell before being taken to an interrogation room and being asked more
than 30 questions. After the interrogation, she was returned to the cell and later transferred
by bus, with a male prisoner, to Hasharon prison.
17.
While at Hasharon prison, Ms. Abu Hijla was reportedly subjected to poor detention
conditions. She was provided with clothes only occasionally and she was never provided with
any change of underwear. Both Ms. Abu Hijla and the other Palestinian detainee in her cell
were allegedly constantly subjected to humiliating and threatening behaviour. Notably, the
prison guards threatened to move Ms. Abu Hijla to a cell under round-the-clock video
surveillance and to cuff her hands and legs to her bed.
18.
According to the source, Ms. Abu Hijla suffers from hyperthyroidism, with which she
was diagnosed in 2016, and requires 75 mcg of thyroxine medication daily. She requires
medical tests and evaluations for this condition every three months. While in custody, she
has reportedly been given medication that is different to the one she is usually prescribed and
at a higher dose of 100 mcg.
19.
On 8 July 2020, eight days after her arrest and detention, Ms. Abu Hijla was charged
by Ofer military court with the following: (a) being affiliated with the illegal group DPSP,
contrary to section 85 (1) (b) of the Defence (Emergency) Regulations (1945); (b) attending
an illegal gathering, contrary to section 85 (1) (d) of the same Regulations; and (c) throwing
stones, contrary to section 212 (2) of Military Order 1651 (2009).
20.
On 15 July 2020, Ms. Abu Hijla was tested for the coronavirus disease (COVID-19).
The following day, she was transferred to Damon prison, where she remains in custody. Ms.
Abu Hijla’s initial trial date of 14 September 2020 was postponed, on the day of the trial, to
11 November 2020. No definitive reason was provided for the rescheduling or the extension
of the time spent in pretrial detention. The source adds that Ms. Abu Hijla had spent five
months in pretrial detention by the time the initial trial was rescheduled, noting with concern
that the effects of prolonged, harsh detention conditions will have a serious effect on her in
the interim. At the time of the source’s submission, the next trial hearing of Ms. Abu Hijla
was scheduled for 23 December 2020.
A/HRC/WGAD/2021/8
4
Ruba Asi
21.
Ruba Asi is a 20-year-old Palestinian student who also attends Birzeit University. She
studies sociology and usually lives with her parents. Ms. Asi was due to begin the fourth year
of her undergraduate studies at the time of her arrest. She has had no previous engagement
with the law and this is her first experience with the Israeli military forces, courts and prisons.
22.
The source reports that, on 9 July 2020, at approximately 2 a.m., Ms. Asi’s home was
raided by Israeli soldiers. Ms. Asi was searched by two female soldiers who took her identity
document and telephone. One of the soldiers reportedly grabbed her with force and removed
her from her home, without permitting her to say goodbye to her family or take a jacket with
her. The soldiers then placed Ms. Asi’s hands in iron cuffs and forced her into a waiting
military jeep. Once in the vehicle, the soldiers put a mask over Ms. Asi’s face and another
mask just over her eyes. It is unknown whether there was a warrant for her arrest.
23.
According to the source, Ms. Asi was taken to an open space nearby, where her body
temperature was tested and she was asked to sign a medical form, which she refused to do.
Ms. Asi was then taken to a military officer who informed her that she had been arrested
because of her involvement in DPSP and the Popular Front for the Liberation of Palestine.
Ms. Asi replied that she did not know what he meant by this. She was then returned to the
military jeep.
24.
The source adds that Ms. Asi was left in an open yard for several hours before being
transferred by private car to Ofer prison. While at Ofer prison, she was allegedly subjected
to poor detention conditions. She was confined to a windowless cell containing a bed made
of concrete, a water tap and a toilet, which was a hole in the ground next to the bed.
25.
On 9 July 2020, Ms. Asi was reportedly transferred to Hasharon prison, where she
was searched again. The soldiers also took pictures of her and took her fingerprints. Ms. Asi
was then questioned and asked to sign a statement, but she refused to do so. While at
Hasharon prison, Ms. Asi confirmed that she had been tested for COVID-19 on 19 July 2020.
