In Dialogue with Israel, Experts of the Human Rights Committee Raise Issues Concerning the Applicability of the Covenant and Ask about Administrative Detention
The Human Rights Committee this morning concluded its consideration of the fifth periodic report of Israel on how it implements the provisions of the International Covenant on Civil and Political Rights, with Committee Experts raising issues concerning the applicability of the Covenant, as well as asking detailed questions about Israel’s use and application of administrative detention.
A Committee Expert noted that in certain contexts, the Covenant could be considered to have extraterritorial scope and application. The longer an occupation period lasted, the more obligations under international humanitarian law and international human rights law were incumbent vis-à-vis the occupied population, including the obligation to re-establish normal enjoyment of key freedoms. Did the State party plan to review that legal position? On the matter of administrative detention, could the delegation speak to the use of secret evidence in administrative detention proceedings, and the practice of holding minors in administrative detention? What was the maximum duration of administrative detention, and how many were currently being held?
Meirav Eilon Shahar, Permanent Representative of Israel to the United Nations Office at Geneva and co-head of the delegation, welcomed the opportunity to discuss Israel’s efforts to implement its obligations under the Convention, and share some of the country’s achievements, experiences, views, and challenges, especially since 2019 when the report was submitted. It was Israel’s principled position that the Covenant was not applicable beyond a State’s national territory. Correspondingly, it did not apply with respect to the West Bank. This was also the case regarding the Gaza Strip, a territory over which Israel did not exert effective control since its disengagement in 2005.
Gil Limon, Deputy Attorney General for Public and Administrative Law at the Israeli Ministry of Justice and co-head of the delegation, said the State of Israel respected human rights and ensured their realisation by different legal mechanisms. Israel undertook many efforts to promote human rights and protect them and to implement its obligations under the Covenant. It was hoped that the session would provide the opportunity to conduct a candid and constructive dialogue.
In the ensuing discussion, the delegation, in response to questions asked about the applicability of human rights law outside the territory of the State and during hostilities, said there was no change in the position of the State of Israel. Israel believed that the human rights conventions which were territorially bound did not apply, nor were they intended to apply, to areas beyond the State’s national territory. In response to questions about administrative detention, the delegation explained that it was a lawful security measure allowing the deprivation of a person’s liberty for a limited time. It was a preventive measure against person posing grave threats to the security of the West Bank and the State of Israel. International law, specifically the law of belligerent occupation, authorised the use of administrative detention in the territory under belligerent occupation. Administrative detention could not be employed where criminal prosecution was possible. Regarding the administrative detention of minors, Israel in recent years had severely limited the practice, and at present there were only three minors in administrative detention.
In concluding remarks, Ms. Sharar said Israel was committed to the rule of law and strived to improve and narrow the gaps.
Photini Pazartzis, Committee Chairperson, in concluding remarks, said the Committee regretted that the State party continued to maintain some of its positions; some of the responses were due to the fact that the State party stood by its positions concerning the applicability of the Covenant.
The delegation of Israel was made up of representatives of the Ministry of Justice; the Ministry of Education; the Ministry of Foreign Affairs; the Israel Defense Forces; the Ministry of Health; the Population and Immigration Authority; the Israeli Prisons Service; the Israel Police; the Ministry of Welfare and Social Affairs; and the Permanent Mission of Israel to the United Nations Office at Geneva.
The Committee will issue its concluding observations and recommendations on the report of Israel at the end of its one hundred and thirty-fourth session, which concludes on 25 March. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.
The Committee is next scheduled to meet in public at 3 p.m. on Thursday, 3 March, to provide an update on its consideration of the eighth periodic report of the Russian Federation (CCPR/C/RUS/8).
Report
The Committee has before it the fifth periodic report of Israel (CCPR/C/ISR/5).
