BICOM

On 26 June 2012 a group of British lawyers published a report into ‘the treatment of Palestinian children under Israeli military law’. The following is a recent briefing produced by BICOM on this issue. 

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Accusations have been made by Israeli and international NGOs against past and present Israeli government’s treatment of Palestinian minors in the Military Court system in the West Bank. This brief collates information from various Israeli government departments and the Israeli Defence Forces to provide contextual information about the Military Juvenile Court system in the West Bank today.

Key Points

• On 1 October 2009 the Military Juvenile Court was established. This has led to improvements in the treatment of Palestinian minors by military courts in the West Bank.
• The amendment that established the Military Juvenile Court is intended to anchor by law the rights of a minor-defendant, while considering his/her welfare and best interests. It aimed to move the legal situation for minors in the West Bank closer to that in Israel.
• According to data provided by Israel’s Minisry of Justice, the most common charges in the Military Juvenile Court relate to the throwing of objects, usually stones or Molotov Cocktails, at a moving vehicle or at a person or property.
• The ideological motives which often stand behind offences committed by Palestinian minors, as well as the Palestinian Authority’s lack of cooperation regarding rehabilitation programmes, significantly reduce the possibility of using rehabilitation methods despite their advantage.

The Military Court and Juvenile Court system in the West Bank

• The Israeli Military Court’s jurisdiction and legal authority is derived from the Israeli military government administration in the Territories. The administration of the Court is under the authority of the Military Advocate General who is also the IDF’s chief legal officer.
• In most circumstances, cases will only be brought before an Israeli Military Court if the offence relates to Israeli security or Israeli security personnel. The majority of non-security related offences, or offences not concerning Israeli citizens, are dealt with by Palestinian courts established under the Oslo accords.
• Cases that appear before the Military Court can be broken down into three basic categories. The first, and most serious, are cases which involve security violations. These would include murder, attempted murder, violent crimes, and membership of a proscribed organisation. The second category, also security related but of lesser charge, involves activities related to demonstrations, stone throwing (where no injuries result) and obstruction (erecting of barricades for example). The final category involves public order offences that are not related to security such as driving violations, tax evasion, and failure to secure permits.
• The age of criminal responsibility is 12 in Israel and the West Bank (compared to 10 in the UK). In Israel and the West Bank a person under the age of 12 is considered a “child” and cannot be tried or arrested.
• On 1 October 2009, Amendment No. 109 of the Security Provisions Order came into effect, establishing a Military Juvenile Court. This has led to improvements in the treatment of Palestinian minors by military courts in the West Bank.
• From October 2011, IDF OC Central Command in the West Bank raised the age at which minors could be tried as suspects from 16 to 18, bringing the law in the West Bank in line with Israeli criminal law. In fact, since 2008 the decision to prosecute males up to the age of 18 in the military juvenile court was already routine, though not enshrined in law.
• The amendment establishing the Military Juvenile Court is intended to anchor by law the rights of a minor-defendant, while considering his/her welfare and best interests. It aimed to move the legal situation for minors in the West Bank closer to that in Israel. The amendment includes important practical instructions which are relevant to the legal proceedings concerning minors below the age of 16.

Procedure of the Military Juvenile Court:

