A/HRC/WGAD/2022/44

GE.22-15456(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on

Arbitrary Detention at its ninety-fourth session,

29 August–2 September 2022

Opinion No. 44/2022 concerning Saeed AbdulRahman Jabr Husain

Saleh, Ramzi AbdulRahman Jabr Husain Saleh, Raed Fareed Hamdan

Hasan al-Hajj Ahmad, Diyaa Zakaria Shaker al-Falooji, Naser

Mohamed Yusuf al-Naji, Omar Ismail Omar Wadi and Bassem

Mohamed Saleh Adib Khandakji (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 13 May 2022 the Working Group

transmitted to the Government of Israel a communication concerning Saeed AbdulRahman

Jabr Husain Saleh, Ramzi AbdulRahman Jabr Husain Saleh, Raed Fareed Hamdan Hasan al-

Hajj Ahmad, Diyaa Zakaria Shaker al-Falooji, Naser Mohamed Yusuf al-Naji, Omar Ismail

Omar Wadi and Bassem Mohamed Saleh Adib Khandakji. 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);

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/44

General Assembly

Distr.: General

28 September 2022

Original: English

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(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).

Submissions

Communication from the source

Saeed AbdulRahman Jabr Husain Saleh

4.

Saeed AbdulRahman Jabr Husain Saleh is a Palestinian national born in 1985. At the

time of his arrest, Mr. Saleh was an 18-year-old secondary school graduate from Jabalia.

5.

On 5 April 2004, Israeli occupation forces reportedly arrested Mr. Saleh at the Abou

Hawly military checkpoint south of the Gaza Strip, as he was returning from Rafah along

with some fellow workers. During the arrest, the Israeli authorities reportedly beat Mr. Saleh

with their batons and gun frames; they provided no arrest warrant or reason for his arrest.

6.

Upon his arrest, Mr. Saleh was allegedly forcibly disappeared for 30 days during

which his parents were unaware of his fate or whereabouts. They were later informed by the

Red Cross of his arrest.

7.

The source reports that the investigation into Mr. Saleh’s case lasted for four months,

during which he was interrogated in Al-Naqab prison and was brought before the Public

Prosecutor’s Office without his lawyer. In fact, Mr. Saleh was reportedly only allowed to

contact his lawyer after the investigation.

8.

Throughout the investigation period, Israeli intelligence officers allegedly tortured

Mr. Saleh in order to extract confessions to the charge held against him. They beat him and

subjected him to suspension and falanga torture. The source adds that as a result of torture,

Mr. Saleh suffered from a broken left hand, and he was only given painkillers to treat his

injury.

9.

Mr. Saleh was reportedly charged with resisting the Israeli occupation and was

sentenced to 25 years of imprisonment. The source notes that Mr. Saleh could not adequately

prepare for trial, could not present evidence and was not presented before a judge within 48

hours of his arrest. The coerced confession was reportedly used against him in trial.

10.

The source reports that Mr. Saleh’s judgment was not appealed. In this respect, the

source notes that Palestinian prisoners and their families usually know from their experience

that the Israeli judiciary is not fair or impartial, and they do not trust the trial and the court,

especially if the victims received a harsh long sentence in the first instance. The source adds

that after the first judgment was issued, the family of Mr. Saleh thus did not want to raise the

case before the biased court.

11.

According to the source, Mr. Saleh was not allowed to meet his parents throughout

the detention period, and he was held in solitary confinement for three years during the first

period of his detention. He is currently being held in Rimon prison, where he reportedly faces

discrimination based on the fact that he is Palestinian. In this respect, the source alleges that

Palestinian prisoners in Israeli prisons are treated as terrorists whose goal is to kill Israelis in

the occupied territories, not as individuals who are resisting an occupation and defending an

existential cause. The source adds that Palestinian prisoners, especially those originating

from Gaza, are treated violently and receive none of the rights of prisoners, since Gaza is

viewed as hostile territory.

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Ramzi AbdulRahman Jabr Husain Saleh

12.

Ramzi AbdulRahman Jabr Husain Saleh is a Palestinian national, born in 1983. He is

the holder of national ID number [withheld].

13.

According to the source, Mr. Saleh was a 22-year-old school student at the time of his

arrest. He was reportedly the second member in his immediate family to be targeted and

arrested by Israeli authorities, as his brother Saeed (see paras. 4–11 above) was arrested more

than a year before him.

14.

The source reports that on 19 December 2005, Mr. Saleh was arrested by the Israeli

occupation forces while he was trying to cross the separation fence on the border of the Gaza

Strip. The Israeli forces reportedly failed to present him with an arrest warrant.

15.

Upon his arrest, Mr. Saleh was allegedly forcibly disappeared for 10 consecutive days

during which his family was unaware of his fate or whereabouts. They were later informed

by the Red Cross of his arrest.

