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.25-02060 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 65/2024 concerning Islam Zahi Rasim Al Rimawi (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 July 2024 the Working Group
transmitted to the Government of Israel a communication concerning Islam Zahi Rasim
Al Rimawi. 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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/65
General Assembly
Distr.: General
25 February 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Islam Zahi Rasim Al Rimawi was born on 21 October 2006. He is a Palestinian high
school student, with an identification card of the State of Palestine. His usual place of
residence is in Bayt Rima, Ramallah.
(i)
Context
5.
According to the source, since 7 October 2023, Palestinian minors have increasingly
been targeted and detained by Israeli forces. The majority of those detained are held in
administrative detention under Military Order 1651 of 2009. Reportedly, there are currently
over 250 children detained in Israeli prisons, including Mr. Al Rimawi.
6.
The source submits that the system of the Government of Israel of administrative
detention of Palestinian civilians in the West Bank has been in effect since 1967.
Administrative detention is currently governed by Military Order 1651.2 Under this law,
civilians in the West Bank are subject to the military court system if a commander has
reasonable grounds to believe that a certain person must be held in detention for reasons to
do with regional security or public security.3
7.
Reportedly, the Israel Defense Forces have arrested more than 800,000 Palestinians
through administrative detention since 1967 in the Occupied Palestinian Territory. 4
According to the source, the use of administrative detention of Palestinians increases during
times of increased political tensions.5
8.
The source reports that since 7 October 2023, the Israel Defense Forces have allegedly
detained over 6,500 Palestinians,6 and have targeted political activists, students and former
prisoners.
9.
The situation of Mr. Al Rimawi exemplifies the recent conditions that approximately
3,424 Palestinians have faced in administrative detention since 7 October 2023.7
10.
According to the source, Jewish Israelis are virtually never subjected to administrative
detention. Reportedly, the Government of Israel operates a two-track system in which
Palestinians in the West Bank, such as Mr. Al Rimawi, are subject to the Israeli military court
system, while Jewish Israelis are tried under civilian criminal law.
11.
The Human Rights Committee has found that administrative detention presents severe
risks of arbitrary detention and should be used only in exceptional circumstances. 8 The
Working Group has found that Israel uses the practice of administrative detention as a
widespread mechanism to arbitrarily detain Palestinians.9 Other United Nations bodies have
had similar findings with respect to Israel.10
12.
The source notes that human rights treaty bodies have criticized the discriminatory
arrests and detentions of Palestinians and called on the Government of Israel to end its use of
administrative detention.11 It further recalls that multiple special procedure mandate holders
2 Israel Defense Forces, Order Regarding Security Directives (No. 1651), chap. I, art. B, sect. 285
(2009) (hereinafter referred to as Military Order 1651).
3 Ibid., sect. 285 (A).
4 See A/HRC/53/59.
5 Ibid., para. 6.
6 A/HRC/55/NGO/82, p. 2.
7 Ibid.
8 See the Committee’s general comment No. 35 (2014), para. 15.
9 Opinions No. 36/1992, No. 17/1993, No. 18/1993, No. 16/1994, No. 16/1996, No. 17/1996,
No. 18/1996, No. 8/1998, No. 9/1998, No. 10/1998, No. 11/1998, No. 24/1998, No. 16/2000,
No. 17/2000, No. 23/2001, No. 3/2004, No. 26/2007, No. 5/2010, No. 9/2010, No. 3/2012,
No. 20/2012, No. 58/2012, No. 43/2014, No. 24/2016, No. 31/2017, No. 44/2017, No. 86/2017,
No. 34/2018, No. 73/2018, No. 12/2020, No. 60/2021, No. 61/2021, No. 4/2022 and No. 13/2023.
10 CCPR/C/ISR/CO/4, para. 10; CAT/C/ISR/CO/5, para. 22; and CERD/C/ISR/CO/14-16, para. 27.
11 CCPR/C/ISR/CO/4, paras. 7 and 10; CAT/C/ISR/CO/5, paras. 22 and 23; and
CERD/C/ISR/CO/14-16, para. 27.
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have raised concerns regarding the wide-scale acts of reprisal and collective punishment
against Palestinian detainees. 12 Similarly, the Office of the United Nations High
Commissioner for Human Rights in the Occupied Palestinian Territory expressed serious
concern at the increase in the number of detentions used by the Israel Defense Forces against
Palestinians across the West Bank.13
13.
As at July 2024, there were over 9,700 Palestinians in Israeli custody, including more
than 3,380 administrative detainees (38 per cent) who were being held without trial.
Reportedly, the arrests of Palestinians are often conducted violently, and detainees are
blindfolded while being taken to detention centres. Moreover, the Israel Defense Forces do
not present arrest warrants or reasons for detention, and Palestinians are detained without the
immediate pressing of charges, while sometimes they remain in detention without ever
receiving any charges.14 In addition, poor prison conditions have reportedly worsened since
7 October 2023.15
14.
Through the military court system, detention orders are reportedly largely based on
secret evidence that the detainee and their legal representative cannot access.16 The source
submits that Military Order 1651 allows for the detention of a person for six months at a time
when a military commander has reasonable grounds to believe that a certain person must be
held in detention for reasons to do with regional security or public security.17 A military court
must subsequently confirm the detention order.18 If, before the expiration of a detention order,
the military commander determines that “reasons pertaining to regional security or public
security still require the detention of the person”, he or she may renew the detention order
for up to six months.19 Furthermore, the Military Order does not specify a limit to the number
of times military commanders may renew a detention order, permitting indefinite detention.20
15.
