A/HRC/WGAD/2022/4

GE.22-07922(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 4/2022 concerning Mohammad Ghassan Ahmad Mansour

(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 28 December 2021 the Working Group

transmitted to the Government of Israel a communication concerning Mohammad Ghassan

Ahmad Mansour. 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

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General Assembly

Distr.: General

25 May 2022

Original: English

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Submissions

Communication from the source

4.

Mohammad Ghassan Ahmad Mansour, born in November 2003, is a Palestinian

student in his final year of secondary school. He is the holder of an identification card issued

by the Palestinian authorities and he usually resides in the occupied West Bank city of Jenin.

a.

Context

5.

According to the source, international human rights law applies in the Occupied

Palestinian Territory, including the Convention on the Rights of the Child, the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the

International Covenant on Civil and Political Rights.2

6.

The source notes that these human rights treaties generally provide that in all actions

involving or impacting children, the best interests of the child shall be the primary

consideration and children should only be detained as a measure of last resort and for the

shortest appropriate period of time. All persons shall be entitled to a fair and public hearing

by a competent, independent and impartial tribunal, and torture and ill-treatment are

absolutely prohibited without exception. The source adds that international law contains non-

discrimination and equality protections and guarantees that prohibit States from

discriminating on the basis of race or nationality in the exercise and implementation of penal

jurisdiction.

7.

The source submits that despite the fact that Israel has ratified most of the core

international human rights treaties and, as a result, has bound itself to act in accordance with

those treaties, the Israeli authorities persistently disregard and fail to comply with

international law.

8.

The source notes that Israel ratified the Convention on the Rights of the Child in 1991,

obligating itself to implement the full range of rights and protections included in the

Convention. During its initial review of Israel in 2002, the Committee on the Rights of the

Child expressed serious concern regarding “allegations and complaints of inhuman or

degrading practices and of torture and ill-treatment of Palestinian children” during arrest,

interrogation and detention.3 The source adds that in July 2013, over a decade later, the

Committee on the Rights of the Child again reviewed Israeli compliance with the Convention

and found that the situation was even worse. The Committee found that Palestinian children

arrested by Israeli forces were “systematically subject to degrading treatment, and often to

acts of torture” and that Israel had “fully disregarded” previous recommendations to comply

with international law.4

b.

Arrest and detention

9.

According to the source, on 9 April 2021 at around 2 a.m., Mr. Mansour was arrested

at his home in the West Bank city of Jenin by Israeli military forces. The source reports that

Mr. Mansour experienced physical violence at the hands of the Israeli forces. As Mr.

Mansour was leaving his bedroom, a soldier allegedly intercepted him and hit him on the

head with a rifle without saying a word or asking him who he was. The source adds that the

soldier knocked Mr. Mansour to the floor and took his identification card and mobile

telephone. He was then surrounded by masked and heavily armed soldiers. While Mr.

Mansour was lying on the floor, a soldier reportedly twisted his hands behind his back in a

painful manner and tied them with two plastic cords. The two cords were also tied to each

other. According to the source, the authorities never told Mr. Mansour or his family why he

had been arrested, and they did not show an arrest warrant. The source notes that while no

reason was provided at the time of Mr. Mansour’s arrest, Israeli military prosecutors have

2 The source refers to the Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, paras. 101 and 109–113.

3 CRC/C/15/Add.195, para. 36.

4 CRC/C/ISR/CO/2-4, para. 73.

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stated that they have a “secret file” on Mr. Mansour which justifies his administrative

detention.

10.

The source reports that the military forces took Mr. Mansour downstairs and out of

the house. One of the soldiers reportedly grabbed him by the neck from the back and pressed

him down, while another was kicking him. The source notes that there were a number of

military jeeps at the entrance to the house on the street. A soldier allegedly pushed Mr.

Mansour hard from the back into a military jeep and kept him lying on the metal floor. They

also blindfolded him and did not say where they would take him. They did not give him the

chance to say goodbye to his family or even to talk to them. The soldiers stayed in the house

for a few minutes. According to the source, Mr. Mansour felt that he was being kidnapped.

