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UK lawyers' report - 10th anniversary

[15 June 2022] – This month marks 10 years since a delegation of UK lawyers reviewed the treatment of Palestinian children under Israeli military law and published their findings and recommendations.[i] The Foreign Office funded report – Children in Military Custody – found undisputed evidence that the military detention system violates at least 6 articles under the UN Convention on the Rights of the Child and 2 articles under the Fourth Geneva Convention.[ii] The report concluded by making 40 recommendations. 

In the immediate years following the release of the report there were a number of positive developments in the system including: a new military order reducing the time within which a child must be brought before a judge after arrest; the introduction of a form notifying parents of the reason for arrest and place of detention; re-issuance of the military’s standard operating procedures for the arrest of children to all military; the introduction of a form notifying children of their legal rights; and a pilot scheme to issue summonses in lieu of night arrests. Further, there has been a 33 percent decline in the number of children held in detention. 
MCW has reviewed progress made in implementing the report’s 40 recommendations and concludes that in 10 years, one recommendation has been substantially implemented – an implementation rate of 2.5 percent.[iii] Based on recent evidence there follows a short review of some of the issues covered in the report:
  • Night arrests - The report recommended that children should not be arrested at night except in "extreme and unusual circumstances" and a pilot study using summonses should be carried out as an alternative. A decade on, 60 percent of children continue to be arrested at night. The pilot study is largely defunct with summonses being used in just 1 percent of cases. According to the military authorities no records were maintained during the study making internal assessment impossible. In August 2021, the military authorities stated that they have introduced new procedures for summonsing children but the procedures remain "classified".
  • Hand ties - The report recommended that single plastic hand ties should never be used and other methods of restraint should not be used unless strictly necessary. A decade on, 96 percent of children continue to be zip-tied with most complaining that the ties are "painful" or "very tight and painful". In 90 percent of cases, the Israeli military's own regulations for the use of ties are disregarded. In some cases, children report loss of sensation to their hands, hands turning blue due to lack of circulation, swelling, and cuts to their wrists resulting in bleeding
  • Blindfolds - The report recommended that "children should never be blindfolded or hooded". A decade on, 89 percent of children continue to be blindfolded. In 2019, lawyers for the military authorities informed Israel's Supreme Court “that military orders and regulations forbid blindfolding of detainees, and action to clarify the rules has been taken and will continue to be taken on a continuous basis.” This statement cannot be reconciled with the evidence. While there is no security reason for blindfolding children it does appear to weaken their resolve prior to interrogation. 
  • Violence and threats - The report recommended that "the prohibition on violent, threatening or coercive conduct towards children should be strictly observed throughout all stages of arrest". A decade on, 67 percent of children report being subjected to physical violence and threats, while 70 percent report being verbally abused. The types of violence reported include: kickingpunchingstruck with guns and slapping. The types of threats reported include: arresting parentsharsh interrogationlong-term detentionraperevocation of work permitssolitary confinementhome demolition and death.
  • Right to silence - The report recommended that children should be informed of their right to silence at the time of arrest, and reminded of the right prior to interrogation. A decade on, 87 percent of children are not being informed of their right to silence prior to interrogation. Some children report that when they are informed of the right to silence it is accompanied by a threat, such as: "if you remain silent I will arrest you again" and "later when I wanted to practice my right to silence he yelled at me and thumped the table aggressively". Other children report being told, but not understanding their rights.
  • Right to consult with a lawyer - The report recommended that the child's right under Israeli military law to consult with a lawyer prior to interrogation should be respected. A decade on, 72 percent of children do not consult with a lawyer prior to interrogation in spite of this right being recognised as a "fundamental right" by Israel's Supreme Court. In cases where a child does consult a lawyer, this consists of a brief phone call generally overheard by an interrogator. It should be recalled that no legal aid is provided by Israel to Palestinian children prosecuted for security offences in the military courts. 
  • Interrogated in the presence of a parent - The report recommended that "children should have a parent or guardian present prior to and during their interrogation". While there is no right under Israeli military law for a parent to be present, the military authorities acknowledge that there is a discretion to permit parents to attend an interrogation. A decade on, just 1 percent of children report being interrogated in the presence of a parent. In some cases the authorities are aware that parents are waiting outside the interrogation centre but are still refused access to their children.  
  • Solitary confinement - The report recommended that "solitary confinement should never be used as a standard mode of detention or imprisonment". Historically, less than 4 percent of children reported being held in solitary confinement as part of their interrogation. A decade on, 44 percent of children now report being held in solitary confinement. On average, each child spends 10 days in solitary with profound psychological and physical consequences, including self-harm and suicide attempts. It is not clear from the evidence why these cases are surging but the general consensus is that the practice can amount to torture. 
  • Forcible transfer - The report recommended that "all Palestinian children detained under Israeli military law should be held in facilities in the Occupied Palestinian Territories and not in Israel, which constitutes a breach of article 76 of the Fourth Geneva Convention". A decade on, 67 percent of Palestinian children are forcibly transferred out of the West Bank to prisons located inside Israel - according to data released by the Israeli Prison Service. The UK government has confirmed the  practice violates the Fourth Geneva Convention. The practice is classified as a war crime within the jurisdiction of the International Criminal Court. 
During the intervening 10 years the delegation has sought to return to the region on two occasions (August 2014 and February 2016), with full support of the UK government, in order to update the report. On both occasions the visits were cancelled due to a lack of cooperation from the Israeli civilian and military authorities.  
Throughout the intervening 10 years the UK government has consistently expressed support for the rule of law in Israel/Palestine but recently confirmed that it rejects the jurisdiction of the International Criminal Court over the conflict - contrary to a ruling of the Court. In these circumstances it seems unrealistic to expect any substantive improvement in the system as there appears to be limited institutional support for legal consequences for violations of international humanitarian law in Israel/Palestine. The UK's steadfast support for legal accountability in other conflicts only serves to diminish faith and confidence in a genuine rules-based order and raises concerns about the possible politicisation of the International Criminal Court. 
  • Senior figures attack 'obstruction' of ICC's Palestine investigation - The Guardian
  • Senior Israeli security officials say a number of ICC member states have agreed to give advance warning to Israel of any intent to arrest Israelis - Haaretz
  • Prime Minister Boris Johnson confirms UK opposition to ICC investigation into Israel 
  • German Foreign Minister says ICC has no jurisdiction over Palestinian Territories - Haaretz
  • 900+ testimonies from children held in Israeli military detention.
  • Israeli military authorities reliance on Fourth Geneva Convention to justify military courts

