Shaaban al-Sayed and Gashao Mangisto v. State of Palestine

The authors of the communications are Shaaban al-Sayed and Gashao Mangisto, both nationals of Israel born in 1960 and 1981 respectively. Mr. Al-Sayed is submitting the communication on behalf of his son, Hisham al-Sayed, a national of Israel of Bedouin descent born in 1988. Mr. Mangisto is submitting the communication on behalf of his brother, Avera Mangisto, a national of Israel of Ethiopian descent born in 1986. The authors note that both alleged victims have been diagnosed with psychosocial disabilities, and that they crossed into the Gaza Strip on 20 April 2015 (Hisham al-Sayed) and on 7 September 2014 (Avera Mangisto), where they were allegedly subjected to enforced disappearance. The authors claim that the rights of the alleged victims have been violated by the State party under articles 4, 10, 11, 12, 14, 15, 16 and 25 of the Convention. The Optional Protocol entered into force for the State party on 10 May 2019. The authors are represented by counsel.

On 20 September 2019, the Special Rapporteur on new communications and interim measures, acting on behalf of the Committee, issued requests to the State party, under article 4 of the Optional Protocol, to take all the diplomatic, judicial and other measures necessary to prevent irreparable harm to the alleged victims and to guarantee the protection of their rights as enshrined by the Convention. In particular, the Committee requested the State party to do the following: take all the measures necessary to ensure that the search for the alleged victims began immediately, guarantee their placement under the protection of the law and ensure their access to the care and attention required, taking account of their psychosocial disabilities; if the location of the alleged victims was confirmed, to inform the Committee, their families and representatives of their whereabouts, use all legal and diplomatic means available to enable the alleged victims to be in contact with their families and representatives, and ensure that they were able to return to their families; and provide the Committee with information as to the measures taken to implement each element of its requests, and about the results of those measures. The requests for interim measures were reiterated on 6 July 2022.

On 23 March 2023, pursuant to rule 67 of the Committee’s rules of procedure, the Committee decided to consider communications No. 67/2019 and No. 68/2019 jointly, in view of the substantial factual and legal similarities.

The author notes that his son was diagnosed with “personality disorder and unspecified behavioural and emotional disorders” in 2009, “acute psychotic disorders” in 2010, and “schizophrenia and mild mental retardation” in 2013. He further notes that in 2007 his son had also been diagnosed with hearing loss, vertigo and tinnitus. His son received a disability allowance from the National Insurance Institute of Israel (the national social security agency) and spent significant time in several different psychiatric institutions, including by court orders. As a result of his mental health condition, his son disappeared several times, in Jordan, the West Bank and the Gaza Strip; each time he was located by the authorities and was returned to his family. The author notes that his son crossed into the Gaza Strip twice before, in 2010 and 2013. He further notes that after almost three months in the Israeli army, his son was found “incompatible for service” and was released from military service.

The author notes that his son left his home in the Bedouin village of al-Sayed, near al-Hura, in the Negev region of Israel on the morning of 20 April 2015. His mother was the last person to see him. During that day the author tried to reach his son by phone, but his son’s mobile phone had been turned off. When he had not yet returned home in the afternoon, the family reported him missing to the Israeli police. They also searched for him in places where he had gone previously, and they reported the disappearance to the local police in Jordan and in the West Bank. The author notes that according to a Human Rights Watch report, Israeli officials had stated that photos taken by the Israeli authorities on the day of the disappearance showed his son walking across the Gaza Strip border from the east.² The author further claims that a video published by Hamas in April 2016 confirmed that his son was being held by Hamas in the Gaza Strip. The author states that this information has also been confirmed by the Israeli authorities.

2. Human Rights Watch, “2 Israelis who entered Gaza held incommunicado: disappeared men have history of mental health conditions”, 2 May 2017. ↩

The author notes that his brother was diagnosed with schizophrenia after he had voluntarily admitted himself for psychiatric hospitalization in 2013. According to medical records he was hospitalized owing to a “psychotic condition combined with self-endangering behaviour”. His mental health condition on one occasion led him to harm himself, and on several occasions, he left his home and was later found in different locations in Israel. He was found “not medically fit for service” in the military by a medical committee and was exempted from compulsory service.

The author notes that his brother left his home in the city of Ashqelon, Israel, on 7 September 2014. He left at approximately noon and his mother was the last member of the family to see him. He did not carry a phone. When he did not return home in the evening, his family searched for him, checked with his friends and reported his disappearance to the Israeli police.

The author notes that, according to information provided by the Israeli authorities, on the day of his brother’s disappearance, Israeli soldiers noticed, on camera, a person walking along the shoreline towards the Israel-Gaza border fence. Soldiers arrived at the scene and shouted at the man, ordering him to stop, and shot in the air, but the man did not react. The man managed to climb the wire fence and entered the Gaza Strip. The Israeli authorities later identified the person as the author’s brother, based on personal items left behind in a bag. A week later, the Israeli authorities informed the family that, according to its intelligence information, the author’s brother was being held by Hamas in the Gaza Strip. The Israeli authorities officially announced the author’s disappearance in July 2015, after a gag order on the case had been lifted.³

3. The authors refer to the following: Israel, Ministry of Foreign Affairs, “President Rivlin and PM Netanyahu on Israeli citizens being held in Gaza”, 9 July 2015; and Shirly Seidler and others, “Two Israelis missing after disappearing into Gaza, one being held by Hamas”, Haaretz, 9 July 2015. ↩

The authors note that in April 2016, Hamas’s military wing, the Izz al-Din al-Qassam Brigades, published a video in which they indirectly acknowledged holding both the alleged victims captive. The video portrays the alleged victims in military uniform – apparently using digitally altered pictures of them, which were subsequently published in the media – alongside two Israeli soldiers reportedly killed during the 2014 Gaza conflict, whose remains were reported to be in Hamas’s custody.

