[2 October 2012] – Since September 2009, a number of amendments have been made to Israeli military law that affect the manner in which children are prosecuted in military courts in the occupied West Bank. This statement provides an update as to the impact of these developments from both a legal and practical viewpoint. It should be noted that Israeli military law technically applies to all those present in the West Bank, including Israeli settler children, however the latter are invariably processed under Israel’s civilian legal system, which contains far greater safeguards and protections.
Establishment of a military juvenile court - Military Order 1644
On 29 September 2009, a military juvenile court was established by Military Order 1644 (incorporated into Military Order 1651) following mounting criticism that the Israeli military had been prosecuting children as young as 12 years in adult military courts for over four decades. Under the new order, children are still prosecuted in military courts but are now supposed to be separated from adults in most cases and tried before military judges who have been “appropriately trained”. Lawyers familiar with the military courts have identified a number of flaws with this development:
According to an assessment made by an Israeli organisation in 2011, few substantive improvements have resulted from the introduction of a military juvenile court:
[B’Tselem - No Minor Matter] – “The rights of Palestinian minors are flagrantly violated at every stage of the proceedings conducted against them, from the initial arrest and removal from their homes, through interrogation and trial, to serving the prison sentence, and then release […]. The amendments to the military legislation are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.”
Raising the age of majority – Military Order 1676
On 29 September 2011, Military Order 1676 purported to raise the age of majority in the military courts from 16 to 18 years, in line with Israeli civilian law. Significantly, the new order does not apply to the sentencing provisions and accordingly, Palestinian children aged 16 and 17 years can still be sentenced as adults. No such limitation applies to Israeli children, including those living in settlements in the West Bank and East Jerusalem.
Consulting with a lawyer – Military Order 1676
Military Order 1676 also introduced a requirement that children must now be notified that they have the right to consult with a lawyer. Israeli police must contact the lawyer named by a child prior to commencing the interrogation, provided that this does not delay the investigation. Lawyers familiar with the military courts have identified a number of flaws with this development:
Accompanied by a parent during interrogation – Military Order 1676
Military Order 1676 also introduced a requirement that Israeli police officers must now inform a minor’s parents that their child is in police custody. In the case of “security offences”, which includes stone throwing, notification can be delayed for up to eight hours. It should also be noted that Israeli police stations in the West Bank are located inside fortified settlements where access for Palestinians is severely restricted. Lawyers familiar with the military courts have identified a number of flaws with this development:
Time within which a child must be brought before a judge – Military Order 1685
On 1 August 2012, Military Order 1685 came into effect. The new order reduces the time within which children detained by the Israeli military must be brought before a military court judge for the first time. The order shortens the time from eight to four days. This amendment applies to adults and children as young as 12 years. The amendment does not automatically apply in cases where a person is being interrogated by the Israeli Security Agency (ISA) (also known as the Shin Bet). Lawyers familiar with the military courts have identified a number of flaws with this development:
Translation of military orders into Arabic
Under international law, to have legal effect all of the above changes to the military law must be published in Arabic and disseminated widely. (See Fourth Geneva Convention – Article 65). As of 2 October 2012, none of the military orders mentioned above have been translated into Arabic by the responsible party - the Israeli military authorities - and so technically, have no legal effect.
Discrimination enshrined in law
Whilst settler children are processed through Israel’s juvenile justice system and generally released on bail, Palestinian children accused of similar offences are prosecuted in military courts which deny children bail in at least 87 percent of cases, and have a conviction rate of 99.74 percent. The table below highlights some of the ways in which the two Israeli legal systems applied in the West Bank discriminate between children based on race or nationality.
|#||Event||Israeli settler children
|1|| Minimum age of criminal responsibility.
|2||Minimum age for a custodial sentence.||14||12|
|3||Age of majority.||18||16-18|
|4||Legal right to have a parent present during interrogation.||Generally yes
|5||Legal right to have a lawyer present during interrogation.||No||No|
|6||Legal right to have interrogation audio-visually recorded.||Partial||No|
|7||Maximum period of detention before being brought before judge.||12-24 hours||4 days|
|8||Maximum period of detention without access to a lawyer.||48 hours||90 days|
|9||Maximum period of detention without charge.||40 days||188 days|
|10||Maximum period of time between charge and trial.||6 months||2 years|
|11||Percentage of cases in which bail is denied.||20%||87%|
|12||Percentage of cases in which a custodial sentence is imposed.||6.5%||90%|
Unlawful transfer of children to prisons inside Israel
According to Israeli Prison Service figures, each month approximately 60 percent of Palestinian child prisoners are detained in facilities located inside Israel. The transfer and confinement of these children in detention facilities inside Israel violates Article 76 of the Fourth Geneva Convention and attracts personal criminal liability for individuals involved in the transfer and confinement process by virtue of Articles 146 and 147 of the Convention. None of the recent changes to the military law mentioned above address this violation.
Findings of UK Foreign Office funded report largely ignored
In June 2012, a delegation of lawyers from the UK, including a former Attorney General and a Court of Appeal judge published a report on children in the Israeli military court system. The Foreign Office funded report - Children in Military Custody - found that Israeli authorities were in breach of at least six international legal obligations in regards to Palestinian children held in military detention. The report concluded by making 40 practical recommendations which the Israeli embassy in London said would be studied “closely as part of its ongoing efforts to find the most appropriate balance between preventing violence and treating perpetrators with humanity." Included in these recommendations were:
As of 2 October 2012, none of the 40 recommendations have been implemented.
• Breaking the Silence – Children and Youth
• UK lawyers - Children in Military Custody
• DCI - Bound, Blindfolded and Convicted
• B’Tselem – No Minor Matter