26.
On 21 July 2020, 13 days after her arrest and detention, Ms. Asi was charged with the
following: (a) being affiliated with the illegal group DPSP, contrary to section 85 (1) (b) of
the Defence (Emergency) Regulations (1945); (b) attending an illegal gathering, contrary to
section 85 (1) (d) of the same Regulations; and (c) throwing stones, contrary to section 212
(2) of Military Order 1651 (2009).
27.
On 30 July 2020, Ms. Asi was transferred to Damon prison, where she remains in
custody. At the time of the source’s submission, her most recent trial hearing was scheduled
for 13 December 2020.
a.
Context
28.
The source notes that, according to a public statement released by Birzeit University
on 23 January 2020, Israeli forces have detained 74 Birzeit University students between
September 2019 and January 2020. Other students, including Ms. Kayed, Ms. Abu Hijla and
Ms. Asi, have been arrested since January 2020, although the actual number was unclear at
the time of the submission by the source. According to the source, this clearly indicates that
the wholly unlawful approach of targeting Palestinian university students is intensifying in a
grave and serious manner.
29.
The source highlights that all three female students were in full-time education at
Birzeit University at the time of their arrest and that their student activities ran in parallel
with their tertiary education studies. The source adds that their involvement with societies at
the university was both peaceful and lawful under international human rights law. According
to the source, the arrest and military detention of and the criminal charges brought against
the three female students fall within a clear and intensifying pattern, in place since August
2019, of arresting and detaining Palestinian university students for the peaceful exercise of
their basic and fundamental human rights to freedom of assembly, association and
expression. It is of particular concern that female students are being systematically targeted.
A/HRC/WGAD/2021/8
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b.
Analysis of violations
30.
The source recalls that Ms. Kayed, Ms. Abu Hijla and Ms. Asi were all arrested by
Israeli occupation forces within the time frame of a month, indicating a possible systematic
pattern of targeting female students from Birzeit University. Upon arrest, all three students
were subjected to body searches, handcuffing with the use of iron cuffs and the imposition
of face and eye masks to block their vision. Two of the female students were reportedly
arrested in terrifying night-time raids of the family home. All three female students were
reportedly interviewed without a lawyer present, in accordance with Israeli military orders,
which prohibit the presence of legal representatives, strongly indicating a lack of due process
and a worrying disregard for international human rights standards.
31.
According to the source, all three female students were presented with a list of
identical charges. The source also reports that excessive and punitive military orders have
been used to underpin these charges. The first two charges have reportedly been applied to
the participation in democratic university student groups, in other words to the peaceful
exercise of a basic and fundamental human right. The source notes that the third charge
appears to have been based on third-person confessions allegedly obtained during military
interrogations, under duress and possibly through ill-treatment, and which are therefore
inherently unreliable.
32.
The source adds that all three female students have been charged with being affiliated
with an illegal group, namely a student group at Birzeit University called DPSP. According
to the source, DPSP is a leftist group unaffiliated with a political party. In this respect, the
source asserts that the Israeli authorities have criminalized all political groups under
repressive military laws that are being utilized to target, arrest and arbitrarily detain university
students.
33.
According to the source, on 21 October 2020 the Israeli occupying forces officially
declared the DPSP an unlawful association. That designation was made under the Defence
(Emergency) Regulations (1945), making membership in or affiliation with such a group a
criminal offence.
34.
The source adds that the Defence (Emergency) Regulations (1945) empower the
authorities, among other things, to declare as unlawful groups that advocate inciting hatred
or contempt, or disaffection, against the authorities. In that respect, the source highlights the
clearly apparent unjust imposition of criminal charges against Ms. Kayed, Ms. Abu Hijla and
Ms. Asi for being affiliated with a legitimate university student group and for attending one
of its meetings.
35.
