Date: 18 January 2022

In the early hours of 12 January 2022, at around 3:00 am, Mr Omar Abdul Majeed As’ad, an 80-year-old Palestinian-American citizen was returning to his home in Jiljilya village, northwest of Ramallah, after visiting relatives when Israeli occupation soldiers stopped his vehicle.[1] The Israeli Occupying Forces (IOF) surrounded his car, pulled him out of it, harassed, blindfolded, bound and led him away to a building under construction.[2]

According to Fouad Qattum, Head of the Jiljilya Village Council, more than 50 soldiers entered the village early that morning, patrolling around the village and between the homes.[3] After the Israeli occupation soldiers had left the area, residents rushed to the building where the IOF soldiers took the detainees to find Mr As’ad there dead with the plastic zip-tie still around one of his wrists.[4]

Jiljilya village is a calm, residential and affluent neighbourhood that has not witnessed any similar incidents in the past. Jiljilya has many derelict and under-construction buildings, as many of Jiljilya’s residents have dual nationalities and live abroad. Like other villages in that area, for example, Nabi Salah village, the Jiljilya neighbourhood is disconnected from the main road and its residents can only access it by travelling through another village.

According to Al-Haq documentation, the IOF soldiers treated three persons who were detained that night in a hysterical, violent and brutal manner. Along with Mr Omar As’Ad, 80, Mr Merweh Mahmoud Abboud Abdel Rahman, 50, from Arora town of Ramallah Governorate who was transporting vegetables and fruits from Abwein to Jiljilya, was also stopped, removed from his van and detained by the IOF in the derelict house under construction.[5]

Eye Witness Testimonies:

A resident of the area witnessed that:

At around 3:00 am, I heard a sound near the house, and when I looked from the side of the window, I saw a private car [...] about six soldiers were surrounding it, I saw the occupation soldiers who were in military uniforms, and this was clear because there were lights in the street and they were regular soldiers according to their uniforms, which is known to me. I saw them dragging someone out from behind the wheel of the car after an argument and a sound like screaming, I didn't know what was going on [...] After an argument that lasted [for a few minutes] I saw some soldiers holding that person by the right hand and others by the left hand and they put something like a bandage or a blindfold over his head and walked him away, to the south of our house, until I could no longer see. One of the soldiers got into his car and drove it in the same direction.[6]

Mr Abdel Rahman, 52, who was also detained that night, was transporting vegetables and fruits in a van with his friend when the IOF stopped them around 3:30 am. He recalled that:

The soldiers opened the van door from the side and saw the vegetables and fruits in the van. The soldier who opened the door from my side entered where I was sitting and pushed me hard and started asking me to move away and I asked him to give me time to loosen my seat belt, but he pushed me hard and I could not even loosen my seat belt. His body was almost above my body, but the soldier who was on the driver’s side remained on the van’s step. They ordered the driver to head towards a side street to the right- we drove about 100 meters. Then he asked the driver to stop and then they asked us to get out of the car and stop the engine. When I got out, the soldier pushed me violently and repeatedly, and he was acting violently and nervously, pointing his weapon and screaming and repeating (Shhh...). They led us to a yard of a house under construction and asked us to sit on the ground, which is tiled, and they refused to allow my friend to sit on the edge of a planting basin. They nervously told us to set down on the floor. From their movements and orders, they seemed very nervous and dangerous. I was afraid of what could happen at any moment because of their brutality and violent behaviour, I sat down and so did my friend, as they asked us.[7]

He added:

After about 15 minutes, two other men arrived in their fifties [...] and I witnessed the soldiers treating them violently and harshly, and they seated them [about four meters away] to the west side of me […]. Due to the severe cruelty of the soldiers, I heard two of the men repeating Shahada, which is usually done by those who feel that they are going to die. We were sitting for about half an hour in the same place with a soldier and sometimes two in front of us pointing weapons at us.[8]

Mr M. A. testified that the Israeli soldiers were well-aware that Mr As’ad had passed out on the ground and needed urgent medical aid. He states:

While we were sitting for this period, I could see a person [..] a meter and a half to two meters away. He was not sitting but was on his face on the right side, that is, his right cheek was on the tile. I could not call him because I was scared of the soldiers, but I did not hear a breath from him and did not feel any movement. Then a soldier approached him and sat down on one knee at his head [..]. I saw the soldier after he touched his head, he stood and [...] cut the plastic zip-tie. After a few seconds, I saw the soldiers moving away, and I heard them whispering between each other, then a soldier pointed his weapon towards us and then they left.

