Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Addendum

Observations on communications transmitted to Governments and replies received^*

^* Reproduced as received.

1. The present document is submitted by the former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, to the Human Rights Council, pursuant to its resolution 25/13.

2. In the present addendum, the former Special Rapporteur provides observations, where considered appropriate, on communications sent to States between 1 December 2015 and 31 August 2016, as well as on responses received from States in relation to these communications until 31 August 2016. In some instances and where appropriate, observations are provided to older communications which received a late reply within the above-named date range, as well as communications with updated replies following the request of the former Special Rapporteur (see additional observations). Communications sent and responses received during the reporting period are accessible electronically through hyperlinks.

3. The communications and the relevant replies can also be accessed via the incorporated links or in the communications reports of Special Procedures A/HRC/29/50 (communications sent, 1 December 2014 to 28 February 2015; replies received, 1 February to 30 April 2015); A/HRC/30/27 (communications sent, 1 March to 31 May 2015; replies received, 1 May to 31 July 2015); A/HRC/31/79 (communications sent, 1 June to 30 November 2015; replies received, 1 August 2014 to 31 January 2016); A/HRC/32/53 (communications sent, 1, December 2015 to 29 February 2016; replies received, 1 February to 30 April 2016); A/HRC/33/32 (communications sent 1 march to 31 May 2016; replies received 1 May to 31 July 2016); and A/HRC/34/75 (communications sent, 1 June to 30 November 2016; replies received 1 August 2016 to 31 January 2017).

II. Observations by the former Special Rapporteur

/…

Israel

JUA 23/12/2015 Case No. ISR 10/2015 State Reply: None to date Allegations of arbitrary arrest and detention and the solitary confinement of Palestinian human rights defender Mr. Judeh Deeb Ibrahim Jamal along with two colleagues, Ms. Najwan Odeh and Mr. Fadi Mansra.

1. The Special Rapporteur regrets that the Government of Israel has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13.

2. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above, and therefore that the Government of Israel, by employing solitary confinement against Mr. Judeh, Ms. Najwan and Mr. Mansra, for more than 33 days, has violated their rights to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1, 2, and 16 of the Convention against Torture.   

3. With regard to solitary confinement, the Special Rapporteur in interim report to the General Assembly of 5 August 2011 (A/66/268) on torture and other cruel, inhuman or degrading treatment or punishment defined solitary confinement, in accordance with the Istanbul Statement on the Use and Effects of Solitary Confinement, as the physical and social isolation of individuals who are confined in their cells for 22 to 24 hours a day. He observed that while solitary confinement for short periods of time may be justified under certain circumstances, with adequate and effective safeguards in place, the use of prolonged (in excess of 15 days) or indefinite solitary confinement may never constitute a /156 – prolonged or indefinite solitary confinement runs afoul of the absolute legitimate instrument of the State, as it may cause severe mental and physical pain or suffering, a point which has been reiterated in paragraph 28 of the General Assembly resolution 68prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

4. The Special Rapporteur urges the Government of Israel immediately to cease the prolonged solitary confinement of Mr. Judeh, Ms. Najwan, and Mr. Mansra, bring its use of solitary confinement in line with its obligations under international law and provide complete and effective redress to the victims in this case.

JUA 24/12/2015 Case No. ISR 11/2015 State Reply: None to date Allegations concerning the imminent refoulement of Mr. X, a Palestinian national, to Gaza, where he is at high risk of being subjected to torture and other forms of ill-treatment.

5. The Special Rapporteur regrets that the Government of Israel has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13.

6. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above, and is therefore of the view that the Government of Israel, by seeking to return Mr. X to Gaza, where he was subjected to torture and ill treatment and is again facing a high risk of being tortured, has violated his right to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1, 2, 3, and 16 of the Convention against Torture (CAT).

7. The Special Rapporteur would like to draw the Government’s attention to article 3 of CAT, which provides that no State party shall expel, return (“refouler”), or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. In this regard, he notes General Comment 20 on the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, in which the Human Rights Committee states that State parties “must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of extradition, expulsion or refoulement” (para. 9). Furthermore, General Assembly Resolution 61/253 urges States “not to expel, return (“refouler”), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture” (para. 9).

8. The Special Rapporteur strongly urges the Government of Israel to protect the right of Mr. X to be free from torture or cruel, inhuman or degrading treatment, and refrain from returning Mr. X to Gaza where he is at risk of being tortured.

JUA 8/12/2015 Case No. ISR 12/2015 State Reply: None to date  Allegations of arbitrary arrest, incommunicado detention and acts of intimidation and threats, including death threats, against Mr. Issa Amro the coordinator of Youth Against Settlements (YAS).