The authors note that the alleged victims were neither soldiers in the Israeli army nor affiliated with the Government of Israel when they entered the Gaza Strip. They had both been found not to be medically fit for service in the Israeli army, and entered the Gaza Strip as civilians and as a result of their psychosocial disabilities, which led them to wander and expose themselves to danger. The authors refer to reports by Human Rights Watch that, during a meeting with the organization in September 2016, Hamas had refused to acknowledge the detention of the alleged victims, but had stated that there were “no civilians in Israel” since everyone served in the army, and that Israelis who entered Gaza were “spies”. According to Human Rights Watch, Hamas officials had stated that they would divulge no information about the missing Israeli citizens until Israel had released 54 arrested Hamas members.⁴

4. Human Rights Watch, “2 Israelis who entered Gaza held incommunicado”. ↩

The authors note that in spite of the indications that the alleged victims are, or at least at some point were, being held in the custody of Hamas, Hamas did not confirm their detention or disclose whether it had any information regarding their whereabouts and fate. The authors also note that in its annual report of 2019, Human Rights Watch stated the following: “Hamas authorities continue to disclose no information about two Israeli civilians with psychosocial disabilities, Avera Mangisto and Hisham al-Sayed, whom they have apparently held for several years, in violation of international law.”⁵ In September 2015, the Secretary-General, in his report on to the General Assembly on peaceful settlement of the question of Palestine, addressed the situation of the alleged victims and called on all relevant Palestinian actors in Gaza to provide information as to the possible whereabouts and conditions of the missing Israelis and to take prompt action to facilitate their safe return to their families.⁶

5. Human Rights Watch, “Israel and Palestine”, in World Report 2019: Events of 2018 (New York, Seven Stories Press, 2019). ↩
6. A/70/354-S/2015/677, para. 27. ↩

The authors further note that, to the best of their knowledge, the State party has not taken any action to obtain information regarding the alleged victims’ whereabouts and to prevent the continued violation of their rights under the Convention. They claim that the State party has failed to act despite being aware of the situation in a territory under its jurisdiction.

On the question of jurisdiction, the authors note that the alleged victims disappeared after crossing into the Gaza Strip and that, according to the little evidence available, they are, or were, being held by Hamas in the Gaza Strip. They are thus under the State party’s jurisdiction, as required under article 1 of the Optional Protocol. The authors argue that the fact that the alleged victims are not nationals of the State party does not change the State party’s obligations towards them as stipulated in article 4 of the Convention, which does not distinguish between nationals and non-nationals. The authors argue that although the acts detailed above are primarily attributable to the military wing of Hamas, a non-State actor, the obligations of a State in international human rights law also include taking appropriate measures to prevent, investigate, prosecute and provide remedies for human rights abuses committed by non-State third parties on its territory. While noting that the Gaza Strip is controlled by Hamas, the authors submit that the State party still bears responsibility for violations committed in the Gaza Strip, which is part of its territory. They argue that international human rights courts and other human rights treaty bodies have recognized that even when a State has lost effective control over a part of its territory to a non-State group, the territory and the people in it cannot be left in a legal vacuum whereby the State is exempt from any responsibility to protect the human rights of the persons in that territory. The State must diligently seek to repress the abuses committed by non-State groups and to implement its own international obligations to the extent of its authority.⁷

7. Naomi Hart and others, “Making every life count: ensuring equality and protection for persons with disabilities in armed conflicts”, Monash University Law Review, vol. 40, No. 1 (2014), pp. 148–174, at p. 159. ↩

The authors refer to the European Court of Human Rights judgment in Ilaşcu and others v. Moldova and Russia, in which the Court found that the positive obligations of a State to take appropriate steps to ensure respect for rights within its territory remained even where the exercise of the State’s authority was limited in part of its territory. The Court established that the State had a duty in such situations to take all the appropriate measures still within its power.⁸

8. European Court of Human Rights, Ilaşcu and others v. Moldova and Russia, Application No. 48787/99, Judgment, 8 July 2004, para. 313. ↩

The authors submit that even if the State party does not have effective control over the Gaza Strip, it is still required to take all the reasonable measures at its disposal to ensure the application of human rights in the Gaza Strip. They argue that the State party has several means at its disposal to influence the conduct of Hamas in the Gaza Strip. They note that the State party authorities and Hamas have been negotiating for reconciliation for several years, and that several reconciliation agreements have been achieved, although not implemented. In addition, the Palestinian Authority pays wages to civil servants in the Gaza Strip, funds the electricity in the Gaza Strip and operates programmes that support Palestinians in the Gaza Strip, and has previously used its financial support to pressure Hamas to accede to certain political demands.⁹

9. The authors refer to the following: Asharq al-Awsat, “Palestinian Authority rejects direct Arab support to Hamas”, 29 April 2019; European External Action Service, “The Palestinian Authority and the European Union support Gaza farmers with €3.7 million”, 30 April 2019; and S. Schneidmann, “Campaign in West Bank against Palestinian Authority’s sanctions on Gaza”, Middle East Media Research Institute, Inquiry and Analysis Series No. 1402, 21 June 2018. ↩

On the question of competence ratione temporis, the authors emphasize that while the events in question began before the Optional Protocol entered into force for the State party, the disappearance of the alleged victims entails a continued violation of the Convention.

On the question of exhaustion of domestic remedies, the authors argue that there are no effective domestic remedies available to them in the State party, as Israeli nationals do not have access to Palestinian courts and cannot enter the territory of the State of Palestine for that purpose. In addition, owing to Hamas’s control of the Gaza Strip, Palestinian courts cannot in practice exercise their jurisdiction and enforce judgments in the Gaza Strip. The authors also note that the fact that the alleged victims have been subjected to enforced disappearance prevents them from exercising any of their rights, including their right to obtain any local remedies in the Gaza Strip.

On the question of examination under another procedure of international investigation or settlement, the authors note that a communication on alleged enforced or involuntary disappearance was submitted to the Working Group on Enforced or Involuntary Disappearances on 29 January 2019 on behalf of the alleged victims. The authors argue, however, that that communication cannot be considered as having been examined under another procedure of international investigation or settlement under article 2 (c) of the Optional Protocol. The authors further argue that the request submitted to the Working Group does not concern the same matter, as it is not based on the disabilities of the alleged victims and does not raise claims relating to their rights as persons with disabilities, but deals with the issue of enforced disappearance.

