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.24-16623 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 100th session, 26–30 August 2024
Opinion No. 44/2024 concerning Moath Amarneh, Abu Iram Ameer
and Badr Mohammad (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 31 May 2024 the Working Group
transmitted to the Government of Israel a communication concerning Moath Amarneh, Abu
Iram Ameer and Badr Mohammad. 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/2024/44
General Assembly
Distr.: General
23 September 2024
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Moath Amarneh was born on 21 August 1987. He is a Palestinian journalist,
photographer and cameraman for J-Media. He usually resides in the Dheisheh Refugee
Camp, Bethlehem, West Bank.
5.
Abu Iram Ameer was born on 22 September 1991. He is a Palestinian journalist,
reporter and cameraman for the Palestinian news website Al Ersal Network. He usually
resides in Birzeit, northern Ramallah, West Bank.
6.
Badr Mohammad was born on 13 December 1988. He is a Palestinian journalist,
reporter and columnist for the Palestinian online website Al-Hadath. He has also contributed
to columns on the situation of Palestinian prisoners on news websites including Quds News
Network and Metras. He usually resides in Beit Liqya, Ramallah, West Bank.
(i)
Context
7.
According to the source, administrative detention has peaked amid the situation in the
Occupied Palestinian Territory and Israel, with thousands of Palestinian civilians in
detention. The source argues that the use of administrative detention reached a 30-year high
in 2023 and has reportedly increased further since 7 October 2023.
8.
The source submits that the Israeli military is authorized to issue administrative
detention orders against Palestinian civilians on the basis of Military Order No. 1651, first
introduced in 1970. Article 285, which has been in effect since 2010, empowers military
commanders to detain an individual for renewable periods of up to six months if they have
reasonable grounds to presume that regional security or public security require the detention.
It is noted that on or just before their expiry dates, detention orders are frequently renewed.
This process can be continued indefinitely, as there is no limit to the maximum amount of
time an individual may be held in administrative detention.
9.
Reportedly, around 80 per cent of the total number of arrests made by the Israeli
authorities since 7 October 2023 have effectively resulted in indefinite administrative
detention, as indicated by numerous United Nations special procedure mandate holders in a
communication to the Government of Israel.2
10.
Allegedly, the situations of the three individuals in the present case are representative
of a wider pattern of the use of administrative detention by the Israeli Defense Forces to
detain journalists in the West Bank without a charge. This pattern has reportedly become
significantly more widespread since 7 October 2023 and is consistent with that identified by
five special rapporteurs on 1 February 2024.3
11.
According to the source, the cases of Messrs. Amarneh, Ameer and Mohammad
provide a comprehensive view of the systematic targeting of journalists in the West Bank.
The three individuals have the following points in common: they are all Palestinian
journalists who were arrested at their homes in the West Bank during the three weeks that
followed 7 October 2023. They are all journalists who have published material critical of the
Israeli Defense Forces, of Israel or of both. Since their arrest, none of them has been charged
and all have been denied access to a fair trial and communication with their families.
12.
The source asserts that the Government of Israel is detaining Palestinian civilians and
journalists in the West Bank as a means of silencing opposition and those with critical views
of the Government.
13.
In addition, the lawyers representing Messrs. Amarneh, Ameer and Mohammad were
appointed by the Commission of Detainees’ Affairs, which is effectively a legal aid service
administered by the Palestinian Authority. As there are only four lawyers allocated to
2 See communication ISR 9/2023, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28609.
3 See https://www.ohchr.org/en/press-releases/2024/02/gaza-un-experts-condemn-killing-and-
silencing-journalists.
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working on administrative detention cases, each lawyer has a caseload of approximately
900 cases. Their ability to comprehensively document all the details of the cases is therefore
severely impeded.
14.
The primary function of the lawyers at the Commission of Detainees’ Affairs is to
inform families about sentences. Only in exceptional cases do they challenge court decisions.
According to the source, this is because the lawyers are routinely denied access to evidence
owing to security reasons, appeals have limited success, and even if the Supreme Court of
Israel demands the release of a detainee, it is possible that the detainee will be arrested again.
Moreover, the cost of hiring a private lawyer is relatively high in comparison to the low
income levels in the West Bank, which means that the families must rely on the Commission
lawyers. In this context and given the ongoing situation in the Occupied Palestinian Territory
and Israel, obtaining information about particular cases is reportedly difficult: either the
information is not known, the lawyers have not documented it or it is not possible to contact
the lawyers.
(ii)
Arrest and detention of Mr. Amarneh
15.
The source reports that on 16 October 2023 at 3.30 a.m., 12 Israeli soldiers raided
Mr. Amarneh’s home and handcuffed him. One of the soldiers then forced Mr. Amarneh to
speak over the phone to an officer, who asked him about the nature of his work. When
Mr. Amarneh replied that he was a journalist, the officer informed him that he was under
arrest for incitement. The soldiers then seized his mobile phone and arrested him. Thereafter,
he was reportedly blindfolded, verbally abused, kicked and taken out of the house and placed
in an Israeli Defense Forces vehicle. He was sent to Megiddo Prison.
16.
On the day of Mr. Amarneh’s arrest, the Israeli Defense Forces ordered the J-Media
agency, where Mr. Amarneh worked, to shut down. In a statement, the Israeli Defense Forces
reportedly described the J-Media agency as an illegal organization and said its closure was
necessary for the security of Israel, the safety of the public and public order.
17.
The source alleges that Mr. Amarneh was arrested in retaliation for his commentary
on social media on the ongoing situation in the Occupied Palestinian Territory and Israel.
Reportedly, in the days prior to his arrest, Mr. Amarneh posted on his personal social media
account, which has 22,000 followers, about the situation in the Occupied Palestinian
Territory and Israel. He included videos about bombings in Gaza and displaced and injured
children and a picture of his J-Media colleague who had been arrested by Israeli forces on
15 October 2023.
18.
Two weeks after his arrest, on 29 October 2023, the Military Court of Israel confirmed
Mr. Amarneh’s six-month administrative detention, as previously ordered by the Military
Commander. However, no charge sheet has been issued in his case. The source notes that
these hearings are not trials and the defendants are not able to defend themselves, particularly
as there is no charge or accusation presented under administrative detention. Moreover,
because of the ongoing situation in the Occupied Palestinian Territory and Israel, some
hearings have been held by video call.
