Promotion and protection of all human rights/Independence of judges and lawyers/Military courts – Special Rapporteur (de Albuquerque) report/HRC 14th session – Communications with Israel, Gaza authorities)

Report of the Special Rapporteur on independence of judges and lawyers, Gabriela Carina Knaul de Albuquerque e Silva*

Addendum

Communications to and from Governments

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* Owing to its length, the present report is circulated as received.

/…

Israel

Communication sent

543. On 23 July 2009 the Special Rapporteur sent an urgent appeal regarding the legal foundations and practices of the military justice system applied to Palestinians in the occupied Palestinian territory, particularly in relation to Military Order 378:

544. At the outset, I would like to note that the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of human rights law. This point was confirmed by the Human Rights Committee in its general comments Nos. 29 and 31 and in its concluding observations on Israel (CCPR/CO/78/ISR, para. 11) and by the International Court of Justice (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 2006 Reports, 226, para. 25).

545. Furthermore, the International Court of Justice stated that the protection offered by human rights conventions did not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the International Covenant on Civil and Political Rights (ICCPR) which covers situations of public emergency which threaten the life of the nation (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, I.C.J. Reports 2004, 136, para. 106).

546. Second, it is my view that the applicability of the regime of international humanitarian law does not preclude accountability of States parties under article 2, para. 1 of the ICCPR for the actions of their authorities outside their own territories. This has already been pointed out by the Human Rights Committee and the International Court of Justice which have confirmed that human rights are legally binding upon a State when it acts outside its internationally recognized territory [See Official Records of the General Assembly, Fifth-ninth session, Supplement No. 40 (A/59/40), annex III and I.C.J. Reports 2004, 136, at 179 (para. 109)].

547. Therefore, as a State party to the ICCPR, Israel is obliged to honour the rights laid down in it of anyone within its power or effective control, even if not situated within the territory of Israel. It is for this reason that the Israeli military justice system applied to the population of the occupied Palestinian territory must comply also with applicable international human rights law.

548. In this connection, I would like to draw your Excellency’s Government attention to several substantive areas that would indicate shortcomings in the military justice system regarding fundamental fair trial guarantees.

549. 1) According to the information at my disposal, between 1990 and 2006, more than 150,000 Palestinians, both civilians and those implicated in the conflict, have been brought before Israeli military courts. Military Order 378 ‘Concerning Security Provisions’ of 20 April 1970 established the jurisdiction of the military courts. The law appears to grant the military courts jurisdiction that enables them to try any Palestinian individual – resident or non-resident of the occupied Palestinian territory –  regardless of whether the offence was committed within that territory or not. In its section III, the Military Order 378 lists the offences for which Palestinians can be brought before the military courts. The most common charge used is article 53 (a) of the Military Order 378 entitled ‘Offences against the Maintenance of Public Order’ which carries up to ten years of imprisonment. This provision appears also to be used against children as young as 12 years for throwing stones at the ‘Wall’.

550. To illustrate, according to the new information received, the following minors have been charged, accused or convicted under this provision:

551. Husam H., 15 years old, male, from Zeita, near Turkarm: arrested on 7 January 2009 and sentenced to three months imprisonment and a fine of New Israeli Shekel (NIS) 500.

552. Hamzi F., 15 years, male, from Sa’ir, Hebron: arrested on 11 January 2009 and sentenced on 23 February 2009 to four months in prison, further four months of suspended sentence and a fine of NIS 750.

553. Habib M., 17 years old, male, from Quaryut Village, near Nabulus: arrested on 14 January 2009 and detention extended by the Salem Military Court.

554. Bashir Q., 12 years old, male, from Tura al Gharbiya, near Jenin: arrested on 19 January 2009 and sentenced on 15 February 2009 to a fine of NIS 750 and 1 month of probation.

555. Osaid Q., 12 years old, male, from Tura al Gharbiya, near Jenin: arrested on 20 January 2009 and sentenced on 15 February 2009 to a fine of NIS 750 and 1 month of probation.

556. Imad A., 15 years old, male, from Tura al Gharbiya, near Jenin: arrested on 20 January 2009, sentenced on 15 February 2009 to a fine of NIS 750 and 1 month of probation.

