Opinion; Subjects: ISRAEL, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-23901 (E) 111223 111223
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session,
13–17 November 2023
Opinion No. 60/2023 concerning Jihad Maher Nafez Bani-Jaber (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 51/8.
2.
In accordance with its methods of work, 1 on 30 June 2023, the Working Group
transmitted to the Government of Israel a communication concerning Jihad Maher Nafez
Bani-Jaber. The Government has not replied to the communication. The State is a party to
the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/60
General Assembly
Distr.: General
11 December 2023
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Jihad Maher Nafez Bani-Jaber, born on 27 November 2005, is a Palestinian youth,
from Aqraba, a Palestinian town located south-east of the city of Nablus in the
Israeli-occupied West Bank.
(i)
Arrest and detention
5.
According to the information received, Mr. Bani-Jaber was arrested on 3 May 2022,
while he was under 18 years of age. He was arrested around 3 a.m., at his house in Aqraba,
by members of the Israeli military forces. They did not show a warrant or any other decision
by a public authority and did not provide reasons for the arrest at the time. Mr. Bani-Jaber
reportedly experienced verbal abuse and threats, he had a military rifle pointed at his head,
was bound and blindfolded and was forced into an Israeli military vehicle.
6.
The source reports that Mr. Bani-Jaber was taken to the Israeli-controlled Za’tara
military checkpoint, where he remained until around 10 a.m. on 3 May 2022, then was
transferred to the Huwarra detention centre, run by the Israeli military, near the city of Nablus.
He was strip-searched and spent about nine hours detained in a room alone, before he was
handcuffed and shackled and transferred by the Israel Prison Service to the Petah Tikwa
interrogation and detention centre, run by the Israel Security Agency, in central Israel.
7.
Allegedly, Mr. Bani-Jaber was held in isolation for interrogation purposes for 13 days
at the Petah Tikwa interrogation and detention centre. While at the centre, he was interrogated
several times and was not allowed to consult with a lawyer or have a lawyer present.
8.
According to the source, on 17 May 2022, Mr. Bani-Jaber was transferred to the
Megiddo prison, in Israel, north of the occupied West Bank.
9.
The source reports that Israeli military authorities extended Mr. Bani-Jaber’s
detention up to eight times before filing a charge sheet against him on 31 May 2022, before
the Salem military court of Israel. On 1 September 2022, Mr. Bani-Jaber’s defence lawyer
and the Israeli military prosecutor reached a plea agreement, in which Mr. Bani-Jaber pleaded
guilty to an offence related to not actively conveying information to Israeli authorities.
Mr. Bani-Jaber’s defence lawyer and the Israeli military prosecutor presented the plea
agreement to the Israeli military court judge in the Salem military court, who approved the
agreement. Mr. Bani-Jaber was sentenced to four months of imprisonment – time he had
already served.
10.
It is alleged that Mr. Bani-Jaber should have been released on 1 September 2022, the
same day as the court session. Instead, however, a four-month administrative detention order
was issued against him by the deputy military commander of the West Bank. An Israeli
military judge at the Ofer military court approved the order within one week of its issuance.
11.
The source claims that, since 17 May 2022, Mr. Bani-Jaber has been detained at the
Megiddo prison. From 1 September 2022 onwards, he has been detained on the basis of the
above-mentioned four-month administrative detention order and subsequent renewals of that
order.
12.
The source reports that, at the end of 2022, Mr. Bani-Jaber’s administrative detention
order was renewed for four months, and, on 30 April 2023, it was renewed for four additional
months, until 30 August 2023. He was finally released on 30 August 2023.
(ii)
Legal analysis and allegations
a.
International law concerning the rights of the child and the child justice system
13.
The source states that, regardless of guilt or innocence, children in conflict with the
law are entitled to special protections and all due process rights under international human
rights law. International child justice norms are built on two fundamental principles: the best
interests of the child must be a primary concern in making decisions that affect the child; and
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children must only be deprived of their liberty as a last resort and for the shortest appropriate
period of time.2
14.
