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UNITED
NATIONS
A

        General Assembly
Distr.
GENERAL
A/HRC/14/24/Add.1
18 June 2010

English/French/Spanish only

Human Rights Council
Fourteenth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development



Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston*

Addendum

Communications to and from Governments








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* Owing to its length, the present report is circulated as received.


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Israel

Civilians killed during air strikes against the Ibrahim al-Maqadna mosque in Jabalya town

Violation alleged: Deaths due to the attacks or killings by security forces of the State, or by paramilitary groups, death squads, or other private forces cooperating with or tolerated by the State and violations of the right to life during armed conflicts, especially of the civilian populations and other non-combatants, contrary to international humanitarian law

Subject(s) of appeal: 12 males

Character of reply: No response

Observations of the Special Rapporteur: The Special Rapporteur regrets that the Government of Israel has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.

Allegation letter dated 3 April 2009, sent with the Special Rapporteur on freedom of religion or belief.

494. In this connection, we would like to bring to your Government’s attention information we have received concerning Mohammed al-Tanani, Sa'id Salah Battah, Ahmed Isma'il al-Buhdri, Ahmed Tubail, Omar 'Abdul Hafez al-Seelawi, Hani Mohammed al-Seelawi, Abdul Rahman al-Masamha, Ra'ed 'Abdul Rahman al-Masmha, Rajeh Ziada, Mohammed Mousa al-Seelawi, Bahaa' al-Ashqar and Hassan Hijju who have reportedly been killed during air strikes against the Ibrahim al-Maqadna mosque in Jabalya town in the northern Gaza strip.

According to the allegations:

On 3 January 2009, at approximatively 5.20 p.m., while dozens of Palestinian civilians were doing their evening prayer, the Israeli army fired a missile at the entrance to the Ibrahim al-Maqadna mosque near Kamal Adwan Hospital in Jabalya town in the northern Gaza strip. Reportedly, the Israeli army suspected that the mosque was housing militants.

As a result, twelve Palestinian civilians, including four children and a man and his son, were killed and thirty others were wounded. Later, three of the wounded died of their wounds, so the number of deaths mounted to fifteen. The twelve victims who were killed instantly are Mohammed al-Tanani (aged 18), Sa'id Salah Battah (aged 22), Ahmed Isma'il al-Buhdri (aged 23), Ahmed Tubail (aged 16), Omar 'Abdul Hafez al-Seelawi (aged 35), Hani Mohammed al-Seelawi (aged 10), Abdul Rahman al-Masamha (aged 47), Ra'ed 'Abdul Rahman al-Masmha (aged 21), Rajeh Ziada (aged 18), Mohammed Mousa al-Seelawi (aged 10), Bahaa' al-Ashqar (aged 20) and Hassan Hijju (aged 14).

In addition to the above incident, many other mosques were allegedly completely or partially damaged in the governorates of Rafah, Gaza, Khan Younis, Dier El Balah during the recent conflict in the Gaza strip.

495. While we do not wish to prejudge the accuracy of these reports, we would like to refer Your Excellency’s Government to its treaty obligations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and also the relevant rules applicable to all armed conflicts under international humanitarian law and human rights law. Both the treaty obligations of Your Excellency’s Government and applicable customary rules of international humanitarian law governing the conduct of hostilities include prohibitions on attacks against the civilian population and civilian objects, and require respect for the principles of proportionality and precautions in attack.

496. Civilians are all persons who are not members of the armed forces of a party to the conflict and are protected against attack unless and for such time as they take a direct part in hostilities. Civilian objects, including places of worship, are also immune from attack, unless their nature, location or use, make an effective contribution to military action and whose destruction offers a definite military advantage. In addition, during military operations, special care must be taken to avoid damage to buildings dedicated to religion.

497. In the event of a lawful attack on a military objective, the principle of proportionality prohibits such attacks when it can be expected to cause incidental loss of civilian life or injury to the civilians which would be excessive in relation to the concrete and direct military advantage expected. Compliance with this rule should be assessed for each attack taken individually and not for an overall military operation. We would note that this approach is also reflected in the Judgment of the Israeli Supreme Court of 14 December 2006 (The Public Committee against Torture in Israel et al. v. The Government of Israel et al.; HCJ 769/02), which observed that “when the damage to innocent civilians is not proportionate to the benefit of the attacking army, the attack is disproportionate and forbidden.”