The authors claim a violation of the alleged victims’ rights under articles 4, 10, 11, 12, 14, 15, 16 and 25 of the Convention. The authors claim that there is a causal relationship between the alleged victims’ psychosocial disabilities and the acts that amount to violations of their rights under the Convention. Their disabilities are what brought them to cross into the Gaza Strip, a hostile territory, which led to their enforced disappearance and related violations.

The authors further note that article 11 of the Convention requires States parties to take all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict and humanitarian emergencies. The authors note that the alleged victims entered the Gaza Strip in conditions unrelated to the armed conflict between Israel and Hamas, and not during active hostilities. However, the authors argue that the ongoing armed conflict situation and the status of the Gaza Strip as an area under military siege or blockade place the alleged victims in a situation of heightened risk, which clearly falls within the purview of article 11 of the Convention. The authors argue that article 11 is based on the recognition of the special and heightened vulnerability of persons with disabilities during situations of risk, including armed conflict,¹⁰ which implies a greater duty of care and protection for the State party. The authors submit that it thus follows that the State party also violated its special obligation to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, with respect to the rights invoked under articles 10, 12, 14, 15, 16 and 25 of the Convention.

10. Gerard Quinn, “A short guide to the United Nations Convention on the Rights of Persons with Disabilities”, in European Yearbook of Disability Law, vol. 1, Gerard Quinn and Lisa Waddington, eds. (Antwerp, Oxford and Portland, Intersentia, 2009), pp. 89–114, at pp. 103–104; and Hart and others, “Making every life count”, pp. 148–150. ↩

The authors further submit that it is important to understand that the facts described in the communication also amount to enforced disappearance of the alleged victims, as they have been deprived of their liberty and their captors refuse to acknowledge their detention or to provide information about their fate and whereabouts, placing them outside the protection of the law. The authors argue that the deprivation of liberty was committed by Hamas’s military wing, with the acquiescence of the State party. The authors argue that the State party’s jurisdiction, combined with its knowledge of the situation and failure to take any action to protect the alleged victims’ rights under the Convention, substantiate the State party’s acquiescence to Hamas’s conduct.

The authors claim that the alleged victims are, or have been held, by Hamas with no information provided regarding their fate and whereabouts and with no contact with the outside world, amounting to grave abuse and cruel exploitation of their status as persons with disabilities. The authors argue that the alleged victims’ crossing into the Gaza Strip due to their psychosocial disabilities was exploited by their captors to pressure Israel and promote Hamas’s political interests in obtaining concessions, using the alleged victims as means to achieve those ends.

The authors argue that the State party did not take any measures to protect the alleged victims from their continued exploitation and abuse, to ensure access to medical care and to secure their prompt release. Even efforts to obtain information regarding their fate and whereabouts would assist in ceasing such exploitation and abuse. In failing to take any action regarding the situation, the State party has violated its obligations under article 16, read alone and in conjunction with article 11, of the Convention.

The authors note that the Human Rights Committee, in its general comment No. 36 (2018), observed that enforced disappearance – comprising deprivation of liberty, followed by a refusal to acknowledge that deprivation of liberty or by concealment of the fate of the disappeared person – in effect removed disappeared persons from the protection of the law and placed their life at serious and constant risk, for which the State was accountable, resulting in a violation of the right to life and of other rights, in particular the prohibition of torture or cruel, inhuman or degrading treatment or punishment.¹¹ The authors further note that article 15 (2) of the Convention adds the requirement that States parties take all effective measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment. The authors submit that this provision acknowledges that certain treatment may qualify as inhuman in the case of victims with disabilities, whereas it would not in the case of other victims.¹²

11. Human Rights Committee, general comment No. 36 (2018) on the right to life, para. 58. ↩
12. Hart and others, “Making every life count”, p. 165. ↩

The authors claim that the enforced disappearance of the alleged victims violates the prohibition of torture or cruel, inhuman or degrading treatment, in violation of article 15, read alone and in conjunction with article 11, of the Convention, owing to the State party’s failure to take effective measures in its power to prevent the victims from being subjected to such treatment.

The authors note that according to the Human Rights Committee, in its general comment No. 36 (2018), enforced disappearance constitutes a unique and integrated series of acts and omissions representing a grave threat to life, which places the life of the disappeared person at serious and constant risk.¹³ The authors argue that it follows that the enforced disappearance of the alleged victims constitutes a violation of their right to life. The authors submit that by failing to take measures in its power to protect the lives of the alleged victims from the risks associated with their enforced disappearance, the State party has violated their rights under article 10, read alone and in conjunction with article 11, of the Convention.

13. Human Rights Committee, general comment No. 36 (2018), para. 58. ↩

The authors note that the Committee, in its guidelines on the right to liberty and security of persons with disabilities, reaffirmed that all persons with disabilities, and especially persons with intellectual disabilities and psychosocial disabilities, were entitled to liberty pursuant to article 14 of the Convention.¹⁴ The authors also refer to the Human Rights Committee’s assertion, in its general comment No. 36 (2018), that enforced disappearance results in a violation of the right to liberty and security of person. The authors claim that the alleged victims were unlawfully and arbitrarily detained by Hamas as a result of their psychosocial disabilities, without having committed any crime or posing any threat. The authors submit that, in addition, once the alleged victims were deprived of their liberty, the State party breached its obligation under article 14 (2) of the Convention to ensure the implementation of proper safeguards to which they were entitled in accordance with international human rights law and the principles of the Convention, such as the provision of information regarding their fate and whereabouts, contact with their families, and suitable detention conditions.

14. A/72/55, annex, para. 3. ↩

The authors claim that the enforced disappearance of the alleged victims and their inability to exercise their rights under the Convention constitute violations of their right to recognition as persons before the law under article 12 of the Convention. The authors argue that, under article 12 (3) of the Convention, the State party obliged to take appropriate measures to provide access by persons with disabilities to the support that they may require in exercising their legal capacity, and that the State party’s failure to do so constitutes a violation of this obligation.