Since 7 October 2023, the Knesset has adopted amendments to Military Order 1651,
which allegedly further infringe the rights of detainees.21 In particular, Temporary Military
Order 2148 of 2023 amended section 287 (A) of Military Order 1651 to extend the amount
of time that can pass before a detainee receives judicial review of the detention order from
8 to 12 days.22 Moreover, it established further restrictions in relation to: (a) release dates;
(b) access to lawyers; and (c) length of sentence in the event that a detainee is charged with
specific crimes.23
(ii)
Arrest and detention
16.
The source submits that on 17 October 2023 at sunrise, Mr. Al Rimawi was arrested
at his home in Ramallah by the Israel Defense Forces, pursuant to article 285 (A) of Military
Order 1651. Reportedly, he was not presented with an arrest warrant or informed of the
reasons for the arrest at the time of his arrest. This was the first time that Mr. Al Rimawi had
been arrested.
12 See communication ISR 9/2023. All communications mentioned in the present report are available
from https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
13 Office of the United Nations High Commissioner for Human Rights in the Occupied Palestinian
Territory, “Dramatic rise in detention of Palestinians across occupied West Bank”, press release,
1 December 2023.
14 Office of the United Nations High Commissioner for Human Rights, “The human rights situation in
the occupied West Bank including East Jerusalem, 7 October–20 November 2023”, flash report,
para. 19.
15 See communication ISR 9/2023.
16 CCPR/C/ISR/CO/4, para. 10; and opinion No. 34/2018.
17 Military Order 1651, sect. 285 (A).
18 Ibid., sect. 287 (A).
19 Ibid., sect. 285 (B).
20 Ibid., sect. 285 (B).
21 See communication ISR 9/2023.
22 Ibid., and Israel Defense Forces, Order Regarding the Extension of Administrative Detention Periods
(No. 2148) (2023) (hereinafter referred to as Temporary Military Order 2148).
23 See communication ISR 9/2023.
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17.
On the same day as his arrest, the Military Court reviewed and approved his detention
by a video hearing. On 16 February 2024, in another video hearing, the Military Court
renewed his administrative detention for four months, until 15 June 2024.
18.
On 15 June 2024, Mr. Al Rimawi’s detention was renewed again for another two
months, until 14 August 2024. At that hearing, the Military Court held that the serious
security situation justified his detention for an additional two months. Mr. Al Rimawi has
reportedly not been charged with a criminal offence.
19.
The source reports that Mr. Al Rimawi has not had access to his lawyer, as his lawyer
has not been allowed to visit him due to the extensive restrictions that have been placed on
lawyers by the Israeli authorities. During the above-mentioned hearings, Mr. Al Rimawi’s
lawyer and the judge were physically present at the hearings, while Mr. Al Rimawi was only
able to attend via video call. Furthermore, his family was not allowed to attend the hearings.
20.
Reportedly, Mr. Al Rimawi has been held incommunicado from the moment of his
arrest, without access to his family members, lawyers or doctors. Moreover, his lawyer and
family members were not allowed to be present during interrogations.
21.
According to the source, Mr. Al Rimawi is currently being held at Ofer Prison. Since
his arrest, he has not been able to have contact with his family, and thus, his conditions of
detention are uncertain.
22.
Although there is a section for minors at Ofer Prison, minors are reportedly being
detained in the same cells as adults because of overcrowding due to the alleged mass arrests
after 7 October 2023.
(iii)
Legal analysis
23.
The source argues that Mr. Al Rimawi’s arrest and subsequent detention are arbitrary
and fall under categories I, III and V of the Working Group.
a.
Category I
24.
The source submits that a deprivation of liberty is arbitrary and falls under category I
when the State fails to provide a legal basis for the deprivation of liberty. Article 9 (1) of the
Covenant requires the detention of a person to have a legal basis. If there is a domestic law
that allows for the arrest, that domestic law should comply with the provisions of the
Universal Declaration of Human Rights and the Covenant.24
25.
The source argues that the domestic law of Israel does not comport with elements of
fundamental due process under the Covenant and the Universal Declaration of Human
Rights. For example, section 290 of Military Order 1651 permits the use of secret evidence
against detainees. Likewise, section 287 (A) of Military Order 1651 states that detainees must
be brought before a judge within eight days (192 hours), which has allegedly been extended
to 12 days since 7 October 2023. The source thus asserts that Military Order 1651 violates
article 9 of the Covenant.
26.
The source submits that any person who is arrested should be informed of the reason
for their arrest at the time of the arrest and be promptly notified of any charges. It adds that
the reasons for the arrest must be given in a language that the person understands and must
be given immediately upon arrest unless there are exceptional circumstances.25 In the case of
a child’s arrest, notifying the child is not enough to satisfy article 9 (2) of the Covenant; a
parent, guardian or legal representative must also be notified of the reason for the arrest.26
27.
The source contends that Mr. Al Rimawi was not informed of the reason for his arrest
at the time of his arrest, and he has not yet been informed of any charges against him.
Moreover, although Mr. Al Rimawi was aged 16 at the time of the arrest, his parents and his
legal representative were not informed of the reason for the arrest, constituting a violation of
24 Opinion No. 51/2017, para. 27.
25 Human Rights Committee, general comment No. 35 (2014), paras. 24–27.
26 Ibid., para. 28.
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article 9 (2) of the Covenant and article 40 (2) (b) (ii) of the Convention on the Rights of the
Child.
28.
The source recalls that under article 9 (3) of the Covenant, those detained on a criminal
charge should promptly be brought before a judge or other officer authorized by law. This
applies to military prosecutions and other special regimes directed at criminal punishment,
even if formal charges have not been laid, “so long as the person is arrested or detained on
suspicion of criminal activity”.27 Moreover, under this article, those detained are entitled to
trial within a reasonable time.
29.