Presentation of the Report
MEIRAV EILON SHAHAR, Permanent Representative of Israel to the United Nations Office at Geneva and co-head of the delegation, welcomed the opportunity to discuss Israel’s efforts to implement its obligations under the Convention, and share some of the country’s achievements, experiences, views, and challenges, especially since 2019 when the report was submitted. A vibrant democracy, Israel strived to foster an open and democratic society, where every person was free to enjoy human rights without discrimination. The country’s Basic Laws ensured that the rights of all citizens were upheld. Israel’s active and autonomous judiciary ensured equality and democratic rights; under certain conditions, residents of the Palestinian Territories were able to bring claims where there was a concern that basic rights or civil liberties had been infringed upon.
It was Israel’s principled position that the Covenant was not applicable beyond a State’s national territory. Correspondingly, it did not apply with respect to the West Bank. This was also the case regarding the Gaza Strip, a territory over which Israel did not exert effective control since its disengagement in 2005. Israel remained fully committed to achieving a solution that would ensure durable peace between Israelis and Palestinians. At the same time, Israel was confronted with ongoing security challenges, witnessing devastating terrorist attacks on Israeli citizens, originating from Gaza and the West Bank. Israel had made efforts at finding the delicate and proper balance between its commitments to human rights, and its obligation to defend its citizens against terrorism. As a result, Israel often found itself at the forefront of emerging legal dilemmas. Israel tackled those dilemmas understanding that the country must impose restraints on its own actions, in conformity with applicable international law, including international human rights law.
Israel was present before the Committee with a firm belief that the constructive dialogue provided the country with a critical tool to further enhance its methods of implementation of human rights.
GIL LIMON, Deputy Attorney General for Public and Administrative Law at the Israeli Ministry of Justice and co-head of the delegation, said the State of Israel respected human rights and ensured their realisation by different legal mechanisms. The constitutionality of each regular law was subject to the rules outlined in the Basic Laws. Below the constitutional level, many laws enshrined human rights in different spheres. At the administrative level, the Attorney General ensured that governmental activities complied with the law, respected human rights and balanced properly between public needs and legal considerations.
Addressing some of the developments in the legislative, judicial and administrative fields regarding human rights in general and civil and political rights in particular, Mr. Limon noted that the Israeli parliament, the Knesset, had legislated many new laws anchoring human rights protected by the Convention. In January 2022, the Ministry of Justice had published a draft bill of a new constitutional law: Basic Law on Rights in Investigations and Criminal Justice. That Basic Law aimed to anchor the rights of persons involved in criminal proceedings, noting the crucial importance of the right to a fair trial, the right to representation, the presumption of innocence and more. The Law also referred to the rights of crime victims, minors, persons with disabilities and persons with language barriers. The draft was approved this week by the Government and would soon be discussed by the Knesset. Another important legislative measure was Amendment No. 137 to the penal law, which defined a motive of racism or hostility toward the public as an aggravated circumstance in a murder offence. Another example of the Court's role in the advancement of human rights was a decision which had the effect of requiring all surrogacy agreements to be conducted in a manner that did not allow for discrimination against same-sex couples or single parent.
In order to strengthen the Arab population in Israel, the Israeli Government had approved a resolution establishing a new five-year plan for the Arab population in Israel. Another plan aimed at raising the personal security and safety, in particular of Arab-Israeli citizens, and increasing the trust of the Arab population in the law enforcement authorities.
Due to widespread prioritisation and a rise in awareness in general, Israel had continuously seen progress with regard to the representation of women in high-ranking decision-making positions. A new inter-ministerial team for the promotion of the transgender community in Israel was appointed in order to examine the interfaces between the transgender community and governmental public services and to offer solutions to the challenges faced by transgender persons in Israel. Among its interim recommendations were improving the accessibility of governmental forms to the transgender community by employing gender-neutral language; and conducting professional training for civil servants in order to raise awareness of the transgender community and the challenges they faced. Israel undertook many efforts to promote human rights and protect them and to implement its obligations under the Covenant. It was hoped that the session would provide the opportunity to conduct a candid and constructive dialogue.
