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April 12, 2016
Amid heightened violence in the fall of 2015, the number of Palestinian children in Israeli prisons skyrocketed to the highest it has been since February 2009. By the end of December, 422 Palestinian children were in the Israeli prison system. Among them were 116 between the ages of 12 and 15, the highest known total since January 2008 when the Israel Prison Service began sharing data.
Palestinian children in the occupied West Bank, like adults, face arrest, prosecution, and imprisonment under an Israeli military detention system that denies them basic rights. Military law has applied to Palestinians in the West Bank since 1967, when Israel occupied the territory following the Six Day War. Israeli settlers, however, who reside within the bounds of the West Bank, in violation of international law, are subject to the Israeli civilian legal framework. Accordingly, Israel operates two separate legal systems in the same territory.
Estimates place the number of Palestinian men, women, and children convicted in Israeli military courts in excess of 700,000, according to UN sources. The U.S. State Department's 2014 human rights report on Israel states that military courts have more than a 99 percent conviction rate for Palestinian defendants.
Israel has the dubious distinction of being the only country in the world that systematically prosecutes between 500 and 700 children in military courts each year. Since 2011, Israel has held an average of 201 Palestinian children in custody each month, according to data provided by the Israel Prison Service.
Ill-treatment in the Israeli military detention system remains “widespread, systematic, and institutionalized throughout the process,” according to the UN Children’s Fund (UNICEF) report Children in Israeli Military Detention Observations and Recommendations.
Defense for Children International – Palestine (DCIP) collected affidavits from 429 West Bank children detained between 2012 and 2015 that three-quarters of them endured some form of physical violence following arrest. In 97 percent of the cases, children had no parent present during the interrogation or access to legal counsel. Israeli police also did not properly inform them of their rights in 84 percent of the cases.
Interrogators used position abuse, threats, and isolation to coerce confessions from some of these children. DCIP documented 66 children held in solitary confinement, for an average period of 13 days, during the reporting period. In 2015, Israeli authorities held Abdel-Fatah Ouri, 17, in isolation for 45 days. More than 90 percent of children held in solitary confinement provided a confession.
Recent amendments to Israeli military law concerning children have had little to no impact on their treatment during the first 24 to 48 hours after an arrest, when most of the ill-treatment occurs at the hands of Israeli soldiers, police, and the security service.
Israeli military court judges seldom exclude confessions obtained by coercion or torture, even those drafted in Hebrew, a language that most Palestinian children do not understand. In fact, military prosecutors rely, sometimes solely, on these confessions to obtain a conviction.
Children most commonly face the charge of throwing stones – 235 out of 297 cases closed by DCIP attorneys between 2012 and 2015 involved at least one count of the offense – which carries maximum sentences of 10 or 20 years, depending on the circumstances.
Children must appear before a military court judge within 24 to 96 hours after their arrest, depending on their age. For most, this serves as the first time they see a lawyer and their family.
Many children maintain their innocence, but plead guilty – most receive plea deals of less than 12 months – as the fastest way to get out of the system. Trials, on the other hand, can last a year, possibly longer, during which children remain behind bars as the military courts deny bail in the majority of cases.
Israeli authorities transfer nearly 60 percent of Palestinian child detainees from occupied territory to prisons inside Israel in violation of the Fourth Geneva Convention, according to Israel Prison Service data. As a practical consequence, children have limited family visits as parents struggle to obtain entry permits to Israel.
Palestinian children living in the West Bank might sometimes envy their East Jerusalem peers for their relatively higher levels of freedom of movement and enshrined legal rights. The latter of these is particularly salient as Palestinian children living in Jerusalem are generally entitled to trials in Israeli civilian courts.
The legal distinctions between East Jerusalem and the West Bank trace back to 1967, when Israel captured that part of the city and declared all of Jerusalem its “indivisible” capital. Since then, Palestinian children who happen to live in Jerusalem fall under Israeli civilian law.
The legal gap between Palestinian children in the West Bank and Jerusalem expanded further—at least, in theory—when Israel amended the 1971 Youth Law (Adjudication, Punishment and Methods of Treatment) in 2008. The amendments promised new protections for children, including East Jerusalemites, in conflict with the law during the entire process— arrest, transfer, interrogation, and trial. These safeguards included the use of arrest as a last resort, advance notice before questioning takes place, minimal use of restraints, and the presence of a legal guardian or adult family member during questioning.