The source notes that section 212 (2) of Military Order 1651 (2009) provides that the
throwing of an object, including a stone, “at a person or property, with the intent to harm the
person or property will be sentenced to ten years imprisonment”. The source notes with
concern that all three female students face a 10-year prison sentence, having been charged
with throwing stones. According to the source, while it is unclear precisely what evidence
there is to base these charges, it appears that the names of individuals correspond to those
allegedly interrogated and tortured in 2019.
36.
The source submits that the Defence (Emergency) Regulations (1945) and military
orders (including Military Order 1651 (2009)) are not sufficiently clear, precise and narrow
to allow Palestinians to know what actions may have criminal consequences and how to
ensure that their behaviour conforms with the law and that they therefore violate a basic
principle of both the law of occupation and international human rights law. The source adds
that the overly broad wording of the orders creates vague and abstractly defined criminal
offences. To this end, the source alleges that, instead of interpreting this broad language
narrowly, the Israeli military authorities have exploited the ambiguity of these orders by using
criminal law in an arbitrary and discriminatory manner, as in the present case.
37.
The three female students have been interrogated and reportedly remain detained. As
at the time of the source’s submission, they were all being held in pretrial military detention
in Damon prison, which is within the State of Israel and is where all female Palestinian
prisoners are incarcerated. The source submits that the transfer of protected persons to a
location outside the occupied West Bank for the purpose of detention constitutes a clearly
A/HRC/WGAD/2021/8
6
apparent breach of the Geneva Convention relative to the Protection of Civilian Persons in
Time of War (Fourth Geneva Convention).
38.
The source also highlights the severe adverse consequences to Ms. Kayed, Ms. Abu
Hijla and Ms. Asi of having been subjected to excessive and discriminatory military orders
due to living under military occupation, which has thus deprived them of the freedom to
exercise basic and fundamental rights protected under international human rights law and
guaranteed to them as civilians. The source submits that, as civilians, Ms. Kayed, Ms. Abu
Hijla and Ms. Asi should have the criminal charges against them be processed by an
independent and impartial civilian tribunal, not a military court.
39.
According to the source, the arrest and continuing detention of Ms. Kayed, Ms. Abu
Hijla and Ms. Asi raise issues under a number of provisions of international human rights
law, notably articles 18, 19, 21, 22 and 26 of the Covenant. The source adds that the Covenant
expressly guarantees those rights that have been infringed with respect to the three female
university students. Furthermore, the exercise of fundamental and civil rights is of direct
relevance to their arrest and continuing detention. The source underscores that the military
detention of the three young female students is also contrary to article 9 of the Universal
Declaration of Human Rights and Commission on Human Rights resolution 1991/42 on
arbitrary detention, as clarified by Commission resolution 1997/50, in addition to being
contrary to other legal protections afforded to all individuals under international human rights
law.
40.
Furthermore, the source submits that several other human rights and due process
issues are brought up by these cases, including: (a) the use of terrifying night-time arrest raids
of the family home; (b) conditions of detention that appear to amount to degrading treatment,
in breach of the prohibition of cruel, inhuman or degrading treatment or punishment under
international human rights law, and that are incompatible with the United Nations Rules for
the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules); (c) interrogations conducted without the essential safeguard of having a
lawyer present; (d) charges that may be based on third-person confessions obtained during
military interrogations, under duress and allegedly in breach of the prohibition of torture and
other cruel, inhuman or degrading treatment or punishment under international human rights
law; (e) the absence of bail hearings, so that the students are kept in continuous pretrial
detention for months after having been charged; (f) the consequential adverse impact of
detention on the students’ tertiary education and future careers; (g) the substantial risk of
psychological harm to young people of being unjustly detained for a prolonged period and of
being subjected to harsh prison settings and criminal prosecutions; and (h) the gender aspect
of these three young female Palestinian university students having been arrested and detained
within the space of one month.
41.
In the light of the above, the source submits that Ms. Kayed, Ms. Abu Hijla and Ms.