The source recalls that the Human Rights Committee has considered that 48 hours is
ordinarily sufficient to consider that a detainee has been brought promptly before a judge.28
Any delay longer than 48 hours must remain absolutely exceptional and be justified under
the circumstances. 29 Moreover, incommunicado detention is inherently in violation of
article 9 (3) of the Covenant if it prevents prompt presentation before a judge.30
30.
The source argues that contrary to general comment No. 35 (2014) of the Human
Rights Committee, Military Order 1651 states that a detainee must be brought before a judge
within eight days (192 hours) of his or her detention; if a detainee is not brought before a
judge within eight days (192 hours), the detainee is released, “unless there is another reason
to detain him under any law or security legislation”.31
31.
The source asserts that Military Order 1651 constitutes a de jure violation of
article 9 (3) of the Covenant because it does not require officials to bring civilians before a
judge within 48 hours. After 7 October 2023, the Knesset moved the law further from
international standards by enacting Temporary Military Order 2148, which authorizes Israeli
officials to detain Palestinian civilians incommunicado for up to 12 days, without being
brought before a judge or allowed access to a lawyer.32 Mr. Al Rimawi was not promptly
brought before a judge and was held for 12 days without legal counsel or being seen by a
judge.
32.
As such, his right to be brought promptly before a judge under article 9 (3) of the
Covenant has been violated.
33.
The source recalls that under article 9 (4) of the Covenant, detainees are entitled to
challenge the lawfulness of their detention before a court without delay, which should order
the detainee’s release if the detention is unlawful. Under article 40 (2) (b) (iii) of the
Convention on the Rights of the Child, child detainees are entitled to review without delay
in the presence of legal assistance and, unless contrary to the best interest of the child, in the
presence of a parent or legal guardian.
34.
Moreover, every detainee is entitled to take proceedings before a court, which should
ordinarily be a court within the judiciary, and must be independent.33 The Human Rights
Committee argues that practices that render review effectively unavailable to an individual,
“including incommunicado detention”, amount to a violation of article 9 (4) of the
Covenant.34
35.
The source submits that detainees should be afforded prompt and regular access to
counsel.35 The right to challenge the lawfulness of detention is a self-standing human right,
and failure to provide such an opportunity to do so constitutes a violation of human rights.36
27 Human Rights Committee, general comment No. 35 (2014), paras. 31 and 32.
28 Ibid., para. 33.
29 Ibid., para. 33.
30 Ibid., para. 35.
31 Military Order 1651, sect. 287 (A).
32 See ISR 9/2023; and Temporary Military Order 2148.
33 Human Rights Committee, general comment No. 35 (2014), para. 45.
34 Ibid., para. 46.
35 Ibid., para. 46.
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, para. 2; see also A/54/426, para. 42.
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36.
The Human Rights Committee has found that the adjudication of the case should take
place as expeditiously as possible,37 and the Working Group has stated that failure to notify
the detainee or his or her representative of the charges violates article 9 (4) of the Covenant.38
37.
The source submits that the detainee has the right to appear in person before the
court.39 Deeming a detainee a security threat does not deprive him or her of these basic due
process rights.
38.
The Human Rights Committee has recognized that administrative detention presents
severe risks of arbitrary deprivation of liberty.40
39.
Reportedly, visits to Mr. Al Rimawi have been extremely difficult due to conditions
imposed by the Israeli Prison Service. For instance, prison officials reportedly inform lawyers
who arrive to visit their client that the client is no longer being held in the facility, or cancel
visits due to a “state of emergency” after the lawyer has waited many hours. Israeli authorities
often deny lawyers information about where their client is being held. Currently, it takes
about one to two months for clients to have access to their lawyers. These practices, the
source asserts, restrict prompt and regular access to counsel, in violation of article 9 (4) of
the Covenant.
40.
According to the source, article 290 (A) of Military Order 1651 allows for deviation
from the rules of evidence when detainees are held under administrative detention.41 A judge
can “receive evidence even in absence of the detainee or his representative, or without
disclosing it to them” if the judge is convinced that “disclosing the evidence to the detainee
or his representative may harm regional security or public security”.42 Withholding evidence
from detainees and their legal representatives inhibits the ability of detainees to challenge the
lawfulness of their detention, as they cannot meaningfully respond to the case against them.
Moreover, Military Order 1651 permits secret evidence, in violation of the right to challenge
the legality of detention as enshrined in the Covenant.
41.
The source contends that the evidence against Mr. Al Rimawi is deemed to be secret,
which has severely circumscribed his and his legal representative’s ability to challenge the
basis of the detention effectively. As Mr. Al Rimawi has not been afforded prompt and
regular access to counsel, or been given information about the charges against him or had
access to the evidence against him, his ability to challenge the legality of his detention has
been impeded, in violation of article 9 (4) of the Covenant.
b.
Category III
42.
The source recalls that the right to a fair trial is enshrined in article 11 (1) of the
Universal Declaration of Human Rights and articles 9 and 14 of the Covenant.
43.
The source submits that a fair trial is competent, independent and impartial, and that
to satisfy this requirement, States must inform detainees of the charges against them promptly
and in detail, in a language that they understand. States must provide detainees the time and
facilities to prepare their defence. Detainees have the right to defend themselves in person or
through counsel of their choice, and to be tried without delay.
44.
Detainees must be promptly notified of the reasons for their arrest and of the charges
against them, as outlined in articles 9 (2) and 14 (3) (a) of the Covenant. Moreover, authorities
must show that the administrative detention does not last longer than “absolutely necessary”
and that “the overall length of possible detention is limited”.43 Indefinite detention is thus
arbitrary.
45.
