Children in Military Custody Full Report

7/31/2019 Children in Military Custody Full Report

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Children inMilitary CustodyJune 2012

A report written by a delegation of British

lawyers on the treatment of Palestinianchildren under Israeli military law


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Contents

Introduction 2

Methodology 3

Historical and Political Background 4

Guiding Principles 6

Israeli Law and Military Law 7

International Law and the United Nations Convention 9on the Rights o the Child

Conicting Accounts 11

Procedures and Practices 13

Proportionality 13

Arrest 14

Interrogation 16

Bail hearings and Plea bargains 21

Trial 23

Sentencing 24

Detention 26

Complaints 28

Conclusions 30

Recommendations 32

Appendix 1 - Meetings attended by the delegates 36

Appendix 2 - Biographies o the delegates 38

Appendix 3 - Extracts rom United Nations 40Convention on the Rights o the Child

Appendix 4 - Child Detention Figures 44


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Introduction

The delegation that produced this report comprised nine lawyers1. 1: The Rt Hon Sir StephenSedley, The Rt Hon the Baroness Patricia Scotland o Asthal QC, Frances Oldham QC,

Marianna Hildyard QC, Judy Khan QC, Jayne Harrill, Jude Lanchin, Greg Davies andMarc Mason. Bea Randall and Greg Davies were responsible or the organisation o thevisit, and Lou Dawson was the delegations communications consultant. The group wasbrought together solely or the purpose o the visit and report. Its members, who havenot worked as a group or any other purpose, were selected or their knowledge andexperience o human rights law and procedure relating to both crime and child welare,and or experience o socio-legal research.

The delegation visited Israel and the West Bank rom 10 to 17 September 2011. The2.delegations terms o reerence were to undertake an evaluative analysis o Israeli militarylaw and practice as they aect Palestinian children in the West Bank by reerence to thestandards o international law and international childrens rights. The terms o reerencedid not include the legality o the occupation. Nor did the terms o reerence include theimpact o the occupation on the welare and rights o children outside the legal process.2

The visit was unded by the United Kingdom Foreign & Commonwealth Ofce, which also3.provided diplomatic support throughout the visit, on the shared understanding that thedelegation was to be entirely independent. The content, conclusions and recommendationso the report are accordingly the delegations own.

1 Short biographies o the delegates can be ound at Appendix 2.

2 Whilst evidence was not sought on the broader issues o child welare, circumstances described in this reportraise concerns which, in our view, warrant ur ther enquiry.


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Methodology

The delegation visited both Israel and the West Bank and had the beneft o the engagement4.o the Israeli Government during this time. As a result, the members are confdent that

they were able to assemble a substantial and balanced body o relevant inormation.

The delegation:5.

Commissioned an advice rom a specialist Israeli lawyer on the dierences betweenIsraeli civilian law and military law in relation to children in custody.

Undertook a review o existing literature and research, including reports by NGOs andUN Agencies, and ofcial Israeli responses to the reports where available.

Held meetings with a substantial number o individuals (including lawyers, ormer childprisoners, ormer Israeli soldiers), NGOs, UN agencies, Israeli Government departments,the then Chie Justice o the Israeli Supreme Court, and senior military judges andprosecutors at the military courts at Oer prison (outside Jerusalem). We also had anunscheduled meeting with Israeli settlers in Hebron. Appendix 1 sets out a ull list othe delegations meetings.

Sent ormal requests to the relevant Israeli Government agencies or urther inormationagreed upon during our meetings and invited those agencies to provide any urtherdata they considered relevant.

While this report adopts, with one exception, the Chatham House principle o notattributing quotes to individuals, our practice at our meetings with Israeli ofcials and

judges was to obtain their agreement to our taking contemporaneous notes or tape-recording our discussions. We are accordingly able to confrm the accuracy o thoseparagraphs which recount what we were told. The exception reerred to above is theinterview we were granted with the ormer Chie Justice, whose identity cannot beconcealed, and some o whose conversation with us was o obvious importance inexplaining the Israeli position. We obtained consent rom the ormer Chie Justice toinclude certain reerences to our meeting with her.


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Historical and Political Background

The West Bank, since 1967, has been subject to Israeli military occupation and to governance6.by military laws and tribunals. Following the occupation, many Israeli settlements have

been established in the West Bank. We have no reason to dier rom the view o HerMajestys Government and the international community that these settlements are illegal.For the purposes o this report however we treat them, like the occupation, as a act.

In consequence o the establishment o Israeli settlements, the population o the West7.Bank is governed by two separate systems o law. Those who possess Israeli citizenship that is, in practice, the population o the settlements are subject to Israeli law. Thosewho do not that is, or practical purposes, the Palestinian population are subject toIsraeli military law as well as Palestinian law3.

Ater 42 years o trying Palestinian children in the same courts as adults, in 20098.the military juvenile court was created by Military Order 1644. In the new court,

judges are trained to deal with children. Whilst at the time o the delegations visitthe court was empowered to deal with children under 16, we were inormed by themilitary that, in practice, it heard cases o children up to the age o 18. Since ourvisit, by virtue o a new Military Order, 1676, which was passed on 27 September2011, the court now ofcially has jurisdiction over children up to the age o 18.The delegation welcomes this change to the age o majority or Palestinian childrenbut is concerned that the change does not appear to apply to sentencing provisions.The benefts o the military juvenile court, as described by the Ministry o Justice andthe military judiciary, are that trials are separated rom those o adults, parents areallowed to participate, and a probation report may be obtained.4 We were inormedby the military judges with whom we met that the courts sit in closed session but

that access is given to human rights organisations. It is the view o the NGOs withwhom we met, however, that considerably more progress is required in spite orecent reorms to the law and that there remains a gul between law and practice.

3 The Ministry o Justice described the position to us in detail: Legally speakingthe law in the West Bankapplies the same to the Palestinians and the Israelis in the West Bank who are throwing stonesRegarding the

Israelis also the Israeli law applies to them because in 1967 we amended the Israeli law and said that a courtin Israel can try an Israeli or an oence he did in the West Bank. I he would do it in Israel and the court wouldhave jurisdiction over the oence then the court can judge him even though the oence was committed in theWest Bank. So we did not want Israelis to eel that they would be ree rom the Israeli criminal law just becausethey are in the West Bank. In the beginning o the days o the military government Israelis were tried beorethe military courts in the West Bank alsoIt didnt work so well. Since then, or many years they are beingtried in Israel according to Israeli lawsThe people who investigate them may be the people who investigateboth people. It can be the general security service or the policemen. Israelis who are under security serviceinvestigation or suspect o setting fre in a mosque, response or acts that people rom the right wanted todo, they were investigated and ater many days o investigation there was not enough evidence so they werereleased. I there would have been evidence an indictment would have been presented to a court in Israel,according to Israeli law or an oence that was committed there. So the law can be dierent, the investigatorsmay be the same. The judges at the end o the day, a Palestinian will be tried beore a military court i he didsomething in the West Bank. I he did it in Israel he will be tried beore an Israeli Court. An Israeli, even i helives there and did it there, practically speaking, most times will be tried in Israel.

4 Although this is not a compulsory requirement as it is in Israel.


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The position in East Jerusalem is complex and is not within the scope o our report. We limit9.ourselves to noting a recent publication o the Association or Civil Rights in Israel5 whichreports that, while the Israeli Youth Law o 1971 on adjudication, punishment and methodso treatment ormally applies to all children in East Jerusalem, it is constantly departedrom by the Israeli police when dealing with Palestinian children, in respects similar to those

we record on the part o the military in the West Bank in this report. We also note thatsince our visit, Deence or Children International (DCI) has reported6 an increase in reportso physical violence and threats against Palestinian children detained in East Jerusalem.

5 Alyan et al., Violations of the Youth Lawby the Israeli Police in East Jerusalem, March 2011.www.acri.org.il/en/2011/06/01/police-violations-o-rights-o-minors-in-east-jerusalem

6 In their own Words. A report on the situation acing Palestinian children detained in occupied East Jerusalem(dated 30 January 2012) http://www.dci-palestine.org/sites/deault/fles/un_sp_-_detention_-_west_bank_-_jan_2012.pd. The report covers a six-month period rom 1 July 2011 to 31 December 2011. Deence or ChildrenInternational is an independent non-governmental organisation which works to protect, deend and advocateor the rights o children and young people in conict with the law. They have direct knowledge o the militarycourt system through their work in providing legal representation to children. In 2009 to 2010 they provided

representation to 243 children in the military court. (Deence or Children International Palestine SectionAnnual Report 2010). Deence or Children International also collects evidence on the treatment o childrenpassing through the justice system.
http://www.acri.org.il/en/2011/06/01/police-violations-of-rights-of-minors-in-east-jerusalemhttp://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_jan_2012.pdfhttp://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_jan_2012.pdfhttp://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_jan_2012.pdfhttp://www.dci-palestine.org/sites/default/files/un_sp_-_detention_-_west_bank_-_jan_2012.pdfhttp://www.acri.org.il/en/2011/06/01/police-violations-of-rights-of-minors-in-east-jerusalem


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Guiding Principles

The United Nations Convention on the Rights o the Child (UNCRC), which was ratifed10.by Israel in 1991,7 is one o the major applicable sources o international human rights

law. For our purposes, its central relevance is that, by prioritising the best interests o thechild, it commits each State signatory to a regime o the kind rom which every Israelichild already benefts. The questions which concerns us are what are the dierences inthe treatment o Palestinian and Israeli children in law or in practice and is there any

justifcation or such dierences.