498. The obligations to take all necessary precautions to spare the civilian population and to limit to the maximum extent any incidental civilian loss of life include taking all appropriate measures to ensure: that the target of the attack is indeed a military objective; that the chosen means and methods of warfare will avoid civilian loss of life or limit incidental civilian loss of life; and, that a careful assessment of the conformity of the attack to the principle of proportionality is made. The timing of an attack should also be taken into account when assessing the conformity of the attack with the principles of distinction and proportionality.

499. We would also like to appeal to Your Excellency’s Government to ensure that the exercise of the right to freedom of religion or belief is respected in accordance with the principles set forth in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief and article 18 of the Universal Declaration on Human Rights as well as of the International Covenant on Civil and Political Rights.

500. Further, we would like to recall that in its recently adopted resolution 63/181, the General Assembly urges States “to step up their efforts to protect and promote freedom of thought, conscience, religion or belief, and to this end, […] to exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights law, to ensure that religious places, sites, shrines and symbols are fully respected and protected.”

501. Further, we would like to refer to the report E.CN.4/2005/61 (see paras. 49-50) submitted to the Commission on Human Rights in which it was pointed out that members of religious or belief communities, whenever they find themselves in places of worship, are in a situation of special vulnerability given the nature of their activity. More generally, as mentioned, inter alia, in paragraph 4 of the Human Rights Committee's general comment No. 22 (1993), places of worship are an essential element of the manifestation of the right to freedom of religion or belief to the extent that the great majority of religious or belief communities need the existence of a place of worship where their members can manifest their faith. Moreover, unlike other forms of violations of the right to freedom of religion or belief, attacks or other forms of restriction on places of worship or other religious sites and shrines in many cases violate the right not only of a single individual, but the rights of a group of individuals forming the community that is attached to the place in question.

502. Finally, we would like to recall that there is “a duty on States to investigate alleged violations of the right to life “promptly, thoroughly and effectively through independent and impartial bodies” (Human Rights Committee, general comment No. 31, “Nature of the legal obligation on States Parties to the Covenant” (2004), (CCPR/C/21/Rev.1/Add.13), para. 15.) This duty arises out of the general obligation of States to ensure the right to life of each individual, a right that is non-derogable regardless of circumstance (ICCPR, art. 4(2)); armed conflict and occupation do not, therefore, discharge the State’s duty to investigate and prosecute alleged human rights abuses.

503. In the event that your investigations support or suggest the above allegations to be correct, we, in addition, urge Your Excellency’s Government to take all necessary measures to guarantee that religious places and sites are fully respected and protected, and to prevent the recurrence of these acts.

504. Moreover, it is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Council, we would be grateful for your cooperation and your observations on the following matters:

1. Are the facts alleged in the above summary of the case accurate?

2. Has a complaint been lodged on behalf of the victims mentioned above with regard to the incident which occurred on 3 January 2009?

3. Please explain how the principle of precaution was respected in the case of the targeting of the Ibrahim al-Maqadna mosque, on 3 January 2009, in particular the launching of the attack during evening prayers and the assessment of conformity of the attack with the principles of distinction and proportionality.

4. Please provide the details and where available, the results, of any investigation or inquiries carried out in relation to this case.

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Occupied Palestinian Territory


Death sentence against civilian imposed by military court

Violation alleged: Non-respect of international standards on safeguards and restrictions relating to the imposition of capital punishment

Subject(s) of appeal: 1 male

Character of reply: No response

Observations of the Special Rapporteur: The Special Rapporteur regrets that the Government of the Occupied Palestinian Territory has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.

