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Military justice - Paying lip service to the rule of law

[18 July 2013] – On Monday, 15 July, an Israeli military court judge handed down a verdict in the case of a 15 year-old Palestinian boy accused of throwing stones at Israeli cars during a demonstration in the West Bank. Nery Ramati, a lawyer with Gaby Lasky and Partners, represented the boy in Ofer Military Court. In his written decision, Judge Major Shahar Greenburg was highly critical of the manner in which Sergeant Major Solomon Desta, an Israeli police investigator stationed in Hebron, conducted the investigation. During the course of the trial the evidence revealed that:

·      The police investigator verbally threatened child co-accused in the case;
·      The investigator coached a number of children to incriminate their peers;
·      The boy was not interrogated by a certified youth investigator;
·      The police investigator was not fluent in Arabic;
·      Although the interrogation was audio recorded, it was not videotaped;
·      Children continue to be interrogated whilst extremely tired;
·      The boy was interrogated in the absence of a parent; and
·      The police notes were incomplete and failed to mention that the boy initially denied the accusation.
The evidence against the boy consisted of his own confession, and that of three other children. The three other children all claimed that they had been beaten and threatened during questioning before the audio-tape was switched on. The judge rejected the confession of one child who was also threatened with physical violence whilst the audio-tape was switched on, but accepted the confessions of the other children. Judge Greenburg went on to add that: “When dealing with a minor being questioned for the first time by police, without his family present, the imposing atmosphere of an interrogation with shouts every time the suspect did not respond to the investigators questions in fulfillment of the investigator’s expectations, raises serious questions regarding the reliability of the confession.”
However, having detailed numerous defects in the investigation, Judge Greenburg found the boy guilty and sentenced him to nine months imprisonment.
As the treatment of children in Israeli military detention comes under greater scrutiny, a trend is emerging whereby military court judges are prepared to be highly critical of the manner in which the police interrogate children, but nevertheless find the child guilty. In 2012, Judge Major Sharon Rivlin Ahai accepted incriminating evidence from a 14-year-old boy even though she found that:
·      The boy was interrogated whilst sleep deprived;
·      He was prevented from consulting with a lawyer;
·      He was interrogated in the absence of a parent;
·      He was not properly informed of his right to silence; and
·      Only one of the four interrogators was appropriately trained.
These cases illustrate a willingness by military court judges to pay lip service to the rule of law, but fail to follow through and reject all illegally and improperly obtained evidence. This partly explains how the courts manage to obtain a conviction rate of over 99 percent, and as a result, there is little incentive for the police to conduct their investigations in a lawful manner. Israeli military law fails to provide Palestinian children with many of the rights and safeguards enjoyed by Israeli children living in settlements in the West Bank. This form of institutionalised discrimination must be eliminated as a matter of urgency and all children subject to Israeli penal jurisdiction must be treated with equality under the applicable laws.
1.     No child should be interrogated before he/she has consulted with a lawyer of his/her choice;
2.     No child should be interrogated in the absence of a parent;
3.     All interrogations must be audio-visually recorded; and
4.     A breach of any of these recommendations should result in the child’s immediate release.