Asi have been unlawfully detained under categories II and V of the categories applicable to
cases submitted to the Working Group on Arbitrary Detention.
42.
The source also submits that the detention of Ms. Kayed, Ms. Abu Hijla and Ms. Asi
is arbitrary under category II, given that they have been targeted for being Palestinian and for
having been active in lawful and peaceful organizations (democratic student groups).
43.
The source further submits that Ms. Kayed, Ms. Abu Hijla and Ms. Asi have clearly
been subjected to discrimination by the Israeli occupying forces for being Palestinian and
that they have been deprived of legal protection for the same reason. Moreover, the source
argues that they have been arbitrarily detained as a direct result of being Palestinian, a
circumstance falling under category V. The source adds that category V expressly prohibits
any deprivation of liberty that actively seeks to evade the equality of human rights.
44.
In conclusion, the source notes with serious concern that the three young female
Palestinian university students who are the subject of the present case are being illegitimately
targeted and punished by the military authorities of Israel with charges underpinned by overly
broad, sweeping and unlawful military orders. According to the source, that such orders are
being increasingly used to severely punish and intimidate Palestinian university students who
undertake peaceful and lawful student activities in the context of democratic student groups.
The source adds that, as the targeting of Palestinian university students increases in scope
A/HRC/WGAD/2021/8
7
and intensity, the military authorities of Israel are acting in a manner that appears
purposefully designed to intimidate other Palestinian university students and to dissuade
them from exercising their fundamental civil and political rights for fear of being subjected
to similar punitive sanctions.
45.
On 29 March 2021, the Working Group was informed that, on 21 March 2021, Ofer
Military Court had sentenced Ms. Kayed to 16 months of imprisonment and a fine of 6,000
NIS (approximately $1,820), while Ms. Abu Hijla was sentenced on 23 December 2020 to
11 months’ imprisonment. The trial of Ms. Asi, however, has again been rescheduled, with
the latest date announced being 4 April 2021.
Response from the Government
46.
On 16 December 2020, 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 15 February 2021, detailed information about the
current situations of Ms. Kayed, Ms. Abu Hijla and Ms. Asi and to clarify the legal provisions
justifying their continued detention, as well as its compatibility with the obligations of Israel
under international human rights law, in particular with regard to the treaties ratified by the
State. Moreover, the Working Group called upon the Government of Israel to ensure the
physical and mental integrity of the three female Palestinian students.
47.
The Working Group regrets that it did not receive a response from the Government,
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.
48.
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.2 Indeed, the Government has not provided a substantive response to the
Working Group’s communications since 2007.3 The Working Group urges the Government
to engage constructively with it on all allegations relating to the arbitrary deprivation of
liberty.
Discussion
49.
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.
50.
In determining whether the deprivation of liberty of Ms. Kayed, Ms. Abu Hijla and
Ms. Asi is arbitrary, the Working Group has regard to the principles established in its
jurisprudence to deal with evidentiary issues. If the source has presented a prima facie case
for breach of the international law constituting arbitrary detention, the burden of proof should
be understood to rest upon the Government if it wishes to refute the allegations.4 In the
present case, the Government has chosen not to challenge the prima facie credible allegations
made by the source.
51.
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
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
2 See opinions 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 the cases
addressed in its opinions No. 26/2007, No. 3/2004, No. 24/2003 and No. 16/1994.
3 In relation to the case addressed in opinion No. 86/2017, the Government requested and received an
extension of the time for responding to the Working Group’s communication but did not submit a
substantive response.
4 A/HRC/19/57, para. 68.
A/HRC/WGAD/2021/8
8
evidence in the present case, it can reach a conclusion on the arbitrary nature of the
deprivation of liberty of Ms. Kayed, Ms. Abu Hijla and Ms. Asi without having recourse to
international humanitarian law.5
52.
The source has alleged that the detention of Ms. Kayed, Ms. Abu Hijla and Ms. Asi is
arbitrary and falls under categories II and V of the Working Group. The Government has
chosen not to address these allegations. The Working Group shall examine the allegations in
turn.
i.