In addressing these questions, we start rom three propositions o law.11.

Firstly, Israel, as the Occupying Power in the West Bank, carries its international human rights12.obligations with it.8 It is as ully bound, or example, to respect the right to lie o Palestiniansas o Israelis. Our report explains why we adopt this position. No Israeli lawyer or judgeto whom we have spoken has expressed any contrary view. However, dierences begin toemerge, as will be seen, when one turns to such issues as the right to a air trial in practice.

Secondly, the Israeli domestic juvenile justice system in our view conorms substantially13.to the standards required by the UNCRC and adopted in most o the so-called developedworld. We thereore use it as a suitable yardstick or assessing legal propriety.

Thirdly, under international law, no state is entitled to discriminate between those over14.whom it exercises penal jurisdiction on the basis o their race or nationality. Unequal ordierential justice is not justice. We have encountered ofcial Israeli attitudes which, whilenot overtly contesting this proposition, implicitly challenge it. Beyond this, however, it isuncontested that there are major dierentials between the law governing the treatment

o Palestinian children and the law governing treatment o Israeli children. There are alsogrounds or believing there to be serious dierentials in procedure and practice.

Without embarking on its legality or desirability, we treat as a given act the use o military15.courts to try Palestinian civilians, in particular children.

The frst issue in this situation is whether the Israeli system o military law by which the16.Palestinian population is governed is required to conorm to the frst two standards set outabove respect or human rights and non-discrimination. In our view, it is. The second issue iscompliance. This report will set out the delegations fndings on the level o compliance withinternational human rights standards by Israel and will suggest ways in which, even withinthe context o an on-going military occupation, Israeli military law and public administration

can and should deal with Palestinian children on an equal ooting with Israeli children.

7 www2.ohchr.org/english/law/crc.htm

8 Advisory Opinion on the Legal Consequences o Construction o a Wall in the Occupied Palestinian Territories,dated 9 July 2004 at paragraphs 102-113http://www.icj-cij.org/docket/fles/131/1671.pd
http://www2.ohchr.org/english/law/crc.htmhttp://www.icj-cij.org/docket/files/131/1671.pdfhttp://www.icj-cij.org/docket/files/131/1671.pdfhttp://www2.ohchr.org/english/law/crc.htm


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Israeli Law and Military Law

According to Deence or Children International, every year approximately 500-70017.Palestinian children come into contact with the military justice system in the West

Bank.9 No Israeli child does.

Within Israel and the West Bank the two legal systems in operation are dierent. Israeli18.citizens (including the settler population in the West Bank) are subject to Israeli civilian andcriminal law and Palestinians in the West Bank are subject to Israeli military law.

The table that ollows sets out ormal dierences aecting Palestinian and Israeli children19.respectively in the criminal justice process.10

1112131415

# Event

Israeli Child subject

to Israeli civilian

legal system

Palestinian child subject

to Israeli military

detention system

1 Minimum age o criminal responsibility 12 12

2 Minimum age or custodial sentences 14 12

3 Age o majority 18 18 (prev. 16)11

4Legal right to have parents presentduring questioning

Generally yes12 No

5Legal right to have lawyer presentduring questioning

No No

6 Audio-visual recording o interrogations Partial13 No

7 Maximum period o detention beorebeing brought beore a judge

12-24 hrs 8 days

8Maximum period o detention withoutaccess to a lawyer

48 hrs14 90 days

9 Maximum period o detention without charge 40 days15 188 days

10Maximum period o detention betweenbeing charged and conclusion o trial

6 months 2 years

9 Deence or Children International Palestine (2011) In their own Words: A Report on the situation acing

Palestinian children detained in the Israeli military court system, at page 3.10 Table adopted rom Bound, Blindolded and Convicted: Children held in military detention, April 2012, p. 61

http://www.dci-palestine.org/sites/deault/fles/report_0.pd ,and in consultation with a specialist Israeli lawyer.

11 Recently changed by Military Order 1676. However, adult sentencing provisions still apply to 16 & 17 yearolds.

12 Youth (Trial, Punishment and Modes o Treatment) Law (1971) section 9H. A parent is allowed to be presentat all times in circumstances where the child has not been ormally arrested, but may not intervene in theinterrogation process. An exception to this rule is permitted upon written authorisation o an authorisedofcer, and in cases in which the well-being o the child requires the parent not to be present.

13 In all cases other than security oences where the maximum penalty is 10 years or more CriminalProcedure (Suspects Interrogation) Law (2002) sections 4 and 17. There is no requirement or theaudio-visual recording o interrogations in security oences.

14 For security oences the maximum period is 21 days.

15 To continue detention over 30 days beore charge requires the approval o the Attorney General.
http://www.dci-palestine.org/sites/default/files/report_0.pdfhttp://www.dci-palestine.org/sites/default/files/report_0.pdf


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While stone-throwing can be prosecuted under both Israeli civilian law and Israeli20.military law, the act that article 332 o the 1977 Penal Law (under which an Israelichild would be prosecuted) is not the same as article 212 o Military Order 1651(under which Palestinian children are prosecuted) highlights the act that two dierentsystems o law are applied by Israel depending on the nationality o the accused.

In July 2009, new legislation21. 16 came into eect in Israel, which brought about signifcantchanges to Israeli internal law. These changes underscored the undamental principle othe childs best interests in criminal proceedings, placing proper weight on considerationso rehabilitation and integration into society. One key aspect o this legislation was that itplaced signifcant restrictions on the procedures or detention and interrogation o Israelichildren and set out special procedures or them to be tried or criminal oences.

On 29 July 2009, the Israeli Deence Force Commander in the West Bank signed22.Amendment No. 109 to the Deence Order. This amendment brought about theestablishment o the military juvenile court and provided that deliberations should takeplace, as ar as possible, in a place where, and at a time when, trials or adults are

not being held. The amendment also directed that children should be separated romadults while in prison and, i possible, when they are brought to and detained at court.According to the amendment, the military juvenile court is not qualifed to deal withmatters o detention and release o children, which only take place in the main trialater an indictment is lodged. Consequently, the legal position is that procedures or thedetention o children are held in adult courts. However, in practice, they are sometimesheld in juvenile courts.

On 27 September 2011, military law changed as a result o Military Order 1676.23.The order amends article 136 o Military Order 1651, raising the age o majority rom16 to 18. It also makes provision or notiying a childs parents that the child has

been arrested, and inorming the child that he or she has the right to consult with alawyer, although it does not state when this consultation should occur. This change tomilitary law is welcomed by the delegation. It is important to highlight however, thatunder article 168(C) o Military Order 1651, although a minor (now defned as a childbetween the ages o 14 and 17 inclusive) can receive a maximum sentence o 12 monthsimprisonment, there is an exception in cases where the maximum penalty or the oenceis fve years or more. In such a case children (14 to 17) can be sentenced as adults. Underarticles 212(2) and (3) o Military Order 1651, the maximum penalty or throwing stones(the most common oence) ranges rom 10 to 20 years, making children aged between14 to 17 years subject to the same penalties as adults.

Deence or Children International has since reported that the provision relating to notiying24.

parents is seriously awed as it only applies to the Israeli police and not the army, which, inpractice, conducts arrests in the West Bank and has custody o the child or several hoursand sometimes days beore they are handed over to the police.17

At the time o publishing this report, Military Order 1676 has not been translated rom25.Hebrew. This appears to us to be a violation o article 65 o the Fourth Geneva Convention18,which we hope will be speedily addressed.

16 Amendment No. 14 to the Youth (Adjudication, Punishment and Methods o Treatment) Law-1971 publishedon 30.07.08 and in orce in July 2009.

17 Deence or Children International: Bound, Blindolded and Convicted:Children held in military detention, April 2012 p18-19.

18 Art. 65. The penal provisions enacted by the Occupying Power shall not come into orce beore they have beenpublished and brought to the knowledge o the inhabitants in their own language.