19.
The source notes that Mr. Amarneh has been allowed access to a lawyer and that his
lawyer has been allowed to visit him. However, it is not known whether Mr. Amarneh has
been interrogated and, if he has, whether his lawyer was present at the time.
20.
On 10 November 2023, Israeli prison officers hit Mr. Amarneh and broke his glasses
after he told them he had persistent headaches due to having lost an eye and a head injury he
suffered in 2019. As a result of the beatings by the Israeli prison officers, Mr. Amarneh
sustained another head injury, which has exacerbated his headaches and poor eyesight. The
Israeli authorities have refused to take him to a hospital to receive the treatment he needs for
his headaches and the diabetes from which he also suffers. Moreover, Mr. Amarneh’s cell is
reportedly overcrowded and he is forced to sleep on the floor with no blankets, despite the
cold weather.
21.
Reportedly, Mr. Amarneh appeared before the Military Court for the first time in
February 2024. That same month, his lawyer appealed the six-month administrative detention
decision, requesting his release on medical grounds. In response, the Military Court shortened
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the administrative detention period to four months and three weeks. However, that decision
did not change Mr. Amarneh’s situation, as administrative detention orders are renewed
automatically.
22.
On 10 March 2024, Mr. Amarneh’s administrative detention was extended for a
further six months. Reportedly, his lawyer appealed that decision and Mr. Amarneh is
currently waiting for the Supreme Court hearing, which is likely to take place at the beginning
of June 2024.
23.
The source reports that Mr. Amarneh’s family has not been allowed to visit him since
his arrest.
24.
On 18 April 2024, Mr. Amarneh was transferred to Ktziot prison in Negev.
Mr. Amarneh and other detainees suffer from swollen hands and legs due to being handcuffed
all the time. Mr. Amarneh suffers from swelling on his right leg particularly, as a result of
being restrained during the long bus journey while being transferred from Megiddo prison to
Ktziot prison.
25.
The source submits that at Ktziot prison, the quantity and quality of food is poor and
that during summer, Mr. Amarneh and other detainees are forced to wear winter clothes,
whereas during the previous winter, they were forced to wear summer clothes.
(iii)
Arrest and detention of Mr. Ameer
26.
The source submits that on 5 November 2023 at 5.20 a.m., officers of the Israeli
Defense Forces raided Mr. Ameer’s home in Birzeit, north of Ramallah, and arrested him.
Mr. Ameer was reportedly not notified of the charges against him or the reasons for his arrest,
nor shown an arrest warrant.
27.
The officers of the Israeli Defense Forces asked Mr. Ameer for his identity papers at
the time of the arrest and confiscated his mobile phone. They did not use force against him,
but when he requested permission to say goodbye to his family members before being taken
away, the soldiers refused. Subsequently, Mr. Ameer was blindfolded and led to a military
vehicle by approximately nine armed soldiers. At that moment, soldiers of the Israeli Defense
Forces reportedly told Mr. Ameer that his journalism career was over. He was subsequently
interrogated in the street, including about his social media account, and accused of incitement
during his journalistic work.
28.
Immediately after his arrest, Mr. Ameer was taken to an army base and handcuffed
for six hours. After that, he was transferred to an army camp in the south of the West Bank,
where he stayed for two days, after which he was transferred to Ofer prison.
29.
The source reports that Mr. Ameer was handcuffed for a long period of time, even
inside the prison, which resulted in his hands becoming severely swollen. It is submitted that
Mr. Ameer was interrogated without a lawyer present.
30.
Reportedly, once at Ofer prison, Mr. Ameer was sent to the police office, where he
was attacked and verbally assaulted. A printed document had already been prepared with
between 20 and 30 questions in Hebrew, all of which had already been answered with the
word “no”. Mr. Ameer was told that the document was his statement, that there was no need
to investigate more, and that he could sign it and go.
31.
On 12 November 2023, Mr. Ameer appeared before the Israeli Military Court for the
first time by means of a brief video conference. Reportedly, he was not allowed to talk; the
discussion was held between his lawyer and the officers of the Military Court about his
journalistic work. During the hearing, no connection appears to have been demonstrated
between Mr. Ameer and a political or any other type of organization, and no evidence of
incitement was presented. The Military Prosecutor referred to the existence of a “secret file”.
The Military Court agreed to reduce the detention order from six to three months, as there
was no evidence that Mr. Ameer had been guilty of incitement or any proof that he belonged
to any Palestinian organizations.
32.
On 19 November 2023, the Military Prosecutor appealed to reinstate the six-month
detention order and Mr. Ameer’s lawyer appealed to keep it at three months. Reportedly, a
second hearing occurred that same day, during which Mr. Ameer was allowed to speak and
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explain his journalism work. The Military Court confirmed the three-month administrative
detention order. Mr. Ameer’s lawyer appealed to the Supreme Court, which agreed to release
Mr. Ameer after a total of six months from the time of his arrest, thus setting his release date
as 3 May 2024.
33.
From the time of his arrest, Mr. Ameer was not allowed to see his family, as family
members are not allowed to visit or communicate with detainees. Furthermore, he was unable
to communicate with his lawyer, except for on 29 November 2023 and 25 February 2024.
34.
The source notes that the Israeli authorities told Mr. Ameer that he had been arrested
because of his journalism, without any elaboration on the official grounds for the arrest. As
a journalist, Mr. Ameer has covered arrests of young Palestinian protesters, the release of
Palestinian activists from prison and the harassment of Palestinians by Israeli authorities. In
2023, he covered an Israeli military incursion in Jenin, where a renowned Palestinian-
American journalist had reportedly been killed by the Israeli Defense Forces in May 2022.
Mr. Ameer posted on his personal social media account, criticizing the Israeli forces.
35.
In late 2017, when Mr. Ameer was working as a reporter for the Al-Aqsa television
channel, he was arrested for several weeks for his journalism. The Government of Israel
banned Al-Aqsa in 2018.
36.