The source asserts that Mr. Al Rimawi was not notified of the reasons for his arrest
nor promptly presented before a judge, and he has not been charged with a crime. Reportedly,
37 See the Committee’s general comment No. 35 (2014), para. 47.
38 Opinions No. 60/2021, para. 45; and No. 61/2021, para. 40.
39 Human Rights Committee, general comment No. 35 (2014), para. 42.
40 Ibid., para. 15.
41 Military Order 1651, sect. 290 (A).
42 Ibid., sect. 290 (C).
43 Human Rights Committee, general comment No. 35 (2014), para. 15.
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the Military Court limited itself to confirming the detention order following his arrest,
alleging the “serious security situation” as justification for his detention.
46.
The source concludes that the failure of the Government of Israel to notify
Mr. Al Rimawi of the reason for his arrest and to ensure a prompt review of his detention
renders the detention arbitrary, falling under category III.
47.
The source argues that as part of the right to a fair trial, article 14 of the Covenant
outlines the right to adequate time and facilities to prepare a defence. Adequate facilities
include documents and evidence that the prosecution will use against the accused or that are
exculpatory.44 Exculpatory material includes “not only material establishing innocence but
also other evidence that could assist the defence (e.g. indications that a confession was not
voluntary)”.45 Moreover, the State must ensure adequate translation services during detention
hearings.46
48.
The Working Group has previously found that Military Order 1651 allows for the
misuse of secret evidence, which neither the detainee or his or her legal representative is
allowed access to.47 The source thus asserts that the practice of the Government of Israel of
using secret evidence violates the right to a fair trial under the Covenant,48 and that depriving
detainees and their counsel of access to case files negatively affects the right of detainees to
be tried by an impartial tribunal.49
49.
The source recalls that the Human Rights Committee has recommended that the
Government of Israel stop its use of “secret evidence” in administrative detention
proceedings.50 It argues that the Military Court established that the evidence relating to
Mr. Al Rimawi’s case was secret, which deprived him and his legal representative of the
ability to prepare a defence, in violation of his right to a fair trial.
50.
Reportedly, the Israeli authorities denied Mr. Al Rimawi access to effective legal
representation. Immediately following 7 October 2023, the Israel Prison Service prohibited
detainees from establishing contact with their attorneys. Moreover, when authorities transfer
detainees between detention facilities, lawyers are not informed.
51.
In the present case, the Israel Prison Service has reportedly held Mr. Al Rimawi
incommunicado, without adequate access to family members, lawyers or doctors, from the
moment of his arrest.51
52.
According to the source, all detention review hearings following 7 October 2023 have
taken place via live video, which has also occurred in the present case. While the lawyers and
judges have been physically present at the hearings, Mr. Al Rimawi has only been able to
attend via videoconference.
53.
While military courts do provide interpreters during the hearings, the interpretations
are reportedly often incomplete and inaccurate. Individual lawyers who can understand
Hebrew often must supplement the interpretation during court proceedings.
54.
The source submits that the trial of civilians before military or special courts should
be exceptional and limited, as it raises serious problems for the equitable, impartial and
independent administration of justice. 52 The Working Group has consistently found that
civilians must never be tried by military courts, as these cannot be considered to be
independent and impartial tribunals for the purpose of trying civilians.53 Furthermore, the
44 Human Rights Committee, general comment No. 32 (2007), para. 33.
45 Ibid., para. 33.
46 Ibid., para. 40.
47 Opinion No. 13/2023, para. 70.
48 Ibid., para. 70.
49 Opinion No. 83/2017, para. 81.
50 CCPR/C/ISR/CO/4, para. 10.
51 A/54/426, para. 42.
52 Human Rights Committee, general comment No. 32 (2007), para. 22.
53 Opinion No. 31/2017, para. 27. See also opinions No. 61/2021, para. 48; No. 66/2019, para. 96; and
No. 32/2018, para. 81.
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Working Group has repeatedly held that the military courts of Israel are not independent or
impartial tribunals, and thus civilians should not be tried in this forum.54
55.
The source argues that administrative detention is authorized by Military Order 1651
and adjudicated by military courts, demonstrating a systematic and routine practice despite
the call for “exceptional” use.55 In the present case, although Mr. Al Rimawi is a civilian, a
military court presided over his legal proceedings, in violation of his right to a fair trial and
due process.
56.
The source submits that the use of torture or cruel, inhuman or degrading treatment is
not only a violation of a non-derogable international prohibition, but it can also undermine a
detainee’s access to a fair trial.
57.
The source recalls that the Working Group has evaluated how pretrial conditions –
including lack of access to necessary medicines and generally poor conditions – affect the
right to a fair trial.56 Allegations of torture strengthen the conclusion that detainees have not
received access to a fair trial, including when the State uses these methods to extract
confessions of guilt.57
58.
Furthermore, a judge’s failure to order an investigation into allegations by a detainee
of torture violates the detainee’s right to be tried by an impartial and independent tribunal.58
59.
Despite the allegations of torture and even observing the signs of abuse on the bodies
of detainees, Israeli military judges have reportedly failed to order measures to protect
detainees from such violence. The source asserts that the Israel Prison Service’s denial of
medical attention in detention violates the United Nations Standard Minimum Rules for the
Treatment of Prisoners (the Nelson Mandela Rules).59
60.
The source notes that Mr. Al Rimawi is held in poor conditions in Ofer Prison, without
adequate access to food, warm blankets, clothing, daylight, hygiene, and overcrowding, and
argues that these conditions constitute cruel, inhumane and degrading treatment. The source
argues that these conditions strengthen the findings that Mr. Al Rimawi’s detention is
arbitrary under Category III.
61.
The source recalls that article 14 (4) of the Covenant states that proceedings against
minors must take account of their age and the desirability of promoting their rehabilitation.
The Committee on the Rights of the Child has established that “children differ from adults in
their physical and psychological development”. 60 The primary consideration is the best
interests of the child.61
62.