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International Law and theUnited Nations Conventionon the Rights o the Child

The United Nations Convention on the Rights o the Child, as stated beore, was ratifed26.by Israel in 1991. Outlined below are the major provisions o the UNCRC relevant to thisreport. In the next section we highlight areas in which we believe that Israeli militaryprocedure and practice breach the UNCRC and other international norms and all shorto Israeli domestic standards.

The UN Convention on the Rights o the Child sets out to acknowledge and protect the27.special rights that all children must be accorded, as individuals with a lower maturity andgreater vulnerability than adults. It is built upon the principle o non-discrimination, thebest interests o the child and the inherent right to lie, survival and development. These,

together with the right to participate, are the guiding principles by which all other rightswithin the Convention are realised. The preamble quotes the Declaration o the Rights othe Child: The child by reason o physical and mental immaturity needs special saeguardsincluding appropriate legal protection beore as well as ater birth; the child should be ullyprepared to live an individual lie in society and brought up in the spirit o ideals proclaimedin the Charter o the United Nations and in particular in the spirit o peace, dignity, tolerance,reedom, equality and solidarity.

The most material provisions o the UNCRC, (including article 2 see paragraph 29 below),28.are set out in Appendix 3. In short they are the ollowing:

Article 3: the best interests o the child are to be a primary consideration.

Article 6: the right o every child to lie and to development.

Article 12: the right o the child to be heard, especially in judicial proceedings.

Article 28: the right o a child to education.

Article 37: the childs right not to be subjected to torture or to cruel, inhuman or degradingtreatment or punishment; to arrest and detention being a measure o last resort and orthe shortest appropriate period o time; to humane and dignifed treatment in custody,including amily contact; to prompt access to legal advice and representation; and to aprompt hearing beore an independent court.

Article 40: the states duty to provide non-penal measures where appropriate anddesirable; to treat accused or convicted children with dignity and with a view torehabilitation; to accord the child ull due process, including legal assistance andinterpretation where appropriate; and not to require sel-incrimination.

An essential issue is whether the UNCRC binds Israel in its capacity as the Occupying29.Power in the West Bank. Article 2(1) o the Convention provides: State Parties shallrespect and ensure the rights set orth in the present Convention to each child within theirjurisdiction without discrimination o any kind. Israel is a ull party to the UNCRC andhas entered no reservations or representations as to its territorial application.


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In our meetings with the various Israeli Government agencies, we ound the universal30.stance by contrast was that the Convention has no application beyond Israels own borders.We respectully disagree. In our judgment it is actually and legally unreal to suggest thatchildren who are arrested by the Israeli Deence Force, interrogated by either the Israelipolice or the Israeli Security Agency, held in Israeli prisons and judged by Israeli military

courts, are not within the jurisdiction o the State o Israel.

We recognise the International Court o Justices 2004 Advisory Opinion31. 19 which concludescategorically that the UNCRC is applicable in the Occupied Palestinian Territories. TheInternational Court o Justice also confrmed the applicability o the International Covenanton Economic, Social and Cultural Rights o 19 December 1966 and the InternationalCovenant on Civil and Political Rights o the same date.

As the Grand Chamber o the European Court o Human Rights has held in the case o32.Al-Skeini v United Kingdom (55721/07; 7 July 2011), a state in military occupation o aterritory is obliged, by virtue o its adherence to an international human rights treaty, toaccord those rights in ull to the persons over whom, without assuming ull sovereignty,

it exercises physical power and control, or who inhabit an area o which the contractingstate has eective control. The population o the West Bank is within the physical powerand control o Israel, and Israel has eective control o the territory. Our visit dispelled anydoubts we might have had about this.

The occurrence o hostilities or physical conict in the Occupied Palestinian Territories33.does not alter or dilute Israels consequent obligations. The International Court o Justiceconsiders that in times o war, human rights obligations are not suspended, save by therecognised process o derogation, but that they operate in harness with internationalhumanitarian law the body o law which applies to situations o armed conict.20

We do not believe, however, that this dierence o legal view represents an insuperable34.barrier to change. More than one ofcial Israeli body has accepted, in our discussions,that whatever its ormal obligations, Israel should seek to respect the rights set out in theUNCRC in administering the Occupied Palestinian Territories.

19 Advisory Opinion on the Legal Consequences o Construction o a Wall in the Occupied Palestinian Territories,dated 9 July 2004 at paragraphs 102-113.

20 International Court o Justice (2004) Legal Consequences o the Construction o a Wall in the Occupied

Palestinian Territories, Advisory Opinion, ICJ Reports 2004 p136, at paragraph 10; International Court oJustice (1996) Legality o the Threat or Use o Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 p226, atparagraph 25.


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Conicting Accounts

We have been given two irreconcilable accounts o the treatment and rights o Palestinian35.children detained by the Israeli authorities in the West Bank.

The frst account, provided to us by Palestinian and Israeli NGOs, UN agencies, lawyers,36.ormer Israeli soldiers and Palestinian children whom we met,21 is that those who havebeen identifed as oenders or suspects are arrested by soldiers, usually in nighttimeraids on their homes are blindolded, and, with their wrists painully bound behind them,are then transported to interrogation centres, sometimes ace-down on the oor omilitary vehicles. The majority are verbally and / or physically abused and, without beinginormed o their right to silence or the right to see a lawyer, are sometimes held in solitaryconfnement, pressured to inculpate themselves and others, and are oten made to signstatements which they cannot read because they are written in Hebrew. Interrogationsare not, save on rare occasions, audio-visually recorded, and those tapes that do exist arealmost impossible to obtain by deence lawyers representing the children.

Ater several months on remand, almost always in custody, oten in primitive conditions,37.with limited or no education and extremely restricted access to amily, the children arein most cases advised by their lawyer that their best hope is a plea bargain which willreduce the overall time spent in custody whether they are convicted or acquitted. Inthis process, every year hundreds o Palestinian children are traumatised, sometimesirreversibly, are denied part o their schooling, and then live at on-going risk o muchharsher punishment i they are arrested again.

The second account was provided to us by the Israeli Government departments, military38.judges and prosecutors.22 This account, which varied between the dierent departments,

is that, once the child has been brought into custody, he or she is inormed prior tointerrogation o his or her right to silence and to counsel. Children are treated appropriatelythroughout this process, violence and threats are orbidden, and i shown to have occurredwill result in the exclusion o any consequent conession. Some departments reported thatprotection against ill-treatment and coercion is secured through the use o audio-visualrecording o interrogations. Any complaint o violation o these norms, i raised by thedeence at trial, is inquired into by the military judge, who has access to the live recordingso the interviews and may reject a case based on prosecutorial misconduct.

Pleas o guilty are tried with the same procedural saeguards as in an Israeli court: plea39.bargains are not passively accepted and the judge has to be satisfed that the agreedsentence is a air one. In contested cases an appeal is lodged frst with the Military

Appeal Tribunal and thereater with the Supreme Court.

In custody, children receive education to such a high standard that Palestinian children40.have been known to oend in order to access it.

21 See Appendix 1.

22 This did not include the police who conduct interrogations, a group with whom we were unable to meet.


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For one critical reason it is not necessary or us to choose between these accounts. The41.legal dierentials between Palestinian and Israeli children are a matter o record, to whichwe are about to turn. As the United Kingdom has itsel learned by recent experience in Iraq,the risk o abuse is inherent in any system o justice which depends on military orce. Inour view, which is based in large part on a candid discussion with the military court judges,

there are no sufcient procedural or practical reasons why identical saeguards as thoseaccorded by Israeli law to Israeli children should not be accorded, albeit by military law, toPalestinian children, and powerul reasons o international law why they should be.

We say42. albeit by military law because we recognise that to extend the corpus oIsraeli law to the Occupied Palestinian Territories would push occupation towardsannexation.

What encourages us to think that this assimilation is possible and workable is that we were43.inormed by the military judges and prosecutors that, without waiting or a change in militaryorders, they were aiming not to impose or seek a custodial sentence on a child o 14 or less;to treat all under-18s as juveniles despite the respective ages o majority attributed to Israeli

and Palestinian youths (at that time); and to equalise sentences. It is a positive developmentthat Military Order 1676 has now ormally addressed the dierence in the age o majority;however, there is room, in our view, or the order to go urther and reorm sentencing powersin cases where under-18s may still be given the same sentences as adults.

It is clearly contrary to principle or any State to criminalise dierent acts or children o44.dierent nationalities or ethnicites. At the same time this dierence may be less concerningi in practice (a) the acts, though dierently described, are essentially the same and (b) thechildren are questioned, tried and punished on the same principles. What is important isthat, whatever the oence charged, an Israeli child and a Palestinian child should romstart to fnish be treated by the Israeli justice system, whether civilian or military in orm,

according to the same principles and procedures. We turn to this in the next section.