16.

According to the source, Mr. Saleh’s investigation lasted for two months, during

which he was interrogated in Al-Naqab prison and was presented to the Public Prosecutor’s

Office without his lawyer. Mr. Saleh was only allowed to contact his lawyer after the

investigation.

17.

Throughout the investigation period in Al-Naqab prison, Israeli intelligence officers

allegedly tortured Mr. Saleh in order to extract confessions to the charges held against him.

They severely beat him on different parts of his body and subjected him to suspension and

falanga torture. The source notes that as a result of torture and ill-treatment, Mr. Saleh had

bruises across his face, and swelling and redness in his eyes. The only treatment he received

for his injuries were painkillers. The source adds that Mr. Saleh was first able to meet with

his parents in Al-Naqab prison four months after his arrest.

18.

Mr. Saleh was charged with crossing the border without a permit and with the aim of

carrying out subversive operations against Israel. On 3 April 2008, he was sentenced to 18

years of imprisonment. His judgment was not appealed for the same reason highlighted in

relation to his brother (see para. 10 above).

19.

The source submits that the Israeli authorities have violated several of Mr. Saleh’s due

process and fair trial rights. Upon his arrest, he was not brought promptly before a judge. He

was interrogated without his lawyer, and he did not have adequate time and facilities to

prepare for trial. Furthermore, during trial, he was neither allowed to present any evidence,

nor to challenge the evidence presented against him, including confessions allegedly

extracted under torture and duress. Along with his brother, Mr. Saleh is currently being held

in Rimon prison, where he reportedly faces discrimination based on the fact that he is

Palestinian (see para. 11 above).

Raed Fareed Hamdan Hasan al-Hajj Ahmad

20.

Raed Fareed Hamdan Hasan al-Hajj Ahmad is a Palestinian national, born in 1983.

He is the holder of national ID number [withheld]. At the time of his arrest, he was a 21-year-

old university student from Jabalia. He was enrolled at the Islamic University of Gaza, where

he was studying in the education department.

21.

The source reports that on 1 October 2004, Israeli occupation forces stationed at the

Beit Hanoun “Erez” checkpoint arrested Mr. Ahmad, failing to provide an arrest warrant or

a reason for the arrest. The source alleges that the Israeli forces violently beat Mr. Ahmad

with their batons and gun frames.

22.

Upon his arrest, Mr. Ahmad was allegedly forcibly disappeared for 25 days, during

which his case was investigated, and he was interrogated and taken to the public prosecution

several times without his lawyer. The source notes that during that period of time, his parents

were unaware of his fate or whereabouts, and they were later informed by the Red Cross of

his arrest. Mr. Ahmad was reportedly only allowed to contact his lawyer after the

investigation.

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23.

During investigation and interrogation, Israeli intelligence forces allegedly tortured

Mr. Ahmad in order to extract confessions to the charge against him. They severely beat him,

electrocuted him and subjected him to suspension and falanga torture. He reportedly

sustained bruises and marks all over his body as a result of torture, and he was only given

painkillers to treat his injuries.

24.

According to the source, Mr. Ahmad was charged with attempting to commit a

terrorist attack against Israel by detonating himself using an explosive belt at the Beit Hanoun

“Erez” checkpoint. On 5 March 2007, he was sentenced to 20 years of imprisonment. The

source notes that the judgment was not appealed for the same reasons as highlighted above

(see para. 10).

25.

The source submits that the Israeli authorities have violated several of Mr. Ahmad’s

due process and fair trial rights. Upon his arrest, he was not brought promptly before a judge.

He was interrogated without his lawyer, and he did not have adequate time and facilities to

prepare for trial. Furthermore, during the trial, he was not allowed to present any evidence

nor to challenge the evidence presented against him, including confessions allegedly

extracted under torture and duress.

26.

During the first four months after his arrest, Mr. Ahmad’s parents were not allowed

to visit him under the pretext of a security ban on them, and he was reportedly held in solitary

confinement for long periods of time. The source notes that Mr. Ahmad was first able to meet

with his father in Ashkelon prison four months into his detention.

27.

Mr. Ahmad is currently being held in Nafha prison. The source alleges that the

treatment of prisoners in the prison, including Mr. Ahmad, is inhumane, racist and

discriminatory, based on differences in religion, political opinion, language and race. In this

respect, the source notes that prisoners originating from Gaza in particular do not enjoy basic

rights, which is apparent through the discrimination they face, as they do not receive regular

family visits like other prisoners do. This is also the case for Mr. Ahmad, who was last able

to receive a visit from his mother in 2019. The source also asserts that individuals from the

Gaza Strip are subjected to specific laws, which do not meet basic international standards of

human rights.

Diyaa Zakaria Shaker al-Falooji

28.