The authors note that they have no information to suggest that the alleged victims have, or have had, any access to health services in view of their specific health needs, as no information has been provided as to their whereabouts or health condition. The authors argue that there is therefore a serious concern that the alleged victims, detained indefinitely and incommunicado by a hostile armed group, are being deprived of their right to enjoyment of the highest attainable standard of health. The alleged victims have been diagnosed with psychosocial disabilities that require medical treatment. The authors submit that it is reasonable to argue that the mere fact of being disconnected from their families and support systems, and from the outside world, is the opposite of the “highest attainable standard of health”. The authors submit that the State party, in failing to take the measures available to it to prevent a worsening of the alleged victims’ mental health conditions, has violated its obligations under article 25 of the Convention.

The authors request the Committee to recommend that the State party take all the measures at its disposal to safeguard the rights of the alleged victims and to end the continuing violations of their rights, including taking all the measures within its power to investigate their enforced disappearance, to obtain and release information regarding their fate and whereabouts, to guarantee their safety and access to medical care, including in relation to their disabilities, to re-establish contact as soon as possible with their families, and to ensure their prompt release and safe return to Israel and to their families.

On 22 January and 8 June 2021, the State party submitted its observations on admissibility and the merits of the communications. It submits that the communications should be found inadmissible because: (a) they have been examined under another procedure of international investigation or settlement; (b) domestic remedies have not been exhausted; and (c) the complaints have not been sufficiently substantiated.

The State party notes that it is aware of conflicting media reports regarding the whereabouts of the alleged victims. It notes that Mr. Mangisto may have entered the Gaza Strip in September 2014 and Mr. Al-Sayed in April 2015 and that it is alleged that they are being held by non-State actors. It argues, however, that reports from Palestinian, Israeli and international organizations provide inconsistent and conflicting information as to their whereabouts. It notes that the media described the circumstances of Mr. Al-Sayed’s alleged disappearance as unclear and that his father – one of the authors – stated in a media interview that he was confident that his son was in safe hands in the Gaza Strip and his family wished that he would remain in Gaza and marry there.¹⁵ The State party also notes that, in another media interview, the father stated that he would not negotiate to get his son back, and urged the Israeli authorities not to negotiate for the release of his son.¹⁶ The State party further notes that, as reported by several media outlets, Mr. Mangisto allegedly walked into the occupied Gaza Strip in September 2014, and was seen crossing the border into Gaza of his own volition.¹⁷ The State party notes that it was reported in the media that Israel did not consider Mr. Mangisto to be a captive, and that Israel was treating the matter as a humanitarian issue.¹⁸ The State party notes that Hamas has publicly stated that Mr. Mangisto left Gaza through tunnels in Rafah and continued on to Egypt.¹⁹ The State party notes that owing to the lack of information as to the alleged victims’ fate and whereabouts, it has had to resort to media outlets to provide information on the victims’ alleged disappearance. It notes that it reached out to its security forces, which were unable to confirm the alleged victims’ whereabouts.

15. Elhanan Miller, “Family of Bedouin missing in Gaza confident of his return”, Times of Israel, 13 July 2015. ↩
16. Max Schindler and Jacob Atkins, “Don’t negotiate with Hamas to free my son, says father of Gaza-held Israeli”, i24 News, 14 July 2017. ↩
17. Yoav Zitun, Matan Tzuri and Elior Levy, “Gag order lifted: two Israelis held captive in Gaza”, Ynet News, 7 September 2015. ↩
18. Avi Lewis, Judah Ari Gross and Raphael Ahren, “Hamas holding two Israelis hostage for months”, Times of Israel, 9 July 2015. ↩
19. Ibid. ↩

The State party claims that the Government of Israel employs indiscriminate and illegal measures to prevent entry to and exit from the occupied Gaza Strip and has erected so-called “no-go zones” to which it forbids access. The State party argues that the practical effect of these zones is to do away with even the most basic safeguards of humanitarian law intended to protect civilians in conflict zones. Any person entering these zones automatically loses the benefits of those safeguards. They are presumed to be a military target and may be subject to indiscriminate lethal violence without regard to their status as a civilian. It argues that Israel is in effective control of the military buffer zone established on the territory of the occupied Gaza Strip and is thus responsible for investigating events that allegedly violate international law. It claims that, in the light of this situation, it is difficult to comprehend how the alleged disappearance of the alleged victims into the Gaza Strip went unhindered and uninterrupted by Israeli forces.

The State party notes that it has been unable to independently verify information in the public domain regarding the alleged victims’ disappearance. It claims that the continued illegal occupation and blockade of the occupied Gaza Strip by Israel undermines any determination of the veracity of the claims or the identification of any alleged perpetrators. It further notes that it continues to confront the consequences of the political division and Hamas’s unlawful control over the occupied Gaza Strip, which has led to the severance of its security control in the Gaza Strip, further hampering the ability to verify the information. It notes that while Hamas entered Palestinian Legislative Council elections in 2006 and became part of the political system, it does not have members in the current Government, owing to its ongoing unlawful control of the occupied Gaza Strip. The State party further notes that notwithstanding the lack of security control in the Gaza Strip, and in accordance with its principled commitments to international law, it has repeatedly and continually condemned any acts of violence against civilians. When the alleged disappearance of Mr. Mangisto was brought to the attention of the President, Mahmoud Abbas, he met with his family and promised to do everything in his power to enquire into his whereabouts, stating that he saw the case as a humanitarian one.²⁰ Following this meeting, out of humanitarian concern, and in accordance with the State party’s obligations and duties under international law, the President instructed the relevant authorities to provide all possible assistance to establish the whereabouts of Mr. Mangisto. These efforts are ongoing.