11.

The source reports that the military jeep drove for about half an hour and then stopped

at the Israeli-controlled Al-Jalame military checkpoint. Mr. Mansour was taken out of the

jeep and surrounded by soldiers. He was then examined by a military doctor who asked him

general questions about his health while he was tied and blindfolded. He asked for water and

they brought him some, but they did not let him use the bathroom. The source adds that Mr.

Mansour remained at the checkpoint for about an hour surrounded by soldiers.

12.

After that, the solders reportedly put Mr. Mansour back in the military jeep and took

him to the Jewish-only Mevo Dotan settlement. The source notes that he arrived at around 5

a.m. and they let him sit on the ground in a yard until around 2 p.m. They kept him tied and

blindfolded, and he was given water and food. The source adds that one of Mr. Mansour’s

acquaintances was there too. Mr. Mansour later saw that acquaintance in the Huwwara

detention centre.

13.

At around 2 p.m., Mr. Mansour was reportedly transferred to the Israeli-run Huwwara

interrogation and detention centre near the occupied West Bank city of Nablus, where he

arrived at around 6 p.m. A soldier searched him naked and detained him in a room along with

his acquaintance. He allegedly spent 15 days in detention at the Huwwara detention centre in

degrading and inhumane conditions. He was reportedly badly treated by the soldiers and the

food was bad. There was no toilet inside the room, so the detainees had to go outside to use

the toilet. Mr. Mansour did not take any showers during the 15 days.

14.

On the second day of his arrest and during his detention in the Huwwara detention

centre, Mr. Mansour was reportedly taken for interrogation to the Salem interrogation and

detention centre. When Mr. Mansour arrived, he was taken to a room where an Arab

interrogator removed his handcuffs but kept his feet shackled. He then interrogated Mr.

Mansour for about two hours. He informed him of his rights, such as his right to remain silent.

He also allowed him to speak with a lawyer for legal advice. The source reports that the

interrogator accused Mr. Mansour of possessing a weapon, shooting and conspiring to carry

out a shooting attack. However, Mr. Mansour never confessed. The interrogator reportedly

tried in various ways to persuade him to confess, but he refused. The interrogator wrote his

statement in Arabic and Mr. Mansour signed it after reading it.

15.

Five days later, Mr. Mansour was reportedly interrogated again by the same individual

in Salem. He made the same accusations, in addition to Mr. Mansour allegedly being in

charge of an Islamic jihad military cell. Mr. Mansour denied this allegation and told the

interrogator to show him his evidence or confront him with those who had made the

allegations against him. “Do not tell me how to do my job”, the interrogator reportedly said.

According to the source, it seemed that the interrogator had secret information which he did

not want to disclose. He took Mr. Mansour’s fingerprints and a DNA sample from his saliva.

16.

While at the Huwwara detention centre, Mr. Mansour reportedly appeared on a video

link before the Salem military court and his detention was extended on at least five different

occasions. No indictment was filed against him. On or around 24 April 2021, after 15 days

in detention, Mr. Mansour was reportedly transferred to Megiddo prison, located inside Israel

north of the occupied West Bank. The detention was based on a six-month administrative

detention order that was issued and accepted by the Israeli military authorities at the Ofer

military court on 25 April 2021.

17.

In connection with this transfer, Mr. Mansour was reportedly handcuffed, his feet

were shackled and he was put into a vehicle that was similar to a closed cell. About two hours

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later, he arrived at Megiddo prison and was taken to the clinic where they tested him for

coronavirus disease (COVID-19). He was also searched naked and put in quarantine in

section 10 for three days, after which he was transferred to juvenile section No. 3, where he

is currently detained with other children of his age.

18.

According to the source, the administrative detention order was upheld on appeal by

the Israeli Military Court of Appeals in August 2021. The source adds that Mr. Mansour was

expected to be released on 25 October 2021, but a new administrative detention order was

issued against him on 7 October 2021 for an additional four-month period. His current

administrative detention order is set to expire on 7 February 2022.