9. The Special Rapporteur regrets that the Government of Israel has not replied to the present communication, thereby failing to cooperate with mandate issued by the Human Rights Council in its resolution 25/13.

10. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above, and is therefore of the view that, by subjecting Mr. Amro to arbitrary arrest and deplorable conditions of detention including blindfolding him with his hands cuffed behind his back in a foul smelling bathroom stall for four and a half hours during which the soldiers repeatedly humiliated him and threatened him with death, the Government of Israel has failed to protect the physical and psychological integrity of Mr. Amro. As a result, the Special Rapporteur finds that Israel has violated the right of Mr. Amro to be free from torture or cruel, inhuman or degrading treatment, as provided by Articles 1, 2 and 16 of the Convention against Torture and Article 7 of the International Covenant on Civil and Political Rights.

11. The Special Rapporteur urges the Government of Israel to comply with its obligations under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman, or degrading treatment or punishment, as codified, inter alia, in the Convention against Torture.

JUA 26/02/2016 Case No. ISR 2/2016 State Reply: None to date Allegations of torture, ill-treatment, and the non-consensual medical treatment of Mr. Mohammad Al-Qiq, who is currently held in HaEmek hospital in Afula, Israel.

12. The Special Rapporteur regrets that the Government of Israel has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13.  

13. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above, and is therefore of the view that the Government of Israel, by force-feeding and imposing medical treatment on prisoners against their will, has violated the right of Mohammad Al-Qiq to be free from cruel, inhuman or degrading treatment, as provided by articles 1, 2, and 16 of the Convention against Torture.

14. The Special Rapporteur wishes to stress that “feeding induced by threats, coercion, force or use of physical restraints of individuals, who have opted for the extreme recourse of a hunger strike to protest against their detention, are, even if intended for their benefit, tantamount to cruel, inhuman and degrading treatment.” (OHCHR Joint Press Release, 28 July 2015)

15. The Special Rapporteur calls upon the Government of Israel to cease immediately the practice of force-feeding, to refrain from using other coercive measures, and to look for alternative solutions to extreme situations resulting from hunger strikes, including good-faith dialogue with prisoners. The Special Rapporteur further offers the Government of Israel its guidance and assistance in these matters.

JAL 21/04/2016 Case No. ISR 4/2016 State Reply: None to date Allegations of torture and ill-treatment suffered by the detainees during interrogations and detention at the Shikma Interrogation Facility in Ashkelon, Israel.

16. The Special Rapporteur regrets that the Government of Israel has not replied to present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13.

17. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance to the allegations presented in the initial communication, available via the link above and thus, that the Government) of Israel has engaged in systematic ill-treatment of Palestinian detainees at the Shikma Prison in Ashkelon by maintaining deplorable conditions at the detention centers, including inadequate access to light and healthcare, sleep deprivation, inadequate heating; by torturing detainees to obtain confessions; and by subjecting detainees to prolonged solitary confinement, thereby violating their right to be free from torture or cruel or degrading treatment as provided by Article 1, 2 and 16 of the Convention against Torture (CAT).  

18. In the Special Rapporteur’s interim report to the General Assembly of 5 August 2011 (A/66/268), he defined solitary confinement, in accordance with the Istanbul Statement on the Use and Effects of Solitary Confinement, as the physical and social isolation of individuals who are confined in their cells for 22 to 24 hours a day. He observed that while solitary confinement for short periods of time may be justified under certain circumstances, with adequate and effective safeguards in place, the use of prolonged (in excess of 15 days) or indefinite solitary confinement may never constitute a legitimate instrument of the State, as it may cause severe mental and physical pain or suffering. The Special Rapporteur recalls paragraph 28 of the General Assembly resolution 68/156, stating that prolonged or indefinite solitary confinement runs afoul of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Furthermore, due to the prisoner’s lack of communication, as well as the lack of witnesses inside the prison, solitary confinement may also give rise to other acts of torture or ill-treatment.

19. With respect to the conditions of imprisonment, the Special Rapporteur directs the Government to the Nelson Mandela Rules (the United Nations Standard Minimum Rules for the Treatment of Prisoners), which establish minimum standards of healthy accommodation (Rule 13) and adequate and prompt provision of health care (Rules 24 and 27).

20. The Special Rapporteur strongly urges the Government of Israel to put an immediate end to torture and bring the conditions of detention at the Shikma Interrogation Facility into accord with the state’s obligations under international law, and to comply with its obligation to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the CAT.