[i] The original delegation was comprised of 9 lawyers: Greg Davies, Jayne Harrill, Marianna Hildyard QC, Judy Khan QC, Jude Lanchin, Marc Mason, Frances Oldham QC, the Rt Hon the Baroness Patricia Scotland of Asthal QC (former Shadow Attorney General and Attorney General of England, Wales and Northern Ireland) and the Rt Hon Sir Stephen Sedley (formerly Lord Justice Sedley).
[ii] The report found that Israel’s military child detention system violates at least 6 articles under the UN Convention on the Rights of the Child:
(i)      Article 2 – discrimination;
(ii)     Article 3 – best interests;
(iii)    Article 37(b) – premature resort to detention;
(iv)     Article 37(c) – non-separation from adults;
(v)      Article 37(d) – prompt access to lawyers; 
(vi)     Article 40 – use of shackles.
The report also found that Israel will be in breach of the prohibition on cruel, inhuman or degrading treatment in Article 37(a) of the Convention if multiple reports of ill-treatment are, to a significant extent, correct. The report also found violations of 2 articles under the Fourth Geneva Convention:
(i)      Article 65 - Failure to translate all military orders from Hebrew to Arabic;
(ii)     Article 76 - Transportation of child prisoners out of the West Bank to prisons inside Israel.
[iii] The recommendation that has been substantially implemented is the separation of child prisoners from adults.