Questions by the Committee Experts
A Committee Expert welcomed the delegation warmly and thanked them for their presence in Geneva. Turning to questions, the Expert noted that in certain contexts, the Covenant could be considered to have extraterritorial scope and application. The longer an occupation period lasted, the more obligations under international humanitarian law and international human rights law were incumbent vis-à-vis the occupied population, including the obligation to re-establish normal enjoyment of key freedoms. Did the State party plan to review that legal position?
Could the State party explain how its fundamental law of 1992 protected equality and non-discrimination between Jewish and non-Jewish people? According to information received, discrimination based on ethnic or national origin seemed to be omnipresent, and was manifested in a significant number of rules, laws, and practices, which governed the daily functioning of the country.
Turning to the right to life, in the context of the use of force during military operations, the Expert asked what the rules were governing the use of weapons during military operations, for example the use of actual bullets, tear gas and the like? Could the delegation speak to procedural guarantees around the use of lethal forces? What were the guarantees around the opening of a rapid, independent and impartial investigation in the case of extrajudicial executions meted out by Israeli forces in particular?
Another Committee Expert asked the delegation to update the Committee on the concrete steps taken to establish an independent national human rights institution in full compliance with the Paris Principles? How did the State party intend to ensure that in practice, civil society and other relevant stakeholders were engaged in the establishment of the national human rights institution, and had the possibility to participate in discussions on reports to be submitted to human rights treaty bodies, including the Human Rights Committee?
Turning to the issue of the state of emergency and counter-terrorism measures, could the delegation explain what further measures Israel intended to take to ensure that the definition of terrorism was precise and limited to the countering or terrorism, in full conformity with the Covenant? On the right to life, contrary to the reply by the State party that “No death penalties were imposed or executed during the reporting period”, the Committee had received reports indicating that 11 death sentences had been handed down, seven of which by military courts. Could the delegation provide the Committee with an exact number of death sentences and executions carried out within the reporting period?
Another Committee Expert, on the issue of state of emergency, could the State Party inform the Committee on the constitutional framework ruling the maximum period for the state of emergency and its extension? What had the Supreme Court stated in its jurisprudence on the current indefinite duration of the state of emergency in Israel?
Another Committee Expert asked what measures the State party was taking to cease the construction and expansion of settlements in the occupied territory, in accordance with Security Council Resolutions? The delegation was also asked to provide information on the measures taken to prevent giving any legal legitimacy on housing units and unauthorised outposts and structures in settlements? What measures had the State party taken, or would take, to reroute the Wall in accordance with the advisory opinion of the International Court of Justice, and to cease the construction of the wall, and ensure that Palestinians had full access to their lands and livelihood? The delegation was also asked to provide information about the number of complaints, investigations and sentences handed down to perpetrators--and reparation granted to victims-- of alleged violations of international human rights and humanitarian law by members of the Israeli Defense Forces and other law enforcement officers during Operation Cast Lead (2008–2009), Operation Pillar of Defense (2012) and Operation Protective Edge (2014).
Another Committee Expert asked the delegation to please provide an update on the draft bill on the prohibition of torture. What was the reason for the delay in adopting the law, and was there a timeline for when the draft bill would be finalized and adopted?
Responses by the Delegation
The delegation explained that when it came to the establishment of a national human rights institution, there were already several national institutions providing services to protect human rights, including the Equal Employment Opportunities Commission, the Early Childhood Council, and many others.
The Population and Immigration Authority regularly trained on issues relating to human rights conventions, including issues like trafficking in persons and gender issues. Personnel in the refugee status determination unit underwent a four-week course on topics related to refugees and asylum seekers, including the 1954 Refugee Convention.
In response to questions about the revocation of citizenship, it was also regulated by the citizenship law which had strict conditions. Citizenship could be revoked only by court decision, at the request of the Ministry of the Interior with the agreement of the Attorney-General. There had been two cases where the Ministry of the Interior had asked for the revocation of citizenship for persons involved in serious terrorist activities; in one case the district court had affirmed the request, and in the second case the request had not been accepted. The two cases had been appealed and were now pending before the High Court of Justice.