20. Adam Rasgon, “Abbas meets family of Israeli held in Gaza, offers to help”, Times of Israel, 12 September 2019. ↩

The State party notes that there exist important factors that directly affect the possibility of an effective investigation at the domestic level of the claims raised in the communications before the Committee. Owing to the blockade of the Gaza Strip, the State party’s capacity to reach the occupied Gaza Strip and conduct investigations is severely curtailed and sometimes completely undermined by the practices, limitations and prohibitions imposed by the Israeli occupation forces. It additionally notes that the blockade has thus far prevented all domestic and international attempts to enter the occupied Gaza Strip with a view to investigating or verifying allegations of crimes committed by non-State actors, except for those attempts made by international organizations, including the International Committee of the Red Cross (ICRC). The State party claims that so far Israel has completely failed to cooperate by, inter alia, denying access to the occupied Gaza Strip to any officials, organizations or groups investigating the matter. It argues that in so doing, Israel has directly contributed to the fact that the alleged crimes remain unresolved. It notes that State party authorities have made efforts to secure justice for victims of alleged crimes but that, owing to the factors mentioned above, it has resorted to international bodies and mechanisms, including special procedures, to independently verify and investigate alleged crimes and violations of international humanitarian and human rights law perpetrated in the State party. It notes that it is also aware and supportive of several international interventions to establish the whereabouts of the alleged victims, including by several States, such as Switzerland and Egypt, and most importantly by ICRC.²¹ Out of concern, the State party authorities are in regular contact with ICRC and have expressed their willingness to cooperate when and if needed.²² Within its mandate, ICRC plays a crucial and interlocutory role on humanitarian issues, including those relating to detainees and prisoners. ICRC remains in direct contact with the parties involved and is examining the case.

21. Associated Press, “Red Cross chief discusses captive Israelis with Hamas leader”, Daily Mail, 5 September 2017; and Jerusalem Post, “Swiss diplomat joins Germany, Egypt on Hamas-Israel prisoner swap talks”, 6 May 2020. ↩
22. Jerusalem Post, “Red Cross in Gaza”, 6 September 2017; Times of Israel, “Progress reported on possible prisoner swap with Hamas amid ‘rare opportunity’”, 16 April 2020; and Middle East Monitor, “Israel has not responded to prisoner exchange proposal, says Hamas”, 17 April 2020. ↩

On 25 May and 10 October 2021, the authors submitted their comments on the State party’s observations. They maintain that the communications are admissible. They argue that many of the observations by the State party focus on the responsibilities of Israel and imply that the communications were submitted in coordination with it. The authors note that the communications were submitted on behalf of the alleged victims without any involvement of Israel, that the clinic representing them in the communications provides pro bono legal services every year to a large number of victims, and that most of these cases are in fact directed against Israel. The present communications are directed against the State party since it is internationally responsible for human rights violations committed in the Gaza Strip by the de facto authorities. The authors reiterate that they stand firmly behind the communications and assert that media reports referred to in the State party’s observations with regard to Shaaban al-Sayed, suggesting he did not wish for the return of his son, were misinterpreted and taken out of context.

The authors reiterate that the fact that these and other cases are also pending before the Working Group on Enforced or Involuntary Disappearances does not bar the admissibility of the present communications, given that the Working Group does not exercise quasi-judicial authority and as the cases before the Working Group do not involve the same claims.

Regarding the State party’s submission that the communications should be found inadmissible for failure to exhaust domestic remedies, the authors note that the State party has not identified any remedies that would be available to them. They reiterate their argument that Israeli nationals cannot enter Palestinian territory and do not have access to Palestinian courts. They further argue that when the harms caused to the victims are as grave as in the present communications, States parties have an ex officio obligation to investigate the alleged violations and to provide remedies to the victims.²³

23. X v. United Republic of Tanzania (CRPD/C/18/D/22/2014), para. 7.3. ↩

The authors submit that the communications elaborate on the factual background to the alleged enforced disappearance of the alleged victims and provide substantive evidence in proof of the allegations. It is therefore sufficiently substantiated for the purposes of admissibility. The authors note that the State party refers to alleged violations of international law by Israel. They argue that alleged violations of the Convention or other norms of international law by States other than the State party have no relevance to the present communications, and that the responsibility of other States for certain aspects of the chain of events that led to the claimed violations is not at issue before the Committee.

The authors note that the situation in the Gaza Strip is complex and that it is plausible that more than one State or non-State actor have influence over certain events. They argue, however, that the present communications do not require the Committee to delineate the division of responsibilities between all relevant parties. Rather, the communications seek to determine that the State party failed in its responsibility under the Convention to take whatever measures in its power to protect the rights of persons with disabilities in its territory. The authors further note that the State party, as a party to the Convention, reports on the application of the Convention in the Gaza Strip.²⁴ The authors also note the State party’s claim that Hamas’s control over the Gaza Strip prevents it from investigating the facts presented. They reiterate their argument that there are constant political interactions and links between the State party authorities and Hamas, and they note that the State party authorities are also involved in international discussions concerning the reconstruction of the Gaza Strip, humanitarian initiatives and border controls.

24. See CRPD/C/PSE/1. ↩

The authors argue that the State party does not specify any measures taken to obtain more information concerning the fate and whereabouts of the alleged victims or to facilitate their safe return.

On 29 June 2022, the authors informed the Committee that Hamas had published a short video showing Hisham al-Sayed lying in what appeared to be a hospital bed and connected to what seemed to be an oxygen mask. The video was widely disseminated on social media and in the world press. A television broadcast in the background of the video showed images from the Qatar Economic Forum, which was held in June 2022, suggesting that the video was filmed in June 2022. The authors note that the publication of the video could have been in connection with a statement by Hamas the previous day, in which Hamas had indicated that the health situation of one of the Israeli nationals that it was holding had deteriorated. The authors argue that the video provides clear proof that Mr. Al-Sayed is still being held by Hamas in the Gaza Strip. They argue that the new information is also essential to the communication submitted on behalf of Mr. Mangisto, who is probably in the same situation as Mr. Al-Sayed.²⁵

25. On 16 January 2023, it was further reported in Israeli media that Hamas had published a video of Avera Mangisto (Ariel Oseran, “Hamas posts undated video showing Israeli hostage Avera Mengistu alive”, i24News, 16 January 2023). ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee notes the State party’s submission that the restrictions imposed by the blockade limits its ability to obtain access to the Gaza Strip and conduct an effective investigation into the alleged violations, and that it is Israel that has effective control over the area. The Committee also notes the authors’ submission that although the disappearance of the alleged victims is primarily attributable to the military wing of Hamas, a non-State actor, the obligations of a State in international human rights law also include taking appropriate measures to prevent, investigate, prosecute and provide remedies for human rights abuses committed by non-State third parties on its territory.

