2022-07-29

West Bank and Gaza

West Bank / Gaza / Core Program / position paper

State of emergency

16. While taking note of the state of emergency declared by the State party on 5 March 2020 to protect public health following the onset of the coronavirus disease (COVID-19) pandemic, the Committee is concerned that the continuous extension of the state of emergency to date, through the regular adoption of new declarations by presidential decrees and decree-laws, does not meet the requirements set forth in the Basic Law of 2003,9 raising concerns about the legality of the emergency measures taken in response to the pandemic. It is also concerned at allegations that human rights defenders, journalists, political opponents and government critics have been subjected to excessive use of force and arbitrary arrest and detention under such emergency measures (art. 2).

Fundamental legal safeguards

20. While taking note of the procedural safeguards to prevent torture and ill-treatment that are enshrined in the Basic Law of 2003 and Criminal Procedure Code of 2001, the Committee regrets the absence of an explicit provision on the right to have access to a lawyer immediately upon arrest and that articles 97 and 98 of the Criminal Procedure Code alow the interrogation of detainees without the presence of a lawyer “in the event of a flagrant crime, necessity, urgency, or fear that the evidence may be lost”. It is also concerned about reports indicating that persons in custody are not routinely afforded all fundamental legal safeguards fromthe very outset of deprivation of liberty, in practice, in both the West Bank and the Gaza Strip. In that respect, it has been reported that: (a) lawyers are sometimes not allowed to meet with their clients during the period of the investigation; (b) timely access to an independent medical examination is not a standard practice aimed at uncovering signs of torture and ill-treatment, in particular for persons in pretrial detention; (c) the right to notify a relative or a person of one’s choice is often delayed; and (d) arrested persons are often brought before the competent authority several days or even weeks after their arrest, wel beyond the 24-hour legal limit, extendable for another 48 hours, which may leave suspects vulnerable to an increased risk of torture or ill-treatment. The Committee is further concerned about reports that, in February 2022, the President of the State party signed five Decree-Laws amending the Criminal Procedure Code No. 3 of 2001, the Civil Procedure Code No. 2 of 2001, Law on Evidence No. 4 of 2001, Law on Formation of Courts No. 5 of 2001 and the Judicial Authority Law No. 1 of 2002, which raise concerns regarding the protection of the principle of presumption of innocence, the renewal of pretrial detention without the presence of the defendant or his or her lawyer, the right of defence, and the imposition of a higher accountability threshold for crimes committed by public servants and law enforcement officials (art. 2).

Arbitrary detention

22. The Committee is concerned about reported cases of persons detained in the West Bank under the custody of the Joint Operations Committee11 who were kept in detention despite release orders issued by courts. It is concerned that those detainees were only released once a written approval was provided by the President of the Palestinian Authority or the Prime Minister for their release (arts. 2, 11 and 16).

Administrative detention

24. The Committee is highly concerned at the continuous recourse to administrative detention by the State party under the Jordanian Crimes Prevention Act of 1954, which is applicable in the West Bank and allows for detention without charge and raises issues about the separation of powers between the executive and judicial branches. It is particularly concerned at the increasing number of persons held in administrative detention and for long periods, during which detainees are deprived of procedural guarantees. It is also concerned that administrative detention is used against women and girls who are victims of violence, under the pretext of protecting them(arts. 1, 2, 11 and 16).

Allegations of widespread torture or ill-treatment and the lack of accountability

28. The Committee is concerned about consistent reports indicating that persons in custody, including in the facilities under the authority of security forces and intelligence services in both the West Bank and the Gaza Strip, are subjected to torture or ill-treatment, in particular during the investigation stage of proceedings. It observes that the mechanisms established by the State party to receive and investigate complaints of torture and ill- treatment by officials lack confidentiality and fail to protect complainants and witnesses, while existing investigation bodies, principally the public prosecutor, lack the necessary independence as they belong to the same structure that employs the alleged perpetrators. The Committee is also concerned that only a few complaints of torture and ill-treatment have led to prosecution and almost none to conviction of the perpetrators, which contributes to a climate of impunity (arts. 2, 11-13 and 16).

Confessions obtained through torture and ill-treatment

30. The Committee is concerned about reports indicating that, despite the existing legal provisions set forth in article 13.2 of the Basic Law regarding the inadmissibility of evidence obtained by torture and duress, coerced confessions are reportedly admitted as evidence in court. Moreover, the information before the Committee suggests that the allegations of forced confessions under torture or ill-treatment made before a trial or appeal judge are often ignored and not thoroughly pursued and that serious shortcomings in documenting signs of physical and psychological torture are often caused by the lapse of time between the alleged event and its belated investigation (art. 15).

Excessive use of force against demonstrators

31. The Committee is concerned about the allegations of the excessive use of force in both the West Bank and the Gaza Strip, notably the use of lethal weapons resulting in deaths and injuries, including of children, arbitrary arrests, incommunicado detention and torture and ill- treatment of peaceful protesters by security forces, as well as by unidentified armed elements in the context of demonstrations that have occurred while enforcing measures designed to control the coronavirus disease (COVID-19) pandemic and in the aftermaths of the postponement of national elections in April 2021 and Nizar Banat’s death in custody in June 2021. The Committee is also concerned about the reported excessive use of force by the Palestinian security forces, including the use of tear gas and sound bombs, in Palestinian refugee camps. The Committee takes note of the State party’s commitment to ensuring accountability for the above acts. However, it regrets the lack of public reports on the investigations carried out into those incidents, the limited progress made on investigations and the fact that only a handful of prosecutions have been undertaken to date (arts. 2, 12–14 and 16).

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