Les enfants dans le système judiciaire militaire israélien

Soumis par Louise le

On Wednesday 21 January, news broke that a 14-year-old girl from Ramallah had been sentenced to two months in prison and fined $1,528 by an Israeli military court. She was arrested on the 31 December and charged with throwing stones, obstructing the road and possession of a knife and detained for 22 days inside Israel before the court issued the sentence. Speaking to Euro-Mid Observers for Human Rights, the girl’s father said he believed she had been coerced into confessing and described his experience of the court hearings: “[w]e could only see her in the court; we were not allowed to talk to her. She seemed to be very sick and scared.”

This story captured the attention of the news: the plight of this one girl put a face on a system that routinely runs roughshod over children’s rights. But behind this story there is a broader issue. There is no shortage of information on Palestinian children arrested by the Israeli military, many organisations have worked and continue to work tirelessly to help children caught up in this system, but the fact that children are routinely and systematically subjected to a harsh military justice regime has long ceased to make news internationally.

Every year 700 children are arrested, detained and face ill-treatment in the Israeli military justice system. During 2014, an average of 197 children were held in military detention every month; 13 per cent of whom are under the age of 16. In the last decade, an estimated 7,000 children have been held under military detention, the majority for security offences. This piece aims to put this story in context and look at the broader children’s rights issues behind the news.

“Military justice”

The population of the West Bank is governed by two separate systems of law. Those with Israeli citizenship - Israelis living in the West Bank settlements - are governed by Israeli law while those who are not - the Palestinian population - are governed by Israeli military law as well as Palestinian law. The effect of this divide is that Palestinian children are routinely subject to the military justice system. There are certainly other States where children have been subject to military trials (Human Rights Watch has collected extensive evidence of children being tried under Egypt’s military courts) but nowhere other than the Occupied Palestinian Territories is this state of affairs the norm rather than the exception.

The issue of applying different laws to children based on their nationality is problematic in itself, but becomes increasingly so when the different systems of law provide wildly different levels of protection. The military detention system provides for lesser rights to parental support during questioning, permits longer periods of detention before being brought before a judge and permits much longer periods of detention without access to a lawyer.[1] Beyond this basic inequality in the legal provisions is what UNICEF has called “widespread, systematic and institutionalised” ill-treatment of Palestinian children.[2]

Night-time raids are a common practice during military arrests of children, well documented by NGOs, UN agencies, lawyers, Israeli soldiers and Palestinian children.[3] Arrested children are commonly taken into custody by heavily armed soldiers, blindfolded with their wrists tied behind their backs before being transported to an interrogation centre. Children questioned about their experience frequently report verbal and physical abuse during the arrest.

Arrested children widely report treatment that amounts to coercive interrogation - 56 per cent of children according to research conducted by DCI-Palestine - while 42 per cent signed documentation written in Hebrew, a language that few Palestinian children understand. Figures collected by UNICEF indicate that in the majority of cases, the principal evidence against the child is the child’s own confession, which in most cases has been extracted under duress.[4]

Investigations commonly take place without basic criminal process guarantees and in particular, the practice of questioning children in the absence of a lawyer is widespread. A study conducted by B’Tselem found that only four per cent of children who took part in the study were questioned in the presence of an adult.[5] This could not be a clearer violation of children’s rights under the Convention on the Rights of the Child (CRC); article 37 of the Convention requires that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance”. This is not just a matter of ensuring that children understand and are able to be effectively involved in the criminal process, but acts as a protection against all of the other forms of abuse and ill-treatment that are commonly reported during detention.

Solitary confinement of children detained by the military is also widespread. A DCI-Palestine study found that 22 per cent of arrested children had been held in solitary confinement for up to 24 days during the interrogation process.[6] This detention is a clear violation of children’s rights under several international human rights treaties to which Israel is a party and the UN’s Special Rapporteur on Torture has called for a complete ban on solitary confinement for juveniles, warning that it “can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pre-trial detention, indefinitely or for prolonged periods, for persons with mental disabilities or juveniles.”