The Committee recalls that under article 1 of the Optional Protocol, it has the competence to receive and consider communications from or on behalf of individuals or groups of individuals subject to a State party’s jurisdiction who claim to be victims of a violation by that State party of the provisions of the Convention. The Committee notes the judgment of the European Court of Human Rights in Ilaşcu and others v. Moldova and Russia, in which the Court observed that from the standpoint of public international law, the words “within their jurisdiction” in article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) must be understood to mean that a State’s jurisdictional competence was primarily territorial, but also that jurisdiction was presumed to be exercised normally throughout the State’s territory. That presumption might be limited in exceptional circumstances, particularly where a State was prevented from exercising its authority in part of its territory.²⁶ The Court went on to observe that the obligations by States to refrain from interfering with the enjoyment of the rights and freedoms guaranteed and the positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory remained even where the exercise of the State’s authority was limited in part of its territory, so that it had a duty to take all the appropriate measures still within its power.²⁷ The Court concluded that even in the absence of effective control over parts of its territory, a State still has a positive obligation to take the diplomatic, economic, judicial or other measures that were in its power and were in accordance with international law to secure for persons in those parts of its territory the rights guaranteed by the European Convention on Human Rights.²⁸ Similarly, the Inter-American Court of Human Rights has held that the State is obliged to prevent and react to human rights violations by paramilitary groups in areas controlled by those groups.²⁹ The Human Rights Committee,³⁰ the Committee on the Elimination of Discrimination against Women,³¹ the Committee against Torture,³² the Committee on the Rights of the Child³³ and the Committee on Economic, Social and Cultural Rights³⁴ have also recalled the obligations of States parties to protect individuals within their territorial jurisdiction and prevent violations, including in areas in which they may not have effective control. The Committee therefore considers that, notwithstanding the existing limitations to the State party’s ability to exercise its authority in the Gaza Strip, the alleged victims are within its jurisdiction within the meaning of article 1 of the Optional Protocol, and the Committee is therefore not precluded from considering the present communications.

26. European Court of Human Rights, Ilaşcu and others v. Moldova and Russia, para. 312. ↩
27. Ibid., para. 313. ↩
28. Ibid., para. 331. See also European Court of Human Rights, Mozer v. the Republic of Moldova and Russia, Application No. 11138/10, Judgment, 23 February 2016, paras. 97 and 98. ↩
29. 19 Merchants v. Colombia, Judgment (Merits, Reparations and Costs), Series C, No. 109, 5 July 2004, para. 140; “Mapiripán Massacre” v. Colombia, Judgment (Merits, Reparations and Costs), Series C, No. 134, 15 September 2005, paras. 111–114 (referring to erga omnes obligations); Pueblo Bello Massacre v. Colombia, Judgment (Merits, Reparations and Costs), Series C, No. 140, 31 January 2006, paras. 113, 126 and 139; Ituango Massacres v. Colombia, Judgment (Preliminary Objections, Merits, Reparations and Costs), Series C, No. 148, 1 July 2006, paras. 134, 291 and 315; and Afro-descendant communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Judgment (Preliminary Objections, Merits, Reparations and Costs), Series C, No. 270, 20 November 2013, paras. 224 and 370–373. ↩
30. CCPR/C/MDA/CO/2, para. 5, and CCPR/C/GEO/CO/3, para. 6. See also Serna et al. v. Colombia (CCPR/C/114/D/2134/2012), para. 9.3. ↩
31. General recommendations No. 28 (2010), para. 12, and No. 30 (2013), para. 5. ↩
32. CAT/C/UKR/CO/6, para. 11 (a). ↩
33. CRC/C/IRQ/CO/2-4, paras. 6, 45 and 53 (a). ↩
34. E/C.12/CAF/CO/1, para. 8. ↩

The Committee notes the State party’s submission that the communications are inadmissible under article 2 (c) of the Optional Protocol because they have been examined under another procedure of international investigation or settlement, namely by the Working Group on Enforced or Involuntary Disappearances. The Committee notes, however, the authors’ argument that the request submitted to the Working Group cannot be considered as having been examined under “another procedure of international investigation or settlement” within the meaning of article 2 (c) of the Optional Protocol. The Committee also notes the authors’ argument that the request submitted to the Working Group does not concern the same matter as the present communications, as it is not based on the disabilities of the alleged victims and does not raise claims relating to their rights as persons with disabilities.

The Committee notes that the Human Rights Committee, in its jurisprudence, has observed that extra-conventional procedures or mechanisms established by the Human Rights Council, including the Working Group on Enforced or Involuntary Disappearances, do not generally constitute a procedure of international investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol to the International Covenant on Civil and Political Rights.³⁵ Accordingly, the Committee considers that it is not precluded by article 2 (c) of the Optional Protocol, for purposes of admissibility, from examining the present communications. The Committee notes the State party’s submission that the communications are inadmissible for failure to exhaust domestic remedies. It notes the authors’ argument that there are no effective domestic remedies available to them in the State party, as Israeli nationals cannot enter Palestinian territory and do not have access to Palestinian courts, and that, owing to Hamas’s control of the Gaza Strip, Palestinian courts cannot in practice exercise their jurisdiction and enforce judgments in the Gaza Strip. The Committee notes that the State party has not refuted the authors’ claims, nor has it identified any specific domestic remedy that would be effective and available to the authors in order to address the situation of the alleged victims. In these circumstances, the Committee therefore finds that it is not precluded by article 2 (d) of the Optional Protocol from examining the present communications.

35. See, inter alia: Khelifati v. Algeria (CCPR/C/120/D/2267/2013), para. 5.2; Ammari v. Algeria (CCPR/C/112/D/2098/2011), para. 7.2; and Zaier v. Algeria (CCPR/C/112/D/2026/2011), para. 6.2. ↩

The Committee notes the authors’ submission that while the events in question began before the Optional Protocol entered into force for the State party, the disappearance of the alleged victims entails a continued violation of the Convention. The Committee notes that under article 2 (f) of the Optional Protocol a communication are to be considered inadmissible when the facts that are the subject of the communication occurred prior to the entry into force of the Optional Protocol for the State Party concerned unless those facts continued after that date. The Committee notes that the alleged victims entered the Gaza Strip in 2014 and 2015 respectively, and that, according to the information available on file, it appears that they were possibly detained by the military wing of Hamas and held incommunicado. Although their alleged disappearance and/or arbitrary detention took place before the entry into force of the Optional Protocol for the State party, the Committee notes that, from the information on file, and in particular in the light of the video published by Hamas in June 2022 showing Hisham al-Sayed lying in what appeared to be a hospital bed, the alleged victims might still be detained under such conditions. Considering the alleged victims’ psychosocial disabilities and their detention conditions, in particular the lack of contact with the families and the lack of information regarding their whereabouts and health condition, all of which has continued after the date of entry into force, the Committee considers that it is not precluded by article 2 (f) of the Optional Protocol from considering the present communications.