On 17 February 2024, Mr. Ameer and other detainees were violently assaulted.
Moreover, on 29 March 2024, Israeli soldiers reportedly entered the cell occupied by
Mr. Ameer and other detainees while they were asleep. The soldiers were accompanied by a
dog and beat the detainees, including Mr. Ameer.
(iv)
Arrest and detention of Mr. Mohammad
37.
The source submits that in October 2023, Mr. Mohammad received a phone call from
an Israeli military officer ordering him to return to custody after he had been released
following a four-month detention earlier in 2023. The order came despite there being no
outstanding charges against Mr. Mohammad.
38.
Reportedly, officers of the Israeli Defense Forces and the Israeli Security Agency
(Shin Bet) went to Mr. Mohammad’s home three times to arrest him. However, he was not
at home on any of those occasions. The first attempt was on 19 October 2023 at 3 a.m. The
second attempt was on 22 October 2023 between 3 and 4 a.m., during which three of
Mr. Mohammad’s family members were arrested.
39.
The third attempt was on 27 October 2023, during which officers of the Israeli
Defense Forces searched and damaged Mr. Mohammad’s house, including his furniture, and
seized his electronic devices.
40.
During each of the visits, the officers of the Israeli Defense Forces told
Mr. Mohammad’s family that he needed to appear for interrogation but did not provide them
with any explanation. Moreover, Mr. Mohammad’s family members reportedly received
phone calls telling them not to help him hide.
41.
According to the source, the next day, 28 October 2023, officers of the Israeli Defense
Forces arrested a fourth member of Mr. Mohammad’s family, who works as a journalist for
Al-Hadath, the same Palestinian website for which Mr. Mohammad works. That same day,
at approximately 4 p.m., after his family member was arrested, Mr. Mohammad went to the
gates of Ofer prison, in the West Bank, and turned himself in. He was immediately arrested
by the Israeli Defense Forces and the Israeli Security Agency. Reportedly, he was not shown
an arrest warrant or given any reason for his arrest.
42.
When Mr. Mohammad turned himself in at Ofer prison on 28 October 2023, his family
member who had been arrested that same day was released. Reportedly, Mr. Mohammad was
interrogated without a lawyer present.
43.
On 7 November 2023, the Military Commander ordered Mr. Mohammad’s
administrative detention for six months. On 11 November 2023, he appeared before the
Military Court for the first time, by video conference. Reportedly, two of Mr. Mohammad’s
family members have since been released, while one remains in detention.
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44.
Reportedly, neither Mr. Mohammad’s family nor his lawyer were able to visit him at
Ofer prison.
45.
Reportedly, Mr. Mohammad has been subjected to severe torture. Allegedly, on
4 December 2023, he was severely beaten. As a result, his left hand has become numb, and
he is unable to sleep at night due to back pain. Moreover, he has shortness of breath due to
having been sprayed four times with an unknown gas in a very narrow, enclosed space. The
source notes Mr. Mohammad’s poor conditions of detention, which include dirty blankets
and insufficient food.
46.
On 20 March 2024, Mr. Mohammad was transferred to Ktziot prison in southern
Israel, where he is currently being held and no visits have been allowed. Allegedly, the only
communication between Mr. Mohammad and his lawyer was during a visit on 21 March
2024, which was difficult to organize, having been delayed multiple times by the Israeli
authorities. The visit took place only after Mr. Mohammad’s family issued a request based
on their concerns about his health.
47.
An appeal was filed against Mr. Mohammad’s administrative detention order, which
was rejected and his administrative detention was extended for four months.
(v)
Legal analysis
48.
The source argues that the arrest and detention of Messrs. Amarneh, Ameer and
Mohammad are arbitrary under categories I, II, III and V of the working methods of the
Working Group.
a.
Category I
49.
The source recalls 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 the arrest, of the reasons for their arrest and is to be promptly informed of any
charges against them. These rights are reinforced by article 9 of the Universal Declaration of
Human Rights.
50.
The source argues that when the Israeli Defense Forces detained Messrs. Amarneh,
Ameer and Mohammad, they did not show an arrest warrant or any other decision by a public
authority and did not provide the legal reasons for their arrests at the time of the arrest. Each
of the individuals has been detained based on administrative detention orders, but it is
reported that no charge sheet or oral communication of a charge has been provided in any of
the cases. The reasons for their administrative detention are described in the military orders
as “endangering the security of the area”.
51.
The source recalls that the Working Group has previously stated its agreement with
the view expressed by the Human Rights Committee in its general comment No. 35 (2014)
that administrative detention presents severe risks of arbitrary deprivation of liberty
(para. 15).4 Furthermore, it recalls that the Working Group has previously found similar
violations of arrest procedures by the Israeli authorities.5
52.
According to the source, no evidence has been presented by the Israeli authorities that
the three individuals pose a “present, direct and imperative threat”.6 It recalls that the Human
Rights Committee has stated that disclosure to the detainee of, at least, the essence of the
evidence on which the decision is taken to issue an administrative detention order is necessary
to ensure that the requirements of article 9 of the Covenant are met.7 It contends that this has
not occurred in the present case.
53.
The source also recalls the Human Rights Committee’s concluding observations on
the fourth periodic report of Israel, issued in 2014, in which the Committee requested the
State party to “end the practice of administrative detention and the use of secret evidence in
4 Opinions No. 44/2017 and No. 86/2017.
5 Opinion No. 12/2020, para. 23.
6 Human Rights Committee, general comment No. 35 (2014), para. 15.
7 Ibid.
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administrative detention proceedings, and ensure that individuals subject to administrative
detention orders are either promptly charged with a criminal offence, or released”.8 During
the review of Israel under the universal periodic review, held in 2023, several Member States
made recommendations relating to administrative detention, focusing on minimizing its use
and ensuring that, whenever it is used, it is done in accordance with international human
rights law.9
54.
Moreover, the source argues that Messrs. Amarneh, Ameer and Mohammad have not
appeared before a judicial authority, as they were sentenced to administrative detention by
the Military Court, pursuant to the Military Commander’s orders. Reportedly, in the cases of
Mr. Amarneh and Mr. Ameer, the lawyers appealed before the Supreme Court.
55.