When I saw the soldiers moving away and the soldier who was aiming his weapon also moved away, I told the others and they were watching almost the same as me, except for the one who was on the other side. I said the soldiers went away. I got up and approached the person I described and raised his head off the ground. Here, I recognised him, he was Abu Hani, his name was Omar As’ad. I knew him beforehand, and he suffered from several diseases. Immediately, I felt his pulse. His eyes remained closed and he did not move. Minutes later, the doctor arrived from the clinic, which is approximately 150 meters away.[9]

Local doctor, Islam Abu Zaher, 30, who owns a medical clinic located in the town of Jaljaleh called “The Arab Medical Centre,” tried to resuscitate Mr As’ad but found no pulse. He said:

I was on a night shift, and at about 4:09 am in the morning, I heard a knock on the clinic door [...] I approached the door to find a citizen in his fifties and he said (put clothes on, an elderly man was arrested by the [Israeli occupation] army and he looks dead). I immediately put on clothes and took the first-aid kit and followed him. When I arrived, I found an elderly man who was lying on his face and in one of his hands was a plastic zip-tie. When I turned him on his back, I recognised him. He was Abu Hani. He had previously visited me in the clinic for medical treatment. His name is Omar Asaad and he was 80-years-old. One of the health problems he had was ischemic heart disease, he also underwent open-heart surgery, suffers from diabetes, stress and a type of obesity.” [10]

About his initial medical observations, Dr Abu Zaher added:

I noticed that there was a blindfold on his eyes that was still fixed, which I removed. I also noticed that his left hand still had a plastic zip-tie and there were no signs of any medical treatment [that was provided] in the location. He had a great blueness on his face, indicating a severe lack of oxygen [...] I tried to help and provide Cardiopulmonary resuscitation for ten minutes [...] I estimate that he died 15-20 minutes before I arrived at the scene of the incident.[11]

Legal Analysis

The detention of Mr As’ad, 80, along with Mr Rahman, 50, and Mr Hammouda, 55, without a warrant and for no apparent reason amounts to arbitrary deprivation of liberty. The death of Mr As’ad is a direct result of the cruel and ill-treatment he suffered from an IOF soldier, which may amount to torture. Mr As’ad is an elderly man who suffered from ischemic heart disease and had undergone open-heart surgery, he could not have possibly posed any danger to Israeli soldiers. He was treated violently, then left blindfolded and handcuffed in a building under construction in freezing cold weather for over an hour. Such treatment in the absence of necessity and proportionality is in gross violation of international human rights law (IHRL). In the case at hand, there were no apparent military operations and no active hostilities. Thus, this incident falls within the law enforcement paradigm and the IHRL framework applies.

As the Occupying Power, Israel is bound to respect, protect, and fulfil international humanitarian law (IHL) and IHRL in the occupied Palestinian territory (OPT) in line with its obligations under the Fourth Geneva Convention (GCIV),[12] the International Covenant on Civil and Political Rights (ICCPR),[13] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[14] the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),[15] and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[16] amongst other international treaties it has ratified or which otherwise constitute customary international law applicable in the OPT.

Right to Security of the Person and Freedom from Arbitrary Detention

The detention of Mr As’ad, along with Mr Rahma and Mr Hammouda,  in the middle of the night, in such a violent manner and without any apparent reason violates the right to security of the person and freedom from arbitrary detention as stipulated by Article 9 of the ICCPR. Arbitrary deprivation of liberty is prohibited as a norm of customary IHL applicable in the OPT.[17] In situations of belligerent occupation, civilians may only be detained by the Occupying Power for “imperative reasons of security”.[18] Article 5 of the UN Code of Conduct for Law Enforcement Officials requires that whenever the use of force is unavoidable, law enforcement officials must “[e]xercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved,”[19] and must “[m]inimize damage and injury, and respect and preserve human life”.[20]

Right to Humane Treatment

Article 10 of the ICCPR states clearly that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. Treating Mr As’ad in such a cruel, inhuman and degrading manner, including leaving him unconscious, blindfolded and handcuffed in a building under construction in freezing cold weather for over an hour violates his right to human treatment and may amount to acts of torture in violation of the CAT. Notably, Article 7 of the ICCPR entails that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Moreover, the Declaration on the Protection of all Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment stipulates such acts are “an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.”[21]

Right to Life

The IOF soldiers violated Mr As’ad’s right to life as stipulated by Article 6(1) of the ICCPR, which enshrines the inherent right to life as “the supreme right from which no derogation is permitted even in situations of armed conflict and other public emergencies”.[22] As recognised by the UN Human Rights Committee, the right to life “should not be interpreted narrowly.”[23] Accordingly, any deprivation of life is arbitrary when it is carried out in the absence of a threat to life or serious injury.[24] Moreover, Article 3 of the UN Code of Conduct for Law Enforcement Officials requires that “[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”[25] In addition, Israel is also bound to respect IHL throughout the OPT, which must be viewed as complementary to IHRL when it comes to the protection of the right to life.[26] Article 4 of the GCIV protects Palestinian civilians in the hands of the Occupying Power. As a protected person, Mr As’ad was entitled to special protection under IHRL and IHL.