The source submits that international human rights law affirms that child justice
systems must be child-sensitive and non-violent, and should avoid the criminalization and
punishment of children.3 Specifically, international human rights law obligates States to
create a distinct juvenile justice system that recognizes the special status of children, protects
them from violence, and is focused on rehabilitation and reintegration.
15.
International legal protections for children related to child justice are contained
primarily in the Convention on the Rights of the Child, which is the most widely ratified
international human rights treaty. The Convention outlines minimum protections and
guarantees for children and articulates international human rights norms and principles that
apply specifically to children.
16.
In that connection, article 37 (b) of the Convention provides that no child is to be
deprived of his or her liberty unlawfully or arbitrarily, and that the arrest, detention or
imprisonment of a child is to be in conformity with the law and is to be used only as a measure
of last resort and for the shortest appropriate period of time.
b.
Status of international human rights law in the Occupied Palestinian Territory
17.
The source claims that international human rights law, including the Convention on
the Rights of the Child, the International Covenant on Civil and Political Rights,4 and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,5 applies in the Occupied Palestinian Territory.
18.
This includes the provision included in the above treaties that torture and ill-treatment
are absolutely prohibited without exception. It also includes the provisions that in all actions
involving or affecting children, their best interests are to be a primary consideration, and they
should only be detained as a measure of last resort and for the shortest appropriate period of
time (Convention on the Rights of the Child); and that all persons are to be entitled to a fair
and public hearing by a competent, independent, and impartial tribunal (International
Covenant on Civil and Political Rights). Non-discrimination and equality protections and
guarantees in international law prohibit States from discriminating on the basis of race or
nationality in the exercise and implementation of penal jurisdiction.
19.
Israel ratified the Convention on the Rights of the Child in 1991, thus committing to
implement the full range of rights and protections included in the Convention. During its
initial review, in 2002, of the implementation of the Convention in Israel, 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 and interrogation and in places of detention.6
20.
In July 2013, over a decade later, the Committee again reviewed the compliance of
Israel with the Convention and found the situation was even worse. The Committee found
that Palestinian children arrested by Israeli forces were systematically subjected to degrading
treatment, and often to acts of torture, and that Israel had fully disregarded previous
recommendations on complying with international law in relation to the arrest and detention
of Palestinian children.7
2 Convention on the Rights of the Child.
3 The source cites The International NGO Council on Violence Against Children, Creating a
Non-Violent Juvenile Justice System (2013).
4 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 136; see, in particular, paras. 101, 109–113.
5 See CAT/C/ISR/CO/5.
6 CRC/C/15/Add.195, para. 36.
7 CRC/C/ISR/CO/2-4, paras. 35 (b) and 73.
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c.
Category I
21.
Israeli authorities reportedly lack any legal basis justifying the deprivation of liberty
of Mr. Bani-Jaber, which amounts to arbitrary detention under category I.
22.
According to the source, Mr. Bani-Jaber was detained on 3 May 2022 and held in
isolation for interrogation purposes for 13 days at the Petah Tikwa interrogation and detention
centre. On 17 May 2022, he was transferred to the Megiddo prison, located in Israel, north
of the occupied West Bank.
23.
On 31 May 2022, Israeli military authorities reportedly filed a charge sheet against
Mr. Bani-Jaber in the Salem military court. Pursuant to a plea agreement accepted by an
Israeli military judge, Mr. Bani-Jaber served a four-month sentence, which expired on
1 September 2022. Rather than being released after completing his sentence, an Israeli
military officer issued a four-month administrative detention order against him. A military
court judge at Ofer military court approved the order against him within a week.
24.
Since 17 May 2022, Mr. Bani-Jaber has allegedly been detained at the Megiddo prison.
Since 1 September 2022, he has been detained on the basis of an administrative detention
order that has been renewed consecutively.
25.
The source therefore claims that the Israeli authorities lack any legal basis to justify
the ongoing deprivation of liberty of Mr. Bani-Jaber.
d.
Category III
26.
The Israeli authorities’ alleged non-observance of international norms relating to the
right to a fair trial in the detention of Mr. Bani-Jaber amounts to arbitrary detention under
category III.
