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The Lawyers' Report: 12 Years On - No Accountability, No Progress

[27 June 2024] – In 2012, an independent delegation of lawyers funded by the UK Foreign Office, which included a former Attorney General of England, Wales and Northern Ireland and a judge of the Court of Appeal of England and Wales as well as the European Court of Human Rights, issued a report on the treatment of Palestinian children held in Israeli military detention following their fact-finding mission to the region in which all view-points were canvassed (the Report). 

The Report detailed “two irreconcilable accounts of the treatment and rights of Palestinian children” given to the delegation. One was from Palestinian and Israeli NGOs, UN agencies, lawyers, former Israeli soldiers and former child detainees; the second from Israeli government officials, military judges and prosecutors. While passing no judgment on the conflicting accounts, the Report was able to find undisputed evidence of six breaches of the UN Convention on the Rights of the Child (UNCRC) and two breaches of the Fourth Geneva Convention, including the unlawful transfer of children from occupied territory.[i] The Report concluded by making 40 recommendations. 
Following the release of the Report, which attracted significant media attention,[ii] the Israeli Embassy spokesperson in London stated that: “Israel notes the detailed recommendations in the report and will study them closely as part of its ongoing efforts to find the most appropriate balance between preventing violence and treating perpetrators with humanity.”  The UK response to the Report was that: “The UK government has had long-standing concerns about the treatment of Palestinian children in Israeli detention, and as a result decided to fund this independent report. While recognising that some positive recent steps have been made by the Israeli authorities, we share many of the report’s concerns, and will continue to lobby for further improvements.”
Shortly after the publication of the Report, Israel’s Ministry of Foreign Affairs announced that a resident of an illegal West Bank settlement had been appointed to consider the implementation of the Report’s recommendations and recommendations made by UNICEF. And while the UK government has frequently expressed “concern” over the treatment of Palestinian children in Israeli military detention in subsequent years, the UK appears to reject legal accountability. It is perhaps unsurprising then that 12 years’ on just one of the Report’s 40 recommendations has been substantially implemented and the situation has, for the most part, deteriorated, as demonstrated by just three examples:
Unlawful discrimination – The Report noted that as a result of illegal Israeli settlement construction in the West Bank, two separate legal systems have been established which apply Israeli civilian law to settlers and Israeli military law, to Palestinians. This violates a principle under international law, that no state is entitled to discriminate between those over whom it exercises penal jurisdiction on the basis of their race or nationality. While Israel cannot lawfully apply its civilian law to Palestinians in the West Bank, it can ensure that both Palestinian and Israeli children are treated on an equal footing. During the intervening 12 years, the settler population in the West Bank has increased by 51 percent and the military law applied to Palestinian children continues to have far fewer rights and protections than the civilian law applied to settlers. This is one factor that prompted Human Rights Watch (and others) to conclude that the crime of apartheid is occurring.
Solitary confinement in violation of the UN Convention Against Torture – The Report noted that during the delegation’s meetings in Israel and the West Bank the issue of solitary confinement was raised on more than one occasion. One source suggested that 9 percent of children were being held in solitary confinement for between 24 hours and 20 days during the interrogation process. Without making any findings, the Report noted that: “to hold children routinely and for substantial periods in solitary confinement would, if it occurred, be capable of amounting to torture in breach not only of article 37(a) of the UNCRC but of other well-known international instruments”. Based on over 1,100 testimonies collected by MCW since the Report, the use of solitary confinement has skyrocketed, spiking at 42 percent in 2021. Currently, 17 percent of children report being held in solitary confinement for an average of 25 days. The facilities where this occurs are identified and the agencies responsible, known. 
Unlawful transfer – The Report noted that Palestinian child detainees from the West Bank were routinely transferred from the West Bank into Israel in violation of article 76 of the Fourth Geneva Convention – classified as a grave breach by article 147 for which personal criminal responsibility applies under article 146. According to available data provided by the Israel Prison Service (IPS) the percentage of children being transferred has now risen to 70 percent, affecting between 406-580 children each year. While the UK government has been vocal in its support for prosecuting Russians involved in the transfer of “hundreds” of children from Ukraine at the International Criminal Court, it opposes the prosecution of Israeli officials responsible for the transfer of thousands of Palestinian children. This inconsistency is undermining the credibility of the rules-based order. 
Making public statements in support of “the rules-based order” and expressing “concern” about the treatment of children held in military detention can be given little weight if not accompanied by accountability in the face of credible evidence suggesting that the crimes of apartheid, forcible transfer and torture may be occurring on an industrial scale. The lack of accountability is eroding confidence in the rule of law as a viable tool for resolving the conflict.  
Postscript – During the intervening 12 years the delegation has sought to return to the region on two occasions (August 2014 and February 2016), with full support of the Foreign Office in order to update the report. On the last occasion the delegation included Sir Keir Starmer KC MP.  Days before landing in Tel Aviv, the last visit was cancelled due to the lack of cooperation from Israeli authorities. The delegation issued a statement.

[i] The Report found that Israel’s military child detention system violates at least six articles under the UNCRC:
(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 two articles under the Fourth Geneva Convention:
(i)      Article 65 - Failure to translate all military orders from Hebrew to Arabic;
(ii)     Article 76 - Unlawful transfer of child prisoners out of the West Bank to prisons inside Israel.