International Covenant on Civil and Political Rights – Replies from Israel – Interim report of Sp. Rapporteur for follow-up on concluding observations of HRC

NGO information 

Six reports received in August 2011: ADALAH – The Legal Center for Arab Minority Rights in Israel; ADALAH, Al Mezan Centre for Human Rights; Physicians for Human Rights – Israel (PHR-Israel); BADIL Resource Center for Palestinian Residency and Refugee Rights; Defence for Children International – Palestine Section (DCI-P); Negev Coexistence Forum for Civil Equality; Public Committee Against Torture in Israel (PCATI). 

The State party should lift its military blockade of the Gaza Strip, insofar as it adversely affects the civilian population. The State party should invite an independent, international fact-finding mission to establish the circumstances of the boarding of the flotilla, including its compatibility with the Covenant. 

All water supply and sewage systems in Gaza are under Palestinian control since 2005. It was agreed that Israel would transfer and sell an additional 5 million cubic metres/year of water to Gaza during the period of the Agreement on the West Bank and the Gaza Strip (1995). The supply pipeline was laid up to the border of the Gaza Strip and awaits the Palestinian Authority’s approval. 

The State party has proposed to the Palestinians to purchase water for the Gaza Strip directly from the desalination plant at Ashkelon. The State party does not prevent the flow of surface water or groundwater to the Gaza aquifer. 

Programmes exist for the treatment of wastewater, but the Palestinians are not advancing for their implementation. The number of wells has doubled. 

The Turkel Commission appointed in June 2010 to examine the conformity of the actions taken in connection with the flotilla incident with the norms and requirements of international law consisted of independent Israeli experts, two international observers and two experts in International Law: actions taken by the Commission are hearing of testimony from central governmental and non-governmental sources; review of all the available documentary evidence and submissions made. 

Conclusion of the Commission (interim report): the imposition and enforcement of the naval blockade and the land crossings policy complied with international law, in view of the security circumstances and Israeli efforts to fulfil its humanitarian obligations. The actions by Israel during the flotilla incident led to the loss of human life and physical injuries. Despite a limited number of uses of force for which no conclusion was reached, the actions were found to be in conformity with international law. The Commission is currently working on the second part of its report. The Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident published its report in September 2011. It confirms the Israeli position on the legality and proportionality of the naval blockade and the flotilla incident. 

ADALAH: The Turkel Commission was established by the Government of Israel and is not independent, impartial or transparent. 

BADIL: Israel has not lifted the blockade of Gaza, and has not eased any of the humanitarian conditions for the civilians. Gaza still suffers tremendously from the blockade (denial of basic needs, goods, food, medicines, infrastructure materials, and access to education). Israel has also refused to cooperate with international efforts for an impartial, international, independent investigation into the flotilla incident.

[C1]: The State party makes no reference to any steps taken to lift the military blockade of the Gaza Strip. The actions taken do not implement the recommendation. 

The State party should incorporate into its legislation the crime of torture, as defined in article 1 of the Convention against Torture and in conformity with article 7 of the Covenant. It also reiterates its previous recommendation (CCPR/CO/78/ISR, para. 18), that the State party should completely remove the notion of “necessity” as a possible justification for the crime of torture. The State party should also examine all allegations of torture, cruel, inhuman or degrading treatment pursuant to the Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (Istanbul Protocol).

The current wording of the Penal Law is in accordance with international law. The Israeli Security Agency (ISA) conducts its interrogations according to the relevant guidelines and regulations. They are monitored regularly. Internal guidelines have been prepared by the ISA on how high-ranking ISA officials should be consulted when the circumstances of an interrogation support the necessity requirement. 

The participation of medical doctors or personnel in unlawful activities occurs only in exceptional cases. Israel Prison Service (IPS) physicians will not approve and will not take part in any activity of investigation or punishment of an inmate. 

