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| Bound, Blindfolded and Convicted I was very scared. The officer ordered my brother to take off his clothes, and he did so, except for his underwear. They searched him for a couple of minutes and the officer then ordered him to put his clothes back on. He ordered him to put his hands on his head and step three metres back. Then two soldiers tied his hands and blindfolded him,” recalls Khader. “The officer then ordered me to take off my clothes, and I took them off except for my underwear. He then ordered me to kneel which I did for about 10 minutes. It was very cold that night and I was shaking.” “The officer asked me some general questions and whether I had thrown stones at soldiers or not, and those sorts of questions,” recalls Khader. “After that, he ordered me to put my clothes back on and a soldier tied my hands in the front and ordered me to walk with him to the jeeps. Before we reached the jeeps, the soldier stopped me, untied me, and ordered me to go home and not to look out of the window, saying that he would shoot me if I stood by the window.
2 The EU provided funding for the project between 1 April 2009 to 31 March 2012.
3 DCI-Palestine, Voices from East Jerusalem: The situation facing Palestinian children (August 2011). Available at:
http://www.dci-palestine.org/documents/new-dci-report-voices-east-jerusalem-situation-facing-palestinianchildren-2011 4 Training Manual on Human Rights Monitoring developed by the UN Office of the High Commissioner for Human Rights (OHCHR).
5 The minimum age of criminal responsibility in Israeli military courts is 12 years. However, children younger than 12 years are sometimes detained by the Israeli army and police and released within 12 hours.
6 UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor John Dugard, “Human Rights Situation in Palestine and Other Occupied Arab Territories” (21 January 2008, A/ HRC/7/17 – paragraph 45; and B’Tselem – Statistics on Palestinians in the custody of Israeli security forces (2008 to 2011).
7 Regulations concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 October 1907 (The Hague Regulations (1907)) – Article 43; and the Fourth Geneva Convention – Articles 64 and 66.
8 UN Human Rights Committee, General Comment No. 32 – paragraph 22.
9 UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Professor Richard Falk, “Situation of human rights in the Palestinian territories occupied since 1967,” (30 August 2010), A/65/331 – paragraphs 1 to 7; Sharon Weill, “The judicial arm of the occupation: the Israeli military courts in the occupied territories,” International Review of the Red Cross, Volume 89, Number 866, (June 2007), pages 399-400;
and Orna Ben-Naftali, Aeyal M. Gross and Karen Michaeli, “Illegal Occupation: Framing the Occupied Palestinian Territory,” (2006), Berkeley Journal of International Law, Vol. 23:3, page 551.
10 International Court of Justice (ICJ), advisory opinion (2004): Legal Consequences of the Construction of a Wall in the occupied Palestinian Territories (ICJ Wall opinion).
11 Approximately 20 percent of the population of Israel is made up of Palestinians, sometimes known as Arab Israelis.
12 At the time of publication, the principal places used for the temporary detention of Palestinians from the West Bank, are: Huwwara interrogation centre (West Bank); Salem interrogation centre (West Bank); Gush Etzion settlement (West Bank); Ari’el settlement (West Bank); Ofer prison (West Bank); Al Jalame interrogation centre (Israel);
Petah Tikva interrogation centre (Israel); and Al Mascobiyya interrogation centre (Israel).
13 At the time of publication, the principal prisons used by the Israeli authorities to detain Palestinian children are:
Ofer prison (West Bank); and Megiddo prison (Israel). Other prisons that have recently been used are: Rimonim prison (Israel); and Hasharon prison (Israel).
14 Article 76 of the Fourth Geneva Convention provides that: “Protected persons accused of offences shall be detained in the occupied country, and if convicted shall serve their sentences therein.” The applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory has been confirmed by the ICJ’s Wall opinion; various UN Security Council and General Assembly resolutions; and the International Committee of the Red Cross. Pursuant to Article 147 of the Fourth Geneva Convention, unlawfully transferring a protected person is a grave breach of the Convention and attracts personal criminal responsibility. Further, under Article 146, all parties to the Convention have a positive legal obligation to search out and prosecute those responsible for grave breaches.
17 Just as in civilian settings, legal interns (meaning law graduates doing their mandatory apprenticeships) practise law under the supervision of an attorney and after six months are allowed to appear in court. Many Israelis who want to go into law postpone their military service, go to law school, then serve in the military court system as part of their military service. Others do it in the reverse order and have just one year of internship. But in any case, some of those serving for the prosecution and appearing in court are not yet certified, but are interns.
18 NGOs such as DCI-Palestine, Addameer Prisoner Support and Human Rights Association and Nadi al-Asir (Palestinian Prisoners’ Club).
19 Yesh Din, “Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories,” (December 2007) – page 26.
20 The Hague Regulations of 1907 (Regulations concerning the Laws and Customs of War on Land) – Article 43; and the Fourth Geneva Convention (1949) – Articles 64 and 66.
