A/HRC/34/38
including members of Fatah and former personnel of the Palestinian Authority, with cases
of incommunicado detention reported, including by armed groups. 126
55.
Human rights law guarantees to everyone the right to liberty and security. This
implies that no one shall be subject to arbitrary arrest or detention, and that any deprivation
of liberty should occur on the basis of legal grounds and follow strict procedures as
established by law. 127 Detainees should be promptly charged or released. Administrative
detention is only permitted in exceptional circumstances and should never be used as an
alternative to criminal proceedings. 128 Stringent safeguards should be applied to prevent
arbitrary detention, including basic procedural guarantees, such as the rights to be informed
promptly and fully of the reasons for the detention, to take proceedings before a court, to
challenge the legal basis of the detention and to be presumed innocent. Breaches should
give rise to compensation.129
56.
The way that Israel makes use of administrative detention often leads to indefinite
detention without charge. Hearings for administrative detainees are often conducted in
closed session, with detainees regularly held on the basis of secret evidence to which
neither they nor their lawyers are given access. That practice has been widely condemned,
including by the Secretary-General, the United Nations High Commissioner for Human
Rights and the Human Rights Committee, all of whom have called for its end. 130 In
addition, such practice is inconsistent with the exceptional nature of detention provided by
international humanitarian law. 131 Most administrative detainees are held in Israel, in
violation of the prohibition of forcible transfer.132
Arrest and detention of children
57.
Each year hundreds of Palestinian children, some as young as 12 years of age, are
arrested and prosecuted in the Israeli military court system. Charges usually involve stonethrowing and, more recently, incitement to violence based on social media posts.
58.
The number of children in detention has more than doubled in the past year.133 The
peak figure of 440 children held in Israeli detention at the end of February 2016 was the
highest number of detained children since January 2008. 134 Administrative detention of
children resumed in October 2015, a practice not seen since December 2011.135 There are
concerns as to whether child detention is being used as a measure of last resort and for the
shortest appropriate period, as required by human rights law. 136
59.
The fact that Israeli military law applicable in the West Bank permits the detention
of Palestinian children from the age of 12 years is at odds with the specific protection
granted to children as members of a particularly vulnerable group and the general rule that
any decision affecting them must have their best interest as a primary consideration. 137
60.
A number of legal developments also appear to target children in East Jerusalem in
contravention of international standards. 138 In August 2016, the Knesset approved
amendments to the Israeli youth law that make it possible for prison sentences to be issued
for children aged between 12 and 14 years for specific, serious crimes. 139
126
127
128
129
130
131
132
133
134
135
136
137
138
139
A/HRC/34/36.
International Covenant on Civil and Political Rights, art. 9, and Human Rights Committee general
comment No. 35 (2014) on liberty and security of person, para. 15.
Ibid.
International Covenant on Civil and Political Rights, art. 9.
See A/HRC/28/80, para. 33.
Fourth Geneva Convention, art. 78.
Fourth Geneva Convention, arts. 49 and 147. See A/HRC/31/40, para. 43.
See A/HRC/34/36, para. 24.
See A/71/364, para. 36.
See A/HRC/31/40, para. 41, and A/71/364, para. 34.
Convention on the Rights of the Child, art. 37 (b).
Ibid., art. 3 (1).
See A/HRC/31/40, paras. 49-51.
See A/HRC/34/36, para. 29.
13
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