Category I
53.
While the source has not argued that the detention of Ms. Kayed, Ms. Abu Hijla and
Ms. Asi is arbitrary under category I, the Working Group notes that it has submitted that all
three women were detained in circumstances that were unclear as to whether arrest warrants
had been presented. The Government had the opportunity to explain the circumstances of the
arrests and detentions, including their legal basis, but has chosen not to do so.
54.
The Working Group therefore accepts that Ms. Kayed was arrested at a checkpoint
and that Ms. Abu Hijla and Ms. Asi were arrested at their homes, in the middle of the night.
All three arrests appear to have been carried out with a clear excess of force, as none of the
women are reported to have put up any resistance but all were handcuffed and two (Ms. Abu
Hijla and Ms. Asi) were also blindfolded. These circumstances, and the lack of a response
from the Government of Israel, suggest that the arrests were carried out without a duly issued
arrest warrant, although the source clarifies that it is not sure whether arrest warrants were
presented. Ms. Asi was also searched and her identity document and telephone were
confiscated.
55.
The Working Group recalls that, according to article 9 (3) of the Covenant, anyone
arrested or detained on a criminal charge should be brought promptly before a judge
authorized by law to exercise judicial power. As the Human Rights Committee has noted, 48
hours is ordinarily sufficient to satisfy the requirement of bringing a detainee promptly before
a judge following his or her arrest; any longer delay must remain absolutely exceptional and
be justified under the circumstances.6
56.
Similarly, to establish that a detention is indeed legal, anyone detained has the right
to challenge the legality of his or her detention before a court (art. 9 (4) of the Covenant).
The Working Group wishes to recall that, according to the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their
Liberty to Bring Proceedings Before a Court, the right to challenge the lawfulness of
detention before a court is a self-standing human right, which is essential to preserve legality
in a democratic society.7 This right, which is in fact a peremptory norm of international law,
applies to all situations of deprivation of liberty,8 including not only to detention for purposes
of criminal proceedings but also to situations of detention under administrative and other
fields of law, including military detention, security detention, detention under counter-
terrorism measures, involuntary confinement in medical or psychiatric facilities, migration
detention, detention for extradition, arbitrary arrests, house arrest, solitary confinement,
detention for vagrancy or drug addiction, and detention of children for educational purposes.9
Moreover, it applies irrespective of the place of detention or the legal terminology used in
the legislation. Any form of deprivation of liberty on any ground must be subject to effective
oversight and control by the judiciary.10
57.
In the present case, the Working Group notes the uncontested allegations that Ms.
Kayed was detained on 8 June 2020 and presented with charges on 18 June 2020; Ms. Abu
Hijla was detained on 1 July 2020 and presented with charges on 8 July 2020; and Ms. Asi
5 The Working Group has adopted a similar approach, for example, in opinions No. 52/2020, para. 75,
and No. 68/2020, para. 59.
6 General comment No. 35 (2014), para. 33.
7 A/HRC/30/37, paras. 2–3.
8 Ibid., para. 11.
9 Ibid., annex, para. 47 (a).
10 Ibid., annex, para. 47 (b).
A/HRC/WGAD/2021/8
9
was detained on 9 July 2020 and presented with charges on 21 July 2020. There is nothing
to indicate that any of the three women were presented before a judicial authority, as required
by article 9 (3)–(4) of the Covenant. Moreover, the ordinary permissible period of delay for
being brought before a judge of 48 hours was clearly violated in each individual case. The
Government had the opportunity to explain the reasons for such a delay, but it has chosen not
to do so. In these circumstances, the Working Group finds that the detention of Ms. Kayed,
Ms. Abu Hijla and Ms. Asi violates article 9 (3)–(4) of the Covenant.
58.