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Procedures and Practicesin the West Bank

In this section we outline our understanding o the procedures and practices adopted at45.each stage o the military law system when dealing with children. It comes rom all partieswith whom the delegation met. As already reported, we encountered conicting accounts,and details o these dierences are described below.The delegation has borne in mind theneed to deal with criminal activity but believes it to be o undamental importance thathumane, air and non-discriminatory procedures and practices are used throughout the

justice process and that the welare o the child is properly saeguarded.

Proportionality

Representatives o the Israeli Government and the military judges and prosecutors placed46. strong emphasis on the dangerousness o stone-throwing. Without undermining theseriousness o such an act, the delegation requested statistical or other evidence o theinjuries or damage caused by these oences. We were grateul to receive a response to acomprehensive list o enquiries rom the Israeli Government; however, the evidence waslimited to one stone-throwing incident in September 2011 which caused the death o anadult and a child, and sight o a photograph23 o a man with airly severe acial injuries.The trial was pending and it was not clear i the accused was a child.24 The statistics alsocited six cases in August to September 2011 where the suspects were charged with actualdamage to vehicles. In these cases no injury had occurred.25 No Legal Frontiers26 reportedthat in their study o 89 cases o stone-throwing, physical injury was caused in one caseand damage to a vehicle was caused in three cases.

23 Shown to us by the military prosecutors and dated 17 February 2009.

24 We have since been inormed that a sentence o 50 months was handed down ater a guilty plea (Letterrom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegation dated 30November 2011). It remains unclear whether the accused was a child.

25 Letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegationdated 30 November 2011.

26 No Legal Frontiers is an Israeli organisation engaged in research, legal work and advocacy in relation to thelegal system in the Occupied Palestinian Territories. Their report All Guilty! is based on observations o

the military juvenile court in Oer military camp between April 2010 and March 2011. They conducted alarge number o observations but ocused on collecting longitudinal inormation o each stage in 71 cases:www.nolegalrontiers.org/en/reports/77-report-juvenile-court .
http://nolegalfrontiers.org/en/reports/77-report-juvenile-courthttp://nolegalfrontiers.org/en/reports/77-report-juvenile-court


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The delegation is not aware o the existence o any eective monitoring system or47.categorising the severity o dierent incidents o stone-throwing. The Israeli NGOBTselem was inormed by the police that it did not have computerised documentationon injured persons that would enable classifcation.27 Stone-throwing incidents beganto eature in the monthly reports o the Israel Security Agency in January 2009.

The reports contain a very small percentage o the total cases documented by theSHAI [Samaria and Judea] District Police Department, mentioning a total o seveninjured persons throughout the West Bank and East Jerusalem in 2009 to 2010.28

It is clearly desirable or such data to be comprehensively collected and published.

Arrest

Deence or Children Internationals evidence suggests that children, sometimes as young48.as 12, are arrested,29 oten at night, and have their hands tied using unlawul and painulmethods, beore being transported to an interrogation centre, sometimes on the oor

o military vehicles. In the course o the arrest process, the vast majority o childreninterviewed have reported physical and verbal abuse. It is unclear whether they are toldtheir rights at this stage or at all.30

The Ministry o Justices statistics show that o those children investigated by the General49.Security Service, 70% o their sample are aged 16 to 18, and 30% are aged 13 to 15. Thisappeared to uctuate year by year. According to fgures provided by the Ministry o ForeignAairs, in 2009 43% o cases were against children under 16; or 2010 this fgure was 13%,and or 2011 the fgure was expected to be 45%.31

Deence or Children International stated that o the Palestinian children they interviewed50.the majority were arrested in the amily home by heavily armed soldiers in the middle o

the night, in 62% o cases surveyed between midnight and 5 a.m.32 BTselem reported that60% o arrests rom their sample o cases were at nighttime.33

27 BTselem is The Israeli Inormation Center or Human Rights in the Occupied Territories. Itwas established in 1989 by a group o academics, lawyers, journalists and Knesset members.The report No Minor Matter is based on research including interviews with 50 childrenaged 12-17 who were arrested between November 2009 and February 2011 and withindividuals witnessing those arrests. BTselem (2011) No Minor Matter, p5 (ootnote 4).

28 ISA Terror Data and Trends Portal monthly reports, www.shabak.gov.il/english/pages/deault.aspx

29 Deence or Children International reports that in East Jerusalem in particular three o the 20 children theyinvestigated who were arrested and interrogated were below the age o 12. It should be noted that these werechildren that the Israeli Government say are under Israeli civilian law not military law (being in East Jerusalem).Deence or Children International Palestine (2011) Voices rom East Jerusalem: The situation acingPalestinian Children. http://www.dci-palestine.org/sites/deault/fles/east_jerusalem_fnal_design.pd . BTselemalso describes the detention o an 11-year-old and a nine-year-old in the West Bank, BTselem (2011) No MinorMatter: Violation o the Rights o Palestinian Minors Arrested by Israel on Suspicion o Stone Throwing, at p32-33http://www.btselem.org/publications/summaries/2011-no-minor-matter

30 Deence or Children International Palestine (2011) In their own Words.

31 Letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegation, dated30 November 2011. It is noted that many o the fgures provided in this letter are drawn rom indictmentssubmitted in August and September 2011. In this sample 13 o 51 (25%) cases involved under-16s.


33 BTselem (2011) No Minor Matter: Violation o the Rights o Palestinian Minors Arrested by Israel on Suspiciono Stone Throwing.
http://www.shabak.gov.il/english/pages/default.aspxhttp://www.dci-palestine.org/sites/default/files/east_jerusalem_final_design.pdfhttp://www.btselem.org/publications/summaries/2011-no-minor-matterhttp://www.btselem.org/publications/summaries/2011-no-minor-matterhttp://www.dci-palestine.org/sites/default/files/east_jerusalem_final_design.pdfhttp://www.shabak.gov.il/english/pages/default.aspx


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Representatives o the Ministry o Justice stated that nighttime arrests are necessary or51.security. The Israeli public deenders inormed us that arrests in East Jerusalem were notconducted at night although it is apparent that the Israeli Government also has securityconcerns in East Jerusalem. The Ministry o Justice acknowledged that improvementscould and should be made.

An alternative to nighttime arrests, which would still avoid entering a potentially hostile52.area in daylight, is to use a summons. The Ministry o Justice stated that were thiseasible, it would already be done. We nevertheless believe that there is scope or the useo summonses and that this potential reorm deserves careul consideration. The optionwould allow or arrests to be carried out in a ar less traumatic way or the child, and ina way which would involve less risk and cost or the military personnel involved. I, inany particular case, there was a ailure to surrender to a properly served summons thenthe arrest could be carried out in an appropriate manner. It is our respectul view that topilot this option is highly desirable. It is clear that nighttime raids o the type described inparagraph 36 above would be traumatising not only or the children involved, but also orsiblings and children in neighbouring homes who witness such arrests.

As a result o legal action by the Public Committee Against Torture in Israel in early 2010,53.the Government o Israel altered its procedures to require hands to be tied at the ront, usingthree plastic ties.34 The Ministry o Deence and COGAT (Co-ordination o GovernmentActivity in the Terriorities) stated that this procedure is supervised rom central commandand that to their knowledge it is being observed. Data confrming this was requested inthe meeting with the Ministry o Deence and COGAT and subsequently in a letter romthe delegation. At the time o writing, this inormation has not been received. Deenceor Children International reports that 98% o children surveyed in the West Bank35 havetheir hands tied, most commonly with a single plastic tie and behind the childs back.BTselem notes that this occurs where there has been no attempt to resist arrest. 36 The

practice causes severe pain and has been reported by children to cut o circulation causingtheir hands to swell and turn blue.37 Deence or Children International was not able todocument a single case between April 2010 and June 2011 where the amended procedurehad been ollowed.38 This situation is a source o signifcant concern or the delegation.

Deence or Children International reports that in 33% o the cases it surveyed, children54.are placed on the oor o the military vehicle when being transported ater arrest 39. TheMinistry o Deence and COGAT denied that this was part o approved procedure but added,soldiers are soldiers; a comment that caused us concern. We were inormed by childrenwho have been arrested that transportation on the oor o military vehicles routinelyoccurs, usually in a kneeling position, but sometimes ace down on the oor o the vehicle.