27.
The source claims that, in depriving Mr. Bani-Jaber of his liberty, Israeli authorities
have violated basic and fundamental due process rights and protections relating to the right
to a fair trial, which amounts to arbitrary detention.
i.
Detention without a warrant, and failure to inform the detainee of the reason for arrest
28.
Articles 9 (2) and 14 (3) (a) of the International Covenant on Civil and Political Rights
and article 40 (2) (b) (ii) of the Convention on the Rights of the Child expressly guarantee
the right of children deprived of their liberty to be informed of the reasons for their arrest and
to be promptly informed of the charges against them.
29.
According to the source, no warrant or other decision by a public authority was shown
or provided to Mr. Bani-Jaber or his parents, and Israeli authorities provided no reason for
the arrest, at the time he was detained.
30.
Israeli authorities reportedly charged Mr. Bani-Jaber on 31 May 2022. Pursuant to the
plea agreement accepted by an Israeli military court judge, he completed a four-month
sentence on 1 September 2022. While a four-month administrative detention order was issued
against him on 1 September 2022, he has not been charged with any additional offence and
Israeli authorities have not informed him of the nature and cause for his detention in sufficient
detail to challenge it, in an alleged violation of his right to be informed of the reason for his
ongoing detention.
ii.
Denial of the right to be tried without undue delay or to challenge the legality of the
continued deprivation of liberty
31.
Children alleged as or accused of having infringed the penal law 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.8 This protects a child’s right to effectively
challenge the legality of any continued deprivation of liberty.
8 Convention on the Rights of the Child, art. 40 (2) (b) (iii); and International Covenant on Civil and
Political Rights, arts. 9 (3) and (4).
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32.
Where administrative detention is used in situations not in contemplation of
prosecution on a criminal charge, the practice presents severe risks of arbitrary deprivation
of liberty. Thus, administrative detention must not last longer than absolutely necessary.9 The
detention must end as soon as an individual alleged to have posed a real threat to State
security stops posing a real threat. The longer administrative detention lasts, “the greater the
onus on a detaining authority to prove that the reasons for it remain valid”.10 There must also
be prompt and regular review by an impartial and independent court or tribunal.11
33.
Additionally, the source stresses that administrative detention may not be used to
circumvent the procedural rights of a person suspected of committing a criminal offence, and
that a person suspected of a criminal offence has a right to be tried by a regularly constituted,
independent, impartial court.12
34.
The source reiterates that, following Mr. Bani-Jaber’s completion of his four-month
sentence on 1 September 2022, Israeli military authorities have not filed formal charges
against him, and he continues to be held in custody without charge or trial. Mr. Bani-Jaber
and his attorney are unable to effectively challenge the legality of his detention, allegedly
because the military authorities have denied them access to the “secret information” relied
on by the Israeli military court judges to issue and confirm the four-month administrative
detention order against him.
35.
It is alleged that the longer the Israeli authorities detain Mr. Bani-Jaber, 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”,13 in order to justify his detention without
charge. However, Israeli military authorities allegedly have not provided sufficient detailed
evidence establishing that he either previously or currently continues to pose a real and
imperative threat to State security.
36.
For the source, the failure to provide access to detailed “secret information” relied on
by the State to justify the deprivation of liberty prevents any effective challenge concerning
the legality of Mr. Bani-Jaber’s continued detention and results in a violation of his right to
have the matter determined without delay.
iii.
Use of military courts to try civilians
37.
The source claims that, aside from the denial of fundamental due process rights, it is
doubtful whether the use of military courts to try civilians, and particularly minors, can ever
satisfy the requirements of international human rights law to a fair trial before an independent
and impartial tribunal. Articles 14 (1) of the International Covenant on Civil and Political
Rights and articles 37 (d) and 40 of the Convention on the Rights of the Child, as well as
international humanitarian law, protect the rights of a person deprived of liberty to challenge
the detention and to be tried by a competent, independent and impartial tribunal.
38.
