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On 29 July 2009, Gadi Shamni, the Israeli military commander in the West Bank, issued Military Order 1644 relating to juveniles.
For the past 42 years, Palestinian children have been tried in the same military courts as adults, even though Israel is a signatory to the UN Convention on the Rights of the Child which promotes the establishment of specialised juvenile courts (see Article 40(3)). After years of criticism, most recently by the UN Committee Against Torture, the Israeli military commander has now acknowledged the requirement for a child specific jurisdiction with the issuance of Military Order 1644.
DCI-Palestine is of the view that children should not be tried in military courts with minimal fair trial guarantees and has a number of particular concerns regarding Military Order 1644 and the treatment of Palestinian children in the Israeli military legal system. DCI-Palestine’s concerns include the following:
Palestinian children are still being interrogated in the absence of a lawyer or family member. The overwhelming majority of these children report being mistreated and forced into providing confessions during interrogation. These interrogations are still not being video recorded, as recommended by the UN Committee Against Torture in May 2009.
Military Order 1644 provides for the appointment of ‘juvenile judges’ by the Military Court of Appeal. These ‘juvenile judges’ are themselves, military court judges who ‘must be prepared to be competent for the post’. No further information is provided to shed light on how it is anticipated these military court judges are suitably qualified to adjudicate cases involving 12 year old children.
Military Order 1644 exempts all hearings to determine whether a child should be kept in pre-trial detention until the end of the legal proceedings from the requirement of having to be heard before a ‘juvenile judge’.
Much of the language used in Military Order 1644 is discretionary in nature, not mandatory. For example, the ‘juvenile military court’ must convene in separate rooms ‘as much as possible’ and children must not be brought to the court, or detained with adults, ‘as much as possible.’
It must be recalled that over 700 Palestinian children are prosecuted in Israeli military courts each year and the most common charge is throwing stones, including throwing stones at the Wall. The changes proposed by Military Order 1644 appear to lack substance.
As a minimum safeguard, DCI-Palestine continues to call upon the Israeli authorities to:
Ensure that no child is interrogated in the absence of a lawyer of their choice or family member;
Ensure that all interrogations of children are video recorded;
Ensure that all evidence suspected of being obtained through ill-treatment or torture be rejected by the military courts;
Ensure that all credible allegations of ill-treatment and torture be thoroughly and impartially investigated and those found responsible for such abuse be brought to justice.
DCI-Palestine lawyers will continue to monitor developments in the military courts.