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IDF legal adviser: Detention of 5-year-old Palestinian boy was legitimate

By Gili Cohen - 31 July 2013

The Israel Defense Forces' detention of a five-year-old Palestinian boy in Hebron earlier this month was a legitimate step in order to “thwart the threat posed by the activities of a minor,” the IDF’s legal adviser in the West Bank has ruled.
Earlier in July, IDF soldiers were videotaped detaining five-year-old Wa’adi Maswada and his father in Hebron, after the boy allegedly threw a stone at an Israeli car. The IDF opened an investigation into the incident following a demand by the Israeli human rights watchdog B’Tselem.
In a letter that legal adviser Col. Ben Barak sent last week to  B’Tselem's executive director, Jessica Montell, he explains that “IDF soldiers and Israeli security personnel sometimes encounter situations where children under the age of 12, without any parental supervision, hurl stones at civilians, vehicles and members of the security forces and participate in actions that disrupt public order." 
The letter, a response to B'Tselem's complaint, stated that, "It should be pointed out that such incidents create a significant hazard for passersby and for members of the security forces and can even pose a danger for the children themselves, who are not at the time under the supervision of the adults who are responsible for their welfare.”
The IDF’s legal adviser makes it clear in his letter that minors under the age of 12 are not criminally responsible for their actions and therefore they cannot be arrested or placed on trial.
“However,” he emphasizes, “that does not mean that IDF soldiers are not authorized to deal with incidents where a minor is endangering the safety of the public, and is even endangering himself or herself. In our view, the security forces have the authority to undertake action in order to remove the hazard posed by the activities of these minors to themselves and to others. Such action can include removing the minors from the area and placing them in the custody of their parents or the Palestinian authorities, which, in accordance with the interim agreement, are responsible for social services.”
Col. Ben Barak adds that, “In situations where IDF soldiers see children performing dangerous actions, such as hurling stones at passing vehicles, it would be totally irresponsible on the part of these soldiers to ignore what is happening and to allow the children to persist in their actions without any interference and to continue with their hazardous behavior.”
It is the perception of the IDF, says Ben Barak, that the “removal of the hazard through the distancing of the children from the area and through their immediate transfer to their parents’ custody or, alternatively, to the care of the Palestinian authorities, so that they can continue the treatment process as they see fit, is legitimate, as would be similar measures undertaken to deal with a minor involved in such activities in Israel.”
The IDF legal adviser defines the incident in Hebron as a “complex dilemma” and clearly states that, in such cases, IDF soldiers must behave “with the required measure of sensitivity, while continually protecting the welfare of the children and guarding to the optimal level their dignity and their needs as minors.”
In his letter, Ben Barak states categorically that the soldiers involved in the incident sought to act in this spirit after the boy hurled stones, thereby significantly endangering himself as well as passersby.” He adds that the soldiers sought to “locate the boys’ parents and to transfer the child to the care of the Palestinian authorities.” He also notes that the soldiers erred in detaining the father, whom they handcuffed and whose eyes they covered “before the two were released to the custody of the Palestinian police and in the absence of any suspicion justifying the above measures.”
Ben Barak also refers to the reaction of GOC Central Command Major General Nitzan Alon to the incident, and to the claim that the soldiers took inappropriate actions in the Hebron episode. Ben Barak emphasizes in his letter that Maj. Gen. Alon wanted “to make it crystal clear to his soldiers that the above actions were unworthy, especially since the child was very young and especially since the father had already been found.”
B’Tselem’s Montell responded to Col. Ben Barak’s statements with a letter sent in copy to Military Advocate General Danny Efroni. In the letter, Montell states that, in the actions undertaken by the soldiers, there were “fundamental and grave errors indicating total failure in the manner of their dealing with the child, whose young age was so obvious. Thus, I was surprised to discover that you are justifying the soldiers’ actions in this incident.”

Link - Haaretz