Given the prescribed differences in these two legal systems, one would logically expect fairly different rights outcomes for Palestinian children in conflict with the law based on whether they live in Jerusalem or the West Bank. At least on paper, Palestinian Jerusalemite children are entitled to more protections than West Bank youth.
However, data compiled by DCIP found that, in practice, Palestinian children in Jerusalem are not enjoying their enshrined rights. Out of 65 cases documented by DCIP in 2015, more than a third of Jerusalem youth were arrested at night (38.5 percent), the vast majority (87.7 percent) were restrained during arrest and only a slim minority of children (10.8 percent) had a parent or lawyer present during interrogation.
In fact, in the last year, East Jerusalem children suspected of committing criminal offenses saw rights violations in several categories at comparable rates to West Bank children. For example, cases documented by DCIP showed 69.2 percent of detained Jerusalem children suffered some form of physical violence at the hands of Israeli forces compared to 74.5 percent of West Bank children. For night arrest cases, there was nearly no difference between the two groups.
Although they had better outcomes than their West Bank peers along a few axes, such as rights notifications and access to a toilet between arrest and interrogation, they also suffered much higher rates of position abuse during interrogation.
As a whole, it is apparent that Israeli civilian laws, when applied to Palestinian children from Jerusalem do not approach “guarantee” rates. DCIP analysis found that this is because Israel over-applies the exception clause of its Youth Law to Palestinian children—meaning that for East Jerusalem children, the exception is the rule.
In December 2015, Israeli authorities approved a six-month administrative detention order for a 17-year-old youth from Jerusalem, Mohammad Hashlamoun. Up until October 2015, DCIP had never documented cases of administrative detention for Palestinian children from East Jerusalem. That month, the measure was used against three East Jerusalem youth. Administrative detention is the imprisonment of individuals by the state for prolonged periods without charge or trial.
Mohammad was arrested from his home in the Ras al-Amoud neighborhood of Jerusalem around 2 a.m. on December 3, 2015. He was denied access to an attorney, and subjected to repeated prolonged interrogation sessions while being held in solitary confinement for 22 days. He denied accusations that he was planning to carry out unspecified future attacks, even when the interrogator threatened to have his family home demolished.
“The last time I appeared in the magistrates’ court in Jerusalem, the court decided to release me on bail,” Mohammad told DCIP. “But before my family could post the bail, an intelligence officer came to the detention center and asked me to sign a document stating that I had received an order of administrative detention.”
The administrative detention order against Mohammad will expire on June 20, 2016. However, the Emergency Powers Law of 1979 permits the administrative detention of any person in Israel for a period of up to six months, subject to indefinite renewals.
Between October 2015 and February 2016, Israeli authorities also placed four Palestinian teenagers from the West Bank under administrative detention. Israeli Military Order 1651 permits a military commander to issue an administrative detention order for a period of up to six months, subject to indefinite renewals.
The most recent order was against the youngest of the children, 15-year-old Abdul-Rahman Kmail, from Jenin. An Israeli military court confirmed his administrative detention order on February 16, but reduced the period from six months to four.
These cases mark the first time Israel has used the measure against Palestinian children in the West Bank since December 2011.
Arresting children from their homes in the middle of the night, abusing them during arrest and interrogation, and systematically denying them basic fair trial guarantees works to stifle dissent and control Palestinian families and communities throughout the occupied West Bank, including East Jerusalem.
There is a notion that Israeli military courts are "broken" and can be improved or “fixed.” This mistakenly presumes that the Israeli military detention and court system is interested in administering justice. In Jerusalem, increased legal rights have done little to increase protections for Palestinian children.
As Palestinian children continue to experience widespread ill-treatment and torture and the systematic denial of due process rights, it becomes evident that a system of control is masquerading as justice.
*Defense for Children International – Palestine is an independent, local Palestinian child rights organization dedicated to defending and promoting the rights of children living in the West Bank, including East Jerusalem, and the Gaza Strip. For 25 years, we have investigated, documented and exposed grave human rights violations against children; held Israeli and Palestinian authorities accountable to universal human rights principles; and advocated at the international and national levels to advance access to justice and protection for children. We also provide direct legal aid to children in distress.
For more information, please visit our No Way to Treat a Child campaign website: nwttac.dci-palestine.org.