Allegation letter dated 16 November 2009, sent with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

605. In this connection, we would like to draw the attention of your Excellency’s Government to information we have received regarding the case of Saleem Mohammed Saleem al-Nabahin, who was recently sentenced to death by a military court in Gaza.
According to the information we have received:

Mr. Saleem Mohammed Saleem al-Nabahin, aged 27, is a resident of al-Boreij refugee camp in Central Gaza governorate. Hamas security forces took Mr. Saleem al-Nabahin into custody at an unspecified date in mid-2008. In detention, he was subjected to torture at the hands of members of the Gaza Internal Security Forces and of the Izz al-Din al Qassam Brigades. A confession to the charges of collaboration with the enemy was extracted under torture.

Mr. Saleem al-Nabahin was put on trial before the Permanent Military Court in Gaza on charges of “collaboration with hostile parties” under article 131 of the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979. On 8 October 2009, the Military Court found him guilty and sentenced him to death by hanging.

On 13 October 2009, Mr. Saleem al-Nabahin filed an appeal against the judgment and sentence. Under the Revolutionary Penal Code which was applied by the court in this case the appeal lies not to a higher court but to the Head of the Militant Judiciary in his personal capacity.

606. While we do not wish to prejudge the accuracy of the allegations reported above, we would like to respectfully draw the attention of your Excellency’s Government to several principles applicable to this case under international law.

607. We would like to remind your Excellency’s Government that although the death penalty is not prohibited under international law, it has long been regarded as an extreme exception to the fundamental right to life. As such, it must be interpreted in the most restrictive manner and can be imposed only for the most serious crimes. A thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting the most serious crimes provision indicates that a death sentence can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life (A/HRC/4/20, para. 53).

608. According to the information we have received, article 131 of the Revolutionary Penal Code provides that the death penalty shall apply to anyone who


609. We are concerned that this provision, which appears to allow the death penalty to be imposed against anyone who approaches any entity hostile to “the revolution” with the “goal of carrying out hostile acts against the revolution”, permits the imposition of the death sentence for conduct which does not involve intentional killing, as required by international law restricting the death penalty to the most serious crimes.

610. Moreover, the description of the conduct punishable by death appears to be overly broad and vague, falling significantly short of the standards of strict legality required by international law. A further concern brought to our attention is that the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979 allegedly cannot constitute a valid basis for a conviction and death sentence as it was never put before and adopted as law by the legislature of the Palestinian National Authority.

611. With regard to the trial of Mr. Saleem Mohammed Saleem al-Nabahinby by a military court, we wish to bring to the attention of your Excellency’s Government that international law also requires that in capital punishment cases the defendants’ right to “a fair and public hearing before an independent and impartial tribunal” (article 10 of the Universal Declaration on Human Rights) is scrupulously respected. The Human Rights Committee, in its general comment no. 32 to article 14 International Covenant on Civil and Political Rights, gives valuable guidelines in this respect. It notes that “[w]hile the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned.” The Committee also notes that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14.”

612. Furthermore, the former Commission on Human Rights has stated that “States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial including the right to appeal a conviction and sentence” (Official records of the General Assembly, Fifty Sixth Session, Supplement 40 (A/56/40) para 76). In this connection, we would also like to refer to paragraph 51 of the general comment no. 32, in which the Human Rights Committee stated that “[t]he right of appeal is of particular importance in death penalty cases.” As the appeal filed by Mr. Saleem Mohammed Saleem al-Nabahinby does not, according to the information received, lie to a higher court, but to the Head of the Militant Judiciary in his personal capacity, we would like to express our serious doubts as to the availability of an effective right of appeal. .

613. A further fundamental principle of the right to a fair trial is the right not to be compelled to confess guilt. Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” This provision reflects a principle of customary international law and was reiterated in paragraph 6c of Human Rights Council resolution 8/8 of 2008. In addition to being a crucial fair trial guarantee, this principle is also an essential aspect of the non-derogable right to physical and mental integrity set forth, inter alia, in article 5 of the Universal Declaration of Human Rights.

614. To conclude, only the full respect for stringent due process guarantees distinguishes capital punishment as still allowed under international law from a summary execution, which violates the most fundamental human right. We therefore urge your Excellency’s Government to take all necessary steps to ensure that the rights under international law of Mr. Saleem al-Nabahin are fully respected. Considering the irreversible nature of the death penalty, this can only mean that the death penalty is not executed until all concerns we have raised are dispelled in their entirety.