The Inspector for Complaints against ISA interrogators operates independently under the supervision of the Inspector’s Supervisor in the Ministry of Justice. Decisions of a sensitive nature are further examined by the Attorney General and the State Attorney. Every complaint of improper treatment is examined by the Supervisor. The Attorney General announced in November 2010 that the Inspector would become part of the Ministry of Justice. Statistics are provided on the number of examinations conducted by the Inspector. None of the examinations between 2006 and 2011 ended with criminal charges, all interrogations were performed in accordance with the law and no torture or ill-treatment took place. However, procedures and interrogation techniques were modified as a result of some of the examinations. 

ADALAH, Al Mezan and PHR-Israel: Solitary confinement is widely used in Israeli prisons, and the IPS has not issued sufficient directives to regulate its use. Israel has not removed the “necessity defense” for criminal responsibility for torture and cruel, inhuman and degrading treatment. The transfer of the Inspector to the Ministry of Justice has yet to take place. In July 2011, the Ministry of Health reported on the establishment of a Committee for Medical Staff to Report harm to Detainees under Interrogation, which will be mandated to receive complaints from medical staff regarding the suspected torture or cruel, inhuman and degrading treatment. 

 (d)  Ensure that reports of torture or cruel, inhuman or degrading treatment of detained children are investigated promptly by an independent body. 

The obligation to record the investigation of suspects has been gradually implemented. Since January 2010, it includes offences punishable by a minimum of 10 years, with the exception of security offences. 

The Security Directives Order (Temporary Order) established a Juvenile Military Court (JMC) in the West Bank in 2009, separating minors from adult detainees. The Amendment of the Security Provisions Order raised the age of majority in Judea and Samaria from 16 to 18 years. The JMC is authorized to appoint a lawyer for a minor. In 99.9 per cent of the cases the accused is represented by a defence attorney. Inmates are entitled to have meetings with their lawyers behind a divider, or in exceptional cases without a divider. The JMC is authorized to order that minors’ parents be present in every hearing. Parents have the right to act on behalf of the minor in filing applications and questioning witnesses and may plead together with, or instead of, the minor. The JMC may also order the preparation of a Probation Officer Report. 

The parents of the minor should be notified a soon as possible. After a reasonable effort has been made to contact the parents, another relative or adult known to the minor may be contacted, except when the minor has expressed his objection on reasonable grounds. The Officer in Charge can order the summoning of a minor suspect for questioning, in a “reasoned written decision”, without giving notice to his/her parents if: (i) it may harm the physical or mental well-being of the minor or another person; (ii) there is reasonable suspicion that the parent or a relative was an accessory to the offence; (iii) the minor is suspected of a security offence. 

After eight hours, or when the reason for not notifying the parents has ceased to exist, notification shall be given without delay. 

The Order prescribes that the minor is notified, in a language that he understands considering his age and degree of maturity, of his right to consult with a lawyer in private. 

Every complaint regarding torture or cruel, inhuman or degrading treatment of detainees, adults and children alike, are investigated promptly. Supervision and oversight mechanisms are provided for in the Security Agency Law 5762-2002. Police officers are subject to continuous scrutiny by the Department for the Investigation of Police Officers in the Ministry of Justice and by the courts. 

ADALAH, Al Mezan and PHR-Israel: Palestinian minors continue to be detained and interrogated alongside adult detainees in ISA facilities located in Israel and the West Bank. They are subjected to conditions of confinement that constitute cruel, inhuman and degrading treatment, alongside adult detainees, in order to put pressure on them. 

DCI-P: Each year approximately 700 Palestinian children are prosecuted in Israeli military courts. Over 90 per cent of these are denied bail and over 80 per cent receive custodial sentences (compared to 6.5 per cent in the civilian juvenile justice system). Children as young as 12 years receive custodial sentences. The JMC uses the same facilities and court staff used by the adult military court, and children are brought into court by groups of two and three, wearing leg chains and the same brown prison uniforms as adults. On occasion, adults and children are brought into court together. There is still no provision in the military orders to guarantee the audiovisual recordings of children’s interrogations. The primary evidence against children in the military courts is a confession, either of the accused child or that of another interrogated child, and since most children are denied bail, the quickest way out of the system is to plead guilty in all cases. There is no official mechanism to inform parents on the place where their child is detained. The overwhelming majority of children see a lawyer for the first time after interrogation and confession. Between 2001 and 2010, 645 complaints were filed against ISA interrogators. No criminal investigation has been opened. 

