[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:

• Bail applications and hearings to determine whether a child remains in detention pending the conclusion of the case can still be heard in adult military courts, where military judges have not necessarily received the “appropriate training” to handle cases involving minors.
   
• The new order does not provide any guidelines relating to the release of children on bail, which is still governed by the same provisions that apply to adults. Further, the new order does not introduce any guidelines specifically addressing the special needs of children when it comes to sentencing.
   
• The new order makes no change to the time period during which a child can be denied access to a lawyer, which remains at 90 days for both adults and children.

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: 

• It assumes that children as young as 12 years are in possession of the contact details of a lawyer.
   
• The order does not stipulate at what point in the investigation a child must consult with a lawyer. In practice, the overwhelming majority of children continue to meet with their lawyer for the first time in the military courts, long after their interrogation is over.

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:

• Palestinian children who are prosecuted in the military courts are initially detained by the Israeli army, not the police. The children can remain in military custody for many hours before being handed over to the police, and the new notification requirements do not apply to the military.
   
• Although there is now an obligation on the police to notify parents, there is still no legal requirement entitling parents to be present when their child is being questioned – a practical safeguard generally applied to Israeli children, including those living in settlements in the West Bank. In practice, children continue to be interrogated in the absence of a responsible adult capable of safeguarding their interests.
   

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:

• The critical period for Palestinain children detained by the Israeli military is the first 48 hours after arrest. It is during this period that most cases of physical and psychological abuse occur and the child is interrogated without the benefit of legal advice or the presence of a parent. The amendment which now requires children be brought before a military court judge within 96 hours of arrest adds no additional protection.
   
• No explanation has been given as to why more favourable time limits apply to Israeli children, including children living in settlements in the West Bank. Under the law that is applied to Israeli children, a child below the age of 14 must be brought before a civilian judge within 12 hours of arrest, rising to 24 hours in the case of older children.

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.
 

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:

• A requirement that children be allowed to consult with a lawyer prior to interrogation;
• A requirement that children should have a parent or guardian present prior to and during their interrogation; and
• All interrogations should be audio-visually recorded.

As of 2 October 2012, none of the 40 recommendations have been implemented.


Related links:

•    Breaking the Silence – Children and Youth
•    UK lawyers - Children in Military Custody
•    DCI - Bound, Blindfolded and Convicted
•    B’Tselem – No Minor Matter