19.

Neither Mr. Mansour nor his lawyer has been provided with access to any evidence

against him. Mr. Mansour’s detention is reportedly based on “secret information” that has

not been provided to him or his lawyer.

20.

In terms of domestic remedies, Mr. Mansour reportedly appealed the administrative

detention order issued against him in the Israeli military court. The original six-month

administrative detention order was upheld, and he remains in Israeli custody. Given the lack

of access to an independent and impartial tribunal, no additional domestic measures have

been taken by Mr. Mansour or his legal counsel.

21.

The source underlines the potential risk of harm and the specific context of Mr.

Mansour’s detention. The source notes that due to his status as a minor, the continued

detention of Mr. Mansour presents a serious threat to his health, including his physical and

psychological integrity.

c.

Legal analysis

22.

The source submits that Mr. Mansour’s arrest and detention violate the fundamental

guarantees enshrined in international law, falling under categories III and V.

i.

Category III

23.

The source submits that in depriving Mr. Mansour of his liberty, the Israeli authorities

have violated basic and fundamental due process rights and protections relating to the right

to a fair trial that amounts to arbitrary detention.

24.

According to the source, children deprived of their liberty have the right to be

informed of the reasons for their arrest. Articles 9 (2) and 14 (3) (a) of the Covenant and

article 40 (2) (b) (ii) of the Convention on the Rights of the Child expressly guarantee that

children deprived of their liberty be informed of the reasons for their arrest and promptly

informed of the charges against them.

25.

The source reports that on 9 April 2021, at around 2 a.m., the Israeli forces arrested

Mr. Mansour at his home in Jenin. No warrant or other decision by a public authority was

shown to Mr. Mansour or his parents and the Israeli authorities provided no reason for his

detention at the time of his arrest.

26.

The source adds that since his arrest on 9 April 2021, the Israeli authorities have not

charged Mr. Mansour with a crime and have not informed him of the nature and cause of his

detention in sufficient detail to allow him to challenge it. This amounts to a violation of his

right to be informed of the reasons for his arrest.

27.

The source notes that 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 according to law.5 That protects a child’s right to effectively

challenge the legality of any continued deprivation of liberty.

28.

The source emphasizes that when administrative detention is used in situations not in

contemplation of prosecution on a criminal charge, the practice “presents severe risks of

5 See Article 9 (3) and 9 (4) of the Covenant and article 40 (2) (b) (iii) of the Convention on the Rights

of the Child.

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arbitrary deprivation of liberty”.6 Thus, administrative detention must not last longer than

absolutely necessary.7 The detention must end as soon as an individual alleged to have posed

a real threat to State security no longer poses such a threat. The longer administrative

detention lasts, the greater the onus on the detaining authority to prove that the reasons for

the internment remain valid.8 There must also be prompt and regular review by an impartial

and independent court or tribunal.9

29.

The source submits that the Israeli military authorities have not filed formal charges

against Mr. Mansour. At the time of the submission by the source, Mr. Mansour had spent

several months in detention without charge or trial. The source adds that Mr. Mansour and

his lawyer are unable to effectively challenge the legality of his detention because the 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.

30.

According to the source, the longer the Israeli authorities detain Mr. Mansour, 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”.10 However, despite the fact that the

burden of proof that Mr. Mansour posed and continues to pose a threat in order to justify his

detention without charge lies with Israel, the Israeli military authorities have not provided

sufficient detailed evidence to establish that Mr. Mansour either previously posed or currently

poses a real and imperative threat to State security.

31.

The source also submits that the failure to provide access to the detailed “secret

information” relied on by the State to justify the deprivation of liberty prevents any effective

challenge concerning the legality of Mr. Mansour’s continued detention and results in a

violation of his right to have the matter determined without delay.

32.

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 under international human rights law of the right 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 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”.11

33.