557. Mohammad A., 13 years old, male, from Tura al Gharbiya, near Jenin: arrested on 20 January 2009, sentenced on 15 February 2009 to a fine of NIS 750 and 1 month of probation.

558. Amir Q., 13 years old, from Tura al Gharbiya, near Jenin: arrested on 20 January 2009, sentenced on 15 February 2009 to a fine of NIS 750 and 1 month of probation.

559. Omar Z., 14 years old, male, from Husan Village, near Bethlehem: arrested on 26 January 2009 and sentenced to 91 days of imprisonment and a fine of NIS 1000.

560. Ahmad Q., 15 years old, male: arrested on 1 January 2009 near Qalandiya checkpoint, transferred to Ofer Prison and then Telmond and Damoun prisons inside Israel, sentenced to four and a half months of imprisonment and a fine of NIS 1000.

561. In this connection, I would like to refer your Excellency’s Government to General Comment No. 32 of the Human Rights Committee in which it emphasized that the trial of civilians in military or special courts could raise serious problems as far as the equitable, impartial and independent administration of justice was concerned. Therefore, the Committee stressed the need that all necessary measures be taken to ensure that such trials are held under conditions which genuinely afford the full guarantees stipulated in article 14 of the ICCPR.

562. According to the Committee, trials of civilians by military courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials. This argument was also underscored by the Committee in its decision concerning communication 1172/2003 (Madani vs. Algeria). In this decision, the Committee considered "[t]hat the State party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials, that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts is unavoidable. The State party must further demonstrate how military courts ensure the full protection of the rights of the accused pursuant to article 14 […].” The Committee further noted that “Nor does the mere invocation of domestic legal provisions for the trial by military court of certain categories of serious offences constitute an argument under the Covenant in support of recourse to such tribunals."

563. In my opinion, the exercise of jurisdiction by a military court over civilians not performing military tasks is normally inconsistent with the fair, impartial and independent administration of justice. This should even more evidently apply in cases of minors.

564. Furthermore, the Human Rights Committee has stated that deviating from fundamental principles of fair trial is prohibited at all times (General Comments No. 29, para. 11 and No. 32, para. 6). It is reported that those individuals arrested by the Israeli army under the Military Order 378 do not have access to legal counsel during the investigation. In addition, families of these individuals are rarely informed about their whereabouts following the arrests.

565. The right to legal counsel is one of the fundamental principles of fair trial, which is enshrined in article 14, para. 3 (b) and (d) of the ICCPR. In addition, I would like to point your Excellency’s Government to the specificities of the right to be assisted by a lawyer which are set forth in the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, in particular to:

566. principle 1. “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings”.

567. principle 5. “Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence”.

568. principle 7. “Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.”

569. 3) From the information received, there appears to be a practice by which Palestinian detainees are being made to sign confessions. In several cases, these statements were written in Hebrew, a language that very few detainees comprehend. It is reported that once these confessions are obtained, they constitute primary evidence against Palestinian detainees in the military courts.

570. According to information at my disposal, Hamzi F., who was arrested on 11 January 2009 and accused of throwing stones, was threatened with physical violence if he did not confess, slapped across the face. He then signed papers written in Hebrew without knowing of the contents. On 23 February 2009, he was sentenced to four months in prison, further four months were suspended and a fine of NIS 750 was imposed.

571. Furthermore, Mohammad F., 16 years old, male, from Hebron, was arrested on 23 January 2009 and accused of throwing stones at soldiers. He was then placed in a jeep and transferred to Kirya Police station, beaten with a stick, pushed, punched and kicked all over his body for about five minutes. When he was interrogated for one hour, he denied the accusation. When he was given papers in Hebrew, he initially refused to sign. However, when the interrogator threatened to beat him, he signed a confession in Hebrew. On 2 March 2009, the was sentenced to 4 and a half months in prison with a further four and a half months suspended sentence and a fine of NIS 700.