For the above reasons, the source asserts that the Israeli authorities lack any legal basis
to justify the deprivation of liberty of Messrs. Amarneh, Ameer and Mohammad, which
amount to arbitrary detention under category I.
b.
Category II
56.
The source submits that the arrests and subsequent detention of Messrs. Amarneh,
Ameer and Mohammad are due to their work as journalists and thus fall under category II.
57.
The source reports that all three individuals are journalists who critically examine the
behaviour and impact of the Israeli Defense Forces. For instance, Mr. Ameer has covered the
arrest of young Palestinian protesters, the release of Palestinian activists from prison and the
harassment of Palestinians by the Israeli authorities. Moreover, in summer 2023, Mr. Ameer
covered an Israeli military incursion in Jenin and posted on social media, criticizing the
Israeli forces. Similarly, Mr. Mohammad published a series of articles on the Palestinian
online website Al-Hadath and on the news websites Quqs News Network and Metras.
58.
The source submits that Mr. Amarneh is a photographer and cameraman for the
J-Media agency, which is based in the West Bank. As Mr. Amarneh is a photojournalist, there
are no specific stories attributable to him. However, his posts on social media immediately
prior to his detention highlighted the targeting of journalists by the Israeli Defense Forces
and the wider harms suffered by the civilian population after 7 October 2023.
59.
According to the source, while in detention, Mr. Ameer was told that he had been
arrested because of his journalism. At the time of Mr. Amarneh’s arrest, one of the soldiers
conducting the arrest forced him to speak over the phone to an officer, who asked him about
the nature of his work. Reportedly, when Mr. Amarneh replied he was a journalist, the officer
informed him that he was under arrest for incitement.
60.
Mr. Amarneh was arrested on 16 October 2023, the same day that the Government of
Israel banned J-Media, where he worked, on the basis that J-Media was an illegal
organization and that its closure was for the sake of the security of Israel, the safety of the
public and public order. The source submits that at least three other journalists who worked
for J-Media were also arrested and held in administrative detention within two weeks of it
being banned.
61.
The source argues that no evidence has been presented to indicate that any of the three
individuals directly incited violence or otherwise engaged in criminal or terrorist activities.
62.
For the above reasons, the source concludes that the three individuals were arrested
and subsequently detained due to the exercise of their right to freedom of expression, in
violation of article 19 of the Covenant and article19 of the Universal Declaration of Human
Rights.
c.
Category III
63.
The source argues that the detention of Messrs. Amarneh, Ameer and Mohammad is
arbitrary under category III as they have been denied the right to due process.
8 CCPR/C/ISR/CO/4, para. 10.
9 A/HRC/54/16, para. 39.
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64.
It submits that, in the cases of Messrs. Amarneh, Ameer and Mohammad, the right to
a fair trial has been violated, as they have been held in administrative detention without any
charges, evidence, time limit or legal representation.
65.
The source recalls that the Working Group has previously held that the detention of
persons on the basis of confidential material and information to which neither the detainee
nor his or her lawyer has access constitutes a fundamental breach of the right to a fair trial
under article 14 of the Covenant.10 In such circumstances, detainees are not afforded a fair
opportunity to defend themselves, with or without the lawyer’s support. The source argues
that, as none of the individuals in the present case have been told or shown any of the evidence
against them, they have not been given the opportunity to defend themselves, in violation of
the principle of equality of arms. The source notes that the Working Group has previously
recognized that every individual deprived of liberty has the right to access material related to
his or her detention, including information that may assist the detainee in arguing that the
detention is not lawful or that the reasons for the detention no longer apply.11 The source also
notes that while such a right is not absolute, and there are some recognized justifications that
a Government may provide, such as national security,12 in the present case, the Government
of Israel has not provided a justification for not giving the three individuals access to all the
information in their cases. The source asserts that this violates the three individuals’ right to
a fair trial and to have adequate time and facilities for the preparation of a defence in full
equality,13 enshrined in articles 14 (1) and (3) (b) of the Covenant.
66.
Similarly, the source submits that the three individuals have effectively been unable
to challenge their detention and therefore, 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.
67.
Moreover, the source reports that the three individuals have been unable to
communicate with their families since their arrest and that no visits are allowed. Allegedly,
the only communication that the three individuals have had since their arrest is with their
lawyers, and even that is severely limited. Messrs. Amarneh, Ameer and Mohammad are
reportedly not able to initiate access or hold private communications with their lawyers, and
in general, their lawyers can arrange visits only when there are upcoming hearings or legal
issues.
68.
The source argues that the lawyers representing Messrs. Amarneh, Ameer and
Mohammad have difficulties in comprehensively documenting all the details of each of their
cases, as they have a caseload of approximately 900 cases due to the limited number of
lawyers appointed by the Commission of Detainees’ Affairs to work on administrative
detention cases. Moreover, it is reported that only in exceptional cases are Military Court
decisions challenged, due to a lack of resources and their low prospect of success.
69.
The source submits that Messrs. Amarneh, Ameer and Mohammad are civilians
detained based on military legislation and the orders of the Military Court. It recalls that the
Working Group has consistently held the view that, whatever the charges, civilians must
never be tried by military courts, as they cannot be considered independent and impartial
tribunals for the purpose of trying civilians.14
70.
The source also recalls that the Working Group has specifically noted that “military
tribunals are often used to deal with political opposition groups, journalists and human rights
defenders, and it considers that, as a general rule, military tribunals should only be competent
to try military personnel for military offences”.15
10 Opinion No. 12/2020, para. 26.
11 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, principle 12 and guidelines 11 and
13.
12 Ibid., guideline 13.
13 Opinions No. 19/2005, para. 28 (b); No. 50/2014, para. 77; No. 89/2017, para. 56; No. 18/2018,
para. 53; and No. 78/2018, paras. 78 and 79. See also opinion No. 70/2019.
14 Opinions No. 31/2017, para. 27; and No. 12/2020, paras. 28 and 29; and A/HRC/27/48, paras. 66–70.
15 Opinion No. 60/2023, para. 67.
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71.