JUA 18/07/2016 Case No. ISR 7/2016  State Reply: None to date Allegations of the arbitrary arrest, detention, torture and ill-treatment of, and denial of due process and fair trial guarantees to two Palestinian children, aged 15 and 13.

21. The Special Rapporteur regrets that the Government of Israel has not replied to the present communication, thereby failing to cooperate with the mandate issued by the Human Rights Council in its resolution 25/13.

22. In the absence of information, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication, available via the link above. Thus, the Special Rapporteur concludes that the Government of Israel, by failing to protect the physical and psychological integrity of two Palestinian children, aged 15 and 13, and by subjecting them to torture, ill-treatment, and arbitrary arrest and detention, has violated their to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the Convention against Torture (CAT).

23. The Special Rapporteur strongly urges the Government of Israel to put an immediate end to torture and mistreatment, and to conduct a prompt, impartial, and effective investigation of the alleged acts of torture, to prosecute and punish those responsible, and to provide adequate redress to the victims, as codified inter alia in the CAT and in customary international law. The Special Rapporteur further calls upon the Government to take appropriate measures to ensure the physical and psychological integrity of all the persons, and particularly children, who are arrested and detained.

JUA 19/08/2016 Case No. ISR 11/2016 State Reply: 31/08/2016 Allegations concerning the arbitrary detention, solitary confinement, excessive use of restraints, and risk of force-feeding of Mr. Bilal Kayed, a Palestinian prisoner who has been on hunger strike in protest of his detention.

24. The Special Rapporteur thanks the State of Israel for its reply, dated 31 August 2016, to the present communication, available via the link above.

25. The Special Rapporteur welcomes the information provided by the State regarding Mr. Kayed’s access to medical treatment during his hunger strike. He takes note of the information provided by the State about allegations concerning forced feeding, excessive use of restraints, and denial of visitation rights to the family of Mr. Kayed. In spite of the information supplied by the Government, its reply fails to provide information about the allegations of solitary confinement of Mr. Kayed from September 2015 until his scheduled release on 13 June 2016 and measures taken to ensure his physical and psychological integrity. In addition, it does not sufficiently address the allegations of the risk of forced feeding and excessive use of restraints against him.

26. In the absence of information to the contrary, the Special Rapporteur concludes that there is substance in the allegations presented in the initial communication and thus that the State of Israel, by failing to protect the physical and psychological integrity of Mr. Kayed, including by subjecting him to solitary confinement, the risk of forced feeding, and excessive use of restraints, has violated his right to be free from torture, cruel, inhuman or degrading treatment or punishment as provided by Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Articles 1, 2, and 16 of the Convention Against Torture (CAT), and has failed to comply with its obligation, under international customary law, to investigate, prosecute and punish all acts of torture and other cruel, inhuman or degrading treatment or punishment, as codified, inter alia, in the CAT.

27. In his interim report to the General Assembly of 5 August 2011 (A/66/268), the Special Rapporteur defined solitary confinement, in accordance with the Istanbul Statement on the Use and Effects of Solitary Confinement, as the physical and social isolation of individuals who are confined in their cells for 22 to 24 hours a day. He observed that while solitary confinement for short periods of time may be justified under certain circumstances, with adequate and effective safeguards in place, the use of prolonged (in excess of 15 days) or indefinite solitary confinement may never constitute a legitimate instrument of the State, as it may cause severe mental and physical pain or suffering, a point which has been reiterated in paragraph 28 of the General Assembly resolution 68/156, stating that prolonged or indefinite solitary confinement runs afoul of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

28. The Special Rapporteur further reiterates his view that “feeding induced by threats, coercion, force or use of physical restraints of individuals, who have opted for the extreme recourse of a hunger strike to protest against their detention, are, even if intended for their benefit, tantamount to cruel, inhuman and degrading treatment, which in turn may amount to torture” (OHCHR Joint Press Release, 28 July 2015). Although Mr. Kayed was not subject to forced feeding, the Government’s policy, which provides for such action, violates the Government’s obligations to prevent torture and cruel, inhuman and degrading treatment under customary international law as codified in the CAT.

29. The Special Rapporteur strongly urges the State of Israel to protect the right of Mr. Kayed to be free from torture or cruel, inhuman or degrading treatment. The Special Rapporteur calls upon the State of Israel to immediately rescind the policy and practice of force-feeding and refrain from using other coercive measures, and to look for alternative solutions to extreme situations resulting from hunger strikes, including good-faith dialogue with prisoners. He further offers the Government of Israel guidance and assistance in these matters. The Special Rapporteur also reminds the State of Israel that the Committee against Torture and the Human Rights Committee have consistently found that conditions of detention can amount to inhuman and degrading treatment.

/…