With reference to other cases considered by the Working Group,12 the source notes

that Mr. Mansour’s administrative detention orders have been approved by Israeli military

court judges who are active duty or reserve officers in the Israeli military, who are subject to

military discipline and dependent on their superiors for promotion.

34.

The source submits that the non-observance by Israel of the international norms

relating to the right to a fair trial and the documented bias of its military court system

demonstrate that Mr. Mansour’s detention is arbitrary under category III.

ii.

Category V

35.

The source 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 12 years of age or

older, Jewish settlers who reside within the bounds of the West Bank in violation of

6 Human Rights Committee, general comment No. 35 (2014), para. 15.

7 Ibid.

8 The source refers to International Committee of the Red Cross (ICRC), “Internment in armed conflict:

basic rules and challenges”, p. 9 (November 2014); opinion No. 24/2016, para. 18; and Human Rights

Committee, general comment No. 35 (2014), para. 15.

9 General comment No. 35 (2014), para. 15.

10 The source refers to general comment No. 35 (2014), para. 15, and also to ICRC, “Internment in

armed conflict: basic rules and challenges”, p. 9, and opinion No. 24/2016, para. 18.

11 CRC/C/OPAC/USA/CO/1, para. 30 (g).

12 The source refers to opinions No. 3/2012, No. 58/2012 and No. 24/2016.

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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.

36.

The source notes that several treaty bodies have expressed concern about the

discriminatory arrests and detention of Palestinian children. In 2012, the Committee on the

Elimination of Racial Discrimination urged Israel “to end its current practice of

administrative detention, which is discriminatory and constitutes arbitrary detention”.13 The

source also notes that the concluding observations of the Human Rights Committee and the

Committee against Torture regarding recent reviews of Israel express particular concern

about the continued practice of using administrative detention of Palestinians on the basis of

secret information.14 The source further notes that the Working Group has previously echoed

the 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.15

37.

The source submits that the detention of Mr. Mansour fits a pattern and practice by

the Israeli authorities of using administrative detention of Palestinian children on the basis of

their Palestinian identity to punish them, rather than prevent an imminent threat where there

is not enough evidence to charge and prosecute the child in the Israeli military courts.

38.

As a result, the source argues that Mr. Mansour’s detention by the Israeli authorities

amounts to arbitrary detention under category V because his detention constitutes a violation

of international law for reasons of discrimination based on national, ethnic and social origin.

39.

The source concludes that the arrest and detention of Mr. Mansour pursuant to an

administrative detention order issued by the Israeli military authorities is an egregious

violation of his fundamental rights.

Response from the Government

40.

On 28 December 2021, the Working Group transmitted the allegations to the

Government under its regular communication procedure. The Working Group requested the

Government to provide detailed information by 28 February 2022 about the situation of Mr.

Mansour. The Working Group also requested the Government to clarify the legal provisions

justifying his continued detention, as well as its compatibility with the country’s obligations

under international human rights law. The Working Group also called upon the Government

to ensure the physical and mental integrity of Mr. Mansour.

41.

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 its

reply, as provided for in paragraph 16 of the Working Group’s methods of work.

42.

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.16 The Government has not provided a substantive response to the Working

Group since 2007.17 The Working Group urges the Government to engage constructively

with it on all allegations relating to the arbitrary deprivation of liberty.

13 CERD/C/ISR/CO/14-16, para. 27.

14 CCPR/C/ISR/CO/4, para. 10, and CAT/C/ISR/CO/5, para. 28.

15 The source refers to opinion No. 24/2016, paras. 23–24.

16 See opinions No. 36/1992, No. 17/1993, No. 18/1993, No. 26/1993, No. 16/1996, No. 17/1996, No.

18/1996, No. 24/1996, No. 8/1998, No. 9/1998, No. 10/1998, No. 11/1998, No. 4/1999, No. 16/2000,

No. 17/2000, No. 18/2000, No. 31/2000, No. 23/2001, No. 5/2010, No. 9/2010, No. 3/2012, No.

20/2012, No. 58/2012, No. 43/2014, No. 13/2016, No. 15/2016, No. 24/2016, No. 3/2017, No.

