Israeli Juvenile Military Court – four months on

On 29 July 2009, the Israeli military commander in the West Bank, Gadi Shamni, issued Military Order 1644 purporting to establish a juvenile military court. The order came into effect on 1 October 2009, and has now been in operation for four months.

Summary

Since coming into effect on 1 October 2009, lawyers for DCI-Palestine have noticed few substantive changes to the procedures in the military courts other than that children are now generally (but not always) tried separately from adults. No other significant discernable changes have occurred in the practice or procedure of the military courts in relation to juveniles.

Background information

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, the Israeli military commander issued Military Order 1644 purporting to establish a juvenile military court. This attempt to incorporate juvenile justice standards within the military court system has been met with concern by the UN Committee on the Rights of the Child during its 53rd session in January 2010.

Each year approximately 700 Palestinian children, some as young as 12 years, are prosecuted in the Israeli military court system. The most common charge is for throwing stones.

Implementation of Military Order 1644

Three judges have been appointed from the existing ranks of military judges to adjudicate in the ‘juvenile military court’. One judge has been appointed to Ofer Military Court (near Ramallah), and two judges have been appointed to Salem Military Court (near Jenin). In addition to their new role, these judges are still hearing cases involving Palestinian adults. It is not clear what juvenile justice training the three military judges have received. Lawyers for DCI-Palestine have been monitoring the implementation of Military Order 1644, and can report as follows

• Children are still being transported from Israeli detention facilities with adults, but are generally being kept separately from adults in the court precincts, but in the same conditions.
• Children are still being brought before adult military courts up until, and including the hearing to determine whether the child remains in detention until the end of the legal process (‘extension of detention’ hearings). It is only after the extension of detention hearing that children are brought before the ‘juvenile military court’. No ‘juvenile judges’ have been appointed to the military court of appeal.
• No new court facilities have been established. Cases involving Palestinian children are being heard on Mondays and Thursdays in the same military courts that hear cases involving adults. The children are kept in a penned area, the court is staffed by military personnel and the military judge sits on a raised platform as in adult cases.
• Children are still being brought into the court room with their legs shackled, wearing the same brown prison uniforms issued to adults.
• Children are still being brought into the court room in groups of up to three in unrelated cases.
• On Monday, 1 February 2010, it was observed by lawyers for DCI-Palestine, that a 16-year-old boy was brought into court with one 18-year-old and one 19-year-old young adult. In general however, it has been observed that Palestinian children between the ages of 12 and 15 are being tried separately from adults. No amendment has been made to Military Order 132 which fixes the age of majority for Palestinian children at 16 years.
• Military Order 1644 provides for the appointment of a Probation Officer after sentencing to prepare a report on the child’s circumstances which can be taken into consideration by the court. This new procedure has not been used by DCI-Palestine lawyers as it is anticipated that delays in obtaining the report would result in the child remaining in detention for a longer period.

Court observation

On 1 February 2010, DCI-Palestine representatives attended the sitting of the ‘juvenile military court’ in Ofer between 10:00am and 12 noon. During this period, 14 cases of juveniles and young adults were brought before the court.

• Children were brought into the courtroom in groups of two or three at a time, with their legs shackled.
• Lawyers for the children were seen taking brief instructions inside the courtroom.
• Three of the children were clearly agitated, with one 16-year-old boy observed rocking back and forth and banging his head on the rail in front of his seat. At no time did the ‘juvenile judge’ enquire into the wellbeing or treatment of any of the children. One of the children’s lawyers informed the court that the child was being beaten in prison by other detainees. This statement was made in the presence of another detainee. The judge did not respond to this statement.
• Proceedings were conducted in Hebrew with translation provided by a soldier.
• In the case of one 15-year-old boy accused of throwing stones, the judge said that she would accept his plea bargain because he was a child, that he was ‘lucky’ to receive a light sentence and should not throw anything, ‘including flowers’, again. This last comment generated audible amusement amongst the military personnel in the court room. The child was sentenced to three-and-a-half months imprisonment with a further 10 months suspended for four years and a fine of NIS 2,000. In the event of non-payment of the fine, the child would serve an additional two months in prison.
• No physical contact whatsoever was permitted between parents and children.

Recommendations

No child should be prosecuted in military courts which lack comprehensive fair trial and juvenile justice standards. DCI-Palestine recommends that as a minimum safeguard in the light of consistent reports of mistreatment and torture, that the Israeli authorities:

1.     Ensure that no child is interrogated in the absence of a lawyer of their choice or family member;

2.     Ensure that all interrogations of children are video recorded;

3.     Ensure that all evidence suspected of being obtained through ill-treatment or torture be rejected by the military courts;

4.     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. For further information please see DCI-Palestine’s latest report on Palestinian child prisoners.

Related links:

• Unofficial translation of Military Order 1644

Committee on the Rights of the Child – Concluding Observations (53rd Session – January 2010) – Optional Protocol to the Convention on the Rights of the Child on the involvement of Children in Armed Conflict