• Interrogation is conducted along the same lines as with adults. However, the procedures also make it obligatory that the interrogator has undergone designated training.
• Trial: A minor in the West Bank is tried in a juvenile court. Though the juvenile court is open to the public, there is a “closed door” policy in the courts that prevents the publication of names or photos of defendants, in order to protect their privacy.
• The sentence: the typical punishment for throwing stones at a driving car, in a single incident, by a minor aged 16 that is part of a gang, without a previous criminal background and when no injury was caused from throwing the stone, is usually 3 to 4 months of imprisonment. The throwing of a Molotov cocktail, however, carries a much more severe enforcement policy. This is because it requires knowledge of how to use the weapon and early preparation. Moreover, one is seven times more likely to be injured by a Molotov Cocktail than in an incident of stone-throwing.
• Detention: A “youth” or “young adult” (that is, ages 12-16) must be held in custody separately from adults. As a rule, minors detained or imprisoned are held separately from adults. However, when they are brought to court and during their trial proceedings the separation from adults is not always strictly maintained.
• Welfare: From October 2011, IDF OC Central Command in the West Bank have used welfare officers, who are also social workers, to interview young offenders, to inform the court of the minor’s socio-economic background and to propose alternatives to incarceration. However, since welfare in the Palestinian Territories comes under the jurisdiction of the Palestinian Authority, which have refused to cooperate with the courts, recent efforts by the IDF to liaise with the PA on the subject have been rebuffed.
• Education: As of July 2010, there are three school classrooms for minor security prisoners and detainees in Hasharon and Megido prisons. The Israeli Prisons Service is currently in advanced stages of opening an additional classroom in Damon prison for minors transferred from Ofek prison. The materials being covered are mathematics, Arabic and enrichment studies in areas such as: environment protection, the human body etc. Minors study for five days a week for four hours each day.

Facts and Figures on the Military Juvenile Court

• According to data provided by Israel’s Minisry of Justice, the most common charges in the Military Juvenile Court relate to the throwing of objects, usually stones or Molotov Cocktails, at a moving vehicle or at a person or property.
• Stone throwing is an act of violence, which can cause injury or even death. According to statics from the IDF Spokesperson’s Unit, in 160 cases Palestinian minors were involved in serious security offenses when throwing stones or Molotov Cocktails resulted in death or serious injury to security forces. One recent example took place on 25 September 2011 when a 25-year-old Israeli father and his one-year-old son were killed; the father lost control of his vehicle near Hebron after it was pelted by stones.
• According to the same data from the IDF spokesperson’s Unit, in 2008, 663 charges were made against minors across the entire system, compared to 650 in 2010. Only 45% of the minors remained in custody until the completion of their trial – the rest were discharged during the conduct of their trial.
• The information provided by the IDF spokesperson’s Unit show that in 2010 only 8% of the defendants were fifteen years of age or less, and less than 2% (nine cases) were fourteen years of age or less. Over 40% were aged seventeen or more. The percentage of minors aged fourteen or less who were discharged was 33%.
• The IDF spokesperson’s Unit data also shows that in 2008 the percentage of acquittals in cases where guilt was disputed between the defence and the prosecution was 30%. In these cases the defence’s position was adopted and the defendant was acquitted from that charge. Furthermore, in 2008 only 55% of the charges that were submitted ended up in a conviction.
• The ideological motives which often stand behind offences committed by Palestinian minors, as well as the Palestinian Authority’s lack of cooperation regarding rehabilitation programmes, significantly reduce the possibility of using rehabilitation methods despite their advantages. In most cases, throwing stones is not socially condemned in the West Bank. Moreover, sending a probation officer into an environment where, on one hand, the community rejects the legitimacy of the courts and, on the other hand, is not able to help the minor to turn away from the criminal/ideological path, is not a suitable deterrent from further stone throwing.

Background

• Due to Israel’s unwillingness to annex the West Bank, which it captured in 1967, and the failure as yet to reach a final status agreement with the Palestinians, a complex system of law has developed in the territory.
• Before 1967, the law in the West Bank combined remnants from the Ottoman, British Mandate, and Jordanian periods, as well as the Islamic Shari‘a. Israeli military courts were established in 1970.
• In June 2009 Israeli Prime Minister Benjamin Netanyahu stated that Israel did not want to ‘rule over’ Palestinians living in the West Bank. In his speech at Bar-Ilan University, which endorsed the establishment of a Palestinian State as part of conflict ending agreement, he said, “the truth is that in the area of our homeland, in the heart of our Jewish Homeland, now lives a large population of Palestinians. We do not want to rule over them. We do not want to run their lives. We do not want to force our flag and our culture on them. In my vision of peace, there are two free peoples living side by side in this small land.”