Similarly, the source recalls that the Human Rights Committee has concluded that
trials of civilians by military or special courts should be exceptional, 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 conduct the trials.16 In the present case, the
source notes that the three individuals are journalists and that no evidence or justification has
been provided to suggest that their detention is necessary or justified.
d.
Category V
72.
The source submits that the arrest and detention by the Israeli authorities of
Messrs. Amarneh, Ameer and Mohammad fall under category V because they constitute
discrimination on the basis of their national, ethnic or social origin as Palestinians.
73.
The source asserts that the Government of Israel operates two separate and unequal
legal systems in the same territory. Allegedly, individuals with Israeli citizenship living in
the West Bank are not detained under administrative detention. While Israeli military law
gives military courts the authority to try any person located in the West Bank aged 12 years
or older, Jewish citizens who reside within the bounds of the West Bank are subject to the
Israeli civilian legal framework. The source submits this is based on a decision taken by the
Attorney General of Israel dating back to the 1980s, whereby Israeli citizens are to be tried
in the Israeli civilian court system under Israeli penal laws, even if they live in the Occupied
Palestinian Territory and the offence is committed there, against residents of the Occupied
Palestinian Territory.
74.
The source recalls that the Working Group has previously recognized that
administrative detention on the basis of Military Order No. 1651 has been particularly
directed against Palestinian civilians and that it has previously been applied on a
discriminatory basis against them.17 According to the source, the same pattern is present in
the case of Messrs. Amarneh, Ameer and Mohammad: they are being held without any charge
or evidence of being a security risk. By comparison, Israeli citizens are entitled to the
procedural protections of a criminal court.
75.
The source submits that the detention of Messrs. Amarneh, Ameer and Mohammad is
part of a wider use of administrative detention since 7 October 2023. The source asserts that
journalists are being arrested and detained against a wider context of violations of press
freedom and violence against journalists by Israel during the armed conflict. The source
contends that, as of 10 March 2024, 95 deaths of journalists and media workers have been
confirmed, 90 of which were Palestinians who had been killed in Gaza.
76.
According to the source, 17 cases of journalists being held by Israel as of 1 December
2023 have been documented, with 14 of them in administrative detention. The source
contends that this figure continues to rise.18 That situation is inconsistent with the call made
in 2020 by the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967 for Israel to end the practice of administrative detention.19
77.
Moreover, the source recalls that the Office of the United Nations High Commissioner
for Human Rights has found that, as of December 2023, “the Israeli Prison Services held
7,417 Palestinian civilians on ‘security charges’, including 2,873 held under administrative
detention without charge or trial”.20
16 Human Rights Committee, general comment No. 32 (2007), para. 22.
17 Opinion No. 60/2023, para. 72.
18 See https://www.ohchr.org/sites/default/files/documents/countries/palestine/2023-12-27-Flash-
Report.pdf.
19 See https://www.ohchr.org/en/press-releases/2020/10/un-expert-calls-israel-end-practice-
administrative-detention-and-immediately.
20 See https://www.ohchr.org/sites/default/files/documents/countries/palestine/2023-12-27-Flash-
Report.pdf, p. 5, footnote 1.
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78.
For all the above reasons, the source concludes that the arrest and detention of
Messrs. Amarneh, Ameer and Mohammad were based on their Palestinian origin, and thus
are arbitrary under category V.
(b)
Response from the Government
79.
On 31 May 2024, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure, requesting a reply by
30 July 2024. 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
80.
In determining whether the detention of Messrs. Amarneh, Ameer and Mohammad
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. 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.
81.
As a preliminary matter, the Working Group notes that Mr. Ameer was released from
administrative detention on 2 May 2024 and that he had lost 32 kg while in detention.
Mr. Amarneh was released from administrative detention on 9 July 2024. Mr. Mohammad
remains in detention. In accordance with its methods of work, the Working Group 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.22 In the present
case, the Working Group is of the opinion that the allegations made by the source are
extremely serious, noting that the case is ongoing and that it has received no information
regarding the conditions of the release of Messrs. Amarneh and Ameer. Therefore, the
Working Group shall proceed to deliver the opinion.
82.
The source has submitted that the arrest and detention of the three individuals are
arbitrary and fall under categories I, II, III and V. The Working Group will consider these in
turn.
(a)
Category I
83.
The source has submitted, and the Government has not refuted, that when the Israeli
Defense Forces arrested and detained each of the three individuals, they did not show an
arrest warrant or other decision by a public authority and did not provide the legal reasons
for their arrest at the time of the arrest. Each of the individuals was detained based on
administrative detention orders, but reportedly, no charge sheet or oral communication of a
charge was provided. The reason for their administrative detention, as indicated in the
military orders, is “endangering the security of the area”.
84.
Pursuant to article 9 (1) of the Covenant, no one is to be deprived of his or her 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. As the Working Group has previously stated, 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.23
21 A/HRC/19/57, para. 68.
22 A/HRC/36/38, para. 17 (a).
23 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
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11
This is typically done through an arrest warrant or arrest order (or equivalent document).24
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.25
85.
The Working Group observes the source’s allegations, which are unrefuted by the
Government, that Messrs. Amarneh, Ameer and Mohammad were not presented with an
arrest warrant at the time of arrest and that, in the cases of Messrs. Amarneh and Ameer, the
authorities told them only that they had been arrested for incitement, without any further
details. Based on the information available to it in the present case, and in the absence of an
explanation from the Government, the Working Group is of the view that the three
individuals were not presented with arrest warrants or provided with the reasons for arrest, at
the time of their arrest, in violation of article 9 (1) and (2) of the Covenant and article 9 of
the Universal Declaration of Human Rights. In the cases of Messrs. Amarneh and Ameer, the
authorities limited themselves to telling the individuals that they were being arrested for
incitement after they stated that they worked as journalists.
86.
Furthermore, the Working Group takes note of the source’s uncontested allegations
that the three journalists were held in administrative detention without being informed of any
charge or accusation against them. Under article 9 (2) of the Covenant, anyone who is arrested
must be promptly informed of any charges against him or her. The right to be promptly
informed of charges concerns notice of criminal charges, and as the Human Rights
Committee has noted, that right applies in connection with ordinary criminal prosecutions
and also in connection with military prosecutions or other special regimes directed at criminal
punishment.26 That requirement was not satisfied in the case of the three journalists in the
present case. The Working Group therefore finds a breach of article 9 (2) of the Covenant.