The source claims that Israeli military tribunals are not independent or impartial
because they consist of military personnel who are subject to military discipline and
dependent on superiors for promotion.14 Furthermore, the Committee on the Rights of the
Child has stated that the conduct of criminal proceedings against children within the military
justice system should be avoided.15
9 Human Rights Committee, general comment No. 35 (2014), para. 15.
10 Jelena Pejic, “Procedural principles and safeguards for internment/administrative detention in armed
conflict and other situations of violence”, International Review of the Red Cross, vol. 87, No. 858
(June 2005). See also opinion No. 24/2016, para. 18; and Human Rights Committee, general
comment No. 35 (2014), para. 15.
11 Human Rights Committee, general comment No. 35 (2014), para. 15.
12 Opinion No. 24/2016, para. 17.
13 Human Rights Committee, general comment No. 35 (2014), para. 15. See also International
Committee of the Red Cross, “Internment in armed conflict: basic rules and challenges”, opinion
paper (2014), p. 9; and opinion No. 24/2016, para. 18.
14 See opinions No. 3/2012, No. 58/2012 and No. 24/2016.
15 CRC/C/OPAC/USA/CO/1, para. 30 (g).
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39.
Mr. Bani-Jaber’s administrative detention orders have reportedly been approved by
Israeli military court judges who are active duty or reserve officers in the Israeli military and
thus subject to military discipline and dependent on superiors for promotion.
40.
For the source, the non-observance by Israel of international norms relating to the
right to a fair trial and the documented bias of the Israeli military court system demonstrate
that Mr. Bani-Jaber’s detention amounts to arbitrary detention under category III.
e.
Category V
41.
The source submits that Israeli military forces allegedly targeted Mr. Bani-Jaber for
detention and arrest in a discriminatory system, amounting to arbitrary detention under
category V.
42.
The Human Rights Committee specifies that non-discrimination norms are to be
understood together with equality before the law and equal protection of the law.16
43.
The source claims that, while Israeli military law gives military courts the authority
to try any person located inside the occupied territory if they are aged 12 years or older,
Jewish settlers who reside within the bounds of the West Bank 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.
44.
The source stresses that the Working Group on Arbitrary Detention has noted a pattern
in cases involving Israeli authorities and their use of administrative detention against
Palestinians.17 Treaty bodies have expressed concern about the discriminatory arrest 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.18 Additionally, in concluding observations
for Israel, the Human Rights Committee and the Committee against Torture expressed
particular concern about the continued practice of using administrative detention against
Palestinians on the basis of secret information.19
45.
The source recalls that the Working Group on Arbitrary Detention has previously
made note of concerns expressed by the United Nations Children’s Fund (UNICEF)
regarding the widespread detention of Palestinian children and the practice of prosecuting
them in an Israeli military court system, and similar concerns expressed by the Committee
on the Rights of the Child.20
46.
According to the source, the detention of Mr. Bani-Jaber fits a pattern and practice
shown by Israeli authorities of using administrative detention against Palestinian children, on
the basis of their Palestinian identity, to punish them, rather than to prevent an imminent
threat, and where there is not enough evidence to charge and prosecute the child in the Israeli
military courts. Mr. Bani-Jaber agreed to the plea agreement with a sentence of time served,
yet he continues to be deprived of his liberty by Israeli authorities.
47.
Thus, it is alleged that Mr. Bani-Jaber’s detention by Israeli authorities amounts to
arbitrary detention under category V, because his deprivation of liberty constitutes a violation
of international law for reasons of discrimination based on national, ethnic and social origin.
16 Human Rights Committee, general comment No. 18 (1989), para. 1.
17 Opinion No. 86/2017, para. 43; in that opinion, the Working Group took note of the pattern that had
emerged through the number of cases with similar facts that had been brought before it in the past.
The Working Group further noted the general manner in which such administrative detention orders
had been used against Palestinians in particular, as had been highlighted by the Human Rights
Committee. In its opinion, the Working Group therefore concluded that the arrest and detention of the
person concerned, who was a Palestinian, was arbitrary and fell under category V.