The source argues that although detaining children should be a measure of last resort,
the Government of Israel has implemented a widespread practice of detaining minors.62 It
recalls that the Working Group noted in 2021 that “since 2000, an estimated
13,000 Palestinian children have reportedly been detained by Israeli forces from the occupied
West Bank and held in the Israeli military detention system”63 each year. As at 20 November
2023, the Israel Defense Forces had reportedly arrested as many as 880 Palestinian children
under Military Order 1651. During these arrests and detentions, children or their parents are
reportedly often not informed of the reason for arrest, while parents are also not allowed to
be present during the interrogations.
54 See, for example, opinions No. 60/2021, para. 54; No. 61/2021, para. 50; and No. 13/2023, paras. 71
and 72.
55 See Military Order 1651; and A/HRC/53/59, para. 31.
56 Opinion No. 92/2017, para. 56.
57 Opinion No. 62/2018, para. 78.
58 Opinion No. 53/2018, para. 77 (b).
59 Opinion No. 60/2021, para. 61.
60 Committee on the Rights of the Child, general comment No. 24 (2019), para. 2.
61 Ibid., para. 76.
62 CCPR/C/ISR/CO/5, paras. 34 and 35.
63 Opinion No. 60/2021, para. 6.
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63.
The source submits that the practice by Israel of detaining children on the basis of
“secret evidence” and subjecting them to military courts prevents child detainees from
adequately defending themselves, in violation of their right to a fair trial.64
64.
The source argues that the prison conditions following 7 October 2023 are in violation
of article 10 of the Covenant, which also applies when children are detained.
65.
The source asserts that the arrest and detention of Mr. Al Rimawi by the Israel Defense
Forces are arbitrary and contrary to his right to a fair trial. It notes that Mr. Al Rimawi was
16 years old at the time of his arrest, and that he was attending eleventh grade at school.
However, since his arrest, on 17 October 2023, Mr. Al Rimawi’s family members have been
prevented from being present at his interrogations and hearings, in violation of his right to
have his family involved in the proceedings. The source contends that a judge can only limit,
restrict or exclude a minor’s family from the proceedings if it is in the best interests of the
child.65
66.
The source further asserts that the Military Court renewed Mr. Al Rimawi’s initial
four-month detention notice for an additional four months on 16 February 2024, in violation
of Committee on the Rights of the Child general comment No. 24 (2019), according to which
the proceedings for minors should be “as short as possible”.66 In addition, the Israel Defense
Forces have not notified Mr. Al Rimawi or his parents of the reason for his arrest or the
charges against him.
67.
Reportedly, Mr. Al Rimawi’s administrative detention hearings took place before a
military court, which based its decision to detain him on “secret evidence”. These practices,
the source argues, not only violate the right to a fair trial under the Covenant but also violate
Mr. Al Rimawi’s rights under the Convention on the Rights of the Child.
68.
The source further argues that the alleged systematic practice by the Government of
Israel of administrative detention violates the prohibition of arbitrary detention. In the present
case, the authorities failed to present Mr. Al Rimawi with an arrest warrant or to notify him
of the charges against him, since his arrest. Mr. Al Rimawi has reportedly not had access to
“competent, independent and impartial” trials, as he has been subject to military courts, nor
access to lawyers or facilities or evidence to prepare his defence. The source thus asserts that
the authorities have failed to ensure Mr. Al Rimawi’s proceedings “without delay”.
69.
For the reasons above, the source concludes that Mr. Al Rimawi’s right to a fair trial
has been violated and that his deprivation is arbitrary and falls under category III.
c.
Category V
70.
Reportedly, Israeli law grants military courts the authority to try any Palestinians
located in the West Bank if they are aged 12 years or older, while Jewish Israelis who also
reside in the West Bank are subject to the Israeli civilian legal framework. In this connection,
the source recalls that the Working Group has previously found that the operation of two
separate and unequal legal systems in the same territory is discriminatory and in violation of
the Universal Declaration of Human Rights and the Covenant.67
71.
The source notes that Mr. Al Rimawi is a Palestinian student with a Palestinian
Authority identification card. Reportedly, the Israel Defense Forces based his arrest on a
serious security situation, without further explanation or evidence. Moreover, as has been
submitted above, the Government of Israel operates a two-track system in the West Bank, in
which Mr. Al Rimawi, as well as all other persons in administrative detention, are subject to
the Israeli military court system, as opposed to Jewish Israelis, who are tried under civilian
criminal law.
72.
The source concludes that the fact that Mr. Al Rimawi is Palestinian, in combination
with the alleged systematic use of administrative detention against Palestinians residing in
the West Bank, demonstrates that in the present case, Mr. Al Rimawi’s deprivation of liberty
64 Ibid., paras. 51 and 55.
65 Committee on the Rights of the Child, general comment No. 24 (2019), para. 56.
66 Ibid., para. 54.
67 Opinion No. 61/2021, paras. 53 and 54.
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is based on his national origin, in violation of articles 2 (1) and 26 of the Covenant. His
detention is thus arbitrary and falls under category V.
(b)
Response from the Government
73.
On 31 July 2024, the Working Group transmitted the allegations from the source to
the Government under its regular communications procedure, requesting a reply by
30 September 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.68 The Working Group notes that it has not
received a reply from the Government in response to its communications since 2017,69 and
invites the Government to engage with the Working Group constructively by taking the
opportunity to respond to communications.
2.
Discussion
74.
In determining whether Mr. Al Rimawi’s detention is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has 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.
75.
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.
76.
The source has submitted that the arrest and detention of Mr. Al Rimawi are arbitrary
and fall under categories I, III and V. The Working Group will consider these in turn.
(a)
Category I
77.