87.
The Working Group observes that the three journalists were subjected to
administrative detention on the basis of Military Order No. 1651, without charge or trial. In
that regard, the Working Group concurs with the Human Rights Committee that
administrative detention presents severe risks of arbitrary deprivation of liberty. The
Committee has noted that such detention would normally amount to arbitrary detention as
other effective measures addressing the threat, including the criminal justice system, would
be available. If, under the most exceptional circumstances, a present, direct and imperative
threat is invoked to justify the detention of persons considered to present such a threat, the
burden of proof lies on the State to show that the individual poses such a threat and that it
cannot be addressed by alternative measures, and that burden increases with the length of the
detention.27
88.
The Working Group observes that Mr. Mohammad has been in detention since his
arrest on 28 October 2023, while Messrs. Ameer and Amarneh were released on 2 May 2024
and 9 July 2024 respectively, without ever being notified of any charges against them. The
Government of Israel did not avail itself of the opportunity it was given to explain to the
Working Group what present, direct and imperative threat the three individuals posed at the
time of their arrests and how those threats persisted during their detention. That requirement
is an imperative in order to ensure compliance with article 9 of the Covenant and to ensure
the legality of such administrative detention. The Working Group must thus conclude that no
such threat exists and that therefore, the three individuals’ detention lacks a legal basis. As
the Human Rights Committee has stated, disclosure to the detainee of at least the essence of
the evidence on which the decision is taken to issue an administrative detention order is
necessary to ensure that the requirements of article 9 of the Covenant are met.28 The Working
24 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 typically not be available.
25 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.
26 Human Rights Committee, general comment No. 35 (2014), para. 29; and opinion No. 44/2022,
para. 66.
27 Human Rights Committee, general comment No. 35 (2014), para. 15; and opinions No. 13/2023 and
No. 60/2023.
28 Human Rights Committee, general comment No. 35 (2014), para. 15; and opinions No. 73/2018,
para. 49; No. 12/2020, para. 26; and No. 68/2022, para. 53.
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GE.24-16623
Group thus finds that the three individuals did not have the ability to effectively challenge
the lawfulness of their detention,29 contrary to article 9 (4) of the Covenant. Without access
to such information, their detention is arbitrary, and they have been denied the right to an
effective remedy under article 8 of the Universal Declaration of Human Rights and
article 2 (3) of the Covenant.
89.
The Working Group concludes that the three individuals’ arrest and subsequent
detention are arbitrary and fall under category I.
(b)
Category II
90.
The source has also submitted that the arrest and subsequent detention of the three
individuals are based on their legitimate work as journalists, and thus fall under category II,
as they were arrested and subsequently detained due to the exercise of their right to freedom
of expression, in violation of article 19 of the Covenant and article 19 of the Universal
Declaration of Human Rights.
91.
It has not been disputed that all three individuals are journalists who have critically
examined the behaviour and impact of the Israeli Defense Forces and have covered various
aspects of the situation in the Occupied Palestinian Territory and Israel. The Working Group
takes note of the uncontested allegations from the source that Mr. Amarneh was arrested a
few days after he posted on his personal social media account about the situation in the
Occupied Palestinian Territory and Israel, and that the Israeli Defense Forces reportedly
ordered the J-Media agency, where he worked, to shut down, describing it in a statement as
an illegal organization and indicating that its closure was necessary for the security of Israel
and for the safety of the public. The Working Group also takes note of the source’s
allegations, which are not challenged by the Government, that the authorities conducting
Mr. Ameer’s arrest told him that his journalism career was over.
92.
In the absence of a response from the Government of Israel, the Working Group is
satisfied that the three individuals’ detention arose from their exercise of their right to
freedom of expression, recognized under article 19 of the Covenant and article 19 of the
Universal Declaration of Human Rights. While article 19 of the Covenant provides that the
right to freedom of expression may be restricted as provided by law and where necessary for
the protection of national security or of public order (ordre public), it has not been
demonstrated that the work of Messrs. Amarneh, Ameer or Mohammad amounted to inciting
violence. Consequently, it has not been shown that their arrest was necessary and
proportionate for the legitimate aim of protecting national security or public order.
93.
The Working Group concludes that the arrest and detention of the three journalists
resulted from the peaceful exercise of their right to freedom of opinion and expression and
were contrary to article 19 of the Universal Declaration of Human Rights and article 19 of
the Covenant. Their detention is thus arbitrary under category II.
(c)
Category III
94.
The source argues that the detention of Messrs. Amarneh, Ameer and Mohammad is
arbitrary under category III as they have been denied the right to due process, given that they
were held in administrative detention without any charges, evidence, time limit or legal
representation.
95.
The Working Group notes that the present case is one concerning administrative
detention, which does not involve charges or a trial within the criminal justice system, and
that the fair trial guarantees in article 14 of the Covenant would not normally apply. However,
as the Human Rights Committee has stated, the nature of the sanction must be considered,
regardless of its classification under domestic law, in determining whether the fair trial
guarantees in article 14 apply in each case. Criminal charges relate in principle to acts
declared to be punishable under domestic criminal law. The notion may also extend to acts
29 The Working Group has made similar findings involving Israel when detention was based on
evidence not available to the detainee. See opinions No. 44/2017, No. 86/2017, No. 34/2018,
No. 73/2018, No. 12/2020 and No. 68/2022.
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13
that are criminal in nature with sanctions that, regardless of their qualification in domestic
law, must be regarded as penal because of their purpose, character or severity.30
96.
The Working Group has adopted that reasoning in its jurisprudence, noting that the
provisions of article 14 of the Covenant on the right to a fair trial are applicable where the
sanctions imposed, because of their purpose, character or severity, must be regarded as penal,
even if, under national law, the detention is qualified as administrative.31 Without such an
enquiry into the nature of the sanction imposed, States could effectively circumvent their
obligations under the Covenant simply by characterizing their detention regime as
administrative under domestic law. That is particularly significant in the context of
administrative detention orders imposed in Israel, which appear to be used as a substitute for
criminal proceedings, rather than to prevent an imminent threat, when there is not enough
evidence to charge and prosecute an individual.32
97.