31/2017, No. 44/2017, No. 86/2017, No. 34/2018, No. 73/2018, No. 84/2019, No. 12/2020, No.

8/2021, No. 60/2021 and No. 61/2021. The Government submitted responses to the Working Group’s

communications in relation to opinions No. 16/1994, No. 24/2003, No. 3/2004 and No. 26/2007.

17 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.

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Discussion

43.

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.

44.

In determining whether Mr. Mansour’s detention 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 of 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.18 In the present case, the Government has chosen not to

challenge the prima facie credible allegations made by the source.

45.

The source argues that the arrest and detention of Mr. Mansour is arbitrary under

categories III and V. While the Working Group examines each case on its merits, it notes that

the allegations in the present case are similar to those examined in opinions adopted in recent

years concerning Israel.19

Category I

46.

While the source has not argued that the detention of Mr. Mansour is arbitrary under

category I, the Working Group notes the source’s allegation that Mr. Mansour, a 17-year-old

boy at the time, was arrested at his home in Jenin at around 2 a.m. on 9 April 2021. Neither

Mr. Mansour nor his parents were provided with an arrest warrant or notified of the reasons

for his arrest. The Government had the opportunity to explain the circumstances of Mr.

Mansour’s arrest and its legal basis, but has chosen not to do so.

47.

As the Working Group has previously stated, for detention to have a legal basis, it is

not sufficient that there is a law that authorizes the arrest. The authorities must invoke that

legal basis and apply it to the circumstances of the case through an arrest warrant. 20

International human rights law 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 detention under articles 3 and 9 of the Universal Declaration of Human Rights

and article 9 (1) of the Covenant.21 Any form of detention or imprisonment should be ordered

by, or be subject 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,

independence and impartiality, in accordance with principle 4 of the Body of Principles for

the Protection of All Persons under Any Form of Detention or Imprisonment.

48.

In the present case, Mr. Mansour was arrested without an arrest warrant. In addition,

the authorities failed to explain the reasons for his arrest. The Working Group concludes that

the arrest and detention of Mr. Mansour violated article 9 (1) and (2) of the Covenant. This

was also a violation of article 37 (b) of the Convention on the Rights of the Child, which

provides that no child shall be deprived of liberty unlawfully or arbitrarily and that the arrest,

detention or imprisonment of a child shall be in conformity with the law.

49.

Furthermore, the Working Group notes the uncontested allegations that since his

arrest on 9 April 2021, the Israeli military authorities have not charged Mr. Mansour with a

crime and have not informed him of the nature and cause of his detention. The Working

Group considers that there has been a further violation of the right to be promptly informed

of the charges under article 9 (2) of the Covenant and to be informed promptly and directly

of the charges under article 40 (2) (b) (ii) of the Convention on the Rights of the Child.

50.

In addition, neither Mr. Mansour nor his lawyer have been provided with access to

any evidence against him. Mr. Mansour’s detention is reportedly based on “secret

information” relied upon by the Israeli military court judges to issue and confirm the two

administrative detention orders against him to date. It appears from the accusations made

against Mr. Mansour during his interrogation that he may be suspected of possessing a

weapon, shooting and conspiring to carry out a shooting attack, as well as being in charge of

18 A/HRC/19/57, para. 68.

19 See, for example, opinions No. 73/2018, No. 12/2020 and No. 60/2021.

20 See opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018 and No. 79/2018.

21 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.

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an Islamic jihad military cell, but this has not been confirmed through an indictment. The

Government has not submitted any information to rebut these allegations.

51.

As the Human Rights Committee has stated, disclosure to the detainee of at least the

essence of the evidence on which the decision is taken to issue an administrative detention

order is necessary to ensure that the requirements of article 9 of the Covenant are met.22 The

Working Group finds that Mr. Mansour has been held in administrative detention for nearly

a year since his arrest on 9 April 2021 without the ability to effectively challenge the

lawfulness of his detention,23 contrary to article 9 (4) of the Covenant and article 37 (d) of

the Convention on the Rights of the Child. It is essential for detained children to have prompt

and effective access to an independent and child-sensitive process to determine the legal basis

of their detention and to receive appropriate and accessible remedies without delay.24 Without

such access, Mr. Mansour’s detention is arbitrary and he has been denied an effective remedy

under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the

Covenant.

