The International League Against Arbitrary Detention urges the Government of Israel to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 60/2023 concerning Jihad Maher Nafez Bani-Jaber, asking the Government of Israel to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Jihad Maher Nafez Bani-Jaber (Israel) : Opinion No. 60/2023.
ARRESTED WITHOUT A WARRANT AND KEPT IN PROLONGED ADMINISTRATIVE DETENTION
Mr. Bani-Jaber is a Palestinian born in 2005, who was living in Aqraba, a town located in the Israeli-occupied West Bank.
On May 3, 2022, Mr. Bani-Jaber was arrested at his house by members of the Israeli military forces, verbally and physically threatened, and forced into their vehicle. He was then detained in different locations, notably the Petah Tikwa interrogation and detention centre where he stayed 13 days. On May 31, 2022, after having had his detention extended eight times, the authorities finally filed charges against him.
On September 1, 2022, Mr. Bani-Jaber pleaded guilty to an offence related to not actively conveying information to Israeli authorities, for which he was sentenced to a four months' prison sentence. Though having already served them, Mr. Bani-Jaber was kept in administrative detention for four months, which was then renewed two times until his release on August 30, 2023. Though the Government was given an opportunity to answer these allegations, it chose not to.
Mr. Bani-Jaber was not presented with an arrest warrant or another decision by a public authority justifying his arrest. Besides, he was not promptly informed of the reasons for his arrest or charges against him, as he was informed of them nearly four weeks after his arrest, when brought in front of a judge. As such, the Working Group found this situation in violation of articles 9(1) and (2) of the Covenant, and 9 of the Universal Declaration of Human Rights. Besides, the Working Group also recalled that the Convention on the Rights of the Child establishes that children must be promptly informed of the reasons and charges of their arrest, and must be able to challenge the legality of their detention within 24 hours.
On top of this, Mr. Bani-Jaber was held in a prolonged administrative detention that lasted a full year, without any justification. As such, the Working Group concluded this situation violated Mr. Bani-Jaber's rights under article 9(1) of the Covenant
Consequently, the Working Group found the arrest and detention of Mr. Bani-Jaber to be arbitrary under category I.
DENIED ACCESS TO LEGAL COUNSEL AND EVIDENCE, AND JUDGED BY A MILITARY COURT
While detained at Petah Tikwa detention centre, Mr. Bani-Jaber was interrogated multiple times, though no charges against him existed at the time. During these interrogations, he was denied the right to consult with a counsel of his choice. Considering this, the Working Group found a violation of his right to legal assistance, under article 14(3) of the Covenant and article 11 of the Universal Declaration of Human Rights.
Besides, during his detention, neither Mr. Bani-Jaber nor his lawyer have been able to access the "secret information" on which the Israeli military court that judged him relied on to decide his administrative detention from September 2022 onwards. As such, the Working Group found Mr. Bani-Jaber could not prepare his defence properly, in violation of article 14(3)(b) of the Covenant; could not examine evidence used against him, in violation of article 14(3)(e) and could not challenge the lawfulness of his detention, in violation of article 9(4) of the Covenant. Hence, considering this, the Working Group also found Mr. Bani-Jaber's rights to a fair trial and public hearing by an independent and impartial tribunal and to be presumed innocent, guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights, had been violated.
Moreover, although he was a minor at that time, Mr. Bani-Jaber was brought before a military court. The Working Group notably recalled that according to the Convention on the Rights of the Child, this should be avoided. Besides, there was undue delay to fill the charges against Mr. Bani-Jaber and bring him in front of the court, as above-mentioned. As such, the Working Group concluded these reasons were additional ones for which Mr. Bani-Jaber's right to be tried by a competent, independent and impartial tribunal for these reasons, guaranteed by article 14(1) of the Covenant and article 10 of the Universal Declaration of Human Rights, had been violated.
Thus, the Working Group found the detention of Mr. Bani-Jaber arbitrary under category III.
A DISCRIMINATORY PATTERN OF PERSECUTION BASED ON GENDER, ETHNIC AND SOCIAL ORIGIN
Eventually, the Working Group noted there was a pattern and practice by the Israeli authorities to use administrative detention against Palestinian children, and especially young boys, as a way to punish them for their Palestinian identity. As such, considering the circumstances of the case, the Working Group found that Mr. Bani-Jaber was arrested on a discriminatory basis, namely on the basis of his national, ethnic and social origin, as well as his gender.
Considering the above, the Working Group concluded the rights of Mr. Bani-Jaber to equality before the law and to the equal protection of the law, guaranteed by article 7 of the Universal Declaration of Human Rights and 26 of the Covenant, were violated. The Working Group also found his right not to be discriminated, enshrined in article 2 of the Universal Declaration of Human Rights, article 2(1) of the Covenant and article 2(1) of the Convention on the Rights of the Child, had been violated.
Thereby, the Working Group concluded the detention of Mr. Bani-Jaber was arbitrary under category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In the light of the foregoing, the deprivation of liberty of Jihad Maher Nafez Bani-Jaber was arbitrary and fell under categories I, III and V because it contravened articles 2, 7, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2 (1), 9, 14 and 26 of the International Covenant on Civil and Political Rights.
The Working Group requested the Government of Israel to take the necessary steps to remedy the situation of Mr. Bani-Jaber without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to accord Mr. Bani-Jaber an enforceable right to compensation and other reparations, in accordance with international law.
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