18 CERD/C/ISR/CO/14-16, para. 27.
19 See CCPR/C/ISR/CO/4 and CAT/C/ISR/CO/5.
20 Opinion No. 24/2016, paras. 23 and 24.
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(b)
Response from the Government
48.
On 30 June 2023, the Working Group transmitted the allegations from the source to
the Government under its regular communication procedure, requesting a reply by 29 August
2023. The Working Group regrets that the Government did not submit a reply within the
established time frame, nor did it seek an extension in accordance with paragraph 16 of the
Working Group’s methods of work.
2.
Discussion
49.
In determining whether Mr. Bani-Jaber’s detention was arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has established a prima facie case for breach of international requirements
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations.21 In the present case, the Government has
chosen not to challenge the prima facie credible allegations made by the source.
50.
The Working Group notes that Mr. Bani-Jaber was released on 30 August 2023, after
480 days in detention. This was the day after the response was due from Israel. The Working
Group notes that, in accordance with paragraph 17 (a) of its methods of work, it reserves the
right to render an opinion, on a case-by-case basis, whether or not the deprivation of liberty
was arbitrary, notwithstanding the release of the person concerned. In the present case, the
Working Group is of the view that the allegations made by the source are serious, and there
is no indication that Mr. Bani-Jaber has been provided with any compensation or other form
of reparations. Therefore, the Working Group will proceed to deliver the opinion.
(a)
Category I
51.
The source alleges that, when Israeli military forces detained Mr. Bani-Jaber on 3 May
2022, they did not show a warrant or other decision by a public authority and did not provide
reasons for the arrest at the time. The Government has not responded to these allegations.
52.
The Working Group notes that under article 9 (1) of the Covenant, no one is to be
deprived of liberty except on such grounds and in accordance with such procedures as are
established by law. Article 9 (2) of the Covenant provides that anyone who is arrested is to
be informed, at the time of arrest, of the reasons for his or her arrest and is to be promptly
informed of any charges against him or her. Similarly, under article 40 (2) (b) (ii) of the
Convention on the Rights of the Child, States are to guarantee that children alleged as or
accused of having infringed the penal law are informed of the reasons for their arrest and
promptly informed of the charges against them. These rights are reinforced by article 9 of the
Universal Declaration of Human Rights. The Working Group has previously stated that, for
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.22 This is typically done through an arrest warrant or arrest order
(or equivalent document).23 The reasons for arrest must be provided immediately upon arrest
and must include not only the general legal basis of the arrest, but also enough factual
specifics to indicate the substance of the complaint, such as the wrongful act and the identity
of an alleged victim.24
53.
According to the source’s allegations, unrefuted by Israel, Mr. Bani-Jaber was not
provided with the reasons for his arrest on 3 May 2022, when he was detained. In fact, he
was only provided with a charge sheet four weeks later, on 31 May 2022. In this respect, the
source has provided a credible account that has not been disputed by the Government, and
the Government has not provided any reason for failing to inform Mr. Bani-Jaber of the
reasons for his arrest. On this basis, the Working Group finds that Mr. Bani-Jaber was not
21 A/HRC/19/57, para. 68.
22 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
23 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant will not be typically available.
24 Human Rights Committee, general comment No. 35 (2014), para. 25; opinion No. 30/2017, paras. 58
and 59; and opinion No. 85/2021, para. 69.
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sufficiently informed of the reasons for his arrest in a prompt manner as required under article
9 (2) of the Covenant.
54.
Furthermore, Mr. Bani-Jaber was only brought before a judge (an Israeli military
judge) on 31 May 2022, four weeks into his detention. The Working Group recalls that under
articles 37 (b) and 40 (2) (b) (ii) of the Convention on the Rights of the Child, 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.25
Noting the lack of response from the Government, the Working Group considers that the
delay constitutes a violation of the rights of Mr. Bani-Jaber.
55.