Diyaa Zakaria Shaker al-Falooji is a Palestinian national, born in 1975. He is the

holder of national ID number [withheld]. At the time of his arrest, he was a 17-year-old

secondary school student.

29.

The source reports that on 10 October 1992, Mr. Al-Falooji was visiting his sister’s

house in Khan Yunis when Israeli occupation forces surrounded the house at 1 a.m. with

tanks and violently beat and arrested him. The arresting forces failed to present an arrest

warrant or a reason for Mr. Al-Falooji’s arrest. The source believes he was targeted by the

authorities for his active resistance against the Israeli occupation, since he was wanted by

authorities despite his young age.

30.

Upon his arrest, Mr. Al-Falooji was allegedly forcibly disappeared for more than five

months, and as he was a minor at the time, he was sent to Hasharon prison for women. During

that period, his family was reportedly not informed of his fate or whereabouts. They later

found out about his location through their lawyer, who was visiting the special prison for

women and was told by the female prisoners that a child was being detained there. After

visiting the prisoner and finding out that it was Mr. Al-Falooji, she contacted his family and

informed them of his arrest and detention at Hasharon prison. Mr. Al-Falooji was reportedly

held in solitary confinement for long periods of time and was not treated as a juvenile.

31.

According to the source, Mr. Al-Falooji’s investigation lasted more than four months,

during which he was interrogated and presented before the public prosecution several times

without his lawyer. He was only allowed to contact his lawyer after the investigation. During

the interrogation period in Hasharon prison, Israeli intelligence officers allegedly tortured

Mr. Al-Falooji in order to extract confessions to the charges held against him. As a result, he

reportedly sustained fractures to his rib cage and three broken ribs. He was only given

painkillers to treat his injuries.

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32.

The source reports that Mr. Al-Falooji was charged with the killing of settlers in the

Morag Settlement Road in Khan Yunis and with carrying out sabotage operations. On 9

November 1993, he was sentenced to life imprisonment.

33.

The source submits that Israeli authorities have violated several of Mr. Al-Falooji’s

due process and fair trial rights. Upon his arrest, he was not brought promptly before a judge.

He was interrogated without his lawyer, and he did not have adequate time and facilities to

prepare for trial. During trial, he was not allowed to present any evidence nor to challenge

the evidence presented against him, including confessions allegedly extracted under torture

and duress. Moreover, his family was only first able to visit him eight months after his arrest.

34.

Mr. Al-Falooji is currently being held in Nafha prison, where he reportedly faces

discrimination based on the fact that he is Palestinian as in the above cases.

Naser Mohamed Yusuf al-Naji

35.

Naser Mohamed Yusuf al-Naji is a Palestinian national, born in 1971. He is the holder

of ID number [withheld]. At the time of his arrest, Mr. Al-Naji was a 31-year-old civil servant

with the Palestinian National Authority, residing at Al-Amaari camp in Ramallah.

36.

The source reports that in March 2002, Israeli occupation forces violently arrested Mr.

Al-Naji and a close relative at the Qalandiya checkpoint in the West Bank, beating them

severely. Both men had reportedly been wanted by the occupation forces for months prior,

but no summons had been sent to them. After the arrest, Mr. Al-Naji was taken to an unknown

location. Subsequently, he was allegedly forcibly disappeared for 20 days, and his family

only learned of his whereabouts through the Prisoner’s Commission and the Red Cross.

37.

During the interrogation, which lasted three months, Mr. Al-Naji was allegedly

tortured by the Israeli occupation forces in order to force him to confess. The source notes

that he has not disclosed details of the torture. Mr. Al-Naji was not allowed to meet his family

or his lawyer throughout this period. In fact, he reportedly met his mother for the first time

five years after his arrest. When Mr. Al-Naji’s lawyer saw him three months after his arrest,

the lawyer reported that Mr. Al-Naji had bruises on his face and red eyes. As a result of

torture, Mr. Al-Naji reportedly had bruises and suffered from broken bones and ribs.

According to the source, he remained frail for a long time after that. He only received

painkillers as treatment. The source reports that Mr. Al-Naji ended up confessing, and the

coerced confession was used against him in the trial.

38.

On 5 April 2003, Mr. Al-Naji was reportedly sentenced to seven life sentences and 50

years in prison on charges related to terrorism, for resisting the Israeli occupation. The source

notes that his sentence was not appealed due to its severity and length. During the first period

after his arrest, Mr. Al-Naji was reportedly not allowed to contact his lawyer, and he was not

allowed to present evidence during the trial, nor was he presented before a judge within 48

hours of his arrest.

39.

According to the source, Mr. Al-Naji is currently being held in Asqalan prison.

Omar Ismail Omar Wadi

40.