52.

It is also essential that the review of the lawfulness of detention be carried out by an

independent and impartial authority.25 In the case of detained children, this is a requirement

of article 37 (d) of the Convention on the Rights of the Child. According to the source, Mr.

Mansour appeared before the Salem military court in Israel, where his detention was extended

on at least five different occasions, rather than by a court specifically equipped to deal with

juveniles within the civilian legal system. His administrative detention order was also upheld

on appeal by the Israeli Military Court of Appeals in August 2021. In previous cases

concerning Israel, the Working Group has emphasized that military courts and tribunals are

not independent or impartial because they are composed of military personnel who are

subject to military discipline and dependent on their superiors for promotion.26 The Working

Group has also set out minimum guarantees pertaining to military justice, including that

military tribunals should only be competent to try military personnel for military offences,

and not civilians.27

53.

Furthermore, Mr. Mansour has been subjected to two administrative detention orders

to date and was placed in administrative detention following his arrest on 9 April 2021

without charge or trial. Security detention (also known as administrative detention or

internment) not in contemplation of prosecution on a criminal charge presents severe risks of

arbitrary deprivation of liberty. Such detention would normally amount to arbitrary detention,

as other effective measures of addressing the threat, including the criminal justice system,

would be available. Administrative detention must therefore be exceptional. As the Human

Rights Committee pointed out in its general comment No. 35 (2014): “If, under the most

exceptional circumstances, a present, direct and imperative threat is invoked to justify the

detention of persons considered to present such a threat, the burden of proof lies on States

parties to show that the individual poses such a threat and that it cannot be addressed by

alternative measures, and that burden increases with the length of the detention. States parties

also need to show that detention does not last longer than absolutely necessary, that the

overall length of possible detention is limited and that they fully respect the guarantees

provided for by article 9 in all cases.”28

54.

In the present case, the Government has failed to provide any information or evidence

to demonstrate that Mr. Mansour posed a present, direct and imperative threat to State

22 Human Rights Committee, general comment No. 35 (2014), para. 15; and opinions No. 73/2018, para.

49, and No. 12/2020, para. 26.

23 The Working Group has made similar findings involving Israel when detention was based on

evidence not made available to the detainee. See opinions No. 44/2017, No. 86/2017, No. 34/2018,

No. 73/2018 and No. 12/2020.

24 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, principle 18 and guideline 18.

25 Ibid, guideline 4, para. 55; Committee on the Rights of the Child, general comment No. 24 (2019),

para. 96. See also ICRC, “Internment in armed conflict: basic rules and challenges”, p. 9.

26 See opinions No. 3/2012, No. 58/2012, No. 24/2016, No. 73/2018, No. 12/2020 and No. 60/2021.

27 A/HRC/27/48, para. 69.

28 Para. 15. See also A/HRC/38/15, paras. 118.77–118.83 (in which States expressed concern during the

most recent universal periodic review of Israel about the practice of administrative detention).

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security and how this threat has persisted during his ongoing detention for nearly a year. In

these circumstances, the Working Group concludes that the Government has not

demonstrated that Mr. Mansour poses a threat to security and his detention therefore lacks

legal basis.

55.

For these reasons, the Working Group concludes that the arrest and detention of Mr.

Mansour lacks legal basis and is arbitrary under category I. The detention of a child must

only be a measure of last resort applied for the shortest appropriate period of time.29

Category III

56.

The source alleges that the Government violated Mr. Mansour’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 stated in its general comment No. 32 (2008), 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.”30

57.

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.31 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. That 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.32

58.