34 One tie around each wrist and the third connecting them, with the space o a fnger between the ties andthe wrist.

35 In East Jerusalem the fgure is 60% o those surveyed.

36 BTselem (2011) No Minor Matter.

37 Deence or Children International Palestine (2011) In their own Words, at page 10.

38 Deence or Children International Palestine (2011) In their own Words, at page 10-11.

39 Deence or Children International Palestine (2011) In their own Words, at page 11.


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Deence or Children International reports additional physical violence in 87% o the cases55.they surveyed (typically punching, slapping, pushing and kicking), verbal abuse in 60% othe cases (commonly derogatory statements about the childs mother or sister) and threatsin 38% o the cases40. 56% o the children interviewed by DCI were also strip-searched.41Children we spoke to who had been arrested, recounted a process similar to that described

by Deence or Children International, including blindolding, being transported on the ooro a vehicle, being hit and verbally and physically abused. They reported that this treatmentcontinued into the interrogation, where some were beaten until they conessed.

We were unable to secure any assurance that children are ormally cautioned on arrest.56.The Ministry o Justice expressed uncertainty. The Israeli public deenders confrmed thatthere was a right to silence or children, but were not clear how the child is inormed o thisright. Children we spoke to did not understand what it meant.

Save the Children (Sweden) alleges that some arrests o children have been carried out by settler57.security personnel42. We were not able to investigate these allegations but the delegationspoke with a child who alleged that he had been arrested and taken to a settlement.

Interrogation

The importance o proper saeguards during interrogation cannot be over-emphasised,58.particularly where the vast majority o trials and convictions are based either on childrensconessions made during these interrogations or on incrimination by other children in thesame circumstances.43 This pattern was confrmed by the military prosecutors, who statedthat conessions, evidence rom other child interrogations44 and soldier testimony were themain sources o evidence.

According to Deence or Children International, 69% o children interviewed59.45

makeconessions ater a process that DCI describes as typically a coercive interrogation.46

Deence or Children International reports that the physical and verbal abuse60.described above occurs not only during arrest and transportation, but also duringinterrogation. The children we spoke to all reported that this treatment continued intothe interrogation, where some were beaten until they conessed. Some also stated thatthey had reported this to the judge at their hearing, but said they had been ignored.

40 Their fgures or East Jerusalem are: physical violence in 80% o cases surveyed and verbal abuse and threats in55% cases, Deence or Children International Palestine (2011) Voices rom East Jerusalem.


42 The Impact o Child Detention: Occupied Palestinian Territories 2012 www.mena.savethechildren.se/MENA/News-and-events/News/Launch-o-new-report-on-the-Impact-o-Child-Detention-in-Palestine/

43 No Legal Frontiers (2011) All Guilty!

44 BTselem give examples o the way that pressure is put on children to provide names o other children whothrew stones, which is then relied upon as the sole basis or arresting these children. BTselem (2011) No MinorMatter, at p46-48.

45 30% o cases surveyed in East Jerusalem, Deence or Children International Palestine (2011) Voices rom EastJerusalem.

46 Deence or Children International Palestine (2011) In their own Words, at p 19.
http://mena.savethechildren.se/MENA/News-and-events/News/Launch-of-new-report-on-the-Impact-of-Child-Detention-in-Palestine/http://mena.savethechildren.se/MENA/News-and-events/News/Launch-of-new-report-on-the-Impact-of-Child-Detention-in-Palestine/http://mena.savethechildren.se/MENA/News-and-events/News/Launch-of-new-report-on-the-Impact-of-Child-Detention-in-Palestine/http://mena.savethechildren.se/MENA/News-and-events/News/Launch-of-new-report-on-the-Impact-of-Child-Detention-in-Palestine/


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BTselem reports that nearly hal o the children in their sample were not given ood or drink61.or hours ollowing arrest and 38% reported physical or verbal violence during interrogation.47All o the children reporting maltreatment to Deence or Children International reportmultiple orms. In 4 o BTselems 50 cases interrogations lasted or longer than a week,with isolation between interrogation sessions (12, 13, 22 and 53 days respectively). 48

The delegation was inormed by BTselem that interrogations they had reviewed did not62.immediately ollow arrest, and that the child was oten kept awake until the interrogationtook place in the morning. BTselem reports rom its sample o cases that only 10% o thosearrested at night said they had been allowed reasonable sleep beore interrogation, andthat they were woken by soldiers i they ell asleep whilst waiting or the interrogation.49

According to Israeli civilian law, a child is not to be interrogated at night,63. 50 save inexceptional circumstances. No such provision exists in Israeli military law. The military

judges whom we met stated that an agreed policy encouraged the police to rerain rominterrogating children at night. However, according to NGOs with whom we met, nighttimeinterrogations do take place in the West Bank. BTselem, or example, ound that 24% o

their cases involved a nighttime interrogation. An end to this procedure has been called orby both the Ministry o Justice and Military Court o Appeals. The Ministry o Justice statedthat nighttime interrogations occur due to security considerations but, accepted that theapproach used in Israeli civilian law should apply in the West Bank. The Military Court oAppeals has acknowledged that nighttime interrogations are problematic.51 Furthermore,as interrogations typically concern incidents that took place at least a week beore arrest,52the argument or immediate interrogation appears weak.

In response to the allegation that children were asked to sign documents including64.conessions that were written in Hebrew,53 the Ministry o Justice showed us a orm withfelds identifed in Hebrew, Arabic and English. The boxes on the proorma were, however,

blank and we are consequently unable to confrm or reute the allegation.




50 From 8pm to 7am or 12 to 13 years olds; 10pm to 7am or 14 to 17 year olds.

51 For example, Judge Netanel Benisho, Vice-President o the Military Court o Appeals: I shall begin by sayingthat the act that the interrogation o the appellant took place at 4:00 A.M., immediately ollowing his arrest, raisescomplicated questions. Indeed, the law does not prevent such an action. However, case law has recognized thepossibility that interrogation late at night could harm the judgment o the person under interrogation (see Crim.File (Jerusalem) 915/07, State o Israel v. M. H. et al., published in Nevo). Clearly, this concern intensies when theinterrogee is a minor, only 15 years o age and it is doubtul that he is aware o his rights. It is easy to imagine themental state o a child who is arrested in the middle o the night by soldiers and is immediately taken to a policeinterrogation. 110. Mil. Ct. App. (Judea and Samaria) 2763/09, A.A. v. Military Prosecutor, 16 August 2009 ascited in Deence or Children International Palestine (2011) In their own Words.


53 29% said that they signed documents in Hebrew. In other cases children were required to sign documents inArabic without the opportunity to read them Deence or Children International Palestine (2011) In theirown Words . This was also reported by BTselem (2011) No Minor Matter.


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The military judges stated that the courts had ruled that an interrogation not carried68.out by a specially trained youth investigator mayresult in the release o a child suspect.BTselem records instances in which it is not apparent that the interrogators had receivedthis training. It also considers that there is a blurring o lines between questioning whichoccurs inormally (and without caution) beore an interrogation and the interrogation itsel

(where the questioner sometimes also acts as the interpreter).59

According to the Ministry o Justice, there is likely to be a reduction in the time allowed by69.law beore a juvenile has to be brought beore a judge or the frst time. This is currentlyset at eight days and will be reduced to what is said to be a much shorter period. This iswelcomed by the delegation, who hope to see this come into line with Israeli law as amatter o urgency. However, we were concerned to learn that there are no plans currentlyor the time to be reduced to 24 hours in parity with the limit or Israeli children o 14 orover and 12 hours or under-14s.60 At the time o our meeting this change was expectedto be brought in with the renewal o the legislation in September 2011, or alternativelywithin the coming months.61 We were inormed that the current period o 8 days is in acta reduction rom the previous deadline o 18 days. The deadline will be longer or security

oences, which include stone-throwing, than or other criminal oences. Four days wasgiven as an estimate or security oences. It was explained that the longer time periodwas due to the act that interrogation is more dicult, there is an organisation behind thepeople, it is not like you have collected someone or pick-pocketing, you have Hamas, IslamicJihad. At the time o writing, these proposed changes are yet to be made.

The military prosecutors suggested another potential reorm is the preliminary approval70.o arrests by the prosecutor, who will also set the time within which the child has to bebrought beore the court. Approval would be based on the childs age and the severityo the alleged oence. The prosecutor would see evidence to assess whether the arrestand interrogation were properly conducted. Neither o these reorms was included in the

recent Military Order 1676.

