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The military courts are presided over by judges who are military officers in regular or army reserve service.16 The prosecutors are also in regular or reserve army service, some of who are not yet certified by the Israeli Bar Association.17 The defence lawyers consist of a few dozen Palestinians and Israelis, some of whom are in private practice and some working for NGOs.18 Decisions of the military courts can be appealed to a military appeals | Bound, Blindfolded and Convicted court, and in limited circumstances a petition to the Israeli High Court of Justice can be filed on questions of jurisdiction and reasonableness, but the latter rarely intervenes.19 Legal framework The authority of Israel to establish military courts in the Occupied Palestinian Territory in which to prosecute local civilian residents is found in international humanitarian law, otherwise known as the laws of war.20 Generally speaking, a local population living under military occupation should continue to be bound by their own penal laws and tried in their own courts. However, local laws may be repealed or suspended by the occupying power “in cases where they constitute a threat to its security” and replaced with military orders enforced in “properly constituted, non-political military courts.”21 However, it is important to note that this authority rests on an underlying principle that military occupations must be temporary in nature, and cannot be legally maintained indefinitely.
Military law was imposed on Palestinians immediately on cessation of hostilities in June 1967, with the issuance of a military order empowering the Israeli area commander with full legislative, executive and judicial authority over the West Bank.22 Acting on this authority, over the past 44 years, successive Israeli military commanders in the West Bank have issued nearly 1,700 orders. Contrary to basic democratic principles, the local Palestinian population has no say whatsoever in how this legislative, executive or judicial authority is exercised. These orders relate to a range of issues, including the authority to arrest and imprison Palestinians for “security offences,” such as: causing death, personal injury or property damage; public order offences; weapon and explosive offences; and organising and participating in protests.23 The offence Palestinian children are most commonly accused of is throwing stones.
International human rights law also applies to the Occupied Palestinian Territory.24 Particularly relevant to this Report, is the Convention on the Rights of the Child (CRC), the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), all of which have been ratified by Israel. These treaties relevantly provide that: in all actions concerning children their best interests shall be a primary consideration; children should only be detained as a measure of last resort and for the shortest appropriate period of time;25 all persons shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal;26 the rights contained in these treaties must be applied without discrimination;27 and torture and ill-treatment are absolutely prohibited, without exception.28 In addition to this web of international and military law, some provisions of Israeli civilian criminal legislation also apply in the military courts, including laws relating to criminal procedure and evidence.29 Finally, under international law, all penal provisions applied by Israel to Palestinians in the Occupied Territory must be translated and widely distributed in Arabic.30 This legal and practical requirement is frequently ignored and at the date of publication, Military Order 1676 (September 2011) which, among other things, partially raises the age of majority for children in the military courts, has still not been distributed in Arabic. Further, some Israeli | 17 criminal legislation, which also applies in the military courts, has never been translated.
The failure to make the applicable laws (as amended) and decisions of the courts readily available in Arabic, places Palestinian defence lawyers at a distinct disadvantage and jeopardises the chance of an accused person receiving a fair trial.
Establishment of a military juvenile court A military juvenile court was established in September 2009, following mounting criticism relating to the prosecution of children as young as 12 years in the same military courts used to prosecute adults.31 Under the new provisions, children should now generally be tried separately from adults in a military juvenile court;32 and after conviction, the court can direct that a social welfare report be prepared into the child’s circumstances in order to inform the court as to the appropriate sentence.33 The new order also provides that children should be detained in separate facilities from adults, and where possible, be brought to court separately.34 Military juvenile judges have been appointed from the ranks of existing military court judges to hear cases involving children, and under the new order, they must have received “appropriate training.”35 Significantly, under the new order, bail applications and hearings to determine whether a child remains in detention pending the conclusion of the case can still be heard by adult military courts, where judges have not necessarily received training to handle cases involving children.36 Further, the new order makes no change to the time period during which a child can be denied access to a lawyer and does not impose specific guidelines relating to the release of children on bail – both of which are governed by the same provisions that apply to adults. Finally, the new order does not introduce any new guidelines specifically addressing the special needs of children when it comes to sentencing.
In practice, the military juvenile courts use the same facilities and court staff as the adult military courts. Children continue to be brought into court in groups of twos and threes, wearing leg chains around their ankles and dressed in the same brown prison uniforms worn by adults. Handcuffs are usually removed from the child on entering the court room, and replaced on exiting. On occasion, adults and child defendants have been observed being brought into court together.37 The new provisions relating to the preparation of social welfare reports are almost never invoked. According to a recent report published by the Israeli organisation, B’Tselem, there are few improvements in the situation facing children prosecuted in the military courts since the introduction of the military juvenile court, as the following extract highlights:38 “The rights of Palestinian minors are flagrantly violated at every stage of the proceedings conducted against them, from the initial arrest and removal from their homes, through interrogation and trial, to serving the prison sentence, and then release [...] The amendments to the military legislation are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.” | Bound, Blindfolded and Convicted This conclusion is also echoed by a report published by the Israeli organisation, No Legal Frontiers:39 “The findings show that the establishment of the military juvenile court brought about only a marginal change in the legal proceedings against Palestinian minors in the West Bank. The amendment of military law that led to the establishment of the military juvenile court had no effect at all on the interrogation and arrest procedures, which are the de facto critical stages that dictate the outcome of the whole legal process.” These conclusions are shared by DCI-Palestine. The establishment of a military juvenile court and recent amendments to the military law in respect of children have had no discernable beneficial impact on the treatment of children during the first 48 hours after their arrest – the period in which the most serious violations occur.