Furthermore, in relation to the uncontested submissions of the source concerning the
failure to hold bail hearings, the Working Group recalls that it is a well-established norm of
international law that pretrial detention should be the exception and not the rule, and that it
should be ordered for as short a time as possible.11 Article 9 (3) of the Covenant provides that
it should not be the general rule that persons awaiting trial should be detained, but release
may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings.
It follows that liberty is recognized as a principle and detention as an exception in the interests
of justice.12
59.
In order to give effect to this principle, pretrial detention must be based on an
individualized determination that it is reasonable and necessary for such purposes as to
prevent flight, interference with evidence or the recurrence of crime. 13 The courts must
examine whether alternatives to detention, such as bail, would render custodial measures
unnecessary. According to the source, the bail hearings for Ms. Kayed, Ms. Abu Hijla and
Ms. Asi did not take place and the Government has not explained why. In the absence of such
an explanation, the Working Group cannot accept that the pretrial detention of these three
women was properly constituted in accordance with article 9 (3) of the Covenant.
60.
Noting all the above, the Working Group concludes that the detention of Ms. Kayed,
Ms. Abu Hijla and Ms. Asi is arbitrary under category I as it lacks a legal basis.
ii.
Category II
61.
The source has submitted, and the Government has not contested, that Ms. Kayed,
Ms. Abu Hijla and Ms. Asi were detained purely for being part of a student group at Birzeit
University and thus for exercising their rights to freedom of expression, peaceful assembly
and association.
62.
The Working Group recalls that freedom of opinion and freedom of expression, as
expressed in article 19 of the Covenant, are indispensable conditions for the full development
of the person. They are essential for any society. In fact, they constitute the foundation stone
for every free and democratic society.14 It also recalls that the freedom of expression includes
the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
and that this right includes the expression and receipt of communications of every form of
idea and opinion capable of transmission to others, including political opinions.15
63.
In the present case, the Government had the opportunity to explain the detention and
subsequent charges against the three women but has chosen not to do so. The source, on the
other hand, has presented a credible pattern of detention of the three women students, their
charges being nearly identical, being as they are based on their activities as members of a
student group at Birzeit University that was declared unlawful by the Government on 21
October 2020. It is notable that there have been no credible allegations of any violence or
incitement to violence by these three women students or indeed the student group. Moreover,
the detention of all three women preceded the declaration of the group as unlawful by the
Government.
11 Opinions No. 8/2020, para. 54; No. 57/2014, para. 26; No. 49/2014, para. 23; and No. 28/2014, para.
43. See also Human Rights Committee, general comment No. 35 (2014), para. 38, and A/HRC/19/57,
paras. 48–58.
12 A/HRC/19/57, para. 54.
13 Human Rights Committee, general comment No. 35 (2014), para. 38.
14 General comment No. 34 (2011), para. 2.
15 Ibid., para. 11.
A/HRC/WGAD/2021/8
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64.
It is therefore clear to the Working Group that Ms. Kayed, Ms. Abu Hijla and Ms. Asi
were arrested and subsequently detained for exercising their rights to freedom of expression,
peaceful assembly and association. While the rights to freedom of expression and assembly
are not absolute rights, the Human Rights Committee has stated that, when a State party to
the Covenant imposes restrictions on the exercise of freedom of expression, these may not
put in jeopardy the right itself.16 Moreover, restrictions to that right may be permitted only to
respect the rights or reputations of others or to protect national security, public order or public
health or morals. Restrictions are not allowed on grounds not specified in article 12 (3) of the
Covenant, even if such grounds would justify restrictions to other rights protected in the
Covenant. Restrictions must be applied only for those purposes for which they were
prescribed and must be directly related to the specific need on which they are predicated.17 It
should be noted that articles 21 and 22 of the Covenant permit restrictions to the right of
assembly on the same three grounds. Furthermore, article 12 (3) of the Covenant may never
be invoked as a justification for the muzzling of any advocacy of multiparty democracy,
democratic tenets and human rights.18 The same applies to the freedoms of peaceful assembly
and association.
65.