Given the many issues surrounding interrogation and the importance o this stage to71.ensuring a just process, the delegation was interested in the use o audio-visual recordingo interrogations. Irrespective o the current practice, the military judges were in agreementthat audio-visual recording was necessary and should be the norm, and that it would bedifcult to justiy proceeding without such recording. The military prosecutors expresseda similar wish, as did the ormer Chie Justice, who has stated to us that the use o audio-visual recordings is advantageous provided the resources and conditions are available orrecording. Whilst there was inconsistency with regard to the current position, there wasnear unanimity with regard to the desirability o routine audio-visual recording. The onlyreservation came rom representatives o the Ministry o Justice, who expressed concern

that there would be excessive cost implications relating to equipment and stafng. Theynonetheless asserted that the police had ound audio-visual recording benefcial in Israel,and that recording could lead to overall cost savings.

59 BTselem (2011) No Minor Matter

60 Youth (Trial, Punishment, and Modes o Treatment) Law (1971)

61 The change was however said to be conditional on there not being any orm o unrest.


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In June 2011, Deence or Children International reported that there was no provision or72.the audio-visual recording o childrens interrogations in the West Bank.62 Statementson this issue rom the Israeli government bodies with whom we met were inconsistent.Regarding recordings within the Israeli civilian legal system, representatives o the Ministryo Justice explained that audio-visual recording occurs very rarely in Israel, and only where

the possible prison sentence exceeds 10 years, or children and adults alike. The maximumpenalty or stone-throwing ranges rom 10 to 20 years63 and audio-visual recording ointerrogations in such cases is required under Israeli civilian law. The Israeli public deenderswho met with the delegation urther stated that, in the Israeli civilian legal system, thereis no consistent approach to audio-visual recording, but production o any recordings canbe demanded, and exclusion o evidence can be sought on the basis o such recordings.Furthermore the absence o a tape can aect plea bargains and bail decisions.

Representatives o the Ministry o Deence and COGAT, in contrast, stated that in many73.cases interrogations are audio-visually recorded. We were inormed by the militaryprosecutors with whom we met that many interrogations are not recorded in the West Bankdue to the act that there is no requirement to do so. I there is no recording, the written

statement must be in Arabic. They shared the wish or more audio-visual recording, whichwe support. In contrast, one o the military judges stated that there is almost alwaysa video-recording, and that tapes are watched by the deence and by the court with atranslator wherever coercion is suspected in relation to a conession. The last case thatone o the military judges could recall o stone-throwing where there was no recordingwas in 2008-09. When asked about the process or the deence obtaining tapes, we wereinormed by one o the military judges that tapes are readily available and that i necessaryan application can be made to the court or disclosure. Statistics obtained rom the Israeligovernment in relation to this issue stated that the vast majority o interrogations arerecorded, most by video and others by audio recording. Out o 51 cases (both adult andchild cases) brought to the Military Prosecutor in August 2011 to September 2011, 48

were either audio or visually recorded or there was a written record in Arabic. O the threeremaining cases, we were inormed that two suspects were released without charge and inthe third case, the recording equipment suered technical problems. The statistics statedthat approximately 70% o the 51 cases were either audio or visually recorded. In respecto children under 16 (the numbers or which were not included), the Ministry o ForeignAairs reported that all but one case involved either audio or visual recording.64

Given the universal acknowledgment o the value o audio-visual recording, and particularly74.the importance allotted to it by the judiciary, the delegation strongly recommends 65 theintroduction o a legal requirement that all interrogations o children under military lawbe audio-visually recorded, together with the necessary technical training in using theequipment. The delegation recalls the transormation o criminal justice in the United

Kingdom which was brought about in the 1980s by the introduction o such a requirement.66It also seems to us that the presence o a security concern would make reliable recordingeven more necessary.

62 Deence or Children International Palestine (2011) In their own Words, p20

63 Military Order 1651, paragraph 212

64 Letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegation dated 30November 2011

65 See Specifc Recommendation 13

66 Police and Criminal Evidence Act 1984, Code E (audio recording o interviews) and Code F (visual recording ointerviews) www.homeofce.gov.uk/publications/police/operational-policing/pace-codes/
http://www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/http://www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/


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Bail hearings and Plea bargains

In Israel and East Jerusalem, the Israeli public deenders reported that the prosecutor75.usually requests remand in custody or stone-throwing, ater which the court assessesvarious actors including risk o ight and dangerousness. The court will also considerpossible alternatives such as re-housing the child within the amily, detaining him underhouse arrest or placing him in a bail hostel outside the community. This is explored byprobation ofcers and results in bail being granted to approximately hal o the accused,with a slightly higher proportion in cases o stone-throwing.

The situation in the West Bank appears to be signifcantly dierent. When observing 7176.cases at Oer military juvenile court, the NGO No Legal Frontiers reported that 94% othe children interviewed were denied bail.67 Deence or Children International reports aslightly lower but still very substantial proportion o cases where bail was denied: 87.5%o 164 cases.68 There is a great disparity between these fgures and those provided by theMinistry o Foreign Aairs,69 who reported that 268 (35%) children were released on bailin 2010. From the data provided it seems that this fgure is based on a sample o 10% o

cases although the sample size was not made available.

In a review o bail decisions, BTselem was critical o military judges or rarely acknowledging77.the eect o prolonged detention on the child.70

The military judges inormed us that, where there is little risk o re-oending and a78. goodchance o keeping the minor away rom bad infuence, children are released on bail. However,it would seem rom the fgures available, that it is only in a very small minority o cases inthe West Bank that these circumstances are ound to apply. The proportion o such caseswithin Israel or East Jerusalem is much higher.

The signifcance o this disparity grows when one considers that according to No Legal79.

Frontiers, 53% o cases remain untried ater three months, and 18% ater 6 months.71 Thislength o delay, recorded by the NGOs with whom we met and confrmed by the militaryprosecutors and judges, represents a 43% reduction since 2008, according to the latter.An explanation was provided by the military prosecutors: trial delays are due largely todeence requests or adjournments, due in turn to the act that many deence lawyersmeet the child or the frst time at the frst hearing. The deence can only see the evidenceater the indictment. We suggested that the evidence might be provided earlier and wereinormed by the military prosecutors that this was not necessary as it is usually only asmall le and i there is a problem he can request another adjournment. There is no limit to thenumber o hearings allowed.


68 Deence or Children International Palestine (2011) In their own Words

69 Letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegation dated 30November 2011)

70 BTselem (2011) No Minor Matter

71 No Legal Frontiers (2011) All Guilty! which also makes the point that one must consider how reasonablethese lengths o time are given the expected lack o complexity o a stone-throwing charge, and the actthat the majority o cases end in a plea bargain.


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An average trial delay o three months includes cases which conclude with a plea bargain.80.It ollows that the time to the conclusion o a ull trial will be considerably longer. Giventhe prevalence o remands in custody, it is unsurprising that many children, on advice,enter into plea bargains. The Israeli public deenders with whom we met reported apreerence outside the West Bank or avoiding plea bargains where the charges are not

severe and particularly i bail has been granted. In contrast to this, within the West Bank98% o cases observed by No Legal Frontiers ended in plea bargains, and the convictionrate was 100%.72 BTselem similarly reports that 97% o 642 cases they examined endedin a plea bargain, requently or a sentence o the same number o days as already spentin detention, particularly or under 14s.73 In the data provided by the Israeli Governmentit has not been possible to determine the percentage o children convicted, but the data isnot inconsistent with that provided by the NGOs.74

The military judges stated that they do not make enquiries into sentence where a plea81.bargain is equal to time served, i the sentence is within what they consider to be anacceptable range. In their response to the BTselem report, the Ministry o Justice statedthat the use o plea bargains by deence advocates indicates that they are advantageous

or the purpose o protecting minors rights. We do not consider that this analysis takesinto consideration the interplay between the lack o bail and the length o time to trial.This combination creates a strong disincentive to pursuing a deence to a trial where, eveni ound not guilty, the deendant will have spent much longer in prison than i he hadentered into a plea bargain.

BTselem reports that deence lawyers seem to acquiesce in this process, consenting to82.remands, requesting adjournments and ailing to contest evidence or appeal.75 We areconcerned by the extremely difcult conditions, including the lack o elementary rights, inwhich deence lawyers in the military courts have to work. To attempt to deend a childon a serious charge, and on evidence that the lawyer has only just seen, may well not be

possible proessionally. To try to challenge conessions in the absence o independent andobjective evidence o how they were obtained, and where the balance o credibility lieswith the interrogator, is likely to be seen as near impossible. Whether or not the militaryauthorities are aware o this, o the eect o prolonging the time spent in detention i thecharge is contested, and o the consequent incentives to plea bargain, we believe that themilitary authorities should give greater weight to this phenomenon. We are confdent thati bail were more available the current approach to plea bargains would change.