572. Information was further received on Mohammad M., 14 years old, male from Al Jalazun Camp, Ramallah. He was arrested on 13 January 2009 for carrying a knife through Qalandiya checkpoint and then accused of wanting to stab a soldier. He first denied the accusation and was then slapped and kicked at Qalandiya checkpoint. He was then transferred to Al Maskubiya. When the interrogator told him he could go home of he confessed, he first denied the allegations, but then signed papers written in Hebrew without fully understanding the contents. He appeared last in court on 6 April 2009. He was sentenced to 10 months of imprisonment, 12 months of probation and a fine of NIS 2000.

573. The prohibition of self-incrimination constitutes another fundamental fair trial principle. In this context, I would like to refer your Excellency’s Government to article 14, para. 3 of the ICCPR, which stipulates: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (g) Not to be compelled to testify against himself or to confess guilt”.

574. 4) The applicable law appears not to provide for the charges to be given ‘promptly’. Article 21 (a) of Military Order 378 stipulates that “Prior to the accused's appearance in a miliary court, the nature of the charges and details thereof shall be recorded in the charge sheet which shall be brought by the prosecutor before the court. A copy of the charge sheet shall be given to the accused before his hearing.” This implies that the defendant may only learn about the charges laid against him/her prior to the actual start of the trial. In addition, it appears that the indictments containing the charges are written in Hebrew.

575. In that regard, I would like to point to article 14, para. 3 (a) of the ICCPR, which stipulates that “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

576. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him".

577. 5) According to article 8 of the Military Order 378, sentence 2, “The accused may be defended by an advocate.” However, the applicable law appears not to provide for the right to choose counsel.

578. In addition, applicable law appears not to provide the right to adequate time and facilities for the preparation of the defense. To illustrate, the law does neither provide for guaranteed access to court materials nor does it require translation of evidentiary materials or court materials into a language that the defendant understands. Furthermore, in practice, lawyers appear to experience difficulties in having access to their detained clients. If access is granted, the facilities do seldom provide for the confidentiality of the meeting. Furthermore, lawyers are often provided with incomplete prosecution material.

579. Several cases have been reported in which lawyers have been assigned to unrepresented defendants once the accused are brought into the courtroom.

580. Furthermore, the law provides for the appointment of free legal assistance. However, this only applies where a person is accused of an offence carrying a sentence of ten years or more.

581. According to the information at my disposal, Tarik K., 17 years old, male, from Balata Refugee Camp, was arrested on 22 January 2009 and accussed of membership of a banned organization, planning to carry out a suicide bombing and planting explosive devices. His hands were tied tightly with plastic ties and he was blindfolded. He was then transferred to Huwwara Interogation and Detention Center where he remained for several hours. He was later transferred to Al-Jalame Interrogation and Detentions Center which is located in Israel and kept in solitary confinement. On 25 January 2009, he was interrogated for about one hour, but refused to confess. He was subsequently placed in solitary confinement for two weeks and then taken to a cell containing an informant to whom he confessed. He was then further interrogated and on 22 February 2009 transferred to Megiddo Prison, Israel. He saw a lawyer for the first time after his confession. He appeared last in court on 21 June 2009; the next court appearance is scheduled for 26 July 2009.

582. In this connection, I would like to refer your Excellency's Government to article 14, para. 3 of the ICCPR, which states that: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

583. To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.

584. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”

585. Furthermore, the Basic Principles on the Role of Lawyers stipulate in principle 8: “All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.”

586. 6) While according to Military Order 378, the Israeli Evidence Ordinance applies to the proceedings in military courts, which provides for the presumption of innocence, the percentage of acquittals appears to be very small. According to information at my disposal, in 2006 full acquittals were obtained in just 0,29 percent of the total of cases tried by the military courts, which may indicate that the fundamental fair trial principle of the presumption of innocence has not been effectively implemented.

587. In this connection, I would like to point to article 14 para. 2 of the ICCPR, which stipulates that “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

588. 7) The applicable law appears not to provide for any guarantee to be tried without undue delay. However, the law seems to provide that when an accused has been held in detention for two years without a military court trial reaching a verdict, the matter shall be brought before the Military Court of Appeals.

589. In this regard, I shall like to point to Article 14 (c) of the ICCPR which provide for the right to be “tried without undue delay”.

590. 8) Section 18 of Military Order 378 provides for the right to examine witnesses for the prosecution. However, a decision of the Israeli Military Court of Appeal reportedly provides that as a standard procedure, investigators for the Israeli Security Agency will give testimony in camera.

