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Norwegian campaign on child detention

[16 February 2015] - In response to a Norwegian campaign focusing on the treatment of children held in Israeli military detention, the Israeli Embassy in Oslo has circulated two documents relating to the issue. The first document was produced by The Legal Counseling and Legislation Department (International Law) of the Ministry of Justice, and the second document was produced by the Israeli army’s Military Advocate General Corps (MAG).

A.    Ministry of Justice: Palestinian minors in military juvenile justice system (Aug 2014)
The 13-page document produced by the Ministry of Justice confirms that the military justice system operating in the West Bank was established in accordance with the Geneva Conventions. Although it is correct that the only jurisdictional basis under international law for prosecuting civilians in military courts is to be found in the Fourth Geneva Convention (Article 66), no attempt is made by the authors of the document to reconcile this reliance on the Convention to prosecute Palestinian civilians in military courts with the obligations relating to settlement construction (Article 49) and the forcible transfer of prisoners (Article 76) contained within the same legal instrument. This selective application of the Convention amounts to an exercise in cherry picking those articles to be obeyed and those articles to be ignored and only serves to undermine the rule of law.
The document lists a number of reforms and developments of which three are considered below. For a more comprehensive analysis see MCW’s most recent Progress Report.
1.     Notifying minors of their legal rights - Although there is a legal obligation under Israeli military law to inform a child of his/her right to consult with a lawyer and the right to silence, evidence collected by MCW indicates that 90 per cent of minors are still not afforded the opportunity to consult with a lawyer prior to interrogation and 78 per cent are not informed of their right to silence.
2.     Use of blindfolds and hand ties – Although the military regulations stipulate that blindfolds should only be used when there is a security need and handcuffing should be done at the discretion of the head of the arresting forces and in accordance with regulations, evidence collected by MCW indicates that 88 per cent of minors continue to be blindfolded and 96 per cent are hand tied, frequently painfully so using a single plastic tie contrary to regulations.
3.     Night-time arrests - In February 2014, Israel’s military authorities announced the introduction of a pilot programme to issue written summonses in lieu of arresting children in the West Bank at night. On 15 January 2015, the Dutch Foreign Minister, Bert Koenders, provided the Dutch Parliament with an update on progress made in implementing the pilot programme, including information that the programme has been suspended and that during the time of its operation the military did not keep any statistics that would facilitate its assessment. Further, during the operation of the programme, 67 per cent of summonses were delivered by the military after midnight in raids that continue to terrify the civilian population.
It should also be noted that according to evidence collected by MCW, more children now report being transported on the metal floors of military vehicles and are subjected to physical violence than they were 12 months ago, suggesting that the changes that have occurred are not leading to a tangible improvement on the ground.
Finally, the Ministry of Justice document makes no attempt to address the legal principle that no State is permitted to discriminate between those over whom it exercises penal jurisdiction based on race or national identity. Currently the Israeli military authorities in the West Bank apply military law to Palestinians and civilian law to Israeli settlers living in the same territory. The latter of which contains far greater rights and protections. Whilst Israel is not permitted to apply its civilian law to Palestinians in the West Bank, as this would be viewed as de jure annexation, the law that is applied must contain rights and protections no less favourable than those applied to Israelis in the settlements.
B.    MAG Corps: Recent developments regarding the legal rights of minors during criminal proceedings in Judea and Samaria (sic)
The information released by the MAG Corps appears on its website and contains similar material referred to by the Ministry of Justice. The MAG Corps information also refers to the establishment of a Juvenile Military Court in 2009 as a positive development. However, it should be noted that in March 2010, the UN Committee on the Rights of the Child expressed concern at this attempt to “incorporate juvenile justice standards in military courts” and recommended that children should never be prosecuted in military courts. Also in 2010, the UN Special Rapporteur on the Independence of Judges and Lawyers stated that: “the exercise of jurisdiction by a military court over civilians not performing military tasks is normally inconsistent with the fair, impartial and independent administration of justice. This should even more evidently apply in the case of children.” Finally, in July 2011, the Israeli organisation B’Tselem concluded that: “the amendments to the military legislation [establishing a juvenile military court] are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.”
The UNICEF Report
In March 2013, UNICEF published the report – Children in Israeli Military Detention (UNICEF Report). Following a review of over 400 sworn testimonies collected through the UN’s Monitoring and Reporting Mechanism on Grave Child Rights Violations and after consulting widely with relevant parties, UNICEF concluded that: “[T]he ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process.” In September 2014, MCW released a progress report following a review of 105 testimonies collected from children held in Israeli military custody and found that UNICEF’s 2013 assessment still remains valid today.
The six recommendations
In accordance with international law all outstanding UN Security Council resolutions must be fully implemented resulting in the dissolution of the military courts. As an interim measure, the following six non-severable recommendations should be effectively implemented without delay. In considering appropriate interim recommendations the intention must be to avoid entrenching military occupation or facilitating a "best-practices" occupation.
  1. Children should only be arrested during daylight hours except in rare and exceptional circumstances;

  2. All children, and their legal guardian, should be provided with a written statement in Arabic informing them of their legal rights in custody;

  3. All children must consult with a lawyer of their choice prior to questioning;

  4. All children must be accompanied by a family member throughout their questioning;

  5. Every interrogation must be audio-visually recorded and copy of the tape must be provided to defence counsel prior to the first hearing; and

  6. Breach of any of the above recommendations should result in the discontinuation of the prosecution and child’s immediate release.