The source has submitted, and the Government has not refuted, that when the Israel
Defense Forces arrested and detained Mr. Al Rimawi (a minor at the time of the arrest), they
did not show an arrest warrant or other decision by a public authority and did not provide the
legal reasons for his arrest, either to Mr. Al Rimawi or to his legal guardian. Mr. Al Rimawi’s
detention was based on administrative detention orders, but reportedly, no charge sheet or
oral communication of a charge was provided. The reason for his administrative detention,
as indicated in the military orders, is “endangering the security of the area”.
78.
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, in order for a
deprivation of liberty to have a legal basis, it is not sufficient that there is a law that may
authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.70 This is typically done through an arrest warrant or arrest order
(or equivalent document).71 The reasons for the 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.72
68 A/HRC/36/38.
69 Opinions No. 31/2017, No. 44/2017, No. 86/2017, No. 34/2018, No. 73/2018, No. 84/2019,
No. 12/2020, No. 8/2021, No. 60/2021, No. 61/2021, No. 4/2022, No. 44/2022, No. 68/2022,
No. 13/2023, No. 60/2023 and No. 44/2024.
70 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
71 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.
72 Human Rights Committee, general comment No. 35 (2014), para. 25; and opinions No. 30/2017,
paras. 58 and 59; and No. 85/2021, para. 69.
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79.
The Working Group refers to the source’s allegations, which are unrefuted by the
Government, that Mr. Al Rimawi was not presented with an arrest warrant at the time of
arrest. Based on the information available to it in the present case, the Working Group is of
the view that neither Mr. Al Rimawi nor his legal guardian were presented with an arrest
warrant or provided with the reasons for his arrest, at the time of the arrest, in violation of
article 9 (1) and (2) of the Covenant and article 9 of the Universal Declaration of Human
Rights.
80.
Furthermore, the Working Group takes note of the source’s uncontested allegations
that Mr. Al Rimawi was held in administrative detention without being informed of any
charge or accusation against him. 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.73 That requirement was not satisfied in the case of Mr. Al Rimawi. The Working
Group therefore finds a breach of article 9 (2) of the Covenant.
81.
The Working Group observes that Mr. Al Rimawi was subjected to administrative
detention on the basis of Military Order 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.74
82.
While the source submits that on the same day as Mr. Al Rimawi’s arrest, 17 October
2023, the Military Court reviewed and approved his detention via video hearing, it further
submits that he was only brought before a judge (an Israeli military judge) 12 days after his
arrest. The source argues that contrary to the norm stipulated by the Human Rights
Committee, Military Order 1651 states that a detainee must be brought before a judge within
eight days (192 hours) of his or her detention; if a detainee is not brought before a judge
within eight days (192 hours), he or she is released, “unless there is another reason to detain
him under any law or security legislation”.75 Furthermore, the source submits that after
7 October 2023, the Knesset moved the law further from international standards by enacting
Temporary Military Order 2148, which authorizes Israeli officials to detain Palestinian
civilians incommunicado for up to 12 days, without being brought before a judge or allowed
access to a lawyer.76 In the case of Mr. Al Rimawi, the source submits that he was not
promptly brought before a judge and was held for 12 days without legal counsel or being
seen by a judge. In the absence of a submission by the Government, the Working Group thus
finds a violation of Mr. Al Rimawi’s rights under article 9 (3) of the Covenant and
articles 37 (b) and 40 (2) (b) (ii) of the Convention on the Rights of the Child.77
83.
The Working Group observes that Mr. Al Rimawi has been in detention since his
arrest on 17 October 2023 without ever being notified of any charges against him. 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 Mr. Al Rimawi posed at the time
of his arrest and how that threat persisted during his detention. As the Human Rights
Committee has stated, disclosure to the detainee of at least the essence of the evidence on
73 See the Committee’s general comment No. 35 (2014), para. 29; and opinion No. 44/2022, para. 66.
74 See the Committee’s general comment No. 35 (2014), para. 15; and opinions No. 13/2023 and
No. 60/2023.
75 Military Order 1651, sect. 287 (A).
76 See communication ISR 9/2023; and Temporary Military Order 2148.
77 Committee on the Rights of the Child, general comment No. 24 (2019), para. 90.
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which the decision is taken to issue an administrative detention order is necessary in order to
ensure that the requirements of article 9 of the Covenant are met.78
84.
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, so 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.79 That right,
which is 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 the purposes of
criminal proceedings, but also situations of detention under administrative and other fields
of law.80 The source alleges that neither Mr. Al Rimawi nor his lawyer have 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 administrative detention
order against him. The Government has not denied this allegation. The Working Group thus
finds that Mr. Al Rimawi did not have the ability to challenge the lawfulness of his detention
effectively,81 contrary to article 9 (4) of the Covenant.
85.
Based on the unrebutted claims of the source, the Working Group observes that Mr. Al
Rimawi was held incommunicado for 12 days starting from the day of his arrest. The
Working Group recalls that holding persons incommunicado prevents prompt presentation
before a judge, as provided is for in article 9 (3) of the Covenant,82 and violates the right
under article 9 (4) to challenge the lawfulness of the detention before a court.83 As the Human
Rights Committee has stated, the physical presence of detainees at hearings may serve the
inquiry into the lawfulness of detention and serves as a safeguard for the right to security of
person.84
86.
Judicial oversight of detention is a fundamental safeguard of personal liberty85 and is
essential in ensuring that detention has a legal basis. Given that Mr. Al Rimawi was unable
to challenge his detention before a court, his right to an effective remedy under article 8 of
the Universal Declaration of Human Rights and article 2 (3) of the Covenant was violated.
He was also placed outside the protection of the law, in violation of his right to be recognized
as a person before the law under article 6 of the Universal Declaration of Human Rights and
article 16 of the Covenant.
87.