The Working Group therefore finds that the detention of Ms. Kayed, Ms. Abu Hijla
and Ms. Asi resulted from their legitimate exercise of the freedoms of expression, peaceful
assembly and association, as protected by articles 19, 21 and 22 of the Covenant, and is
therefore arbitrary, falling under category II. The Working Group refers the case to the
Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression and the Special Rapporteur on the rights to freedom of peaceful assembly and of
association for appropriate action.
iii.
Category III
66.
Given its finding that the deprivation of liberty of Ms. Kayed, Ms. Abu Hijla and Ms.
Asi is arbitrary under category II, the Working Group emphasizes that no trial should have
taken place. However, all three women remain detained, with Ms. Abu Hijla and Ms. Kayed
having received sentences already while Ms. Asi’s trial proceedings are under way.
67.
In this respect, the Working Group cannot help but notice that all three women were
reportedly interrogated extensively following their initial arrest. All three women were also
allegedly subjected to very harsh treatment prior, during and after their respective
interrogations. Thus, Ms. Kayed’s arms and legs were put in restraints and during the
interrogation she was cuffed to a chair and forced to undergo a DNA test. She was also held
in very poor conditions and denied clean clothing, food and water. She was also given food
of a standard which caused her to vomit.
68.
The Working Group also notes that face masks and separate eye masks were forcibly
placed on both Ms. Abu Hijla and Ms. Asi upon arrest; Ms. Abu Hijla was forced to wait in
a room while leaning on her knees on the floor and not allowed to sit. Following her
interrogation, she was placed in detention, where she was subjected to humiliations and
threats by other detainees and by guards who threatened to cuff her hands and legs to her bed.
She was also reportedly given the wrong dose of a medicine she needed to treat her medical
condition. Ms. Asi was held in a windowless cell lacking basic hygiene facilities. All three
women were interrogated without a lawyer being present. The Working Group notes the
absence of a response from the Government to any of these allegations and concludes that
the treatment of the three female students clearly falls short of the obligations of Israel as a
party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. The treatment also violates the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules) and the Bangkok Rules. The Working
Group refers the case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment for appropriate action.
16 Ibid., para. 21.
17 Ibid., para. 22.
18 Ibid., para. 23.
A/HRC/WGAD/2021/8
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69.
The source has further submitted that all three female students were interrogated
extensively upon arrest without their lawyers being present and that legal assistance was also
denied thereafter. The Government had the opportunity to respond to these allegations but
has chosen not to do so. The Working Group recalls that all persons deprived of their liberty
have the right to legal assistance by counsel of their choice at any time during their detention,
including immediately after their apprehension, and such access must be provided without
delay.19 In particular, the presence of legal counsel during interrogations is an essential
safeguard in ensuring that any admissions by an individual are given freely.20 The Working
Group considers that the failure to provide Ms. Kayed, Ms. Abu Hijla and Ms. Asi with access
to a lawyer from the moment of their detention violated their right to adequate time and
facilities for the preparation of their defence and to communicate with a lawyer of their choice
(art. 14 (3) (b) of the Covenant).
70.
Furthermore, the Working Group notes that all three female students were charged
under a military order and were in fact tried by a military court (see para. 38 above). The
Working Group also notes that the proceedings in relation to Ms. Asi are still under way.
71.
In relation to the jurisdiction of the military courts, the Working Group in its practice
has 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.21 Moreover,
in the present case, the Government could have explained why the three women students
appeared before a military court but failed to do so. The Working Group therefore finds a
breach of article 14 (1) of the Covenant and refers the case to the Special Rapporteur on the
independence of judges and lawyers for appropriate action.
72.
Noting all the above, the Working Group concludes that the violations of the fair trial
rights of Ms. Kayed, Ms. Abu Hijla and Ms. Asi are of such gravity as to render their
detention arbitrary under category III.
73.
The Working Group reminds the Government that, in accordance with article 10 of
the Covenant, all persons deprived of their liberty must be treated with humanity and with
respect for the inherent dignity of the human person. The denial of medical assistance
constitutes a violation of the Nelson Mandela Rules (Rules 24–25, 27 and 30 in particular)
and the Bangkok Rules.
iv.