Lastly, the Committee notes the State party’s submission that the communications should be considered inadmissible as manifestly ill-founded under article 2 (e) of the Optional Protocol. It notes the authors’ claims that the alleged disappearance of the victims is in violation of their rights under articles 10, 14, 15 and 25, read alone and in conjunction with article 11, of the Convention as their disappearance and incommunicado detention have exposed them to a risk to their lives and health, ill-treatment and deprivation of liberty. The Committee considers that the authors have sufficiently substantiated these claims for the purposes of admissibility.

The Committee notes, however, that the authors have not provided sufficient arguments regarding the violations invoked under articles 12 and 16 of the Convention that are not already encompassed within the claims as raised under articles 10, 14, 15 and 25. The Committee therefore finds, based on the information on file, that these claims are insufficiently substantiated and inadmissible under article 2 (e) of the Optional Protocol.

In the absence of any other challenges to the admissibility of the communications, the Committee declares the communications admissible insofar as they concern the authors’ claims under articles 10, 14, 15 and 25, read alone and in conjunction with article 11, of the Convention, related to the State party’s failure to protect the alleged victims and to investigate their alleged disappearance and arbitrary detention, and proceeds with its consideration of the merits.

The Committee has considered the communications in the light of all the information that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of its rules of procedure.

The Committee notes the authors’ claim that the alleged victims have been subjected to enforced disappearance and incommunicado detention in the Gaza Strip. The Committee further notes the authors’ claims that by failing to take any action to try to determine the fate and whereabouts of the alleged victims or to facilitate their safe return, the State party has violated their rights under articles 10, 14, 15 and 25, read alone and in conjunction with article 11, of the Convention.

The Committee notes the State party’s submission that it has been unable to independently verify the alleged victims’ whereabouts or fate, and its argument that there is conflicting information in the public domain regarding their disappearance. It notes the State party’s claims that the blockade of the occupied Gaza Strip undermines any determination of the veracity of the claims or the identification of any alleged perpetrators. However, the Committee notes the authors’ uncontested claim that statements and a video published by Hamas indicate that the alleged victims are, or have been, held by Hamas in the Gaza Strip. The Committee further notes the State party’s argument that Hamas’s control over the Gaza Strip has led to the severance of the State party’s security control in the Gaza Strip, further hampering its ability to verify the claims raised by the authors. It also notes the State party’s argument that such factors directly affect the possibility of an effective investigation at the domestic level of the claims raised in the communications, as its capacity to reach the Gaza Strip and conduct investigations is severely curtailed.

Concerning the State party’s ability in practice to make attempts to verify the whereabouts and fate of the alleged victims and to attempt to facilitate their safe return to their families, given the situation in the Gaza Strip, the Committee notes the jurisprudence of the European Court of Human Rights in Ilaşcu and others v. Moldova and Russia, in which the Court held that a State party did not cease to have jurisdiction over any part of its territory in which it was prevented from exercising its authority by a constraining de facto situation, such as when a separatist regime was set up.³⁶ However, such a factual situation may reduce the scope of the State party’s substantive obligations under the Convention. The focus of the analysis is therefore on the State party’s positive obligations. In the current context, the State party must endeavour to take all the diplomatic, economic, judicial or other measures that are within its power and are in accordance with international law to secure for the authors the rights guaranteed by the Convention.³⁷ The European Court of Human Rights observed that although it was not for it to indicate which measures the authorities should take to comply with their obligations most effectively, it must verify that the measures actually taken were appropriate and sufficient. The Court noted that when faced with a partial or total failure to act, its task was to determine to what extent a minimum effort was nevertheless possible and whether it should have been made, and that determining that question was especially necessary in cases concerning an alleged infringement of absolute rights such as the right to life and the prohibition of torture or inhuman or degrading treatment or punishment.³⁸

36. European Court of Human Rights, Ilaşcu and others v. Moldova and Russia, para. 333. See also Inter-American Court of Human Rights, Peace Community of San José de Apartadó regarding Colombia, Order (Provisional Measures), 18 June 2002, para. 11, at p. 10: “The State Party is under the obligation, erga omnes, to protect all persons who are under its jurisdiction … not only with respect to the power of the State but also with respect to actions by third parties, including irregular armed groups of any type.” ↩
37. European Court of Human Rights, Ilaşcu and others v. Moldova and Russia, para. 331. ↩
38. Ibid., para. 334. ↩

Following this jurisprudence, the Committee considers that in the present cases, the question before it is therefore to determine whether the State party discharged its positive obligation to take appropriate and sufficient measures – including diplomatic, economic, judicial and other measures – within its power to secure the alleged victims’ rights as guaranteed by the Convention.