Whereas Mr. Bani-Jaber was due to be released on 1 September 2022, as he had
already served the sentence for the charge under the plea agreement, the Israeli authorities
continued to detain him pursuant to a four-month administrative detention order, issued by
the deputy military commander of the West Bank and approved by an Israeli military judge
at the Ofer military court, which was renewed twice before his release on 30 August 2023.
56.
The Working Group has already stated its agreement26 with the views expressed by
the Human Rights Committee in its general comment No. 35 (2014), namely that
administrative detention presents severe risks of arbitrary deprivation of liberty. The
Committee has noted that any such detention would normally amount to arbitrary detention,
as other effective measures addressing the threat, including the criminal justice system, would
be available. In exceptional circumstances where administrative detention is sought due to a
present, direct and imperative threat, the burden of proof lies on the State to show that the
individual poses such a threat and that it cannot be addressed by alternative measures; that
burden increases with the length of the detention.27
57.
In the present case, the Government has had an opportunity, but has failed, to inform
the Working Group as to what present, direct and imperative threat Mr. Bani-Jaber posed at
the time of his arrest and how this threat persisted during his detention. That information is
an imperative requirement to ensure compliance with article 9 of the Covenant and to ensure
the legality of such administrative detention. The Working Group therefore concludes that
no sufficient justification has been provided for Mr. Bani-Jaber’s administrative detention
from 1 September 2022 to 30 August 2023. Consequently, the detention was contrary to
article 9 (1) of the Covenant and article 9 of the Universal Declaration of Human Rights, and
arbitrary under category I.
(b)
Category III
58.
The source notes that Mr. Bani-Jaber was detained for 13 days at the Petah Tikwa
facility, where he was interrogated multiple times and denied the right to consult with a
lawyer, before being transferred to the Megiddo prison. While at the Petah Tikwa detention
centre, no charges were laid against him.
59.
The Working Group recalls that access to counsel is a right enshrined under article
14 (3) of the Covenant and principles 11 (2), 17 and 18 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, and reinforced by
article 11 of the Universal Declaration of Human Rights. Article 14 (3) (b) of the Covenant
sets out the right to have adequate time and facilities for the preparation of one’s defence and
to communicate with counsel of one’s own choosing. Where a minor is detained, States must
ensure that the child is guaranteed legal or other appropriate assistance from the outset of the
proceedings, in the preparation and presentation of the defence, and until all appeals and/or
reviews are exhausted.28
60.
Although Mr. Bani-Jaber was only charged on 31 May 2022 (according to the
uncontested facts), his right to access legal advice should have been activated from the time
25 Committee on the Rights of the Child, general comment No. 24 (2019), para. 90.
26 See opinion No. 86/2017. See also Opinion No. 44/2017.
27 Human Rights Committee, general comment No. 35 (2014), para. 15.
28 Committee on the Rights of the Child, general comment No. 24 (2019), para. 49. See also the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing
Rules), rule 15.
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of his detention. This was particularly important given that he was a minor, and that he was
interrogated. The Working Group recalls that all persons deprived of their liberty are to have
the right to legal assistance by counsel of their choice, at any time during their detention,
including immediately after their apprehension, and that such access is to be provided without
delay.29 The right to legal assistance is essential element of the right to fair trial, as it serves
to ensure that the principle of equality of arms is duly observed.30 Given that Mr. Bani-Jaber
was not afforded legal assistance for a period of his detention, the Working Group finds that
his right to legal assistance was violated.
61.
The source alleges that neither Mr. Bani-Jaber nor his lawyer has been able to
challenge the detention because the military authorities have denied them access to the
“secret information” relied on by the Israeli military court for the four-month administrative
detention order against him. This allegation stands unchallenged by the Government.
62.