Omar Ismail Omar Wadi is a Palestinian national, born in 1992. He is the holder of

national ID number [withheld]. At the time of his arrest, he was a 21-year-old plumber from

Jabalia.

41.

The source reports that on 26 November 2013, Mr. Wadi was arrested without a

warrant by Israeli occupation forces in Kafr Aza. The authorities did not state the reason for

his arrest, and Mr. Wadi had not received any summons. He had allegedly been forcibly

disappeared for 22 days before the Red Cross informed the family that he had been arrested

and was being held in Eshel prison.

42.

According to the source, Mr. Wadi was interrogated during the 22-day period of his

disappearance. Israeli intelligence forces allegedly beat him, placed him in solitary

confinement, and subjected him to suspension and falanga torture, forcing him to produce a

confession which was used against him in trial. He was reportedly not even allowed to contact

his lawyer until the end of interrogations.

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43.

The source reports that on 12 June 2015, the military court sentenced Mr. Wadi to 28

years in prison on charges of resisting the Israeli occupation by detonating himself in the Kafr

Aza settlement. On 2 May 2018, the Appeals Court reduced the sentence to 18 years. The

source notes that Mr. Wadi’s family did not raise the case to the Court of Cassation out of

fear that his sentence would be increased. Mr. Wadi was reportedly unable to present

evidence during the trial, and he was not brought before a judge within 48 hours of his arrest.

The source adds that he was tried in military court due to his political opinion.

44.

The source also reports that due to the mistreatment to which Mr. Wadi was subjected,

he suffered from kidney laceration, heart pain and hepatitis. While he received treatment for

the kidney lacerations, he was only provided painkillers for the other conditions.

Additionally, Mr. Wadi was only able to meet with his mother for the first time two years

after his arrest. He is currently being held in Eshel prison.

Bassem Mohamed Saleh Adib Khandakji

45.

Bassem Mohamed Saleh Adib Khandakji is a Palestinian national, born in 1983. He

is the holder of national ID number [withheld]. He was a 20-year-old university student and

poet from Nablus at the time of his arrest.

46.

The source reports that on the night of 2 November 2004, Israeli occupation forces

surrounded Mr. Khandakji’s home and arrested him after physically assaulting him. They did

not present an arrest warrant or state the reason for the arrest. The source notes that Mr.

Khandakji was not wanted or previously summoned by the occupation authorities.

47.

The source alleges that Mr. Khandakji was forcibly disappeared for two months after

his arrest. During this period, he was interrogated at Asaqlan prison by Israeli intelligence

forces, who allegedly subjected him to different forms of torture. As a result, he suffered

bruising all over his body as well as swollen and red eyes. He was only given painkillers as

treatment. The source adds that Mr. Khandakji confessed to the charges under torture, and

that this confession was used against him at trial. His lawyer was reportedly not present

during the interrogation, as Mr. Khandakji was only able to meet with him after the

interrogation had ended. Mr. Khandakji was allegedly also placed in solitary confinement for

over 10 years.

48.

On 7 September 2005, Mr. Khandakji was sentenced to three terms of life

imprisonment on terrorism-related charges for resisting the Israeli occupation by

participating in the Carmel market explosion, which killed three settlers. He was reportedly

tried by the military court because of his political opinion. The source notes that his sentence

was not appealed because of its severity and length. The source submits that Mr. Khandakji

was unable to prepare for the trial with his lawyer as he was denied visits and placed in

solitary confinement, and he was unable to present evidence. He was also not presented

before a judge within 48 hours of his arrest.

49.

The source notes that Mr. Khandakji was first able to meet with his family in 2006, in

Asqalan prison, and he is currently being held in Jalbou prison.

a.

Summary of allegations

50.

The source reiterates that all seven individuals referred to above are Palestinian and

were arrested by the Israeli occupation forces without any arrest warrant having been

presented to them. The source notes that five of the seven individuals reported having been

subjected to beatings and violent treatment upon arrest by the Israeli forces. Moreover, all

seven defendants were young at the time of their arrests, with one of them having been a

minor (Mr. Al-Falooji). All seven individuals were allegedly forcibly disappeared; following

their arrests, they were not allowed to contact their families and/or their families did not know

their whereabouts or fate for periods of time ranging from 10 days to five months.

51.

During that period, all seven individuals were reportedly interrogated without a

lawyer and were allegedly subjected to torture and ill-treatment at the hands of Israeli

intelligence forces, such as severe beatings, suspension and falanga torture, as a result of

which they suffered several injuries. In fact, they were reportedly only allowed to contact

their lawyers after the interrogation period had ended. Finally, all seven individuals reported

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having been subjected to some form of discrimination based on political opinion, religion or

ethnicity.

b.

Analysis of violations

52.