73 BTselem (2011) No Minor Matter, at p 53

74 We were inormed that in 2010 or example 57.3% (1016) o charges ended in convictions but that each chargewas counted separately. The Ministry o Foreign Aairs reports that in 2010 there were 1773 charges in the 752cases that were tried and closed, and 1016 charges resulted in convictions, making it possible that anythingbetween 522 (the number o children the Ministry o Foreign Aairs state were imprisoned or over 21 days)and 752 cases resulted in conviction - letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (LegalDivision), to the delegation dated 30 November 2011. This appears to be consistent with the NGO fgures thathave been cited.

75 BTselem (2011) No Minor Matter, at page 56.


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Trial

We make no comment here on the propriety o trying children in military tribunals,83.save to point out that i it is to happen, it calls or a high level o vigilance on thepart o the Occupying Power to ensure that proper national and international standardso justice are observed.

In practice the military youth court is used only or trials and not or interim hearings, bail84.hearings included.76 Given the high incidence o plea bargains, it is thereore unclear howmuch o an impact the introduction o the youth court has actually had or been capable ohaving. BTselem reports no noticeable dierence in the sentences handed down beore andater the introduction o the court, save in the cases o a small number o 12 to 13-year-olds.77 We understand that military juvenile judges would not be averse to undertakinginterim hearings, including bail hearings and we believe that they should.

Deence or Children International reports that groups o children are brought into court85.in shackles, dressed in the brown prison uniorms worn by adults, and that handcus are

removed on entering the court room and replaced on leaving.78

This corresponds with ourown observations o the military juvenile court in Oer which we attended: the accusedchildren were brought into court in iron shackles which remained on throughout the hearing.We ound this a matter o serious concern. The United Nations Standard Minimum Rules79provide that chains and irons shall not be used as restraints; that any other restraints shouldonly be used as a protection against escape during transer provided they are removedwhen the prisoner appears beore a judicial authority (or on medical grounds or to preventinjury); and that they should not be applied or any longer period than necessary. Thepractice o the military courts is not in accordance with these rules.

No Legal Frontiers, in their report, documented no86. trial within a trialon the admissibilityo conessions, despite there being issues raised in relation to night arrests and

interrogations, beatings, threats, violation o the suspects rights to silence and violationo childrens right to counsel.80 The military judges stated that procedural requirementsare always ollowed in this regard.

Representation through the public deender system87. 81 is available to Palestinians andIsraelis alike i they are tried in courts in Israel or East Jerusalem. No such representation isavailable to those tried in military courts in the West Bank. Many children tried in militarycourts rely on representation by NGOs and voluntary organisations.

76 Here the law (as laid down in paragraph 138 o Military Order 1651) and practice appear to be the same.

77 BTselem (2011) No Minor Matter, at page 21

78 Deence or Children International Palestine (2011) In their own Words

79 United Nations Standard Minimum Rules or the Treatment o Prisoners, Rule 33


81 The public deender service in Israel is in eect a mixed model public deender and judicare system. It operatesin Israel and not in the Occupied Palestinian Territories.


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Sentencing

Deence or Children International records that in 2009, in 83% o surveyed juvenile cases,88.the military court handed down custodial sentences. In comparison, 6.5% o surveyed

juvenile cases in the Israeli civilian justice system ended is custodial sentences.82 In militarycourt cases observed by No Legal Frontiers in 2010-11, 98% o cases surveyed ended ina custodial sentence, with suspended sentences in the remaining 2%. In 90% or more ocases surveyed by No Legal Frontiers a fne was also imposed. DCI and BTselem reportthat i parents ail to pay the fne, the child will serve additional days in prison.83

The prescribed sentence or stone-throwing under Military Order 1651 is 10 years i directed89.at a person or property, and 20 years i directed at a vehicle 84. The maximum penalty whichcan be imposed on a 12 or 13-year-old is six months imprisonment85. Deence or ChildrenInternational reports that custodial sentences or children generally range rom two weeksto 10 months or stone-throwing. BTselem reports that the median period or 14 to16-year-olds is 2 months and or 16 to 18-year-olds 4 months. The Israeli Governmentreported similarly that the average number o days in detention (where the imprisonment

exceeded 21 days) was 181 in 2011 (approximately 6 months).86

BTselem also noted that othe 32 children in their sample aged 12 to 13, 31% were given a custodial sentence rangingrom one to two months.87 The Israeli Government stated that imprisonment o childrenunder the age o 14 is rare.88 We were unable to orm our own view o this as data romthis age group was not incorporated in the ofcial Israeli statistics supplied to us.89 Wewere inormed in our meeting with the Ministry o Justice that there had been a decreasein the detention o under-14s, with 25 cases in 2009, 14 in 2010 and 1 in 2011 to the dateo meeting, who had been detained or 4 days. The military prosecutors made reerence tothe Attorney Generals Guidelines which apply in Israel and which give a guideline sentenceo 3 to 4 months or a 16-year-old with no previous convictions.

The welare co-ordinator o the Civil Administration COGAT, reported that recommendations90.

are made to the court and that meetings are held with the amily and lawyer beorehand.In contrast, No Legal Frontiers recorded welare ofcer reports in 4% o cases observedand then only in the more severe cases.90 We observed no probation ofcer or socialworker during our visit to the military courts at Oer. BTselem noted rom Israeli DeenceForce (IDF) fles that in the period to August 2010 there had been only our requests orprobation reports on children.91

The military judges stated that part o the reorm on sentencing was a greater emphasis91.on rehabilitation. However, both they and the military prosecutors described difcultiesin creating rehabilitative mechanisms in the Occupied Palestinian Territories, emphasising

82 Based on 164 cases closed by DCI-Palestine in 2009 and the Israeli National Council or the Child, Annual

Report (2009) (This fgure relates to 2008). Deence or Children International Palestine (2011) In their ownWords, at page 5.

83 Deence or Children International Palestine (2011) In their own Words; BTselem (2011) No Minor Matter.

84 Military Order 1651, paragraph 212.

85 Military Order 1651, paragraph 168.

86 Letter rom Ehud Keinan, State o Israel, Ministry o Foreign Aairs (Legal Division), to the delegation dated30 November 2011.

87 BTselem (2011) No Minor Matter, p20-21.






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what they termed the ideological nature o the oences and the lack o parental andsocietal co-operation. This was described by the Ministry o Deence and COGAT as tryingto do something normal in an abnormal environment. They described difculties in co-operation with the local population and lack o inrastructure and explained that whilst theIsraeli civilian law is tailored to rehabilitation o children, the main challenge in the West

Bank is that the behaviour is politically motivated. The Ministry o Deence and COGATstated that attempting to apply the same system and goals o rehabilitation in the WestBank as in Israel would be completely ineective. Inormation on the extent to whichattempts had been made to oer or explore rehabilitation options in sentencing has notbeen provided92.

The emphasis on the ideological nature o oences described above contrasts with other92.descriptions by the military juvenile court judges o child oenders, who, we were inormed,were oten motivated by a desire or a better education or to escape abuse at home.

The Ministry o Justice explained to us that they ace difculty in dealing with the93.civil administration in the Occupied Palestinian Territories in relation to welare issues.

The welare co-ordinator similarly reported difculties in dealing with the PalestinianAuthority. The welare co-ordinator expressed a willingness to co-operate with thePalestinian Authority and stated that the Israeli Government was ready to invest moneyto create appropriate institutions and to cooperate with NGOs. There are sel-evidentdifculties about co-operation, which we regret we did not have an opportunity todiscuss with the Palestinian Authority.

In respect o rehabilitative options, the military judges stated that the situation is94.such that it is mainly a thing or the legislator to deal imaginatively with oendersthat require rehabilitation.One option which they suggested could assist was the abilityto place a child in a hostel.

Reorm in this area is called or by article 40(1) o the UNCRC, which requires convicted95.children to be treated in a manner which takes into account the childs age and the desirabilityo promoting the childs reintegration and the childs assuming a constructive role in societyand by article 40(4) which calls or a variety o dispositions, such as care, guidance andsupervision orders; counselling; probation; oster care; education and vocational trainingprogrammes and other alternatives to institutional care shall be available to ensure thatchildren are dealt with in a manner appropriate to their well-being and proportionate bothto their circumstances and the oence.

We support the military judges wish or the legislator to provide more imaginative schemes96.or rehabilitation. Making provision in law or a probation report without providing any

tools with which the probation ofcer can work does not lead to any eective change. Werespectully suggest that the absence o systems to support child welare in the West Bankneeds to be taken seriously by the Israeli Government.

