Promotion and protection of all human rights – HRC eighth session – Report of the Special Rapporteur on independence of judiciary (Despouy)(excerpts)

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL,

POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS,

INCLUDING THE RIGHT TO DEVELOPMENT

_______________

*Owing to the fact that the present document greatly exceeds the page limit required by relevant General Assembly resolutions, it is being circulated as received, in the languages of submission only.

**  Late submission.

/…

Israel

Communications sent

177. On 17 October 2006, the Special Rapporteur sent a joint allegation letter together with the Special Representative of the Secretary-General on the situation of human rights defenders, concerning the closing down of the offices of the organisation Ansar Al-Sajeen (Prisoners Friends’ Association) in Israel and in the West Bank, and the search of the house of Mr. Munir Mansour, Chairperson of Ansar Al-Sajeen. Ansar Al-Sajeen is registered under Israeli law, and is one of the largest providers of legal representation to Palestinian detainees in Israeli military courts. It pays legal visits to Palestinian prisoners incarcerated in Israel and advocates for their rights. It also works with prisoners’ families in need and has facilitated Palestinian family visits. According to the information received, on 8 September 2006 in the early morning, the offices of Ansar Al-Sajeen in Tirah, Majd El-Kurum and throughout the West Bank were raided and closed down by the police and the Israeli Shin Bet following the issuance by the Israeli Defense Minister of an administrative order, in accordance with article 84-2B of the Defense (Emergency) Regulations (1945), declaring Ansar al Sajeen as illegal. The police reportedly confiscated the organisation’s assets, including 14,000 shekels dedicated to prisoners and their families, hundreds of legal files and documents, telephones, photocopying machines and computers. It is reported that the closure occurred soon after the association launched a campaign to include the cases of 1948 Palestinian prisoners, citizens of Israel, in the current talks for the exchange of prisoners. The organisation would have reportedly decided to appeal the order. On the same day, reports indicate that the house of Mr. Mansour, Chairperson of Ansar Al-Sajeen, was searched by the police and members of the Shin Bet. Mr. Mansour was reportedly questioned for one and half hour, and his mobile telephone was confiscated. Concerns were expressed that the closing down of the offices of Ansar Al-Sajeen in Israel and in the West Bank as well as the search of the house of its Chairperson may be in retaliation for the legitimate activities of the organization in defence of the rights of Palestinian prisoners detained in Israel.

178. On 25 October 2006, the Special Rapporteur sent a joint urgent appeal together with the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Representative of the Secretary-General on the situation of human rights defenders, concerning the detention of Mr. Ahmad Abu Haniya, a Palestinian human rights activist and Youth Project Coordinator in the Alternative Information Centre, a joint Palestinian-Israeli organisation based in Jerusalem which promotes human rights and advocates social change in the region. According to the information received, on 22 May 2005 Mr. Haniya was arrested at an Israeli military checkpoint on his way to work. He was subsequently detained under an administrative detention order and has been accused of membership of the Palestinian Front for the Liberation of Palestine (PLFP) and also membership of a group called Al-Islamia. He is reported to be detained at Ketziot detention centre in the Negev. The administrative detention order against him has been renewed twice since he was first detained. Under the terms of an administrative detention order, the authorities are neither required to file charges against the detainee nor to bring the case to trial. The order is usually for a determined period of time but is often renewed before it expires and it can be renewed indefinitely. Neither the defendant nor his legal representative are entitled to view the “classified” evidence against the defendant. The current order is due to expire on 15 November 2006 but it is feared that it may be renewed. Concern is expressed that Mr. Ahmad Abu Haniya may be detained in order to prevent him from carrying out peaceful activities in defence of human rights.