591. It appears that in practice very few full evidentiary hearings are heard by the military courts. According to the information received, full evidentiary hearings took only place in 1,4 percent of cases concluded by the military courts in 2006. It appears that sentences are far harsher in cases where defense lawyers demanded for a full evidentiary hearing, including summoning witnesses and presenting testimony.

592. In this context, I would like to refer to the fundamental principle of the equality of arms in judicial proceedings. Therefore, article 14, para. 3 (e) of the ICCPR provides for the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

593. 9) Article 11 of the Military Order 378 provides that “The military court shall hold cases brought before it in public”. A military court may make an exception from this rule if it considers it appropriate to do so in the interests of the security of the Israeli Defence Forces, justice, or for public safety. However, it appears that access to the military courts is generally highly restricted, requiring prior authorisation from the military authorities and where access is granted, it is limited to two immediate family members and an occasional observer.

594. In this regard, I would like to bring to your attention to another fundamental fair trial principle contained in article 14, para. 1 of the ICCPR, which stipulates “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing […]. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

595. 10) Judges in the military courts are military officers in regular or reserve service, i.e. members of the Israeli Defence Forces. It appears unclear how the independence of these judges from the military hierarchy is guaranteed in relation to their selection and appointment, tenure and disciplinary measures, including dismissal.

596. In this connection, I would like to point again to article 14 para. 1 of the ICCPR, which guarantees to everyone a hearing before a “competent, independent and impartial tribunal”.

597. 11) Lastly, information received suggests that each year approximately 700 children and adolescents (below the age of 18), who are from the West Bank, are prosecuted by Israeli military tribunals. Military Order 132 defines a Palestinian child as any person under the age of 16. This is in contrast to Israeli domestic law which defines a child as a person under the age of 18. Relevant legislation also provides that children as young as 12 may be prosecuted in the military courts. Palestinian minors who are arrested by the Israeli military are prosecuted in the same jurisdiction as adults, i.e. there is no separate system for juvenile justice.

598. In this regard, I would like to point to the Convention on the Rights of the Child which specifically recognises the particular vulnerability of children by providing that detention should be a measure of last resort and that states should implement measures whenever appropriate that steer children away from judicial proceedings.

599. Furthermore, the Human Rights Council, in its resolution 10/2, recognized in:

600. paragraph 7 “that every child and juvenile in conflict with the law must be treated in a manner consistent with his or her rights, dignity and needs, in accordance with international law, including relevant international standards on human rights in the administration of justice, calls on States parties to the Convention on the Rights of the Child to abide strictly by its principles and provisions and to improve the status of information on the situation of juvenile justice;” and, in its

601. paragraph 9, “encourages States, that have not yet done so, to integrate children’s issues in their overall rule of law efforts and to develop and implement a comprehensive juvenile justice policy to prevent and address juvenile delinquency as well as with a view to promoting, inter alia, the use of alternative measures such as diversion and restorative justice, and ensuring compliance with the principle that deprivation of liberty of children should only be used as a measure of last resort and for the shortest appropriate period of time as well as to avoid wherever possible the use of pre-trial detention for children.”

602. In sum, I am concerned that the above-mentioned legal foundations and practices of the military justice system do not comply with international standards. I therefore urge your Excellency’s Government to initiate a review of applicable legislation with a view to amending it as well as to rectify the aforementioned practices.

Communication received

603. On 4 November 2009, the Government of Israel replied to the communication sent on 23 July 2009 by the Special Rapporteur.

604. The Government in its response gave background information about the Israeli military courts and indicated that the Judges in the military courts are required to make difficult decisions on a daily basis. The military courts system has opted for maximum transparency, befitting a judicial system. Hearings are conducted openly, cases in deliberation are provided for review, and reports on its operations are issued regularly. The courts system is an independent system and the independent discretion of a judicial system is on of its most important principles. Review of the system is carried out through the appeals instance. In administrative matters, reviews are carried out by the military courts headquarters.

605. That the military courts have determined that it is in their authority to criticize the legality of orders issued by the military commander according to the principles of international human rights law and the basic laws of the State of Israel.