92 See Specifc Recommendation 29


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Detention

The Ministry o Justice reported that as at 30 November 2011, there were 196 children in97.detention either awaiting trial or serving sentences. O these, 93 were in detention pendingtrial or security oences, and 19 pending trial or other criminal oences, the implicationbeing that the remaining 84 were serving a sentence. These fgures correspond broadlywith the fgures provided by the NGOs. Deence or Children International reported 209Palestinian children in detention in June 2011, with a peak since 2008 o 423 childrenin February 2009.93 UNICEF put the fgure at 164 as o 1st October 2011.94 A signifcantnumber o these children were aged between the ages o 12 and 15: 38 in June 2011, with apeak o 54 in February 2009.95 From the ofcial Israeli statistics provided a downward trendin the number o children imprisoned each year can be seen, going rom 539 in 2009 to 522in 2010 and an expected 315 in 2011.96 The table in Appendix 4 shows a recent increase innumbers rom 135 in December 2011 to 234 in May 2012 which is a matter o concern.

Child prisoners are entitled to one 45 minute visit rom immediate relatives every ortnight.98.Obtaining a permit can take between two weeks and two months.97 According to BTselem,

child detainees and their amilies are conused about visiting rights and reportedly believe,or example, that they are not entitled to visits prior to sentence or or short sentences.These two actors combined mean that most Palestinian children do not receive amilyvisits.98

International law has enshrined access to education as a undamental right o any child,99.and this right cannot be derogated rom i a child is deprived o his or her liberty. 99 Ina landmark ruling at the Tel Aviv Central Court in 1997100 the right o Palestinian childprisoners to access education on an equal ooting with Israeli children was established. Thisdecision however held that such a right would be subject to security conditions. In 2010,the prisoners rights organisation, Addameer101 reported that the Israeli Prison Serviceallows or the organisation o classes, but not o educational programmes, in Megiddo

and Rimonim prisons (located in Israel), while it deprives child prisoners in Oer prison andother interrogation and detention centres In the West Bank o any educational rights.102During a meeting with the delegation, Addameer stated that child prisoners continuedto receive little or no access to education. By contrast we were inormed by the military

judges that the standard o education available in prison is such that they were aware ocases where Palestinian children had oended in order to access it.


94 UNICEF (2011) UNICEF appeals or Release o Palestinian Child Detainees. Retrieved November 6, 2011, romwww.unice.org/oPt/media_6690.html



97 BTselem (2011) No Minor Matter, at p69.


99 Article 26 o the Universal Declaration o Human Rights, (issued in December 1948), article 94 o the FourthGeneva Convention (1949), article 28 o the United Nations Convention on the Rights o the Child and article38 o the UN Rules or the Protection o Juveniles Deprived o their Liberty (14 December 1990).

100 Farahat & Ors v Israeli Prison Service (IPS), petition no. 97/400.

101 Established in 1992, Addameer, is a Palestinian non-governmental prisoner support and human rightsorganisation.

102 Addameer (2010) The Right o Child Prisoners to Education www.addameer.org/fles/Reports/addameer-report-the-right-o-child-prisoners-to-education-october-2010-en.pd This report was based on 30 interviewsbetween September and December 2009, including 10 interviews with child ex-detainees.
http://www.unicef.org/oPt/media_6690.htmlhttp://www.addameer.org/files/Reports/addameer-report-the-right-of-child-prisoners-to-education-october-2010-en.pdfhttp://www.addameer.org/files/Reports/addameer-report-the-right-of-child-prisoners-to-education-october-2010-en.pdfhttp://www.addameer.org/files/Reports/addameer-report-the-right-of-child-prisoners-to-education-october-2010-en.pdfhttp://www.addameer.org/files/Reports/addameer-report-the-right-of-child-prisoners-to-education-october-2010-en.pdfhttp://www.unicef.org/oPt/media_6690.html


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Another major concern is the transer o child prisoners rom the West Bank into Israel,100.or example to Megiddo and Rimonim prisons, as reported by Deence or ChildrenInternational103 and BTselem and confrmed by Israeli Prison Service statistics.104 Thisrepresents a violation o article 76 o the Fourth Geneva Convention and is classed asa grave breach by article 147.105 On a practical level it also serves to make amily visits

very difcult or impossible. It is a cause or concern that the military prosecutors ofcereported that this practice has been approved more than once by the High Court.106

During our meetings in Israel and the West Bank the issue o solitary confnement was101.raised on more than one occasion. Accordingto Deence or Children Internationals report,9% o children interviewed spent between 24 hours and 20 days in solitary confnementduring the interrogation process107. We have been inormed by the ormer Chie Justicethat a challenge to such a practice could reach the Supreme Court, and we have notedwith respect her view that this would not be the case i there were such a practice. Thedelegation heard directly rom a 16-year-old that he had been held in solitary confnementor fve days, which, i true, accords with Deence or Children Internationals report. We canmake no frm fnding about the use o solitary confnement, but we record the view o the

United Nations Special Rapporteur on Torture that the imposition o solitary connement,o any duration, on juveniles is cruel, inhuman or degrading treatment and violates article 7 othe International Covenant on Civil and Political Rights and article 16 o the Convention againstTorture.108 I solitary confnement is to be used or juveniles, it can only be or pressingreasons and with stringent saeguards.

Conicting accounts were given about the provision o separate detention acilities or102.adults and children. BTselem reports that separation is not maintained, and that the prisonauthorities (specifcally Oer prison) justiy this on the basis o the well-being o the child.109The Ministry o Deence and COGAT assert that there should be separation o children andadults in prison, but stated that this creates challenges in terms o inrastructure. They

provided assurances to us that the issue was being explored. We were inormed by theIsraeli public deenders that, in addition, there is no separate detention acility or emalejuveniles and that they are thereore kept with adults.

The delegation was told that the use o administrative detention or children is increasingly103.rare, which is a welcome development. However, the delegation can see no justifcationor its continued practice and in the strongest possible terms, recommends its abolition.Imprisonment without trial requires the most powerul justifcation in any society, evenwhen applied to adults.



105 Thus attracting personal criminal responsibility to those conducting or ordering the transer (Article 146).

106 Response or the Military Prosecutors Ofce to the BTselem report. Paragraph 35.

107 See also HaMoked & BTselems report Kept in the Dark: Treatment o Palestinian Detaineesin the Petach-Tikva Interrogation Facility o the Israel Security Agency (2010)http://www.hamoked.org/fles/2010/113160_eng.pd

108 Interim Report to the UN General Assembly by the Special Rapporteur o the Human Rights Council on tortureand other cruel, in human or degrading treatment or punishment, A66/268 paragraph 77, dated 5 August 2011http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pd?OpenElement

109 BTselem (2011) No Minor Matter, p 64-5.
http://www.hamoked.org/files/2010/113160_eng.pdfhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElementhttp://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/445/70/PDF/N1144570.pdf?OpenElementhttp://www.hamoked.org/files/2010/113160_eng.pdf


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A fnal concern in relation to detention is appropriate dealing with children on release.104.BTselem reports that there is no uniorm approach to the release o child prisoners.Parents are sometimes not inormed o their childs release, or are inormed too late toensure that he or she can be met.110 The release o a child rom prison without ensuringthat the child has a means o getting home is not acceptable. I this practice is occurring,

it should be urgently addressed.

Complaints

When discussing allegations o the mistreatment o Palestinian children, the possibility105.o making ormal complaints or appeals was raised a number o times by the IsraeliGovernment representatives with whom we met. It was the view o the ormer Chie

Justice that, had abuses occurred, an appeal could reach the Supreme Court. The ormerChie Justice has stated to us however that only a ew such cases have reached the Court.The Ministry o Deence and COGAT state that procedure ensures that the military police

investigate any complaints rom deence lawyers or NGOs. They also comment that NGOsare particularly active, resulting in almost daily complaints. However, we have been givenonly one example o a complaint being upheld. This was two to three years ago when asoldier was sentenced to some months in prison (we were not given the exact term) orhumiliating and/or mistreating a detainee.

The Ministry o Deence and COGAT reported that it was reassured by the act that106.complaints are almost universally dismissed. In the light o the nature and extent o theconcerns raised we are not so sanguine about this explanation and the apparent absenceo recourse to law. There appears to us to be a signifcant number o allegations o physicaland emotional abuse o child detainees by the military which neither the complaintssystem nor the justice system is addressing satisactorily.

It would appear rom the inormation available to us that the outcome o any complaint is107.tied to the likelihood o a successul criminal prosecution o the soldier involved. The Ministryo Deence and COGAT stated that i there is evidence o a criminal oence, the soldier isbrought to justice. It would seem then that a child bringing a complaint o mistreatmentwould need to provide evidence to a criminal standard or urther action to be taken. Weobtained no clear indication o how this would aect the proceedings relating to the child.It seems clear to us that a more eective system o dealing with complaints is needed.

110 BTselem (2011) No Minor Matter, at page 69-71


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The Palestinian children we met with strongly elt that their complaints o mistreatment108.were not heard. No Legal Frontiers ound no

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