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.33 In the present case, Mr. Mansour, a child of 17 years of

age at the time of his arrest, has been held in administrative detention in prison for nearly a

year without being charged, in conditions similar to those imposed on individuals serving a

criminal sentence. His detention must be regarded as penal in nature, and the Working Group

will consider whether his detention meets the requirements of article 14 of the Covenant and

other relevant provisions.

59.

Mr. Mansour, a student in his final year of secondary school, appeared before Salem

military court during his initial detention at the Huwwara detention centre. The Ofer military

court imposed an administrative detention order upon him on 25 April 2021 and the Israeli

Military Court of Appeals upheld his administrative detention on appeal in August 2021.

According to the source, Mr. Mansour’s administrative detention orders have been approved

by Israeli military court judges who are active duty or reserve officers in the Israeli military.

The Government has not addressed any of these allegations.

60.

As noted earlier, the Working Group does not consider that Israeli military courts meet

the standard of an independent and impartial tribunal for the purposes of considering matters

involving civilians. Moreover, the Working Group has consistently stated its view that

29 Committee on the Rights of the Child, general comment No. 24 (2019), para. 85.

30 Para. 15. See also Perterer v. Austria (CCPR/C/81/D/1015/2001), para. 9.2.

31 See opinions No. 3/2012, No. 20/2012, No. 45/2012, No. 58/2012, No. 43/2014, No. 31/2017, No.

73/2018, No. 12/2020 and No. 60/2021. See also A/HRC/37/42, para. 17, and deliberation No. 9,

paras. 68–69.

32 A/HRC/37/42, para. 21.

33 See opinions No. 31/2017, No. 73/2018, No. 12/2020 and No. 49/2020

A/HRC/WGAD/2022/4

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civilians must never be brought before military courts, and that to do so violates the Covenant

and customary international law.34 Accordingly, the Working Group finds that Mr. Mansour

was deprived of the right to have his matter determined in a fair hearing by a competent,

independent and impartial tribunal under article 14 (1) of the Covenant and article 40 (2) (b)

(iii) of the Convention on the Rights of the Child.

61.

Finally, the source submits that Mr. Mansour’s detention is based on secret

information to which neither he nor his lawyer was given access. The Working Group recalls

that every individual deprived of liberty has the right to access material related to their

detention, including information that may assist the detainee in arguing that the detention is

not lawful or that the reasons for the detention no longer apply.35 However, that right is not

absolute and the disclosure of information may be restricted if it is necessary and

proportionate in pursuing a legitimate aim, such as protecting national security, and if the

State has demonstrated that less restrictive measures would be unable to achieve the same

result, such as providing redacted summaries that clearly point to the factual basis for the

detention.36 The Government has not provided an explanation of the nature of the secret

evidence against Mr. Mansour, nor any justification as to why he could not be provided with

access to it. The failure to provide full access to the evidence has violated Mr. Mansour’s

right to a fair trial and the equality of arms under articles 14 (1), 14 (3) (b) and (e) of the

Covenant37 and article 40 (2) (b) (iii) and (iv) of the Convention on the Rights of the Child.

62.

Apart from these violations of the right to a fair trial, the Working Group considers

that Mr. Mansour’s detention under two consecutive administrative detention orders violates

the obligations of Israel under the Convention on the Rights of the Child. According to article

3 of the Convention, the best interests of the child must be the primary consideration in all

actions concerning children. Furthermore, according to article 37 (b) of the Convention,

children must only be deprived of their liberty as a last resort and for the shortest appropriate

period of time.38 These obligations were completely disregarded in Mr. Mansour’s case.

63.

The Working Group finds that these fair trial violations are of such gravity as to give

Mr. Mansour’s arrest and detention an arbitrary character under category III.

Category V

64.

In its jurisprudence, the Working Group has noted a pattern by the Israeli authorities

of using administrative detention to detain Palestinians on an indefinite basis without charge

or trial. 39 In the absence of an explanation from the Government, the Working Group

concludes that Mr. Mansour, 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. 40 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 Mr. Mansour’s detention is arbitrary under category V.

65.

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.