22 Israeli Defense Forces Proclamation No. 2 – “Proclamation Regarding Law and Administration,” (7 June 1967).
23 The Israeli military order most relevant to this Report is Military Orders 1651.
24 Israel has consistently argued that the human rights treaties it has ratified do not apply to Palestinians living in the Occupied Palestinian Territory. Two arguments are usually presented to support this position. First, it is argued that the human rights conventions were only ever intended to apply vis-a-vis governments and their own citizens.
Secondly, it is argued that in a conflict situation the appropriate law is humanitarian law, not human rights law.
These arguments have found no international support and have been consistently rejected: See the ICJ’s Wall opinion; UN Committee on the Rights of the Child, Concluding Observations, Israel (March 2010) – CRC/OPAC/ISR/ CO/1 – Paragraph 4; and UN Human Rights Committee, Concluding Observations, Israel (July 2010).
25 CRC – Articles 3(1) and 37(b).
26 ICCPR – Article 14.
27 ICCPR – Article 2; and CRC – Article 2.
28 CAT – Articles 2 and 16; CRC – Article 37(a).
29 Military Order 1651 – Section 86: “Concerning the laws of evidence, the military court will act in accordance with the obligatory ruled in criminal matters in courts within the State of Israel.” The relevant Israeli domestic criminal legislation is: Evidence Ordinance [New Version], 1971; Criminal Procedure Ordinance (Testimony), 1927 Sections 1-3. Military Order 1651 – Section 88: “The military court is authorized to order, in any matters of trial procedure not determined under this order, trial procedures that appear to it most appropriate for ensuring a just trial.” This section is frequently used to import criminal procedure elements from Israeli civilian legislation, including: Criminal Procedure Law [Consolidated Version] 1982; Criminal Procedure Law (Powers of Enforcement – Arrest) 1996; and Criminal Procedure Law (Interrogation of Suspects) 2002.
30 Fourth Geneva Convention – Article 65: “The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language.” 31 Military Order 1651 – Article G. As to criticisms, see: UN Committee against Torture, Concluding Observations (20), CAT/C/ISR/CO/4 – Paragraph 28. As to criticism for attempting to incorporate principles of juvenile justice into military courts see: UN Committee on the Rights of the Child, Concluding Observations (2010), CRC/C/OPAC/ISR/ CO/1 – Paragraph 33.
32 Military Order 1651 – Section 139. Adults and children can be tried together with the consent of the chief military prosecutor.
| Bound, Blindfolded and Convicted 33 Military Order 1651 – Section 148. Following conviction, a military juvenile judge can order an officer of the Social Welfare Affairs staff at the Civil Administration to prepare a social welfare report, also known as a pre-sentencing report. It is relevant to note that the Civil Administration is part of larger entity known as the Coordinator of Government Activities in the Territories (COGAT), which is a unit of the Israeli Defence Ministry, whose function is to assist in the administration of the occupation.
34 Military Order 1651 – Sections 143 and 149.
35 Military Order 1651 – Section 137.
36 Military Order 1651 – Section 138(A) and (B).
37 Interview conducted with DCI-Palestine lawyer, Iyad Misk, on 9 January 2012. See also: The Australian, “Stone Cold Justice” (26 November 2011) – Available at: http://www.dci-palestine.org/documents/australian-stone-cold-justice 38 B’Tselem, No Minor Matter: Violation of the Rights of Palestinian Minors Arrested by Israel on Suspicion of Stone Throwing (July 2011), pages 25 and 65.
39 No Legal Frontiers, All Guilty! Observations in the Military Juvenile Court (April 2010 – March 2011), page 7. Available at: http://nolegalfrontiers.org/en/reports/77-report-juvenile-court 40 Military Order 1676 amends, and is incorporated into, Military Order 1651.
41 Article 1 of the CRC provides that: “a child means every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier.” See also the Israeli civilian law: Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 1.
42 The amendment is stated only to apply to Military Order 1651 - Article G – Adjudicating Juveniles – This article relates to the establishment and jurisdiction of the Military Juvenile Court. The amendment does not apply to Article J – the section dealing with sentencing.
43 Military Order 1651 – Section 136(a) - (as amended by Military Order 1676).
44 Military Order 1651 – Section 136(b) - (as amended by Military Order 1676).
45 Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 9H. Under Israeli civilian law, a parent is allowed to be present at all times during police questioning of a child in circumstances where the child is not formally under arrest, but may not interfere with the interrogation process. An exception to this rule is permitted upon written authority from an authorised officer, and in cases in which the well-being of the child requires that the parent not be present.
46 Military Order 1651 – Section 136(c) - (as amended by Military Order 1676).
47 The minimum age of criminal responsibility in Israeli military courts is 12 years. However, children younger than 12 years are sometimes detained by the Israeli army and police and are generally released within 12 hours.
48 Military Order 1651 – Section 191.
49 Military Order 1651 – Section 136.
50 Military Order 1651 – Section 168(B).
51 Military Order 1676.
52 Military Order 1651 – Section 168(C).
53 Recent amendments relating to the age of majority are not specified to apply to Military Order 1651 – Article J – which is the article relating to sentencing.
54 Military Order 1651 – Section 212(2).
57 Military Order 1651 – Section 222(A) and (D).