According to the source, Mr. Al Rimawi has not been permitted to contact his family
during the entire period of his detention. A detainee must be allowed to communicate with
and receive visits from family members, and any restrictions and conditions with regard to
such contact must be reasonable. As the Human Rights Committee has observed, giving
prompt and regular access to family members is an essential and necessary safeguard for the
prevention of torture and for protection against arbitrary detention and infringement of
personal security.86 Accordingly, the Working Group finds that the right of Mr. Al Rimawi
to contact with the outside world was denied, in contravention of rules 43 (3) and 58 (1) of
78 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.
79 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, paras. 2 and 3.
80 Ibid., para. 47 (a).
81 The Working Group has made similar findings involving Israel where detention has been 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.
82 Human Rights Committee, general comment No. 35 (2014), para. 35.
83 Opinions No. 35/2018, para. 27; No. 9/2019, para. 30; No. 44/2019, para. 54; and No. 45/2019,
para. 53.
84 Human Rights Committee, general comment No. 35 (2014), paras. 34 and 42. See also
principles 32 (2) and 37 of the Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment.
85 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. 3; and CAT/C/VNM/CO/1,
para. 24.
86 See the Committee’s general comment No. 35 (2014), para. 58; and opinion No. 84/2020, para. 70.
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the Nelson Mandela Rules87 and principles 15 and 19 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment. This lack of contact
is exacerbated by Mr. Al Rimawi’s being a minor when arrested, in violation of article 37 (c)
of the Convention on the Rights of the Child.
88.
In the light of the above, the Working Group concludes that Mr. Al Rimawi’s arrest
and subsequent detention are arbitrary and fall under category I.
(b)
Category III
89.
The source argues that the detention of Mr. Al Rimawi is arbitrary under category III
as he has been denied the right to due process, given that he is held in administrative detention
without any charges, evidence, time limit or legal representation.
90.
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
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.88
91.
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.89 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 was insufficient
evidence to charge and prosecute an individual.90
92.
In the present case, Mr. Al Rimawi’s detention must be regarded as penal in nature,
and the Working Group will consider whether his detention meets the requirements of
article 14 of the Covenant and other relevant provisions. 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.91 The Working Group notes
that Mr. Al Rimawi has remained in administrative detention since his arrest on 17 October
2023.
93.
The Working Group observes that Mr. Al Rimawi appeared before a military court,
which imposed the administrative detention upon him. 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.92
94.
In the present case, the Government failed to explain, despite having the opportunity
to do so, the reasons for having Mr. Al Rimawi appear before a military court. The Working
87 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
88 See the Committee’s general comment No. 32 (2007), para. 15. See also Perterer v. Austria
(CCPR/C/81/D/1015/2001), para. 9.2.
89 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.
90 A/HRC/37/42, para. 21.
91 Opinions No. 31/2017, No. 73/2018, No. 12/2020 and No. 49/2020.
92 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.
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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.93 In the light
of the source’s unrebutted submissions, the Working Group finds that Mr. Al Rimawi was
deprived of the right to have his case determined in a fair hearing by a competent, independent
and impartial tribunal, as is required under article 14 (1) of the Covenant, article 10 of the
Universal Declaration of Human Rights and articles 37 (d) and 40 of the Convention on the
Rights of the Child.
95.
The source asserts that Mr. Al Rimawi’s right to communicate with his legal counsel
has been subject to severe violations, observing that he was held incommunicado for 12 days
upon his arrest, and thus had no possibility to meet his lawyer. The Working Group further
reiterates that access to counsel is a right enshrined in article 14 (3) (b) 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.94
96.
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.95 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. 96 Given the source’s unrebutted claim that Mr. Al Rimawi was held
incommunicado and was not afforded a chance to meet his counsel, the Working Group finds
that his right to legal assistance was violated.
97.
The source alleges that neither Mr. Al Rimawi nor his lawyer have 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 administrative detention
order against him. 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.97
98.
According to the source’s unrefuted submissions, neither Mr. Al Rimawi nor his
attorney had access to the “secret” evidence on which his administrative detention was based,
since September 2023. The Government has not provided an explanation of the nature of the
secret evidence against Mr. Al Rimawi, nor any justification as to why he could not be
provided with access to it. The Working Group considers that in these circumstances, Mr. Al
Rimawi was not afforded a meaningful opportunity to challenge the basis for his arrest and
detention. The Working Group concludes that this constitutes a violation of his rights to a
93 Opinions No. 15/2016, paras. 25–27; and No. 24/2016, para. 21. See also opinions No. 3/2012 and
No. 58/2012.
94 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.
95 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. 34; A/HRC/45/16, paras. 50–55; and
A/HRC/48/55, para. 56. See also A/HRC/27/47, para. 13.
96 See, for example, opinion No. 35/2019.
97 See, for example, opinion No. 4/2022, para. 61.
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fair trial and to equality of arms under article 14 (1) and (3) (b) and (e) of the Covenant98 and
article 40 (2) (b) (iii) and (iv) of the Convention on the Rights of the Child.
99.
The source submits that Mr. Al Rimawi 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.99 It notes that Mr. Al Rimawi was below 18 years of
age when first detained. As a minor, and considering the developmental factors relating to
his youth, time spent in detention can have particularly harmful effects. It also notes that the
Military Court continues to hold Mr. Al Rimawi in detention without providing any specific
reason for the two confirmations of the detention order (16 February 2024 and 15 June 2024),
alleging the “serious security” situation as justification for his deprivation of liberty. The
Working Group considers that the period during which Mr. Al Rimawi has been held without
charge – more than one year – is excessive – and is exacerbated by this status of being a
minor at the time of arrest.
100.