Category V
74.
Finally, the source has also argued that the detention of the three female students falls
under category V and, to this end, submits information revealing a consistent pattern of
behaviour involving the Israeli authorities specifically targeting female students from Birzeit
University (see paras. 30–32 above in particular). The Government has chosen not to contest
these allegations.
75.
In the absence of an explanation from the Government, the Working Group concludes
that Ms. Kayed, Ms. Abu Hijla and Ms. Asi, all of whom are female students and all of whom
are also Palestinian, have been detained on discriminatory grounds, namely because of their
gender and their national, ethnic and social origin. The Working Group considers that they
were also detained on the basis of their status as university students, as the source has made
credible allegations, which the Government has chosen not to address, that female Palestinian
university students are being targeted.
76.
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, and that the deprivation of liberty of Ms. Kayed, Ms. Abu Hijla and Ms. Asi is
arbitrary under category V. The Working Group refers the matter to the Special Rapporteur
19 A/HRC/45/16, paras. 51–52; A/HRC/30/37, annex, principle 9 and guideline 8; Human Rights
Committee, general comment No. 35 (2014), para. 35.
20 A/HRC/45/16, para. 53.
21 A/HRC/27/48, paras. 66–70. See also opinions No. 48/2020, No. 66/2019, No. 32/2018, No. 28/2018,
No. 30/2017 and No. 44/2016.
A/HRC/WGAD/2021/8
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on the situation of human rights in the Palestinian territories occupied since 1967 for
appropriate action.
Final remarks
77.
The present case is one of several cases brought before the Working Group in recent
years concerning the arbitrary deprivation of liberty of Palestinians in Israel.22 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.23
78.
The Working Group wishes to place on record that it is disturbed by the manner in
which the three female students were arrested and at the excessive force used by the
authorities. Their subsequent treatment at the hands of the authorities, including the failure
to remove handcuffs when eating, the imposed use of a toilet without a door for privacy and
the failure to provide appropriate clothing, reveal a prima facie breach of the Bangkok Rules.
The Working Group refers the case to the Special Rapporteur on violence against women, its
causes and consequences, and the Working Group on discrimination against women and girls
for appropriate action.
79.
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.
Disposition
80.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Layan Kayed, Elyaa Abu Hijla and Ruba Asi, being in
contravention of articles 2, 3, 7, 9, 10, 19 and 20 of the Universal Declaration of
Human Rights and articles 2 (1), 9, 14, 19, 21, 22 and 26 of the International Covenant
on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
81.
The Working Group requests the Government of Israel to take the steps necessary to
remedy the situation of Ms. Kayed, Ms. Abu Hijla and Ms. Asi 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 Covenant.
82.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Kayed, Ms. Abu Hijla and Ms. Asi
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law. In the current context of the global 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 the immediate release of Ms. Kayed, Ms. Abu
Hijla and Ms. Asi.
83.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Kayed, Ms. Abu Hijla and Ms. Asi and to take appropriate measures against those responsible
for the violation of their rights.
22 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.
23 Opinion No. 47/2012, para. 22.
A/HRC/WGAD/2021/8
13
84.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment, the Special Rapporteur on the independence
of judges and lawyers, the Special Rapporteur on violence against women, its causes and
consequences, the Working Group on discrimination against women and girls and the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
for appropriate action.
85.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
86.
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 Ms. Kayed, Ms. Abu Hijla and Ms. Asi have been released and, if so,
on what date;
(b)
Whether compensation or other reparations have been made to Ms. Kayed, Ms.
Abu Hijla and Ms. Asi;
(c)
Whether an investigation has been conducted into the violations of Ms. Kayed,
Ms. Abu Hijla and Ms. Asi’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.
87.
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.
88.
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.
89.
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.24
[Adopted on 4 May 2021]
24 Human Rights Council resolution 42/22, paras. 3 and 7.