Article 9 (4) of the Covenant states that anyone who is deprived of liberty by arrest or
detention is entitled to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of the detention and order the person’s release if the detention
is not lawful. The right to challenge the lawfulness of detention before a court is a
self-standing human right, which is essential to preserve legality in a democratic society.31
That right, which is, in fact, a peremptory norm of international law, applies to all forms of
deprivation of liberty, and to all situations of deprivation of liberty, including not only
detention for purposes of criminal proceedings, but also situations of detention under
administrative and other fields of law.32 It also applies irrespective of the place of detention
or the legal terminology used in the legislation. Any form of deprivation of liberty on any
ground must be subject to effective oversight and control by the judiciary.33 Article 14 (3) (b)
of the Covenant sets out the right of persons charged with a criminal offence to have adequate
time and facilities for the preparation of their defence, and article 14 (3) (e) guarantees them
the right to examine, or have examined, the witnesses against them and to obtain the
attendance and examination of witnesses on their behalf under the same conditions as
witnesses against them. Whereas some evidence may occasionally be withheld from an
accused, this should be exceptional and the reasons for this should be conveyed to the accused
and his or her defence counsel.34 These protections are reinforced by articles 10 and 11 of the
Universal Declaration of Human Rights.
63.
The source’s unrefuted submissions show that neither Mr. Bani-Jaber nor his attorney
had access to the “secret” evidence on which his administrative detention had been based
since September 2023. The Working Group considers that in these circumstances
Mr. Bani-Jaber was not afforded a meaningful opportunity to challenge the basis for his arrest.
This constitutes a violation of articles 9 (4) and 14 (3) (b) and (e) of the Covenant and articles
10 and 11 of the Universal Declaration of Human Rights. The Working Group therefore
concludes on this additional basis that the administrative detention of Mr. Bani-Jaber was in
violation of international human rights law.
64.
The source submits that Mr. Bani-Jaber was denied the right to trial without undue
delay. The Working Group recalls that the reasonableness of any delay in bringing a case to
trial must be assessed in the circumstances of each case, taking into account the complexity
of the case, the conduct of the accused during the proceeding and the manner in which the
matter was dealt with by the authorities.35 It notes that Mr. Bani-Jaber was below 18 years of
age when first detained, and at an important developmental stage, when time spent in
detention can have a particularly deleterious impact. It also notes that no reason was provided
29 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 9 and guideline 8; Human
Rights Committee, general comment No. 35, para. 35; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
30 See, for example, opinion No. 35/2019.
31 A/HRC/30/37, paras. 2 and 3.
32 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, para. 47 (a).
33 Ibid., para. 47 (b).
34 See, for example, opinion No. 4/2022, para. 61.
35 Human Rights Committee, general comments No. 35 (2014), para. 37, and No. 32 (2007), para. 35.
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for the lack of any charges being filed after 1 September 2022, when Mr. Bani-Jaber was due
for release, and that he was instead held on an improperly issued administrative order, as
described above. The Working Group considers that the period during which Mr. Bani-Jaber
was held without charge before he was released – almost one year – was excessive.
65.
The source argues that the use of the military courts to judge Mr. Bani-Jaber violated
his rights, particularly as he was a minor. The Government did not respond to this argument.
66.
Like article 14 (1) of the International Covenant on Civil and Political Rights, article
10 of the Universal Declaration of Human Rights and articles 37 (d) and 40 of the Convention
on the Rights of the Child protect the right of a person deprived of liberty to be tried by a
competent, independent and impartial tribunal. The Committee on the Rights of the Child has
stated that the conduct of criminal proceedings against children within the military justice
system should be avoided.36
67.
The Working Group has noted, on a number of occasions, its concerns regarding the
use of military courts to judge civilians.37 Its experience has been that military tribunals are
often used to deal with political opposition groups, journalists and human rights defenders,38
and it considers that, as a general rule, military tribunals should only be competent to try
military personnel for military offences. 39 Similarly, the Human Rights Committee has
concluded that trials of civilians by military or special courts should be exceptional, that is,
limited to cases in which the State party can show that resorting to such trials is necessary
and justified by objective and serious reasons and in which, with regard to the specific class
of individuals and offences at issue, the regular civilian courts are unable to undertake the
trials.40
68.
In the absence of an explanation from the Government, the Working Group considers
that the conduct of proceedings against Mr. Bani-Jaber, who is a minor, by a military tribunal
was unjustified. The Working Group notes that no exceptional circumstances have been
provided indicating why the Government considered that Mr. Bani-Jaber could be tried by a
military tribunal.
