Presentation on “Protection of Child Prisoners in Israeli Prisons under International Law.”

AL AWDA NATIONAL CONFERENCE RISING TO RETURN

NYC MAY 2022

LAW FOR PALESTINE

BY: HIBA BIRAT

EDITED BY: RACHEL MARANDETT

This is a summary of Law for Palestine Executive Director’s, Hiba Birat, presentation on “Protection of Child Prisoners in Israeli Prisons under International Law.” The presentation took place at the Al-Awda National Conference “Rising to Return” that was conducted in New York City from May 6-8, 2022. The conference was organized by Al-Awda: The Palestine Right to Return Coalition.

Since the year 2000, Israel has imprisoned more than 12,000 Palestinian children most of whom were charged with stone throwing, an act that is punishable under Israeli military laws by up to 20 years in prison. Palestinian children are tried in military courts and denied their basic rights. They experience different kinds of cruelty including, but not limited to, physical beating, sexual assault, verbal abuse, strip search, lack of adequate healthcare, blind folding, denial of access to family and a lawyer, and forced confession.

The organization “Save the Children” said in a recent report that 9 in 10 Palestinian children imprisoned in Israeli prisons were verbally abused and 8 in 10 were physically abused.

Childhood is a critical time that shapes human development and thus is greatly affected by coercive environments such as armed conflicts, military occupation, apartheid, and colonialism. However, the Israeli military court system has no special interrogation procedures for children detained in Israeli prisons. This system is not regarded as a comprehensive legal system, rather as a judicial arm of occupation, emphasizing security rather than justice.

Legal Framework for Child Protection under International Law:

Palestinian children are affected by the Israeli occupation of the OPT in several ways. Indirectly, they are harmed by a system of recurrent and systematic human rights violations against their families, communities, and people in general. Directly they are deprived of their basic human rights, freedom of movement, liberty, education, dignity, and life.

As of the end of 2021, 160 Palestinian children were detained in the Israeli military prison system. An average of 700 Palestinian children were arrested, interrogated, detained, prosecuted, and sentenced through Israeli courts each year, the majority for throwing stones.

Under international law, children benefit from rules that provide protection to both general civilians and civilians categorized as vulnerable groups to whom a state (here Israel) owes a special duty of protection under both international humanitarian law (IHL) and international human rights law (IHRL). For example, under both the International Convention of the Civil and Political Rights (ICCPR)and the Convention on the Rights of the Child(CRC), children have the right to a fair trial. This right, however, is consistently violated by Israel prosecuting Palestinian children in military courts rather than special juvenile courts. In addition to the IHRL rules in the ICCPR and CRC, the right to fair trial for children can be tracked in IHL to article 50 of the 4^th Geneva Convention on the Protection of Civilians in times of Armed Conflict and article 77 of the 1^st protocol of 1977 additional to the 4 Geneva Conventions.

Article 37 of the CRC, which prohibits arbitrary detention, is of a special importance here. It requires that a child only be deprived of his/her liberty as a last resort and for the shortest appropriate period of time. Together with article 40, article 37 lists a number of safeguards and procedures to be followed during detention of a child including, but not limited to, prohibiting torture, cruel, inhuman, and degrading treatment or punishment, granting access to lawyer, maintaining contact with family, being separated from adults, not being compelled to give testimony or to confess guilty, and notifying the child and his parents who should be present throughout the proceedings.

Overview of the Israeli Military Court System’s Practices of Child Detention: 

Under mandate of general military orders any police officer, security personal, or soldier has the power, without needing to obtain a warrant, to arrest any Palestinian child if they suspect he or she has committed an offence.

There is no proportionality in the treatment of children throughout detention experience. Children consistently receive very high sentences for minor offences such as throwing stones, without taking into consideration prevalence and severity of physical injury resulting from the action. Specifically, under military order 1651 article 212, children can receive up to 20 years in prison for throwing stones into a moving vehicle or 10 years for throwing stones at stable objects. Furthermore, Palestinian children’s sentences are decided based on the child’s age at the time of the sentence rather than at the time of committing the alleged offence.

Children under Israeli military orders are treated as guilty until proven innocent with Israeli military courts having more than 99% conviction rate of Palestinian defendants. Through the process Palestinian children are denied due process rights and sufficient safeguards. They are victims of apartheid and are usually transferred to Israeli prisons out of the occupied Palestinian territories, which goes against article 76 of the 4^th Geneva Convention.

Although military order 1644 of 2009 established a separate military court for children ending 42 years of them being tried in same courts as adults, the order failed to correct other deficiencies in the system such as lack of protections during interrogations. Ill-treatment is systematic and widespread throughout the detention process with children being consistently abused physically, verbally, and sexually.

Children’s detentions are also lengthy and frequently start at a very early age. Military order 1711 of 2013 permits detention of children 12–13 years old for a period of 24 hours before being referred to the court. 14-15 year olds can be detained for a period of 48 hours with the possibility of extension to 96 hours for interrogation by police not judges. 16-18 year olds can be detained for 96 hours, the same period of time as adults.

Furthermore, preventive detention of children before submitting an indictment can be extended to 15 days while order 1726 of 2013 allows the military court of appeal to extend it for 10 days each time a total of 40 times!

Israeli Violations of Protections and Safeguards Granted to Children under International Law:

Israel ratified the CRC in 1991, obligating itself to implement protection and rights included in the treaty for all children within its jurisdiction. However, Israel appears to be violating its duties under CRC by discriminating against Palestinian children detained in its prisons, ignoring their best interest, adopting a premature resort to detention, maintaining policies of non-separation from adults, denying prompt access to lawyers, perpetrating physical and verbal abuse, transferring them outside the occupied territories, and failing other obligations to translate applicable laws.

