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JURIST Guest Columnist Jason Hart, Lecturer at the University of Bath, argues that the Israeli military legal system discriminates against Palestinian children, often subjecting them to abuse and obtaining confessions under duress, violating their rights under international law...
Few locations around the globe attract as much attention or arouse as much passion as Israel and the Occupied Palestinian Territories (OPT). Comprehension of the systematic approach to the control of the native Palestinian population is essential for our appreciation of the challenges to the realization of Palestinian children's basic rights. The conventional portrayal of this setting as one of conflict in need of a negotiated peace settlement can be misleading. The notions of "conflict" denote enmity between two more or less equal partners, which is clearly not the case in Israel/OPT. The reality on the ground is better understood as one in which the forces of one population exercise control over every aspect of the lives of another. Whether in Gaza, East Jerusalem or the West Bank, Palestinians experience, as a matter of course, profound constraint over freedom of movement, access to basic services, family reunification, pursuit of livelihoods and a myriad of other restrictions. Such control is not exercised in a random fashion; rather it is built around a system of legal measures and practices first introduced by Israel in 1967. The impact is discussed in a report by Richard Falk, the UN Special Rapporteur on human rights for the West Bank and Gaza Stripreport, delivered to the UN General Assembly on October 20, 2011.
Following victory in the Six-Day War of 1967, Israel introduced a system of military administration to govern the Palestinian population in the newly-occupied West Bank and Gaza Strip. In the years since then, thousands of military orders have been issued. These orders do not concern Jewish settlers living in the OPT, who are instead subject to the regular Israeli legal system. Several of the military orders have direct and serious consequences for Palestinian children. Underlying all of these is Military Order 132 (MO 132), formulated in 1967, which provides the basis for treatment of Palestinian children by Israeli courts. According to MO 132 a Palestinian child is to be classified as follows: 12 and 13 year olds are "Youth," liable to up to six months' imprisonment; 14 and 15 year olds are "Young Adults," liable for sentences of six months to life, depending on charges. Children 16 and older are "Adults."
Stone throwing is defined under MO 378 as an offense for which the maximum sentence is 20 years. Like all offenses attracting a five-year-plus sentence, under MO 132 those accused of stone throwing are not entitled to normal consideration given to 14 to 16-year-olds ("Young Adults") and thus may be sentenced as adults. In sharp contrast to the treatment of settler children suspected of engaging in stone throwing, Palestinian children are liable to lengthy sentences under brutal conditions.
According to Defense for Children International/Palestine Section (DCI/PS), since the year 2000, more than 7,000 Palestinian children have been arrested and at any one time there are roughly 300 to 350 in detention. Falk's recent report to the General Assembly provides further detail on the manner of arrest and the conditions of detention. It is worth adding that under MO 378 and 1226 the reasons for arrest and detention are not revealed to the accused or his/her lawyer at any point in the process of detention or trial. In many cases the prosecution's case rests upon a signed confession which, it is frequently argued, has been extracted from the accused child under duress, a practice enabled by the exclusion of lawyers or other accompanying adults from interrogation processes. Such confessions are commonly written in Hebrew, which most Palestinian children are unable to comprehend.
The treatment of Palestinian children within the Israeli military legal system has been criticized by the UN Committee on the Rights of the Child (UNCRC) on the last two occasions that Israel presented reports as part of its obligation as State Party to the UNCRC. The latter of these occurred in late 2009, early 2010 when the Israeli government rejected such criticism on the following grounds: "Israel's position on the inapplicability of the Convention on the Rights of the Child beyond its territory has been presented to the Committee on previous occasions. Israel's position in this regard remains unchanged." Clearly not persuaded by this response, the committee recommended in its concluding observation that the Israeli authorities take the following steps: "The Committee reiterates its recommendation that the State Party rescind the provision of Military Order No. 132 concerning the definition of the child and ensure that its legislation conforms to the Convention on the Rights of the Child in this regard."
Meanwhile, large numbers of Palestinian children continue to suffer ill treatment within a justice system that is profoundly discriminatory. This is a clear example of what Falk refers to as "a dual and discriminatory administrative and legal system." Israel has not shown any intention of acting in accordance with the committee's recommendation. Indeed, the argument that the government of Israel is not bound to abide by the UNCRC in respect to Palestinians in the OPT, since this is land "beyond its territory," is one that it has used repeatedly to justify various aspects of the military justice system that are in violation of international law. It is an unconvincing argument on many counts, not least of which is the fact that four of the five prisons [PDF] to which Palestinian children are routinely held are situated within the internationally recognized borders of the State of Israel.
Jason Hart is a Lecturer in the Department of Social and Policy Sciences of the University of Bath. Holding a PhD in social anthropology, his research has focused on children living in situations of political violence and forced displacement. Hart was previously a lecturer at the Refugee Studies Centre, University of Oxford. He is co-author of a recent briefing paper published by the University of Oxford, "Protecting Palestinian children from political violence: the role of the international community."
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