615. It is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters.

1. Are the facts alleged in the above summary of the case accurate?

2. What is the alleged conduct Mr. Saleem al-Nabahin was found guilty of which underlies the charges of “collaborating with the enemy”?

3. What is the legal status of the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979?

4. Please explain the legal basis, composition, appointment procedures and guarantees of independence and impartiality governing Permanent Military Courts in Gaza such as the one which sentenced Mr. Saleem al-Nabahin to death. Please provide information as to why Mr. Saleem al-Nabahin was tried by a military court.

5. What remedies remain available to Mr. Saleem al-Nabahin? Is it accurate that the only appeal available to Mr. Saleem al-Nabahin lies not to a higher court but to the Head of the Militant Judiciary “in his personal capacity”? If so, what procedures will the Head of the Militant Judiciary follow to reach his decision on the appeal?

6. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to the allegation that Mr. Saleem al-Nabahin was subjected to torture in order to compel him to confess. If no inquiries have taken place, or if they have been inconclusive, please explain why.

7. Please provide information as to how the principle that any statement which is established to have been made as a result of torture shall not be invoked in any proceedings, except against a person accused of torture as evidence that the statement was made is implemented in the Gaza.

8. Please provide information on the further developments in the case of Mr. Saleem al-Nabahin.

We undertake to ensure that your Excellency’s Government’s response to each of these questions is accurately reflected in the reports we will submit to the Human Rights Council for its consideration. Finally, we would like to inform your Excellency’s Government that we have addressed a communication of the same contents to Dr Yousef, Gaza, Palestine.

Occupied Palestinian Territory- (Hamas): Death sentence against civilian imposed by military court

Violation alleged: Non-respect of international standards on safeguards and restrictions relating to the imposition of capital punishment

Subject(s) of appeal: 1 male

Character of reply: No response

Observations of the Special Rapporteur: The Special Rapporteur regrets that the de facto authorities in Gaza have failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.

Allegation letter dated 16 November 2009, sent with the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

616. In this connection, we would like to draw the attention of your Excellency’s Government to information we have received regarding the case of Saleem Mohammed Saleem al-Nabahin, who was recently sentenced to death by a military court in Gaza.

According to the information we have received:

Mr. Saleem Mohammed Saleem al-Nabahin, aged 27, is a resident of al-Boreij refugee camp in Central Gaza governorate. Hamas security forces took Mr. Saleem al-Nabahin into custody at an unspecified date in mid-2008. In detention, he was subjected to torture at the hands of members of the Gaza Internal Security Forces and of the Izz al-Din al Qassam Brigades. A confession to the charges of collaboration with the enemy was extracted under torture.

Mr. Saleem al-Nabahin was put on trial before the Permanent Military Court in Gaza on charges of “collaboration with hostile parties” under article 131 of the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979. On 8 October 2009, the Military Court found him guilty and sentenced him to death by hanging.

On 13 October 2009, Mr. Saleem al-Nabahin filed an appeal against the judgment and sentence. Under the Revolutionary Penal Code which was applied by the court in this case the appeal lies not to a higher court but to the Head of the Militant Judiciary in his personal capacity.

617. While we do not wish to prejudge the accuracy of the allegations reported above, we would like to respectfully draw the attention of your Excellency’s Government to several principles applicable to this case under international law.

618. We would like to remind your Excellency’s Government that although the death penalty is not prohibited under international law, it has long been regarded as an extreme exception to the fundamental right to life. As such, it must be interpreted in the most restrictive manner and can be imposed only for the most serious crimes. A thorough and systematic review of the jurisprudence of all of the principal United Nations bodies charged with interpreting the most serious crimes provision indicates that a death sentence can only be imposed in cases where it can be shown that there was an intention to kill which resulted in the loss of life (A/HRC/4/20, para. 53).

619. According to the information we have received, article 131 of the Revolutionary Penal Code provides that the death penalty shall apply to anyone who



620. We are concerned that this provision, which appears to allow the death penalty to be imposed against anyone who approaches any entity hostile to “the revolution” with the “goal of carrying out hostile acts against the revolution”, permits the imposition of the death sentence for conduct which does not involve intentional killing, as required by international law restricting the death penalty to the most serious crimes.