The Working Group notes the source’s unrebutted claims that Mr. Al Rimawi is being
held in poor conditions in Ofer Prison, without adequate access to food, warm blankets,
clothing and daylight, and with poor hygiene and overcrowding, noting that these conditions
constitute cruel, inhuman and degrading treatment. Noting the severity of the allegations, the
Working Group is concerned about the potential impact of Mr. Al Rimawi’s conditions of
detention on his ability to properly defend himself.100 The Working Group has consistently
concluded that when it is not possible for a person who is subjected to torture or other forms
of ill-treatment or punishment to prepare an adequate defence for the judicial proceedings,
this amounts to a fair trial violation.101 Mr. Al Rimawi’s conditions of detention, including
being reportedly detained with adults, are especially alarming given his status as an
unconvicted person who was arrested as a minor, and constitutes a breach of article 10 of the
Covenant.
101.
The Working Group therefore concludes that the non-observance of the international
norms relating to a fair trial and due process are of such gravity as to give Mr. Al Rimawi’s
deprivation of liberty an arbitrary character, falling within category III.
(c)
Category V
102.
The source claims that Mr. Al Rimawi’s detention by Israel is arbitrary under
category V because it is a form of discrimination on the basis of his national, ethnic or social
origin as a Palestinian.102 According to the source, his detention 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.
103.
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.103
104.
Administrative detention on the basis of Military Order 1651 has been particularly
directed against Palestinians.104 Throughout the occupation of the West Bank by Israel, the
vast majority of persons held in administrative detention have been Palestinians, and many
98 Opinions No. 50/2014, para. 77; No. 89/2017, para. 56; No. 18/2018, para. 53; and No. 78/2018,
paras. 78 and 79.
99 Human Rights Committee, general comment No. 35 (2014), para. 37; and Human Rights Committee,
general comment No. 32 (2007), para. 35.
100 E/CN.4/2004/3/Add.3, para. 33; and opinion No. 92/2017, para. 56.
101 Opinions No. 32/2019, para. 42; No. 59/2019, para. 69; and No. 65/2022, para. 117.
102 Opinion No. 34/2018, paras. 43 and 44.
103 Opinions No. 85/2020, para. 84; and No. 13/2023, para. 75.
104 Opinion No. 31/2017, para. 35.
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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,105 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 Committee106
and the Committee on the Elimination of Racial Discrimination.107
105.
The Working Group concludes that the arrest and detention of Mr. Al Rimawi, who
is Palestinian, was conducted on discriminatory grounds, namely his national, ethnic and
social origin. The Working Group considers that Mr. Al Rimawi was detained also on the
basis of his gender, as there is a clear pattern of Israel targeting boys for detention.108 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.
(d)
Concluding remarks
106.
The Working Group is gravely concerned by the source’s unrebutted submissions that
although there is a section for minors at Ofer Prison, minors are reportedly being detained in
the same cells as adults due to overcrowding as a consequence of the alleged mass arrests
after 7 October 2023. The source reports that there are currently more than 250 children
detained in Israeli prisons, including Mr. Al Rimawi.
107.
The Working Group is obliged to remind the Government of Israel of its obligations
under the Convention on the Rights of the Child, in particular article 37 (c) which states that
every child deprived of liberty is to be treated with humanity and respect for the inherent
dignity of the human person, and in a manner which takes into account the needs of persons
of his or her age, and that, in particular, every child deprived of liberty is to be separated from
adults unless it is considered in the child’s best interest not to do so, and must have the right
to maintain contact with his or her family through correspondence and visits, save in
exceptional circumstances.
108.
The Working Group is also gravely concerned by the source’s unrebutted submissions
that the Government of Israel’s system of administrative detention of Palestinian civilians in
the West Bank has been in effect since 1967, and that the Israel Defense Forces have arrested
more than 800,000 Palestinians through administrative detention since 1967 in the Occupied
Palestinian Territory.109 Reportedly, the majority of those detained are held in administrative
detention under Military Order 1651, and since 7 October 2023 the Knesset has adopted
amendments to the Military Order, which allegedly further infringe the due process and fair
trial rights of detainees, notably extending the amount of time that can pass before a detainee
receives judicial review of the detention order, and establishing further restrictions in relation
to release dates and access to lawyers.110 The Working Group notes with alarm that these
amendments reflect further severe erosion of Palestinian detainees’ due process and fair trial
rights under Military Order 1651, which reportedly was already in de jure violation of
detainees’ rights prior to these amendments.
3.
Disposition
109.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Islam Zahi Rasim Al Rimawi, being in contravention of
articles 2, 6, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and
articles 2, 9, 10, 14, 16 and 26 of the International Covenant on Civil and Political
Rights, is arbitrary and falls within categories I, III and V.
105 Opinions No. 13/2016, No. 24/2016, No. 3/2017, No. 44/2017, No. 86/2017, No. 34/2018 and
No. 4/2022.
106 CCPR/C/ISR/CO/4, para. 10.
107 CERD/C/ISR/CO/14-16, para. 27.
108 See, for example, opinions No. 12/2020 and No. 60/2021.
109 See A/HRC/53/59.
110 See communications ISR 9/2023 and ISR 13/2024; and Temporary Military Order 2148.
A/HRC/WGAD/2024/65
GE.25-02060
17
110.
The Working Group requests the Government of Israel to take the steps necessary to
remedy the situation of Mr. Al Rimawi 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.
111.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Al Rimawi immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
112.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Al
Rimawi and to take appropriate measures against those responsible for the violation of his
rights.
113.
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.
114.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
115.
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. Al Rimawi has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Al Rimawi;
(c)
Whether an investigation has been conducted into the violation of
Mr. Al Rimawi’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Israel with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
116.
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.
117.
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.
118.
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.111
[Adopted on 13 November 2024]
111 Human Rights Council resolution 51/8, paras. 6 and 9.