Communications received

179. On 7 February 2007, the Government responded to the joint allegation letter of 17 October 2006, stating that on 31 August 2006, based on the authority granted to him by Regulation 84 of the Defense Regulations (Emergency) 1945, Minister of Defense Mr. Amir Peretz declared Ansar al-Sajeen, an association registered and incorporated in Israel, to be an illegal organization. Soon alter the above declaration of the Defense Minister, the Commander of the Israeli Defense Forces (IDF) in Judea and Samaria also declared the organization to be illegal in the West Bank, and ordered the shutdown of all eight branches of the association in Hebron, Bethlehem, Ramallah, Nablus, Salfit, Qalgilya, Tul Karem and Jenin. Ansar AI-Sajeen is headed by Munir Mansour, a former security prisoner who currently resides in Majad al-Karum. Its branches in the West Bank are operated by known members of Hamas, some of whom are also former security prisoners. On the night of 7 September 2006, following the outlawing of the association, Israeli police from the Galilee district, together with the Israel Security Agency (ISA), seized the association’s property in Israel. At the same time, IDF closed down its branch offices and seized its property in the West Bank. The association was outlawed due to the fact that it operates a well-oiled apparatus for the transfer of money primarily from Hamas to security prisoners in Israeli prisons and their families. The ISA and Israel’s security apparatus view the transfer of money from Hamas to security prisoners in Israel as a reward for committing terrorist acts and an encouragement to others to follow suit. Therefore, Israel’s security services are compelled to continue their operations in an effort to thwart this kind of support for terrorist activity. However, it should be emphasized that the right to assembly is recognized as a fundamental right in Israel which can be limited only in extreme cases due to security considerations and concerns about public safety. Such decisions to limit this right must be based on concrete information and reviewed by the Minister of Defense. Any decision regarding such decisions can be challenged by the association in question and brought before the Israeli Supreme Court, sitting as the High Court of Justice.

180. On 9 August 2007, the Government replied to the joint urgent appeal of 25 October 2006, explaining that Israel has been struggling with terrorism from the day it was founded. In recent years, the number of terrorist attacks grew significantly, and Palestinian terrorists have been targeting Israeli civilians more viciously than ever before, including in pizzerias, shopping malls, cafeterias, and buses. Particularly horrendous was March 2002, when more than 80 Israeli civilians were killed, and more than 400 were injured. Overall, from September 2000 until February 2007, 1,121 Israeli civilians were killed and 8,147 were injured. One of the most effective and lawful counter-measures against such continuous terrorist attacks is the use of administrative detentions. However, it is important to note that this measure is only used in exceptional circumstances. Where sufficient and admissible evidence exists against an individual, the authorities are required to bring that individual to trial, rather than adopt such measures as administrative detention. Nonetheless, in some situations, there may be clear, concrete and trustworthy evidence against an individual, but for reasons of confidentiality and protection of intelligence sources, it cannot be presented as evidence in ordinary criminal proceedings. It is under such circumstances that administrative detentions are imposed. Issuance of administrative detention orders against detainees who pose a danger to public security in a defined area, in situations such as outlined above, are recognized by international law and are in full conformity with article 78 of the Fourth Geneva Convention 1949. Moreover, the measure is only used in cases where there is corroborating evidence that an individual is engaged in illegal acts that endanger the security of a particular area and the lives of civilians, and each order is subject to judicial review. It is important to note that an administrative detention order is limited to six months in duration, and its extension requires a re-evaluation of the relevant intelligence material, as well as further judicial review. Furthermore, local legislation governing the process grants all relevant individuals the right to appeal the order to the Military Court of Appeals, for judicial review. Petitioners may be represented by counsel of their choice at every stage of these proceedings. All detainees have the additional right to petition the Israeli High Court of Justice for a repeal of the order. The judicial organs reviewing each and every order carefully examine whether the criteria outlined in case law and legislation are fully met.

181. Regarding the case at hand, according to information forwarded to us by the relevant authorities, Mr. Abu Haniya was arrested on 18 May 2005, and an order for his administrative detention was issued for six months. This order was extended three times and on 13 November 2006, the military commander of the Area issued an order renewing Mr. Hanyia’s administrative detention for a further six months, until 14 May 2007. The order was renewed in light of the danger Mr. Haniya posed to the security of the Area, as an activist in the Popular Front terror organization. The order was judicially reviewed by a military court on 20 November 2006, who ruled that the detention period should be reduced, unti1 30 November 2006. The prosecution appealed this decision, and on 28 November 2006, it was overturned by the military court of appeals. The court examined confidential material and stated that it included many details, from various credible sources, some of which intersected and verified each other. Some of the details were of substantial severity. The court examined the information in the presence of agents from the Israel Security Agency. Based on it, and the agents’ clarifications, the court concluded that the military commander of the Area had reasonable grounds to assume that in light of decisive security justifications and the future danger assessment, the safety of the Area and the public required that Mr. Haniya remain in custody. Thus the military court of appeals ruled that the detention order, as it was originally issued by the military commander of the Area, should remain in effect until 14 May 2007. When this administrative detention order expired on 14 May 2007, it was not renewed and Mr. Haniya was accordingly released.

Special Rapporteur’s comments and observations

182. The Special Rapporteur thanks the Government of Israel for its cooperation and values its efforts to provide substantive information in response to the concerned expressed on letters sent on 17 October 2006 and on 25 October 2006.

/…

_____________