Israel also violates the 4^th Geneva Convention by failing to provide fair trials or special protections and safeguards for children as civilians, including adequate healthcare and medical treatment.

A comprehensive list of Israeli violations against Palestinian children under international law is as follows:

1. Age of Majority: While article 2 of the UN CRC defines a child as every human being below the age of 18, Israeli military order 132 defined a child as any individual below the age of 16. Though this was later amended in 2011 to any individual below the age of 18, Israel still allows 16-18 year olds to be detained with adults and go through most of the process in same way and same facilities.
2. Non-Discrimination: Article 2 of the CRC required non-discrimination against children. However, Israel is implementing a system of apartheid on Palestinian children and treating them differently than Israeli children in same age.
3. Arbitrary Detention: Article 37 of the CRC prohibits arbitrary detention of children. However, Palestinian children are being detained arbitrarily on a regular basis
4. Prohibition of Torture: Many international treaties prohibit ill treatment and torture such as the ICCPR in its article 6 (5), CAT (the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment) and CRC article 37 (a). However, torture is systematically practiced on Palestinian children in Israeli detention facilities.
5. Notification and Reason of Arrest: Article 40 of the CRC requires that the child and his/her parents are notified promptly of the reason of arrest. However, Palestinian children and their families wait for several weeks in some cases to know what the reason of detention was.
6. Methods of Restraint: Article 37 of the CRC demands that every child deprived of his/her liberty be treated with humanity and respect for their inherent dignity in a manner that considers the needs of persons of his/her age. Under this article, restraint can be used only when the child poses immanent threat of injury to self or others and all other means of control have been exhausted. However, Palestinian children are consistently imprisoned for many years for minor offences or for the mere suspicion of intention to commit such offences.
7. Presumption of Innocence: Article 40 of the CRC and article 14 of the ICCPR demand that every child alleged to have infringed the penal law must be presumed innocent until proven guilty according to the law. However, the Israeli judicial system treats children as guilty until proven innocent, resulting in a 99% conviction rate in military courts.
8. Right against Self-Incrimination: Article 40 of the CRC reads that no child can be compelled to give testimony or to confess guilty. However, Palestinian children are compelled to confess and incriminate themselves under torture and threats.
9. Right to Legal Counsel and Presence of Parents: Article 40 of the CRC also requires that the detaining power grant detained children access to a lawyer and the right for his/her parents to be present throughout the process. This too is a right that Palestinian children are consistently deprived of.
10. Pre-Trial Detention: Article 37 of the CRC states that the arrest, detention, or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort, for the shortest appropriate period of time. Yet, Israel fails to conform with these requirements in their treatment of child detainees.
11. Prompt Appearance before Judge/Independent and Impartial Authority in a Fair Hearing: Article 40 of the CRC and articles 9 and 14 of the ICCPR require that a child has the right to have their case determined without delay by a competent, independent, judicial body in a fair hearing under the law. As mentioned before, Palestinian children are tried before military courts in lengthy proceedings and without any protections or safeguards.
12. Sentence of Detention: Articles 37 and 40 of the CRC demand that sentences of detention are used only as a last resort and must be proportionate to circumstances, gravity of the offence, age, and needs of the child. However, Palestinian children are consistently handed disproportionately long detention sentences.
13. Family Visits: Article 37 of the CRC also requires that every child have the right to maintain contact with his/her family through correspondence and visits except in exceptional circumstances. Yet, Palestinian children are frequently barred from keeping in contact with their family members.
14. Review: Article 25 and 40 of the CRC require that detention reviewed periodically to determine if early release is possible. However, this right is not always given to Palestinian children detainees.

Overall, it is clear that Israel fails to adhere to international juvenile justice system standards laid out by the CRC and guided by two fundamental principles: that the best interest of the child be the primary concern in making decisions that affect him/her and that children only be deprived of their liberty as a last resort for the shortest appropriate period of time.

Palestinian Children are Victims of an Apartheid System Prohibited under the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973:

In its article 2, the Apartheid Convention of 1973 prohibits arbitrary arrest and illegal imprisonment of members of racial group to maintain a system of racial domination. This also constitutes a crime against humanity according to article 7 of the Rome Statute. While Palestinian children go through oppressive military court system, Israeli children who unlawfully reside in the West Bank are subject to Israeli civilian legal framework. Israeli children have access to lawyers and are detained for a shorter periods than Palestinian children, while enjoying a variety of safeguards and protections that Palestinian children do not.

Ahmad Manasra’s Case:

Ahmad Manasra was unlawfully detained for 7 years under horrific circumstances. When he was 13 he was arrested and interrogated without the presence of a lawyer or his parents. As a result of his prolonged detention, Manasra currently suffers from serious mental issues.

At first, Manasra was handed 12-year detention sentence for the attempted murder of two settlers in an illegal settlement in east Jerusalem that was later reduced to 9. However, Manasra did not take part in the attack. Instead, his cousin, who was also accused of stabbing an Israeli settler, was shot dead while Ahmad was brutally beaten and crushed by Israeli mob.

Recently, the terrorism charges against Manasra were dropped, but the parole committee continues rejecting review of his petition of early release due to his mental issues.

For many months Manasra, now 21, was held in solidarity confinement damaging his mental, physical, and psychological health.

Ahmad Manasra is an important case study for illustrating how Palestinian children are abused under the Israeli military court system.

– Keywords: Protection Child Prisoners Israeli | Protection Child Prisoners Israeli