In the present case, the three individuals’ detention must be regarded as penal in
nature, and the Working Group will consider whether their detention meets the requirements
of article 14 of the Covenant and other relevant provisions. The Working Group has
previously found that, in cases involving an excessive length of detention, the individual is
to enjoy the same guarantees as in criminal cases, including those under article 14 of the
Covenant, even if the detention is qualified as administrative under national law.33 The
Working Group takes note that Mr. Ameer was held in administrative detention for six
months, Mr. Amarneh was held in administrative detention for nine months and
Mr. Mohammad remains in administrative detention since his arrest on 28 October 2023.
98.
The Working Group observes that the three individuals appeared before a military
court, which imposed the administrative detention upon them. With regard to the jurisdiction
of the military courts, the Working Group has consistently stated its view that the trial of
civilians by military courts is in violation of the Covenant and customary international law
and that, under international law, military tribunals can only be competent to try military
personnel for military offences.34 In the present case, the Government failed to explain,
despite having the opportunity to do so, the reasons for having the three individuals appear
before a military court. The Working Group does not consider that Israeli military courts
meet the standard of an independent and impartial tribunal for the purposes of considering
matters involving civilians. Moreover, it recalls that under article 14 of the Covenant, the
court must be independent and impartial. In that regard, in its earlier jurisprudence, the
Working Group has stated that the military courts of Israel that impose such administrative
detention do not satisfy that criterion.35 In the light of the information available, the Working
Group finds that Messrs. Amarneh, Ameer and Mohammad were deprived of the right to
have their case determined in a fair hearing by a competent, independent and impartial
tribunal, as required under article 14 (1) of the Covenant and article 10 of the Universal
Declaration of Human Rights.
99.
According to the source, Mr. Ameer’s detention is based on secret files to which
neither he nor his lawyer were given access. On 12 November 2023, Mr. Ameer reportedly
appeared before the Israeli military court, no evidence of incitement was presented, and the
military prosecutor referred to the existence of a “secret file”. The Working Group recalls
that every individual deprived of liberty has the right to have access to all material related to
the detention, including information that may assist the detainee in arguing that the detention
30 Human Rights Committee, general comment No. 32 (2007), para. 15. See also Perterer v. Austria
(CCPR/C/81/D/1015/2001), para. 9.2.
31 See opinions No. 3/2012, No. 20/2012, No. 45/2012, No. 58/2012, No. 43/2014, No. 31/2017,
No. 73/2018, No. 12/2020, No. 60/2021, No. 61/2021, No. 4/2022 and No. 68/2022.
32 A/HRC/37/42, para. 21.
33 See opinions No. 31/2017, No. 73/2018, No. 12/2020 and No. 49/2020.
34 A/HRC/27/48, paras. 66–71. See also opinions No. 44/2016, No. 30/2017, No. 28/2018, No. 32/2018,
No. 66/2019 and No. 68/2022.
35 Opinions No. 15/2016, paras. 25–27; and No. 24/2016, para. 21. See also opinions No. 3/2012 and
No. 58/2012.
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GE.24-16623
is not lawful or that the reasons for the detention no longer apply.36 However, that right is not
absolute, and the disclosure of information may be restricted if it is necessary and
proportionate in pursuing a legitimate aim, such as protecting national security, and if the
State has demonstrated that less restrictive measures, such as providing redacted summaries
that clearly point to the factual basis for the detention, would be unable to achieve the same
result.37 The Government has not provided an explanation for the secrecy surrounding the
evidence against Mr. Ameer, nor any justification as to why he could not be provided with
access to it. The Working Group thus considers that the failure to provide full access to the
evidence has violated Mr. Ameer’s right to a fair trial and the equality of arms under article
14 (1) and (3) (b) and (e) of the Covenant and articles 10 and 11 (1) of the Universal
Declaration of Human Rights.38
100.
The Working Group takes note of the source’s unrefuted allegations that the three
individuals were unable to communicate with their families after their arrest and that
communication with their lawyers was severely limited. They were reportedly unable to
initiate access or hold private communications with their lawyers, and their lawyers could
arrange visits only when an upcoming hearing or legal issue existed. For instance,
Mr. Mohammad was unable to receive a visit from his lawyer until 21 March 2024 and even
then, it was difficult to organize and was delayed by the authorities several times. Mr. Ameer
was unable to see his lawyer until 29 November 2023 and then only once again on
25 February 2024. Moreover, Messrs. Ameer and Mohammad were reportedly interrogated
without their lawyers present.
101.
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. All persons
deprived of their liberty have the right to legal assistance by counsel of their choice, without
delay and at any time during their detention, including immediately after the moment of
apprehension.39 The right to legal assistance is an essential element of the right to a fair trial,
as it serves to ensure that the principle of equality of arms is duly observed. The Government
has chosen not to contest the source’s prima facie credible allegations, despite having been
given the opportunity to do so. Thus, the Working Group considers that Messrs. Ameer and
Mohammad were denied the right to legal assistance, in violation of article 14 (3) (b) of the
Covenant and contrary to principle 18 (3) of the Body of Principles, rule 61 (1) of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson
Mandela Rules) and principle 9 and guideline 8 of the United Nations Basic Principles and
Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty
to Bring Proceedings Before a Court.
102.
Furthermore, the Working Group recalls that the rights of detainees to communicate
with the outside world and to be visited by their family members are fundamental safeguards
against any attempts by the authorities to violate their human rights, including by torture or
any other ill-treatment and enforced disappearance. The Human Rights Committee has
observed that giving prompt and regular access to family members, as well as independent
medical personnel and lawyers, is an essential and necessary safeguard for the prevention of
torture and for protection against arbitrary detention and infringement of personal security.40
Denial of the rights to be visited by and correspond with family members and to be given
adequate opportunities to communicate with the outside world, subject to reasonable
conditions and restrictions, as specified by law or lawful regulations, is contrary to principles
36 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, principle 12 and guidelines 11 and
13.