The source submits that all seven individuals were subjected to enforced

disappearance by the Israeli forces following their arrest because they were deprived of their

liberty against their will by government officials who failed to disclose their whereabouts or

fate.2

53.

The source also submits that in order to extract confessions, all seven individuals were

allegedly subjected to torture and ill-treatment, including falanga torture, a recurrent method

of torture reported by four of the individuals. The source notes that none of these torture

claims were investigated by the authorities, and that the victims obtained neither redress nor

fair and adequate compensation. Consequently, Israeli authorities have reportedly violated

their obligations under articles 12, 13, 14 and 15 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment and under articles 7 and 10 of the

International Covenant on Civil and Political Rights.

54.

The source asserts that since all arrests reportedly occurred without presenting a

warrant or indicating the reason for the arrest, and since none of the individuals were

promptly presented before a judge, all seven cases constitute a category I deprivation of

liberty, where authorities failed to invoke a legal basis for the arrest.

55.

Additionally, considering the severe violations of fair trial rights, whereby all

individuals were reportedly denied access to their legal representative, prevented from

preparing for trial or presenting evidence, and allegedly tortured to produce confessions

which were used against them in trial, their detention is considered a category III deprivation

of liberty.

56.

Finally, these individuals have been convicted based on their resistance of the Israeli

occupation. Two of the cases (Mr. R. Saleh and Mr. S. Saleh) reported experiencing

discrimination on the basis of their political identity. Two others (Mr. Wadi and Mr.

Khandakji) reported being tried by the military court due to their political opinion. For the

above-mentioned reasons, the detention in all seven cases may amount to a category V

deprivation of liberty.

57.

In this context, the source submits that the Palestinian people, being under colonial

domination, have an inalienable right to self-determination, independence, national

sovereignty and territorial integrity, enshrined in the Charter of the United Nations and in the

Declaration on the Granting of Independence to Colonial Countries and Peoples. 3

Furthermore, the source notes that under international law, the right of occupied people to

resist and fight for their independence and liberation from colonial domination, including

armed struggle, is enshrined in the Additional Protocol I to the Geneva Conventions of 1949

and General Assembly resolution 37/43.

Response from the Government

58.

On 13 May 2022, 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 12 July 2022, detailed information about the current situation

of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr.

Khandakji, and to clarify the legal provisions justifying their continued detention, as well as

their compatibility with the obligations of Israel under international human rights law, and in

particular with regard to the treaties ratified by the State. Moreover, the Working Group

called upon the Government of Israel to ensure their physical and mental integrity.

2 The source refers to A/HRC/16/48/Add.3, para. 21.

3 The source refers to General Assembly resolution 1514 (XV).

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59.

The Working Group regrets that it did not receive a response from the Government to

this communication, nor did the Government request an extension of the time limit for its

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

60.

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.4 Indeed, the Government has not provided a substantive response to the

Working Group’s communications since 2007, nearly 15 years.5 The Working Group urges

the Government to engage constructively with it on all allegations relating to the arbitrary

deprivation of liberty.

Discussion

61.

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.

62.

In determining whether the detention of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr.

Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji was arbitrary, the Working Group has

regard to the principles established in its jurisprudence to deal with evidentiary issues. If the

source has established a prima facie case for breach of international law constituting arbitrary

detention, the burden of proof should be understood to rest upon the Government if it wishes

to refute the allegations.6 In the present case, the Government has chosen not to challenge the

prima facie credible allegations made by the source.

Category I

63.

The Working Group notes the uncontested allegations that all seven individuals were

arrested, at different dates, without presentation of an arrest warrant or reasons for the arrest

explained, by Israeli authorities. While the source has argued specifically that some of the

individuals were not presented before a judicial authority within 48 hours of their arrest,7 it

is clear to the Working Group that this requirement was not met in relation to any of them as

all were forcibly disappeared for different time periods following their respective arrests,

ranging from 10 days (Mr. R. Saleh) to five months (Mr. Al-Falooji).

64.

The Working Group recalls that a detention is considered arbitrary under category I if

it lacks legal basis. As it has previously stated, for a deprivation of liberty to have a legal

basis, it is not sufficient that there is a law that may authorize the arrest. The authorities must

invoke that legal basis and apply it to the circumstances of the case through an arrest warrant.8

65.

Indeed, the international law on deprivation of liberty includes the right to be

presented with an arrest warrant, which is procedurally inherent in the right to liberty and

security of person and the prohibition of arbitrary deprivation, under articles 3 and 9,

respectively, of the Universal Declaration of Human Rights, article 9 of the Covenant and

principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment.9 Any form of detention or imprisonment should be

ordered by, or be subjected to the effective control of, a judicial or other authority under the

law, whose status and tenure should afford the strongest possible guarantees of competence,

4 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, No. 61/2021 and No. 4/2022. 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.

5 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.