606. On appointment of judges, the Government indicated that the military justice system is an independent system and military judges maintain their independence and personal discretion in their decisions. Military judges are not subjected to any authority except the authority of the law. The judges are appointed by the regional commander, but this is only a confirmatory signature similar to appointment by the President of the State of Israel. The military commander has no say regarding their decisions. The entity that appoints judges is an independent and external committee. Since 2004, the committee is an independent entity and it examines each candidate thoroughly, both in active service and reserve service. The position of the Bars representative in the committee is significant, so as is the position of other member of the committee.

607. On law and the legal proceedings the government indicated that the substantial law and the legal proceeding common in the military courts are similar and almost identical to those in civilian courts in Israel. Evidence laws in the military courts are identical by law to those in Israel (Section 9 to the order for Security Directives 5730-1970 states “as regards evidence laws the military court shall act as per the rules obligating in criminal matters in courts in the State of Israel”) and the same standard is used. As regards detention laws, regardless of the various arrangements set forth by the legislator, the court has adopted the principles of the basic laws and the detention law, which action has brought about changes in legislation that greatly improve the condition of suspects and accused persons (for example the grounds for arrest were adopted, the obligation to list the suspicions and to submit evidence was enacted, the arrest period was limited unit the end of proceedings).

608. On publicity of hearing the Government indicates that the military courts are strict in upholding the publicity of hearings and are not deterred from instructing that a hearing be open to the public even against the opinion of other senior persons in the defense forces.

609. On accessibility to rulings and legislation the Government indicated that as of 2000, military court files are published regularly, once a year. The files are sent to all the legal libraries. All military courts of appeal rulings are distributed by known procedure, according to a procedure worked out together representatives from the Military Courts Attorney’s Committee, to four different attorneys from all districts, who have volunteered to distribute the rulings forward.

610. On the right to know the charge and translation the Government indicated that in the past most of the indictments were translated into Arabic, but as no requests were made to receive these translations, the practice has changed and today indictments are translated as per the accused request.

611. On the right to representation the Government indicated that in the appointment of an Attorney the military courts do not avoid appointing a defense attorney funded by the Civil Administration. They do this not only in severe cases, but also in minor cases where there is no obligation to appoint a defense attorney. In 99.9% of the cases the accused is represented by a defense attorney. Palestinian defense attorney are granted full access to the military courts.

612. On the presence of the accused person by law (Section 35 to the order for Security Directives) the accused is entitled to be present in hearings in his case. exceptions are made in cases where the accused does not behave properly in court or when permission is granted by the court due to the accused medical condition.

613. On the right to trial without undue delay the government indicated that the right is upheld by the military courts.

Comments and observations of the Special Rapporteur

614. The Special Rapporteur thanks the Government of Israel for its response. She however regrets that despite the details the Government provided with respect to the military court system, the Government has not addressed the concerns of jurisdiction by military courts over civilians not performing military functions or the concerns on the scope of applicability of Military Order 378 especially when it relates to minors.

Communication Sent

615. On 13 November 2010, the Special Rapoprteur sent an urgent appeal jointly with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention and Special Rapporteur on the situation of human rights defenders regarding Mr. Mohammad Othman, human rights defender and volunteer with the Palestinian “Stop the Wall Campaign” and partner of the NGO “Centre on Housing Rights and Evictions” (COHRE). Mr. Othman assisted COHRE with fact-finding missions to the occupied Palestinian territories and worked with COHRE on issues related to Israel and the occupied Palestinian territories.

According to information received:

616. Mr. Mohammad Othman, returning from Norway where he carried out advocacy work and met with Government officials, was arrested on 22 September 2009, at the Allenby Bridge Crossing between Jordan and the West Bank. Mr. Othman was placed in detention at the Huwwara detention centre and then transferred on 24 September 2009 to the Kishon (Jalameh) interrogation centre where he was placed in solitary confinement.