Recent amendments to the military law – Military Order 1676 In September 2011, the Israeli military commander in the West Bank issued an amendment to the military orders, partially raising the age of majority in the military courts, as well as introducing new notification requirements upon the arrest of a child.40 Raising the age of majority Military Order 1676 raises the age of majority in the military courts from 16 to 18 years, in respect of some provisions. After 44 years of military rule, this amendment brings Israeli military law partially in line with international and Israeli civilian law.41 In practice however, the amendment makes little substantive difference in the way in which older children are treated (16-17 years), and significantly, does not appear to apply to the sentencing provisions. Accordingly, although the military juvenile court now has jurisdiction over older children, the sentencing provisions applicable to adults still apply to children aged 16 and 17 years.42 Notifying parents of arrest Military Order 1676 also makes provision for the notification of a detained child’s parents.
Under the new provisions, a police officer must inform a child’s parents, as soon as possible after the child has been brought to the police station, that the child is being detained, provided that the child can supply the parent’s contact information.43 However, in cases where the child is being investigated, but is not formally under arrest, notification can be delayed for up to eight hours, if the police officer reasonably believes that notification would disrupt the investigation, or if the child is suspected of a “security” offence.44 | 19 This provision is seriously flawed as it only applies to the Israeli police, and not the army.
In practice, it is the Israeli army that conducts arrests in the West Bank, and it is the army that has custody of the child for many hours and sometimes days before they are handed over to the police. Under the new law, there is no notification requirement imposed on the army. Further, although there is now an obligation for the police to notify parents, there is still no legal requirement entitling parents to be present when their child is being questioned – a practical safeguard generally guaranteed in regards to Israeli children.45 Finally, since the introduction of this limited notification requirement in September 2011, DCI-Palestine is aware of just one case in which this requirement has been followed.
Notifying a lawyer of arrest Military Order 1676 also makes provision for notifying children that they have the right to consult with a lawyer in private. Prior to commencing the investigation, the police must also contact the lawyer named by the child, provided that this does not delay the investigation.46 This provision is also seriously flawed for a number of reasons. First, it assumes that a child will be in possession of the contact details of a lawyer. Secondly, although the police are now obliged to inform a child that he/she can consult with a lawyer, there is no stipulation as to when this consultation must occur, either before, during or after questioning. Finally, since the introduction of this requirement in September 2011, DCIPalestine has not documented a single case in which a child has consulted privately with a lawyer either before, or during their interrogation. In practice, children continue to be questioned in the absence of their parents; generally do not meet with a lawyer until after the conclusion of their interrogations; and are still not being effectively informed of their right to silence.
Offences under military law and sentencing Military Order 1651 establishes a minimum age of criminal responsibility at 12 years, so in other words, children under the age of 12 cannot be prosecuted in the military courts.47 The Order also sets the maximum penalties that can be imposed on children in various age categories from 12 years and upwards. The maximum penalties can vary dramatically depending on the child’s age. It is important to note, that although the age of majority was raised to 18 years in September 2011 in respect of some provisions, the amendment does not apply to the provisions relating to sentences.
| Bound, Blindfolded and Convicted During the reporting period the single most common charge faced by children in the military courts was for throwing stones (Annex 3). Throwing stones is an offence under
Military Order 1651, which provides as follows:
(i) Throwing an object, including a stone, at a person or property, with the intent to harm the person or property, carries a maximum penalty of 10 years’ imprisonment.54 Therefore, applying the limitation on sentences that can be imposed on a child presented in Table 3 above, a child aged between 12 and 13 years can receive a maximum sentence of six months, but a child aged 14 and above, can in law, receive the maximum penalty of 10 years, as the maximum penalty for the offence exceeds five years; and (ii) Throwing an object, including a stone, at a moving vehicle, with the intent to harm it or the person travelling in it, carries a maximum penalty of 20 years’ imprisonment.55 Again, a child aged between 12 and 13 years can receive a maximum sentence of six months, but a child aged 14 and above, can in law, receive the maximum penalty of 20 years, as the maximum penalty for the offence exceeds five years.
It must be noted that at the time of writing, children charged with throwing stones and prosecuted in the military courts are generally receiving prison sentences in the range of
two weeks up to around 10 months. Other offences under Military Order 1651 include:
(i) Insulting or offending a soldier’s honour or harming his or her position as a soldier.
The maximum penalty stipulated for this offence is one year imprisonment;56 and (ii) An act or omission which entails harm, damage, disturbance or danger to the security of the region or the security of the Israel Defense Forces (IDF), or to the operation, use or security of a road, dirt path, vehicle or any property of the State of Israel or of the IDF.