In response to questions about the applicability of human rights law outside the territory of the State and during hostilities, there was no change in the position of the State of Israel. Israel believed that the human rights conventions which were territorially bound did not apply, nor were they intended to apply, to areas beyond the State’s national territory. In practice, the conduct of Israeli agents in areas under Israeli jurisdiction, including in areas of the West Bank, were consistent with human rights requirements. With regard to conduct of hostilities, Israel recognised the profound connection between human rights and the laws of armed conflict. Yet those two systems of law which were codified in separate instruments remained distinct and applied in different circumstances.
In response to questions about complaints, investigations and sentences in connection with operations, the delegation explained that since the publication of the Turkel Report, thorough and comprehensive work had been done in the Ministry of Justice in collaboration with the military Advocate-General Office regarding its implementation. As an example, the delegation noted that a unit had been established in the Department of International Law in the Ministry of Justice, which was actively involved in giving legal advice on matters pertaining to the laws of armed conflict, thus strengthening the capacity of the Attorney-General to exercise her supervisory powers over the military Advocate-General.
Regarding Arab representation in the Civil Service, the delegation explained that a steady increase was seen in the rates of Arab, Druze and Circassian employees in the Civil Service. There were also increases among mid-level and high-level employees. Israel was working on affirmative action programmes mandating goals to significantly increase the number of minority employees in the Civil Service and Government companies. A question had also been raised about Israel’s citizens of Ethiopian origin; it was an issue of high priority, and the State party had a unit for the coordination of the fight against racism. It was working on promoting the establishment of more supervisors on prevention of racism throughout the Government ministries.
The delegation addressed the Gaza border events of 2018 and 2019. The violent riots and hostile activity gave rise to real and imminent danger to human life and bodily integrity of the citizens of Israel and members of its armed forces deployed in the area. Israel had a duty to protect its citizens and property from threats emanating outside its borders, whether military or civilian. It was within the context of the armed conflict that violent riots and attacks had occurred along the Gaza border since March 30, 2018. Israel’s Defense Forces had contended with simultaneous gatherings of sometimes tens of thousands of people along the border. The violent riots were controlled and directed by Hamas, driven by its own agenda. The Israeli Defense Forces had equipped its soldiers with sufficient amounts of non-lethal means, primarily tear gas, in an effort to distance the crowd from the security infrastructure and to avoid high-risk situations that necessitated other uses of force. The standard operating procedures applicable to the Gaza border events explicitly forbid the use of potentially lethal force against the rioters; that was saved for exceptional circumstances. Potentially lethal force was permissible only where a person or a mob posed a real and imminent danger to the life or bodily integrity of civilians or Israel Defense Force soldiers, as a measure of last resort and subject to a stringent requirements of necessity, and proportionality.
In response to questions about the security fence, the delegation said that over the years, Palestinian terrorism had taken the lives of thousands of Israelis in brutal terrorist attacks. In order to secure the lives of its citizens, Israel had built a temporary, defensive, and non-violent security fence. The route of the fence had been determined solely on the basis of security considerations and topographical considerations, as well as civil considerations. In response to questions regarding access to land and the security fence, the delegation said that since some segments of the fence were located within the West Bank - due to security concerns and the area’s topography - a zone was established over an area that held privately owned Palestinian land within it. Israel had gone to great lengths to minimise the impact of the zone on the local population.
In response to questions about the death penalty and 11 verdicts allegedly given, the delegation said that no such thing existed, such a verdict had not been given.
Follow-up Questions by the Committee Experts
A Committee Expert asked for information about the sentencing of soldiers who might have had recourse to excessive use of force against children, persons with disabilities, or journalists.
Another Committee Expert asked for information about processes underway to revisit the definition of terrorism, to make it more precise and more in compliance with the obligations under the Covenant?
Another Committee Expert said it was quite clear that international humanitarian law was applicable to the West Bank and other occupied territory, and also it was clear from various United Nations documents that there were many instances of violence by the State party’s defence forces against Palestinian people, which constituted violation of international humanitarian law. Were the mechanisms established in response to the Turkel Commission’s recommendations working for investigation and prosecution of alleged violations by security forces in the occupied territory?