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

7 Human Rights Committee, general comment No. 35 (2014), para. 33.

8 See e.g. opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018, No. 79/2018,

No. 89/2020 and No. 72/2021.

9 See opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.

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

the Protection of All Persons under Any Form of Detention or Imprisonment. This was not

satisfied in the cases of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji,

Mr. Wadi and Mr. Khandakji. The Working Group therefore finds a breach of article 9 (1) of

the Covenant.

66.

Moreover, article 9 (2) of the Covenant requires that anyone who is arrested is not

only promptly informed of the reasons for arrest but also promptly informed of any charges

against them. The right to be promptly informed of charges concerns notice of criminal

charges and, as the Human Rights Committee has noted in its general comment No. 35, this

right applies in connection with ordinary criminal prosecutions and also in connection with

military prosecutions or other special regimes directed at criminal punishment.10 This was

also not satisfied in the cases of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr.

Al-Naji, Mr. Wadi and Mr. Khandakji. The Working Group therefore finds a breach of article

9 (2) of the Covenant.

67.

Furthermore, noting the uncontested allegations that all seven individuals were

subjected to enforced disappearance following their respective arrests, the Working Group

recalls that enforced disappearances are prohibited by international law and constitutes a

particularly aggravated form of arbitrary detention. 11 This clearly violated their right to

challenge the lawfulness of detention before a court under article 9 (3) 12 and (4) of the

Covenant.13 Judicial oversight of detention is a fundamental safeguard of personal liberty14

and is essential in ensuring that detention has a legal basis. Given that all seven individuals

were unable to challenge their detention before a court, their right to an effective remedy

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

has also been violated. The Working Group refers the case to the Working Group on Enforced

or Involuntary Disappearances, for appropriate action.

68.

Noting all of the above, the Working Group concludes that the arrest and subsequent

detention of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi

and Mr. Khandakji violated article 9 of the Covenant as lacking legal basis and therefore falls

under category I.

Category III

69.

The source has alleged that after their respective arrests, all seven individuals were

interrogated without their lawyers and severely ill-treated and tortured with the aim of

extracting confessions, which they provided. These confessions were subsequently used in

the court proceedings against them, and all seven individuals received very heavy prison

sentences, ranging from 18 years (Mr. R. Saleh) to seven life sentences (Mr. Al-Naji). All

these allegations were put to the Government, which chose not to address any of them.

70.

The Working Group is appalled at the treatment inflicted upon all seven individuals.

The treatment described reveals a prima facie breach of the absolute prohibition of torture,

which is a peremptory norm of international law; the Convention against Torture; principle

6 of the United Nations Body of Principles for the Protection of All Persons under Any Form

of Detention or Imprisonment; and rule 1 of the United Nations Standard Minimum Rules

for the Treatment of Prisoners (the Nelson Mandela Rules). The Working Group shall refer

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, for further consideration.

10 Human Rights Committee, general comment No. 35, para. 29.

11 See opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020. See also Human Rights

Committee, general comment No. 35, para. 17.

12 Human Rights Committee, general comment No. 35, para. 35.

13 Opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019 and No. 45/2019.

14 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 (A/HRC/30/37, para. 3); and

CAT/C/VNM/CO/1, para. 24.

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10

71.

Further, as it has stated before, confessions made in the absence of legal representation

are not admissible as evidence in criminal proceedings. 15 Equally, the admission into

evidence of a statement allegedly obtained through torture or ill-treatment renders the entire

proceeding unfair, regardless of whether other evidence was available to support the verdict.16

The burden is on the Government to prove that statements were given freely,17 but in this

case, it has not done so. All seven individuals had the right to be presumed innocent under

article 14 (2) of the Covenant, which was clearly violated, as was their right not to be

compelled to confess guilt under article 14 (3) (g) of the Covenant. The Working Group also

finds a breach of article 14 (1) as the failure of the court to halt the proceedings when

allegations of ill-treatment were made means that the court failed to act in a fair and impartial

manner. The Working Group also calls upon the Government to adhere to the Principles on

Effective Interviewing for Investigations and Information Gathering (the Méndez

Principles).18

72.

The Working Group also recalls the uncontested allegations that Mr. S. Saleh, Mr.

Ahmad, Mr. Al-Falooji, Mr. Wadi and Mr. Khandakji were held in solitary confinement for

prolonged periods of time, of varying duration, with Mr. Khandakji spending 10 years in

solitary confinement. It is clear that such treatment had severe adverse impacts upon their

ability to challenge their detention and to defend themselves. The Working Group recalls that

according to rule 45 of the Nelson Mandela Rules, the imposition of solitary confinement

must be accompanied by certain safeguards. Solitary confinement must only be used in

exceptional cases as a last resort, for as short a time as possible, subject to independent

review, and authorized by a competent authority. These conditions do not appear to have

been observed in the present case. Prolonged solitary confinement exceeding 15 consecutive

days is prohibited under rules 43 (1) (b) and 44 of the Nelson Mandela Rules. Solitary

confinement may amount to torture or other cruel, inhuman or degrading treatment or

punishment.19

73.