621. Moreover, the description of the conduct punishable by death appears to be overly broad and vague, falling significantly short of the standards of strict legality required by international law. A further concern brought to our attention is that the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979 allegedly cannot constitute a valid basis for a conviction and death sentence as it was never put before and adopted as law by the legislature of the Palestinian National Authority.

622. With regard to the trial of Mr. Saleem Mohammed Saleem al-Nabahinby by a military court, we wish to bring to the attention of your Excellency’s Government that international law also requires that in capital punishment cases the defendants’ right to “a fair and public hearing before an independent and impartial tribunal” (article 10 of the Universal Declaration on Human Rights) is scrupulously respected. The Human Rights Committee, in its general comment no. 32 to article 14 International Covenant on Civil and Political Rights, gives valuable guidelines in this respect. It notes that “[w]hile the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned.” The Committee also notes that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14.”

623. Furthermore, the former Commission on Human Rights has stated that “States that have military courts or special criminal tribunals for trying criminal offenders to ensure that such courts are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial including the right to appeal a conviction and sentence” (Official records of the General Assembly, Fifty Sixth Session, Supplement 40 (A/56/40) para 76). In this connection, we would also like to refer to paragraph 51 of the general comment no. 32, in which the Human Rights Committee stated that “[t]he right of appeal is of particular importance in death penalty cases.” As the appeal filed by Mr. Saleem Mohammed Saleem al-Nabahinby does not, according to the information received, lie to a higher court, but to the Head of the Militant Judiciary in his personal capacity, we would like to express our serious doubts as to the availability of an effective right of appeal. .

624. A further fundamental principle of the right to a fair trial is the right not to be compelled to confess guilt. Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” This provision reflects a principle of customary international law and was reiterated in paragraph 6c of Human Rights Council resolution 8/8 of 2008. In addition to being a crucial fair trial guarantee, this principle is also an essential aspect of the non-derogable right to physical and mental integrity set forth, inter alia, in article 5 of the Universal Declaration of Human Rights.

625. To conclude, only the full respect for stringent due process guarantees distinguishes capital punishment as still allowed under international law from a summary execution, which violates the most fundamental human right. We therefore urge your Excellency’s Government to take all necessary steps to ensure that the rights under international law of Mr. Saleem al-Nabahin are fully respected. Considering the irreversible nature of the death penalty, this can only mean that the death penalty is not executed until all concerns we have raised are dispelled in their entirety.

626. It is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters.

1. Are the facts alleged in the above summary of the case accurate?

2. What is the alleged conduct Mr. Saleem al-Nabahin was found guilty of which underlies the charges of “collaborating with the enemy”?

3. What is the legal status of the Palestinian Liberation Organization’s Revolutionary Penal Code of 1979?

4. Please explain the legal basis, composition, appointment procedures and guarantees of independence and impartiality governing Permanent Military Courts in Gaza such as the one which sentenced Mr. Saleem al-Nabahin to death. Please provide information as to why Mr. Saleem al-Nabahin was tried by a military court.

5. What remedies remain available to Mr. Saleem al-Nabahin? Is it accurate that the only appeal available to Mr. Saleem al-Nabahin lies not to a higher court but to the Head of the Militant Judiciary “in his personal capacity”? If so, what procedures will the Head of the Militant Judiciary follow to reach his decision on the appeal?

6. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to the allegation that Mr. Saleem al-Nabahin was subjected to torture in order to compel him to confess. If no inquiries have taken place, or if they have been inconclusive, please explain why.

7. Please provide information as to how the principle that any statement which is established to have been made as a result of torture shall not be invoked in any proceedings, except against a person accused of torture as evidence that the statement was made is implemented in the Gaza.

8. Please provide information on the further developments in the case of Mr. Saleem al-Nabahin.

627. We undertake to ensure that your response to each of these questions is accurately reflected in the reports we will submit to the Human Rights Council for its consideration. Finally, we would like to inform you that we have addressed a communication of the same contents to H.E. Dr. Riad Al-Malki, Minister for Foreign Affairs, Palestinian National Authority.

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