PCATI: There is no independent examination mechanism. 

[B2]: A part from the separation of adults and children in the court room following the establishment of a juvenile military court, no information is provided on other measures to ensure that minors are not tried as adults. The actual application of the separation is questioned by NGO reports (DCI-P). 

 (a)  [C1]: No information is provided on policies governing the use of military courts in proceedings against children or on how it is guaranteed that the detention of children is only used as a measure of last resort for the shortest possible time. No information is provided on how audiovisual recordings of proceedings involving children are guaranteed in cases that are not punishable by a minimum of 10 years’ imprisonment and that do not constitute a security offence. There is no information on specific measures to ensure that trials are conducted in a prompt and impartial manner, in accordance with fair trial standards, other than those relevant to recommendation; 

 (b)  [B2]: Information is provided on the existing legal provisions related to the notification of parents, but these provisions have widely applicable exceptions, and there is no information on their implementation. Information should be requested on State party plans to revise its legislation to guarantee that the accused can systematically see their lawyers at an early stage of the proceedings; 

 (c)  [C1]: N o information is provided on new measures aimed at ensuring that reports of torture or cruel, inhuman or degrading treatment of detained children are investigated promptly by an independent body. 

In its planning efforts in the Negev area, the State party should respect the Bedouin population’s right to their ancestral land and their traditional livelihood based on agriculture. The State party should also guarantee the Bedouin population’s access to health structures, education, water and electricity, irrespective of their whereabouts on the territory of the State party. 

In 2007, the Advisory Committee on the Policy regarding Bedouin Towns (Goldberg Committee) was established. The plan to provide for the status of communities, and the plan for the economic development of the Bedouin population in the Negev were submitted to the Government in May 2011 and approved in September. 

They aim at improving education in the Negev and Abu-Basma for the Bedouin population. Counselling and psychological services are available in the education system and new educational programmes, tuition grants and scholarships have been introduced. In the unauthorized Bedouin villages, three high schools have been established and 14 positions for school inspectors for Bedouin localities have been created since 2004. 

An attempt has been made to extend the Electricity Supply Law (Temporary Order) 5756-1996, which ceased in May 2007, providing for the electricity supply to Arab and Druze citizens whose houses were built without permits. The Israel Electric Corporation began connecting schools in unauthorized villages following a petition to the High Court of Justice by Adalah in July 2009. 

Adalah: No Bedouins were included in the elaboration of the governmental plan from May 2011 that would displace over 30,000 Bedouin from their ancestral land. Despite a rising rate in infant mortality, one clinic was closed in unrecognized villages, and two were only partially reopened after a petition to the Supreme Court. The State committed before the Supreme Court in 2007 to opening the first high school in the unrecognized villages by 2009, but now refuses to do so since the land planning or the village is not completed. The dropout rate for Bedouin students is around 70 per cent. The Water Authority has made no indication of implementing the Supreme Court decision on the right of unrecognized villages to a “minimum access to water”. 

Less Bedouin infants are vaccinated than babies of Jewish parents. In March 2010, the State announced a new programme to increase vaccination among the Bedouin by providing incentives to nurses to work in clinics serving the Bedouin population. The Supreme Court ruling from June 2011 failed to define the “reasonable access” to water it prescribed. The State has completely failed to adopt the recommendation regarding electricity access and Bedouin have had to install their own power systems. 

[C1]: A part from including Bedouin members in the Goldberg Committee, no measures have been described that ensure the respect of the right of the Bedouin to their ancestral land and their traditional livelihood based on agriculture, and to otherwise take into account the interests of the Bedouin. The measures taken do not guarantee the Bedouin population’s access to health structures, education, water and electricity. 

Letter reflecting the analysis of the Committee. The Committee should include its follow-up questions in the list of issues prior to reporting and request the State party to provide the requested complementary information in its reply thereto. 

List of issues prior to reporting to be adopted by the Committee in July 2012