Moreover, noting that all seven individuals were denied legal assistance until after

their respective interrogations, the Working Group finds that their right to equality of arms

encapsulated in article 14 (1) of the Covenant was violated, as was their right to legal

assistance under article 14 (3) (d) of the Covenant. 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.20 The right to legal assistance is an essential element of the right to fair trial as it serves

to ensure the principle of equality of arms is duly observed.21

74.

Additionally, the source has submitted that Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji

and Mr. Wadi were not allowed access to their case files and evidence against them,

allegations that were put to the Government, which chose not to address them. The Working

Group recalls that, in principle, access to the case file must be provided from the outset.22

Noting this and in the absence of a rebuttal from the Government, the Working Group finds

that the rights of Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji and Mr. Wadi under article 14 (1)

and (3) (b) and (e) were further violated.

75.

Finally, the source has argued, and the Government does not contest that Mr. Wadi

and Mr. Khandakji were tried before a military court although they are both civilians. 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

15 A/HRC/45/16, para. 53. See also opinions E/CN.4/2003/68, para. 26 (e); No. 1/2014, para. 22; No.

14/2019, para. 71; No. 59/2019, para. 70; and No. 73/2019, para. 91.

16 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); No. 32/2019, para.

43; No. 59/2019, para. 70; and No. 73/2019, para. 91.

17 Human Rights Committee, general comment No. 32 (2007), para. 41.

18 A/HRC/51/29, paras. 50–55.

19 General Assembly resolution 68/156. See also A/66/268, para. 71.

20 A/HRC/45/16, paras. 51–52; and A/HRC/30/37, annex, principle 9 and guideline 8. See also the Basic

Principles on the Role of Lawyers, paras. 16–22.

21 See, for example, opinion No. 35/2019.

22 See opinions No. 78/2019, No. 29/2020, No. 67/2020 and No. 77/2020.

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11

military offences.23 The Working Group therefore finds a further breach of article 14 (1) of

the Covenant in relation to Mr. Wadi and Mr. Khandakji.

76.

Noting all of the above, the Working Group concludes that the detention of Mr. S.

Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji

is arbitrary and falls under category III.

Category V

77.

The source has argued that all seven individuals in this case have been detained due

to their Palestinian nationality (see paras. 56–57), an allegation which the Government has

chosen not to address.

78.

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

to detain Palestinians24 and indeed, the present case in itself is an example of such pattern as

while the seven individuals were detained at different dates and on different charges, the

similarities between their cases are striking as evidenced by the discussion above. The

Working Group also notes that it is striking that several of the individuals and their families

chose not to appeal their sentences out of fear that a harsher punishment would be imposed

due to their Palestinian nationality.

79.

In the absence of an explanation from the Government, the Working Group concludes

that Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr.

Khandakji, who are all Palestinian, were detained on a discriminatory basis, namely their

national, ethnic and social origin25 in violation of articles 2 and 7 of the Universal Declaration

of Human Rights and articles 2 (1) and 26 of the Covenant.

80.

The Working Group considers that they were also detained on the basis of their

gender, as there is a clear pattern of targeting young males for detention. 26 In these

circumstances, the Working Group finds that the Government has further violated articles 2

and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.

81.

Consequently, the deprivation of liberty of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad,

Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji was arbitrary under category V.

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.

Further discussion concerning Mr. Al-Falooji

82.

The Working Group is particularly disturbed that among the seven individuals in the

present opinion is Mr. Al-Falooji, who was a mere 17 years of age at the time of his arrest.

As such, he was entitled to be treated as a child, in accordance with the provisions of the

Convention on the Rights of the Child. However, as evidenced by the discussion above, he

was arrested without a warrant, disappeared for five months, held in solitary confinement,

tortured with the aim of extracting a confession and finally sentenced to life imprisonment.

Such treatment of a child is appalling.

83.

The Working Group recalls that any detention of children should be used as a measure

of last resort and for the shortest appropriate period of time and should be subject to judicial

review.27 Moreover, the Working Group has consistently required that children arrested

should be brought before the judicial authority within 24 hours of their arrest to enable them

to challenge the legality of such detention.28 While the Convention on the Rights of the Child

does not set a specific limit, the Committee on the Rights of the Child in its general comment

23 A/HRC/27/48, paras. 67–70. See also opinions No. 44/2016, No. 30/2017, No. 28/2018, No. 32/2018

and No. 66/2019.