Responses by the Delegation
The delegation explained that Arab citizens were very active participants in all spheres of life in Israel, there were two Ministers in the current Government for example. In further response to questions about the death penalty, the delegation explained that it had been used twice in the history of the State party. In 1948, an officer accused of treason had been tried by a military field court. The second time the death penalty had been used was in 1962, in the case of Adolf Eichmann, one of the major organizers of the Holocaust against the Jewish people. With those exceptions, the death penalty was neither requested nor issued by the State of Israel, which maintained its moratorium in that regard.
Questions by the Committee Experts
A Committee Expert asked about the detention and interrogation of Palestinians. Could the State party provide information about the existence of mechanisms aimed at preventing the violation of the law regarding the rights of detainees, adults and children? Could the delegation speak to the use of secret evidence in administrative detention proceedings, and the practice of holding minors in administrative detention? What was the maximum duration of administrative detention, and how many were currently being held?
Regarding freedom of expression, the State party had failed to provide the Committee with the requested information on the measures in place to ensure the safety of journalists in the course of their work and in their exercise of their freedom of expression. Could the State party please respond to that question, and also to reports received regarding undue government pressure and arrests of journalists critical of the government or covering sensitive subjects?
Another Committee Expert asked the State party to provide information about measures taken to prevent violence perpetrated by settlers against the Palestinian population in the occupied Palestinian territory? What steps were taken to ensure a prompt, thorough, independent and impartial investigation into all incidents of violence against Palestinians and their property? Turning to questions around freedom of movement, could the delegation provide information on the current restrictions on freedom of movement imposed on Palestinians throughout the occupied Palestinian territory, including East Jerusalem, and the Gaza Strip? Did the restrictions imposed on Palestinians satisfy the requirements for permissible restrictions on freedom of movement under article 12, paragraph 3, of the Covenant? What measures had the State party taken, or planned to take, to lift or ease the restrictions on the movement of people and goods from and to the Gaza Strip?
Another Committee Expert asked about issues around refugees and asylum seekers, noting that information before the Committee indicated that there were no coherent and transparent rules and criteria for refugee status determination. Could the delegation explain how the current asylum procedure could be considered transparent, effective and efficient and how it addressed the protection of refugees and asylum seekers from the risk of the principle of non-refoulement? On the matter of conscientious objectors, could the delegation further explain the reasoning behind the denial of the request for exemption from military service by the Special Military Committee? On the subject of the right to take part in public affairs, could the delegation speak to laws around Knesset members’ expulsion; what was the rationale of that amendment?
Another Committee Member asked about justice applicable to minors, and about demolitions of homes and evictions of Palestinians. How were the Nelson Mandela rules applied in practice, which prohibited the solitary confinement of children? How were the basic needs of children ensured in miliary detention centres? How were procedural guarantees involved in the detention of juveniles upheld, such as access to a lawyer? When would the State bring an end to the demolition of Palestinian homes, for the purpose of forcible transfer of persons or annexation? Could the delegation provide information about the status of the dispute around homes in the Sheikh Jarrah neighbourhood?
Another Committee Expert asked about issues around arbitrary interference with private life and the protection of family. Could the delegation explain how and when the State party intended to revoke the application of the Citizenship and Entry into Israel Law (Temporary Order) in practice and therefore protect the right to family life and the rights of children thus affected? Further, could the delegation clarify what amendments were being currently discussed in relation to the mentioned law and its regime? Could the delegation explain what measures had been taken to facilitate family reunification of Israeli citizens, irrespective of their ethnicity, status or background, with Palestinian spouses living in the West Bank, East Jerusalem or Gaza Strip, or with spouses living in several States classified by the State party as “enemy States”?