617. The Kishon Military Court extended his detention on 29 September 2009 for ten days. The Salem Military Court further extended his detention period on 8 October, 19 October and 27 October 2009. On 1 November 2009, the Court rejected an appeal against the extension of his detention. On the same day the military court prosecutor requested that Mr. Othman be prevented from meeting his lawyers until the next court hearing. The Salem Military Court sustained the proposal at a hearing on 2 November 2009, in the absence of both Mr. Othman and his attorneys. An appeal from Mr. Othman’s lawyers challenging the application of the military prosecution preventing him from contacting his lawyers had been rejected by the Military Court of Appeals on the basis that the appeal should be filed directly with the High Court of Israel.

618. Mr. Othman has reportedly been subjected to lengthy interrogation sessions, some of them lasting from 8:00 am until midnight. He has been allegedly threatened that the interrogations could last for up to 180 days. He was reportedly also threatened with life imprisonment and told that “his human rights work would not be helpful as he is now in the hands of the State of Israel.”

619. On 8 November 2009, the court extended Mr. Othman’s detention period for another ten days and also prolonged the ban on access to his lawyers until 15 November 2009, citing the interests of the interrogation as a reason. Since the ban on contacts with his lawyers, Mr. Othman has been held incommunicado. He receives occasional visits by ICRC delegates.

620. According to information available, to date no charges have been brought against Mr. Othman, nor has he been brought to trial.

621. Concern is expressed that the continued detention of Mr. Mohammad Othman without charges may be related to his work in defence of human rights, especially to his advocacy work and for speaking out against the construction of the separation wall.  

Communication received

622. On 26 April 2010 the Government of Israel replied to the communication sent on 13 November 2010, by the Special Rapporteur as follows:

623. The government indicated that in confronting the threat of terrorism and protecting its civilians from suicide bombers and other attackers it has found that the use of administrative detention is, on occasion a necessary and effective measure. Where sufficient, admissible evidence against an individual, the authorities are required to bring that individual to justice, rather than adopt such measures as administrative detention. This measure may be used as an exception only when the evidence is existence is clear, concrete and trustworthy, but for reasons of confidentiality and protection of intelligence sources, cannot be presented as evidence in ordinary criminal proceedings.

624. The government stated that the issuance of administrative detention orders against detainees who pose a danger to public security, in cases as outlined above is recognized by international law and is in full conformity with Article 78 of the Fourth Geneva Convention 1949. The measure is only used in cases where there is corroborating evidence that an individual is engaged in illegal acts that endanger security and the lives of civilians, and each order is subject to judicial review. Administrative detention orders are limited to six months and any extension requires a reevaluation of the relevant intelligence material, as well as further judicial review.  Furthermore, local legislation governing the process grants to all relevant individuals the right to appeal the order to the Military Courts of Appeals, for judicial review. Petitioners may be represented by counsel of their choice at every stage of the proceedings. All individuals have the additional right to petition the Israeli High Court of Justice for a repeal of the order.

625. Information was provided that Mr. Othman was detained in administrative detention in 2009. The last order in his regard was issued on December 22, 2009, and was due to remain in force until January 22, 2010. In the judicial review of the order and after examination of the confidential material against Mr. Othman, the Court stated inter alia, that the information on the basis of Mr. Othman’s detention was the suspicion that he was in contact with a foreign agent of a terrorist organization, a suspicion that Mr. Othman confirmed. The court also stated that relevant considerations of protecting security and the public, stood on the basis of the decision to extend his administrative detention. At no point was Mr. Othman’s political activity or personal views regarded as a basis for his detention. Mr. Otheman was subsequently released on January 12, 2010. He was represented by a lawyer in all the legal proceeding and court hearings.

Comments and observations of the Special Rappporteur:

626. The Special Rapporteur thanks the Government of Israel for the response and welcomes the release of Mr. Othman. The Special Rapporteur regrets however that the concerns related to the legal basis for the prolonged period of detention of Mr. Mohammad Othman without charges, as well as information on why the regular civilian courts are unable to be the competent judicial authority in relation to the allegations against Mr. Othman, were not addressed.

627. The Special Rapporteur reiterates that in cases of administrative detention the state party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts is unavoidable.

Communication sent

628. On 23 December 2009, the Special Rapporteur sent an urgent appeal jointly with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the situation of human rights defenders, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment regarding the arrest and detention of Mr. Jamal Juma. Mr. Juma has been the coordinator of the “Stop the Wall Campaign”, a Palestinian grassroots human rights organization, since 2002.