24 See, for example, opinions No. 24/2016, No. 31/2017, No. 44/2017, No. 86/2017, No. 34/2018, No.

73/2018, No. 12/2020, No. 60/2021, No. 61/2021 and No. 4/2022. See also A/HRC/38/15, paras.

118.159, 118.162, 118.164–165 and 119.4.

25 See e.g. opinion No. 4/2022.

26 See opinions No. 12/2020, No. 60/2021 and No. 4/2022.

27 Committee on the Rights of the Child, general comment No. 24 (2019), para. 11.

28 See e.g. opinion No. 2019/29, para. 55.

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12

No. 24 requires that every child arrested and deprived of his or her liberty should be brought

before a competent authority within 24 hours to examine the legality of the deprivation of

liberty or its continuation.29 This has been repeated in a model law on juvenile justice drawn

up by the Centre for International Crime Prevention (now known as the United Nations Office

on Drugs and Crime). 30 Furthermore, the Working Group emphasizes that solitary

confinement must not be used in cases involving a child.31

84.

All of these standards have been blatantly ignored in respect of Mr. Al-Falooji. The

Working Group therefore considers that the treatment of Mr. Al-Falooji, as a mere 17-year-

old at the time of arrest, also constituted a breach of articles 37 and 40 of the Convention on

the Rights of the Child.

Concluding remarks

85.

The Working Group is disturbed at the uncontested allegations that all seven

individuals were denied family contact following their arrests. It also notes that the

Government is not contesting the allegations that all seven individuals were also subjected to

discriminatory attitudes while in prison, being subjected to harsher treatment and having

various privileges removed on the basis of their Palestinian nationality.

86.

The Working Group is obliged to remind 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 to the inherent dignity of the human person. Equally, the Nelson Mandela

Rules require all prisoners to be treated with the respect due to their inherent dignity and

value as human beings (rule 1) and specify that there shall be no discrimination on the

grounds of race, colour, sex, language, religion, political or other opinion, national or social

origin, property, birth or any other status (rule 2).

87.

The present case is one of several cases brought before the Working Group in recent

years concerning the deprivation of liberty of Palestinians by Israel. The Working Group

notes that many of the cases follow a familiar pattern and indeed, the seven individuals in the

present case, although arrested at different times and charged and tried for different offences,

all follow the same pattern. The Working Group recalls that under certain circumstances,

widespread or systematic imprisonment or other severe deprivation of liberty in violation of

the rules of international law may constitute crimes against humanity.32

88.

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

89.

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

The deprivation of liberty of Saeed AbdulRahman Jabr Husain Saleh, Ramzi

AbdulRahman Jabr Husain Saleh, Raed Fareed Hamdan Hasan al-Hajj Ahmad, Diyaa

Zakaria Shaker al-Falooji, Naser Mohamed Yusuf al-Naji, Omar Ismail Omar Wadi

and Bassem Mohamed Saleh Adib Khandakji, being in contravention of articles 8 and

9 of the Universal Declaration of Human Rights and articles 2 (3), 9 and 14 of the

29 Committee on the Rights of the Child, general comment No. 24, para. 90.

30 United Nations Office on Drugs and Crime, Justice in Matters Involving Children in Conflict with the

Law: Model Law on Juvenile Justice and Related Commentary (Vienna, 2013), p. 24.

31 The Nelson Mandela Rules, rule 45 (2); and Committee on the Rights of the Child, general comment

No. 24, para. 95 (h). See also opinion No. 2/2021.

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

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13

International Covenant on Civil and Political Rights, is arbitrary and falls within

categories I, III and V.

90.

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

remedy the situation of Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji,

Mr. Wadi and Mr. Khandakji 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.

91.

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

case, the appropriate remedy would be to release Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad,

Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji immediately and accord them an

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

law. In the current context of the global coronavirus disease (COVID-19) pandemic and the

threat that it poses in places of detention, the Working Group calls upon the Government to

take urgent action to ensure the immediate unconditional release of Mr. S. Saleh, Mr. R.

Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji.

92.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. S.

Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji

and to take appropriate measures against those responsible for the violation of their rights.

93.

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

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, the Working Group on Enforced or Involuntary Disappearance and

the Special Rapporteur on the situation of human rights in the Palestinian territories occupied

since 1967, for appropriate action.

94.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

95.

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. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji,

Mr. Wadi and Mr. Khandakji have been released and, if so, on what date(s);

(b)

Whether compensation or other reparations have been made to Mr. S. Saleh,

Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr. Khandakji;

(c)

Whether an investigation has been conducted into the violation of the rights of

Mr. S. Saleh, Mr. R. Saleh, Mr. Ahmad, Mr. Al-Falooji, Mr. Al-Naji, Mr. Wadi and Mr.

Khandakji 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.

96.

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.

97.

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.

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14

98.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.33

[Adopted on 29 August 2022]

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