Responses by the Delegation
The delegation explained that when it came to the law about dismissal of members of the Knesset, the threshold to activate the law was very high, and it had never been used. When it came to disqualifying parties and candidates from participating in elections, that needed a majority vote in the Senatorial Election Committee, and the approval of the Supreme Court. In response to questions about the asylum procedure, the delegation explained that since 2017, no one had entered Israel illegally through the Egyptian border, thus no one had been detained under those regulations. Israel supervised and ensured that the process of relocation was conducted according to the agreement, in line with international law; Israel made certain that migrants were accorded all relevant rights, in accordance with their agreements. Every person who voluntarily left for a third country provided contact details, and the Population and Immigration Authority employee contacted them and made sure they had arrived in the third country and received all their rights in accordance with arrangements. There had been no known cases of violation of the principle of non-refoulement.
The delegation explained that in Israel, solitary confinement was a punitive measure imposed only in restricted circumstances; it must follow a disciplinary hearing. Solitary confinement was used for short and limited periods, a maximum of 14 days only. A period of more than 7 days in solitary confinement could be imposed only by the prison director or their deputy. The placement of minors in solitary confinement or separation was done only in extreme cases, and as a last resort. If there was an impression that the minor was distressed, they would be looked after by a social worker. At any time, a prisoner could ask for legal consultation, and would be allowed to meet with legal counsel.
In response to questions about the neighbourhood of Sheikh Jarrah, the delegation said the roots of the case went to the nineteenth century with the purchase of private property by Jewish owners. Over the years, several of the cases had been litigated in the Israeli judicial system, and though successive instances had held the right of the original owners in many cases, the courts also had been aware of the delicate humanitarian aspects of the matter. Political pressure from Palestinian extremists had frustrated the resolution of the issue.
In response to questions about administrative detention, the delegation explained that it was a lawful security measure allowing the deprivation of a person’s liberty for a limited time. It was a preventive measure against person posing grave threats to the security of the West Bank and the State of Israel. International law, specifically the law of belligerent occupation, authorized the use of administrative detention in the territory under belligerent occupation. Due to the complex and volatile security situation in the West Bank, detention orders were issued against those planning suicide or other terrorist attacks, or otherwise actively assisting in the commission of such acts, among others. Administrative detention could not be employed where criminal prosecution was possible. Regarding the administrative detention of minors, Israel in recent years had severely limited the practice, and at present there were only three minors in administrative detention.
In response to questions about freedom of movement, the delegation stated that the Israeli Army had no intention of hurting anyone who crossed the fence. Recently, the quotas of permits granted to merchants and senior businessmen living in the Gaza Strip had been significantly increased, to help rehabilitate the Gaza Strip. The policy regarding movement between Israel, Gaza, and the West Bank by land was decided based specifically on security considerations. In response to questions about conscientious objectors, the delegation explained that exemptions were only granted to persons whose personal beliefs prevented them from bearing arms, being a part of the military, or participating in combat.
Follow-Up Questions by the Committee Experts
A Committee Expert said there was ample evidence that people who had been relocated to a certain country had been subject to violations, with their documents not being accepted. Reports received from several stakeholders gave examples of journalists, civil society actors—including human rights defenders—being subjected to threats, assaults, harassment and arrests, including excessive use of force by the Israeli security forces and Israeli settlers, among others. Could the delegation comment on such allegations?
Another Committee Expert asked for how many days was the maximum period of detention for a minor? When the period lapsed, what type of judge heard the case of the child?
Closing Remarks
MEIRAV EILON SHAHAR, Permanent Representative of Israel to the United Nations Office at Geneva and co-head of the delegation, thanked the Committee Members for the open dialogue, and thanked her own delegation for efforts to bring information from Ministries and authorities. Israel was committed to the rule of law and strived to improve and narrow the gaps.
PHOTINI PAZARTZIS, Committee Chairperson, thanked the co-heads of the delegation for their concluding remarks, and the constructive dialogue with the delegation. The members of the Committee had addressed concerns about implementation of previous recommendations in the areas of settlement activities, counter-terrorism legislation, use of excessive force, freedom of movement, expression and association, and other issues. The Committee regretted that the State party continued to maintain some of its positions; some of the responses were due to the fact that the State party stood by its positions concerning the applicability of the Covenant.
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CCPR22.003E