69.
Considering the above circumstances, the Working Group considers that the lack of
access to a lawyer and to the evidence, the undue delay in the filing of the charges, and the
use of military court proceedings violate the Covenant and collectively amount to serious
violations. Thus, the Working Group concludes that detention of Mr. Bani-Jaber is arbitrary
under category III.
(c)
Category V
70.
The source claims that the detention by Israel of Mr. Bani-Jaber meets the definition
of arbitrary detention under category V because it is a form of discrimination on the basis of
his national, ethnic or social origin as a Palestinian.41 According to the source, the detention
of Mr. Bani-Jaber fits a pattern and practice by Israeli authorities of using administrative
detention against Palestinian children on the basis of their Palestinian identity, to punish them,
rather than to prevent an imminent threat, and where there is not enough evidence to charge
and prosecute the child in the Israeli military courts. Again, the Government has not
responded to these allegations.
71.
The Working Group has determined that detaining individuals on the basis of their
national origin is a violation of their right to equality before the law and to the equal
protection of the law under article 7 of the Universal Declaration of Human Rights and article
26 of the Covenant.42
36 CRC/C/OPAC/USA/CO/1, para. 30 (g).
37 A/HRC/27/48, paras. 66–70 and the citations therein.
38 Ibid., para. 66.
39 Ibid., para. 69.
40 Human Rights Committee, general comment No. 32 (2007), para. 22.
41 Opinion No. 34/2018, paras. 43 and 44.
42 Opinions No. 85/2020, para. 84; and No. 13/2023, para. 75.
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11
72.
Administrative detention on the basis of Military Order No. 1651 has been particularly
directed against Palestinians.43 Throughout the occupation of the West Bank by Israel, the
vast majority of persons held in administrative detention have been Palestinians, and many
of them are reportedly below 18 years of age. In the absence of any explanation from the
Government, the Working Group takes note of the pattern that has emerged through the
number of cases that have been brought before it in the past with similar facts,44 and notes
the general manner in which the administrative detention orders in those cases were used
against Palestinians in particular, a usage also highlighted by the Human Rights Committee45
and the Committee on the Elimination of Racial Discrimination. 46 The Working Group
concludes that the arrest and detention of Mr. Bani-Jaber, who is Palestinian, was conducted
on discriminatory grounds, namely his national, ethnic and social origin. The Working Group
considers that Mr. Bani-Jaber was detained also on the basis of his gender, as there is a clear
pattern of Israel targeting boys for detention.47 This violated articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, as well as article 2 (1)
of the Convention on the Rights of the Child, and falls under category V.
3.
Disposition
73.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Jihad Maher Nafez Bani-Jaber, being in contravention
of articles 2, 7, 9, 10 and 11 of the Universal Declaration of Human Rights and articles
2 (1), 9, 14 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, III and V.
74.
The Working Group requests the Government of Israel to take the steps necessary to
remedy the situation of Mr. Bani-Jaber 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.
75.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Bani-Jaber an enforceable right to
compensation and other reparations, in accordance with international law.
76.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Bani-Jaber and to take appropriate measures against those responsible for the violation
of his rights.
77.
In accordance with paragraph 33 (a) of its methods of work, 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.
78.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
79.
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 compensation or other reparations have been made to Mr. Bani-Jaber;
(b)
Whether an investigation has been conducted into the violation of
Mr. Bani-Jaber’s rights and, if so, the outcome of the investigation;
43 Opinion No. 31/2017, para. 35.
44 See opinions No. 13/2016, No. 24/2016, No. 3/2017, No. 44/2017, No. 86/2017, No. 34/2018 and
No. 4/2022.
45 CCPR/C/ISR/CO/4, para. 10.
46 CERD/C/ISR/CO/14-16, para. 27.
47 See, for example, opinions No. 12/2020 and No. 60/2021.
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(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
80.
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.
81.
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 of any failure to take action.
82.
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.48
[Adopted on 13 November 2023]
48 Human Rights Council resolution 51/8, paras. 6 and 9.