The trial process itself also falls far short of international standards. The failure to widely publish applicable military orders in Arabic places Palestinian defence lawyers at a clear disadvantage and severely jeopardises a child’s chance of receiving a fair trial, while the reliance on confessions extracted under duress or coercion fundamentally undermines the reliability of any conviction.[7]

Children arrested and detained under military law are routinely held in detention facilities in Israel. A violation of a child’s rights under international law in itself,[8] this practice can also make it very difficult or impossible for a child to stay in contact with his or her family. Under Israeli law, children are entitled to one 45 minute visit from an immediate family member every two weeks, but B’Tselem have estimated that it can take between two weeks and two months for family members to get a permit to visit, which combined with a lack of understanding about the visitation system results in most children not receiving family visits.[9]

During sentencing, military orders permit sentencing that can be grossly disproportionate to the severity of the offence. The maximum sentence for stone-throwing, for example, can extend to 20 years, in response to which the UN Committee on the Rights of the Child has recommended that the State review and amend all laws allowing for the sentencing of children to such long prison terms and to “remove from detention all children that are held for this reason”.[10] Under the CRC, detention of children can only be justified “as a last resort and for the shortest appropriate period of time.”[11]

Though complaints mechanisms are in place and it is formally possible for such a complaint to ultimately reach the Israeli Supreme Court, very few examples of soldiers being punished for ill-treatment can be identified. The Ministry of Defence and the Coordinator of Government Activities in the Territories have reported that complaints are almost universally dismissed, but in the face of the widespread reports of ill-treatment, this hardly seems evidence of an effective complaints system in action.[12]

Inadequate reform

Dozens of detailed and authoritative critiques of the military justice system have been carried out and published: these persistent violations raised by NGOs, lawyers and UN agencies are simply the common threads running through the evidence. There is no lack of awareness among people engaging with the system about how it falls short of children’s rights standards, yet these critiques have not been taken into account during recent reforms.

In September 2014, Israel introduced a new military order purporting to address some of these long standing criticisms. Recognising the potential for abuse in the military justice system, the Order introduced requirements that children be interrogated in their own language, that documents be written in the language of the interrogation, that audio or video recordings be made where the interrogation is not documented in the child’s own language, as well as video recording for offences with a maximum sentence of more than 10 years.

These are basic safeguards in the criminal process, but the changes do not apply to children suspected of committing security offences and so they will have no impact on the majority of children arrested under military jurisdiction.

An irredeemably unjust system

Last week’s case garnered more attention than most, but is not unusual. Minor reforms to the system can improve the situation of children - they are a pragmatic approach to the problems that children are facing everyday - but they cannot get to the core of the injustice in applying military law to children and the inherent risks of ill-treatment children face in such a system. As recognised by the Draft Principles Governing the Administration of Justice Through Military Tribunals, “[i]n no case ... should minors be placed under the jurisdiction of military courts.”[13] Regardless of the precise formulation of military rule, it can never protect children in the same way as a developed civilian juvenile justice system which places the best interests of the child at the centre of its work.

CRIN is monitoring children's rights in military justice systems as part of our work on children and armed conflict.

Further reading:

Legislation:

  • Military Order 1745 - amendments to process rights

  • Military Order 1651 - general provisions

  • Military Order 1591 - administrative detention

  • Military Order 1644 - juvenile courts

  • Military Order 1676 - age of majority

References:

[1] Foreign and Commonwealth Office, Children in Military Custody, June 2012, p. 7.

[2] UNICEF, Children in Israeli Military Detention: Observations and Recommendations, February 2013, p. 13.

[3] See para. 36 and Appendix 1.

[4] UNICEF, Children in Israeli Military Detention: Observations and Recommendations, February 2013 p. 13.

[5]  B’Tselem, No Minor Matter, 2011, p. 34.

[6] DCI-Palestine, In their own Words, p. 15.

[7]  UNICEF, Children in Israeli Military Detention: Observations and Recommendations, February 2013 p. 13.

[8] Fourth Geneva Convention, Articles 76, 147.

[9] B’Tselem, No Minor Matter, 2011, p. 69.

[10] UN Committee on the Rights of the Child, Concluding observations on the second to fourth periodic reports of Israel, CRC/C/ISR/CO/2-4, 4 July 2013, paras. 73 and 74.

[11] UN Convention on the Rights of the Child, Article 37(b).

[12] For further discussion, see Foreign and Commonwealth Office, Children in Military Custody, June 2012, para. 105 - 107.

[13] Draft Principles Governing the Administration of Justice Through Military Tribunals, Principle No. 7.

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