34 A/HRC/27/48, paras. 66–71, See also opinions No. 44/2016, No. 30/2017, No. 28/2018, No. 32/2018

and No. 66/2019

35 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, principle 12 and guidelines 11 and

13.

36 Ibid, guideline 13, paras. 80–81.

37 Opinions No. 50/2014, para. 77; No. 89/2017, para. 56; No. 18/2018, para. 53; and No. 78/2018,

paras. 78–79.

38 CCPR/C/ISR/CO/4, para. 19; CAT/C/ISR/CO/5, paras. 28–29; and CRC/C/ISR/CO/2-4, para. 74.

39 See opinions No. 24/2016, No. 31/2017, No. 44/2017, No. 86/2017, No. 34/2018, No. 73/2018, No.

12/2020 and No. 60/2021. See also A/HRC/38/15, paras. 118.159, 118.162, 118.164–165 and 119.4.

40 See opinions No. 12/2020 and No. 60/2021.

A/HRC/WGAD/2022/4

11

Concluding remarks

66.

The Working Group wishes to express its concern regarding the manner in which Mr.

Mansour was allegedly treated during his arrest and initial detention. According to the source,

Mr. Mansour was arrested in the middle of the night, hit on the head with a rifle and knocked

to the floor, and his hands were tied painfully behind his back. He was allegedly grabbed

from behind, kicked and blindfolded. He was transferred to Huwwara detention centre, where

he was searched naked and then spent 15 days in detention in degrading and inhumane

conditions, including without taking showers. In that regard, the Working Group is obliged

to remind Israel that all persons deprived of their liberty must be treated with humanity and

with respect for the inherent dignity of the human person in accordance with article 10 of the

Covenant and article 37 (c) of the Convention on the Rights of the Child. Mr. Mansour was

a minor at the time of his arrest, and his detention for nearly a year places him at risk of

severe health problems. The Working Group calls for his immediate release.

67.

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 arrest without warrant, failure to provide reasons for the

arrest, 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 avenue of judicial recourse to review the lawfulness of the detention.41 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.42

Disposition

68.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mohammad Ghassan Ahmad Mansour, being in

contravention of articles 2, 3, 7, 8, 9, 10 and 11 (1) of the Universal Declaration of

Human Rights and articles 2 (1) and (3), 9, 14 and 26 of the International Covenant

on Civil and Political Rights, is arbitrary and falls within categories I, III and V.

69.

The Working Group requests the Government of Israel to take the steps necessary to

remedy the situation of Mr. Mansour 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.

70.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Mansour immediately and accord him

an enforceable right to compensation and other reparations, in accordance with international

law.43 In the current context of the 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 Mr. Mansour.

71.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of Mr. Mansour and to

take appropriate measures against those responsible for the violation of his rights.

72.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

this case to the Special Rapporteur on the situation of human rights in the Palestinian

territories occupied since 1967, for appropriate action.

41 See opinions No. 36/1992, No. 17/1993, No. 18/1993, No. 16/1994, No. 16/1996, No. 17/1996, No.

18/1996, No. 24/1996, No. 8/1998, No. 9/1998, No. 10/1998, No. 11/1998, No. 16/2000, No.

17/2000, No. 23/2001, No. 3/2004, No. 26/2007, No. 5/2010, No. 9/2010, No. 3/2012, No 20/2012,

No. 58/2012, No. 43/2014, No. 24/2016, No. 31/2017, No. 44/2017, No. 86/2017, No. 34/2018, No.

73/2018, No. 12/2020, No. 60/2021 and No. 61/2021, .

42 Opinion No. 47/2012, para. 22.

43 See A/HRC/45/16, annex I.

A/HRC/WGAD/2022/4

12

73.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

74.

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. Mansour has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Mansour;

(c)

Whether an investigation has been conducted into the violation of Mr.

Mansour’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.

75.

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.

76.

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.

77.

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.44

[Adopted on 30 March 2022]

44 Human Rights Council resolution 42/22, paras. 3 and 7.