37 Ibid., guideline 13, paras. 80 and 81.
38 Opinions No. 50/2014, para. 77; No. 89/2017, para. 56; No. 18/2018, para. 53; and No. 78/2018,
paras. 78 and 79.
39 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 (2014), para. 35; A/HRC/27/47, para. 13; A/HRC/45/16,
paras. 50–55; and A/HRC/48/55, para. 56.
40 Human Rights Committee, general comment No. 35 (2014), para. 58.
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15
15 and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and rules 43 (3) and 58 (1) of the Nelson Mandela Rules.
103.
On the basis of the foregoing, the Working Group finds that the three individuals’
detention is arbitrary and falls under category III.
(d)
Category V
104.
The source submits that the arrest and subsequent detention of the three journalists
constitute discrimination on the basis of their national, ethnic or social origin as Palestinians.
According to the source, the Government of Israel operates two separate and unequal legal
systems in the same territory: while Israeli military law gives military courts the authority to
try any person located in the West Bank who is aged 12 years or older, Jewish citizens who
reside within the bounds of the West Bank are subject to the Israeli civilian legal framework.
105.
The Working Group has previously observed that administrative detention on the
basis of Military Order No. 1651 has been particularly directed against Palestinians. 41
Throughout the occupation of the West Bank by Israel, the vast majority of persons held in
administrative detention have been Palestinians. In the absence of any explanation from the
Government in the present case, 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,42 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 Committee43 and the Committee on the Elimination of Racial Discrimination.44 The
Working Group concludes that the arrest and detention of Messrs. Amarneh, Ameer and
Mohammad were conducted on discriminatory grounds, namely their national, ethnic and
social origin as Palestinians. The Working Group refers the present case to the Special
Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.
106.
Furthermore, the source claims that the three individuals were arrested and detained
based on their political opinion and that their detention is part of a wider pattern of use of
administrative detention of journalists since 7 October 2023. The Government has not
challenged the source’s allegations, despite having been given the opportunity to do so. The
Working Group also notes that, in February 2024, numerous special rapporteurs expressed
grave concern at the fact that “dozens of Palestinian journalists have been detained by Israeli
forces in both Gaza and in the West Bank where harassment, intimidation and attacks on
journalists have increased since the 7 October attacks”.45
107.
The Working Group notes that when detention has resulted from the active exercise
of civil and political rights, there is a strong presumption that the detention also constitutes a
violation of international law on the grounds of discrimination based on political or other
views. As concluded in the analysis under category II, the deprivation of liberty of the three
individuals was the result of the peaceful exercise of their fundamental rights under
international law. The Working Group is thus convinced that their detention was based on
their political opinions, which are critical of the Government and its policies.
108.
The Working Group therefore finds that the three Palestinian journalists were
deprived of their liberty on discriminatory grounds based on their national, ethnic and social
origin and their political opinion. Their deprivation of liberty violated articles 2 and 7 of the
Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant and is
arbitrary according to category V.
41 Opinions No. 31/2017, para. 35; and No. 60/2023, para. 72.
42 See opinions No. 13/2016, No. 24/2016, No. 3/2017, No. 44/2017, No. 86/2017, No. 34/2018,
No. 4/2022 and No. 60/2023.
43 CCPR/C/ISR/CO/4, para. 10.
44 CERD/C/ISR/CO/14-16, para. 27.
45 See https://www.ohchr.org/en/press-releases/2024/02/gaza-un-experts-condemn-killing-and-
silencing-journalists.
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(e)
Concluding remarks
109.
The Working Group is concerned about the severity of the alleged conditions of
detention and the torture to which the three individuals were subjected, including beatings,
being forced to wear winter clothes in summer and summer clothes in winter, and being
handcuffed for long periods of time, causing swelling in their hands. Moreover, the Working
Group is concerned about the unrefuted allegations from the source regarding the poor quality
and quantity of food, and that Mr. Ameer lost 32 kg while in detention. The Working Group
reminds the Government of its obligations under article 10 (1) of the Covenant and rules 1,
24, 27 and 118 of the Nelson Mandela Rules, which state that all persons deprived of their
liberty must be treated with humanity and with respect for their inherent dignity, including
by being allowed to enjoy the same standards of health care that are available in the
community.46 Furthermore, rule 22 of the Nelson Mandela Rules guarantees the right of all
detained persons to receive food of wholesome quality and drinking water.
110.
The Working Group reiterates that it would welcome the opportunity to work
constructively with the Government of Israel in addressing its serious concerns relating to
arbitrary deprivation of liberty.47 On 7 August 2017, the Working Group sent a request to the
Government to undertake a country visit. It hopes to receive a positive response from the
Government as a sign of its willingness to enhance its cooperation with the United Nations
special procedures.
3.
Disposition
111.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Moath Amarneh, Abu Iram Ameer and Badr Mohammad,
being in contravention of articles 2, 7, 8, 9, 10, 11 and 19 of the Universal Declaration
of Human Rights and articles 2, 9, 14, 19 and 26 of the International Covenant on
Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
112.
The Working Group requests the Government of Israel to take the steps necessary to
remedy the situation of Messrs. Amarneh, Ameer and Mohammad without delay and bring it
into conformity with the relevant international norms on detention, including those set out in
the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
113.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Mohammad immediately and accord
him and Messrs. Amarneh and Ameer, in respect of their administrative detentions between
16 October 2023 and 9 July 2024, and 5 November 2023 and 2 May 2024, respectively, an
enforceable right to compensation and other reparations, in accordance with international
law.
114.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Messrs. Amarneh, Ameer and Mohammad and to take appropriate measures against those
responsible for the violation of their rights.
115.
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.
116.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
46 Opinion No. 26/2017, para. 66.
47 See opinions No. 3/2017, No. 31/2017 and No. 44/2017.
A/HRC/WGAD/2024/44
GE.24-16623
17
4.
Follow-up procedure
117.
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. Mohammad has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to
Messrs. Amarneh, Ameer and Mohammad;
(c)
Whether an investigation has been conducted into the violation of the rights of
Messrs. Amarneh, Ameer and Mohammad 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.
118.
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.
119.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the 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.
120.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and 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 30 August 2024]
48 Human Rights Council resolution 51/8, paras. 6 and 9.