Right to Health

Under IHRL, ensuring access to healthcare and other essential services without delay is critical to the protection of the right to life.[27] In particular, Principle 5(c) of the UN Basic Principles on the Use of Force require law enforcement officials to “Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment.”[28] Moreover, Article 6 of the Code of Conduct for Law Enforcement Officials states that “[l]aw enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.”[29] However, Al-Haq documentation shows that although the soldiers were well-aware that Mr As’ad had passed out, they did not provide him with any medical aid and just left the scene.[30]

Despite international legal obligations to provide medical assistance to those caused injury by law enforcement, the IOF’s denial of the medical assistance to denying Mr As’ad that he urgently needed may amount to an arbitrary deprivation of life in violation of Article 6(1) of the ICCPR and a violation of Mr As’ad right to health under Article 12(1) of the ICESCR.

Racial Discrimination and Apartheid

Israel’s systematic night raids, arbitrary deprivation of liberty and the resort to excessive force against Palestinians must be considered within the broader context of Israel’s institutionalised regime of systematic racial oppression and domination over the Palestinian people as a whole, defined by the Rome Statute as the crime of apartheid.[31] The 1973 Apartheid Convention considers the “[d]enial to a member or members of a racial group or groups the right to life and liberty of person” an element of the crime of apartheid.[32] Article 3 of ICERD enshrines that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” Israel’s resort to excessive use of force against Palestinians “constitutes another pillar of its creation and maintenance of an apartheid regime over the Palestinian people, by creating a coercive environment designed to intimidate Palestinians and feeding a climate of repression designed to undermine the exercise of their inalienable rights”.[33]

Racial discrimination is absolutely prohibited, including in the enjoyment of the rights to life and health. Under IHRL, “[a]ny deprivation of life based on discrimination in law or fact is ipso facto arbitrary in nature.”[34] Article 5(b) of ICERD requires States parties “to prohibit and to eliminate racial discrimination in all its forms origin, to equality before the law, notably in the enjoyment of [..] [t]he right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution”. The denial of access to healthcare to those caused injury by the IOF is a widespread and systematic Israeli State policy, which amounts to prohibited racial discrimination in the enjoyment of the rights to health and life.

Accountability

Shortly after this incident, the Israeli military published in a statement that “[a]n initial inquiry by the commanders at the scene indicated that during the inspection process a Palestinian was apprehended after resisting a check, and he was released later that night”.[35] However, Al-Haq documentation shows that Mr As’ad was not released, rather the soldiers checked him while on the ground, then they cut the plastic zip-tie (of one wrist) and quickly left the scene without providing him with the medical assistance that he urgently needed.

The IOF soldiers conduct in this case amounts to grave breaches of the GC IV and may amount to the commission of war crimes within the jurisdiction ratione materiae of the International Criminal Court (ICC), namely, the war crimes of torture or inhuman treatment, and that of wilfully causing great suffering, or serious injury to body or health under Articles 8(2)(a)(ii) and (iii) of the Rome Statute respectively. In addition, considering the systematic, widespread and institutionalised nature of such Israeli practices as part of its Apartheid regime, such acts may amount to the commission of the crime against humanity of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law under Article 7(1)(e). Further, such inhuman acts and the depriving of fundamental rights may amount to the commission of the crimes against humanity of persecution, apartheid and other inhuman acts as stipulated in Article 7(1)(h), (j) and (k) of the Rome Statute respectively.

As the Occupying Power, Israel has an obligation to expeditiously investigate this incident through a prompt and transparent process. Article 17(2) of the Rome Statute provides a yardstick by which the willingness of a State to conduct such investigations may be measured, done so in reference to the presence of an intention to shield perpetrators from criminal responsibility,[36] unjustified degrees of delay,[37] and an overall lack of independence and impartiality.[38] Israel must make the result of the investigation available to the public and must expeditiously prosecute those responsible for this crime. Further, Israel must make reparations to the victims and the family of the deceased.

Conclusion

In conclusion, Al-Haq’s initial field reporting of this incident shows that there was no apparent military operation and no active hostilities. Further, it shows that the IOF soldiers were well-aware that Mr As’ad had passed out and left him lying there without providing him with any form of medical aid. The detention and treatment of Mr Omar Abdul Majeed As’ad by the IOF, which may have caused his death, amounts to an arbitrary deprivation of liberty and inhuman treatment,  in violation of Mr As’ad’s rights to life and health, and an inhuman treatment amounting to a grave breach of the GCIV.

Further, the conduct of the IOF soldiers amounts to inhuman acts of the crimes against humanity targeting the Palestinian people as a whole, including the crimes against humanity of apartheid and persecution. Accordingly, Al-Haq urgently calls for international justice and accountability as demanded by Mr As’ad’s family, to put an end to Israel’s pervasive impunity for widespread and systematic human rights violations committed against the Palestinian people. Additionally, Al-Haq calls on the ICC to expedite its investigation in the Situation in Palestine.