629. The Chairperson-Rapporteur of the Working Group on Arbitrary Detention; the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on the situation of human rights defenders sent a joint communication concerning the arrest and detention of another member of the “Stop the Wall Campaign”, Mr. Mohammad Othman, on 13 November 2009.

According to information received:

630. On 15 December 2009, Mr. Jamal Juma was summoned for interrogation by the Israeli Security Forces. After he had been interrogated at the Qalandia checkpoint, Mr. Juma was brought back to his house by security officials, who searched the premises for several hours and confiscated his computer and cell phone. He has been detained at the Moskobiyyeh Interrogation Center since 16 December, without charges and without access to a lawyer or family members. The court decided on 17 December to introduce a ban on contacts with his attorney.

631. The first court hearing in Mr. Juma’s case was held on 21 December 2009, at the Moskobiyyeh Interrogation Center in the Russian Compound district of Jerusalem. Although the prosecution requested a 14-day extension of his detention period, the military judge granted only a 4-day extension for interrogation purposes. However, the court decided to interrogate Mr. Juma under the military court system, despite arguments of his attorney that the military court lacked jurisdiction over him, and that as a resident of East Jerusalem he should be brought before a civilian court. The next hearing in Mr. Jamal Juma’s case has been set for 24 December 2009.

632. Concern is expressed that the arrest and detention without charge of Mr. Jamal Juma may be directly related to his peaceful activities in defense of human rights, especially to his advocacy work against the construction of the separation wall. In light of his incommunicado detention, further concern is expressed regarding the physical and psychological integrity of Mr. Jamal Juma.

Communication received

633. On 12 February 2010, the Government of Israel replied to the communication sent on 23 December 2009, by the Special Rapporteur as follows:

634. Mr. Juma was arrested on 16 December 2009, and was interrogated by the security forces for suspicions of contacting a foreign agent of a terrorist organization. The interrogation materials in this regard were transferred to the military prosecution in the West Bank for review and decision regarding his indictment. After reviewing his case it was decided not to file an indictment against Mr. Juma at this time. Subsequently Mr. Juma was released on 13 January 2010.

Comments and observations of the Special Rapportuer:

635. The Special Rapporteur thanks the Government of Israel for its response and welcomes the release of Mr. Juma. The Special Rapporteur however regrets that the Government did not provide information the legal basis for the arrest and detention of Mr. Juma without charges and why the regular civilian courts were unable to be the competent judicial authority in relation to the allegations against Mr. Juma.

/…

Occupied Palestinian Territory – (The Authorities in Gaza)

Communication sent

879. On 16 November 2009, The Special Rapportuer an urgent appeal jointly with the special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment regarding the case of Saleem Mohammed Saleem al-Nabahin, who was recently sentenced to death by a military court in Gaza.

According to the information we have received:

880. Mr. Saleem Mohammed Saleem al-Nabahin, aged 27, is a resident of al-Boreij refugee camp in Central Gaza governorate. Hamas security forces took Mr. Saleem al-Nabahin into custody at an unspecified date in mid-2008. In detention, he was subjected to torture at the hands of members of the Gaza Internal Security Forces and of the Izz al-Din al Qassam Brigades. A confession to the charges of collaboration with the enemy was extracted under torture.

881. Mr. Saleem al-Nabahin was put on trial before the Permanent Military Court in Gaza on charges of “collaboration with hostile parties” under article 131 of the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979. On 8 October 2009, the Military Court found him guilty and sentenced him to death by hanging.

882. On 13 October 2009, Mr. Saleem al-Nabahin filed an appeal against the judgment and sentence. Under the Revolutionary Penal Code which was applied by the court in this case the appeal lies not to a higher court but to the Head of the Militant Judiciary in his personal capacity.

Communications received

883. At the time this report was finalized, no response to this communication has been received.

Comments and observations of the Special Rapporteur

884. The Special Rapporteur regrets the absence, at the time of the finalization of the report, of an official reply to the above-mentioned communications. She considers response to her communications as an important part of the cooperation with her mandate, and calls upon the authorities in Gaza to transmit responses to the above-mentioned communication.

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