The Committee notes the authors’ specific claims that the alleged victims were unlawfully and arbitrarily detained, in violation of their rights under article 14 of the Convention, that the State party violated their rights under article 15 by failing to take effective measures in its power to prevent the alleged victims from being subjected to torture or cruel, inhuman or degrading treatment, and that the State party, by failing to take measures in its power to protect the lives of the alleged victims from the risks associated with their disappearance, violated their rights under article 10 of the Convention. The Committee also notes the authors’ claim that the alleged victims’ rights under article 25 of the Convention were violated owing to their lack of access to adequate medical care and the State party’s failure to make any attempt to remedy their situation. In this regard, the Committee notes the information provided by the authors that according to a statement released by Hamas, the health situation of one of the Israeli nationals that it was holding had deteriorated, and that a video had been posted of Hisham al-Sayed in a hospital bed. Additionally, as concerns the authors’ claim under article 10 of the Convention, the Committee notes that the Human Rights Committee has stated that the right to life, including the right to protection of life, may overlap with the right to security of person, and that extreme forms of arbitrary detention that are themselves life-threatening violate the right to personal liberty and personal security and are incompatible with the right to life.³⁹

39. Human Rights Committee, general comment No. 36 (2018), para. 57. ↩

The Committee further notes the authors’ submission that the substantive claims raised above should be read alone and in conjunction with the State party’s obligations under article 11 of the Convention. The Committee recalls that under article 11, States parties are required to take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters. Regarding the application of article 11 to the present communications, the Committee notes the general human rights and humanitarian situation in the Gaza Strip, whose nature causes a particular situation of risk. This situation was described, for example, in the annual report of the United Nations High Commissioner for Human Rights on the implementation of Human Rights Council resolutions S-9/1 and S-12/1, covering the period from 1 November 2020 to 31 October 2021, in which it was noted that in May 2021, the most significant escalation in hostilities between Israel and Palestinian armed groups since 2014 had caused significant civilian casualties and destruction of civilian infrastructure, and worsened the humanitarian situation in Gaza, already heavily affected by 15 years of blockade.⁴⁰ It was also reported that several individuals arrested by the security forces of the de facto authorities in Gaza had alleged ill-treatment or torture and restricted access to legal aid and other concerns over fair trial guarantees.⁴¹ In particular, a number of people detained by the Internal Security Agency had alleged that they had been held in incommunicado detention and subjected to beating, suspension, sleep deprivation, stress positions and forced exercise with the aim of extracting confessions from them. They had no access to legal counsel and there had been no judicial review of their detention despite multiple extensions by a military prosecutor.⁴² As concerns the health-care system in the Gaza Strip, serious shortages of health-care professionals, inadequate treatment equipment and low supplies of drugs and medicines have been reported.⁴³ The Committee considers that, taking into account the particularly vulnerable situation of the alleged victims, including their need for access to adequate health care, the situation in the Gaza Strip can be considered to be a situation of risk that engages the State party’s obligations under article 11 of the Convention.

40. A/HRC/49/83, para. 3. ↩
41. Ibid., para. 53. ↩
42. Ibid. ↩
43. A/HRC/49/87, para. 45. ↩

The Committee notes the State party’s argument that, owing to its lack of effective control over the Gaza Strip, its capacity to reach the Gaza Strip and investigate the claims raised in the communications is severely limited. The Committee notes that treaty bodies, in their concluding observations, have recognized that these challenges limit the State party’s effective control of its jurisdiction over its own territory and its capacity to effectively prevent and combat human rights violations, but have reminded the State party that the conventions in question are applicable in its entire territory and that the State party should therefore take all possible measures to implement the them in all parts of the territory.⁴⁴ As noted above (see para. 8.4), the Committee therefore observes that even in the absence of effective control over parts of its territory, and while acknowledging the constraints that it faces, the State party still has a positive obligation to take all the diplomatic, economic, judicial or other measures that are within its power and are in accordance with international law to secure for the persons in those parts of its territory the rights guaranteed by the Convention.⁴⁵ The Committee notes that, in the present cases, the State party has not provided any specific information on any such significant measure that it has taken, apart from the President’s visit to Mr. Mangisto’s family and the State party’s contact with ICRC, to discharge its positive obligation and to ensure respect for the alleged victims’ rights under the Convention, particularly their rights to life, to liberty and security of person, to freedom from torture or cruel, inhuman or degrading treatment or punishment and to the enjoyment of the highest attainable standard of health. In particular, the Committee observes that the State party has provided no information on any measures taken to the following ends: to attempt to enquire into the fate and whereabouts of the alleged victims or the conditions of their detention, including by attempting to engage the de facto authorities in the Gaza Strip to address the alleged victims’ situation; to facilitate and secure their release and safe return to their families; to guarantee their placement under the protection of the law; to ensure that they have access to adequate health care, taking into account their psychosocial disabilities and particularly vulnerable situation; and to enable them to be in contact with their families and representatives, especially taking into account that the alleged disappearance of the alleged victims dates back to 2014 and 2015 and that the alleged victims’ families have been provided with no information as to their fate and whereabouts or current health condition. The Committee concludes that the failure by the State party to take any such measures to investigate, verify or enquire into the fate and whereabouts of the alleged victims – including with regard to the alleged risk to their lives, the alleged ill-treatment that they have endured, their alleged deprivation of liberty and their alleged lack of access to health care – amount to a violation of the alleged victims’ rights under articles 10, 14, 15 and 25, read alone and in conjunction with article 11, of the Convention.

44. CAT/C/PSE/CO/1, para. 4; CEDAW/C/PSE/CO/1, para. 9; CERD/C/PSE/CO/1-2, para. 3; and CRC/C/PSE/CO/1, para. 4. ↩
45. European Court of Human Rights, Ilaşcu and others v. Moldova and Russia, para. 331. See also European Court of Human Rights, Mozer v. the Republic of Moldova and Russia, paras. 97 and 98. ↩

The Committee recalls that on 20 September 2019, it issued requests for interim measures under article 4 of the Optional Protocol with respect to the present communications, which it reiterated on 6 July 2022 (see para. 1.2). However, the State party has not provided any information on any measure that it has taken, or attempted to take, to comply with the Committee’s requests. The Committee recalls that requests for interim measures, under article 4 of the Optional Protocol and rule 64 of its rules of procedure, are essential to the Committee’s role under the Optional Protocol. Non-compliance with such requests undermines the protection of Convention rights through the Optional Protocol. The Committee therefore finds that the State party’s failure to comply with its request for interim measures violates article 4 of the Optional Protocol.

The Committee, acting under article 5 of the Optional Protocol, is of the view that the State party has failed to fulfil its obligations under articles 10, 14, 15 and 25, read alone and in conjunction with article 11, of the Convention and under article 4 of the Optional Protocol. The Committee therefore makes the following recommendations to the State party:

In accordance with article 5 of the Optional Protocol and rule 75 of the Committee’s rules of procedure, the State party should submit to the Committee, within six months, a written response, including information on any action taken in the light of the present Views and recommendations of the Committee.