Updates

Two recent stories in the Australian newspaper by Middle East correspondent John Lyons – “Stone cold justice” (Weekend Australian Magazine, Nov. 26) http://tinyurl.com/6puavp9 and “Rudd seeks action on torture allegations involving Palestinian children” (Australian, Dec. 17) http://tinyurl.com/6rdzqjr – have generated a degree of controversy about Israel’s judicial treatment of Palestinian minors in the West Bank accused of using stones and rocks as weapons.

On Dec. 3, the Australian published an opinion piece from NGO Monitor’s Gerald Steinberg that provides context for the treatment of Palestinian minors and largely disputes the substance of the claims made in Lyons’ stories. Steinberg’s article can be read here – http://tinyurl.com/7m6j3wf.

In a comment provided to the Australian Jewish News on the issue, AIJAC’s Executive Director Dr Colin Rubenstein said:

“While AIJAC, together with others, awaits additional clarifications from the Israeli authorities on the details of some of the allegations made in the Lyons story in The Australian- and concern by Australians for the welfare of children is understandable and commendable- the reported call for Australian diplomatic interventions by Foreign Minister Kevin Rudd is somewhat confusing. For example, as Israeli Foreign Ministry Spokesperson Yigal Palmor has already explained, Israel is obliged under international law to apply to the West Bank the legal system that was in place before it became occupied in 1967, so it is therefore neither surprising, nor a cause for outside international concern, that the rules for minors accused of offenses there are different to those in Israel proper.

Furthermore, much of the attention devoted to this whole issue seems to be driven by the NGO, Defence of Children International (Palestine), which, it seems clear, has an anti-Israel political agenda and is employing ostensible concerns about children primarily as a means to that end. We hope the Foreign Minister will also call for an investigation into the other side of the problem of Palestinian minors accused of violent acts – the exploitation and indoctrination of children by both Palestinian terror groups and by the Palestinian Authority official education system and media. This is the root cause of the acts that sees Palestinian minors jailed, and Israeli civilians, including children, injured or killed. Furthermore, we would hope that any investigation should ensure that none of the considerable Australian aid assistance to both the Palestinian Authority and Palestinian NGOs is contributing to this indoctrination or exploitation of Palestinian children.”

In an attempt to shed some light on the facts, AIJAC has prepared this background document below which includes material provided by Israel’s Ministry of Foreign Affairs and the Israeli Defence Forces.

An analysis of Israel’s legal process regarding Palestinian minors accused of using stones as weapons in the West Bank *

This document looks at the Israeli legal process regarding Palestinian minors in the West Bank (hereinafter, the “Area”) accused of using stones as weapons, including a specific analysis of a recent two month period, August and September 2011.

1. The laws in Israel and the laws in the Area

Under international law in general, and Article 43 of the Fourth Hague Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907, in particular, there is no duty that the legal system governing the Area, under belligerent occupation, mirror that of the occupying power. In fact, the opposite is true, changes to the existing legal regime are specifically limited. Thus, it is appropriate and even natural that the legal systems should be different and independent.

Despite this, the State of Israel invests significant time and resources to improve all aspects of minors’ interactions with the law enforcement system. These conditions remain subject to the disparate and exceptional circumstances which exist in the Area.

2. The ideology of hate and stone throwing

Despite the changes in military legislation in the past few years, a number of dilemmas remain for Israel, given the specific nature of offenses that tend to take place in the Area. Unlike criminal trends of juveniles in most societies, many crimes carried out by minors in the Area are of a violent, ideological nature and pose a clear and imminent threat to the public. In fact, over 70% of charges against minors in the military courts are charges of a violent nature.

The prominence of ideological motives as the basis of criminal activities in general and juvenile crimes specifically is a common phenomenon. A recent notable case involving a minor perpetrating a crime out of ideological hatred was the massacre of the five members of the Fogel family, including a three-month-old infant and two young children, committed by 17-year-old Hakim Awad and his accomplice. Regretfully, this case is not unique, and other minors have perpetrated several suicide bombings resulting in the deaths of dozens of victims.

These crimes reflect a complex reality of hatred, violence and criminal activity often carried out by minors. 82% of all the indictments in August and September 2011 involved disruption of public order or terrorist actions – offenses that are ideologically motivated. 16 cases brought before the Military Prosecutor in August and September 2011 included alleged terrorist activity, including five cases of attempted murders.

At the same time, there has been a reduction in cases involving potentially-lethal offences such as murder and terrorist activity. In 2009 and 2010, the court tried 145 and 138 charges, respectively, involving potentially lethal crimes, whereas in 2011 only 18 such charges were pleaded before the court.

That is certainly a positive trend on all sides.

Another dilemma faced by Israel is that as opposed to most societies in which parents and family members are perceived as the key to the rehabilitation of minors, family members of Palestinian juvenile offenders who commit ideologically-based violence against Israeli civilians or soldiers, sometimes tend to encourage such behavior on ideological grounds.

There have been some shocking cases where parents use their minor children to assist in carrying out terror attacks. A recent case that was brought before the Court focused on a minor that assisted his father to facilitate the execution of a terror attack in which a British tourist was murdered in February 2011 (4697/11 (Judea) Military Attorney v Razek Habin Ali Kawasama).

Additionally, there are unique operational difficulties in the Area. Security forces often have limited access and significant dangers exist for security officials, which impact the manner in which arrests are carried out in Palestinian cities. Options such as house arrests are not readily available, nor are suspects generally responsive to court summons. Finally, the reality of limited cooperation of potential witnesses and defendants and the need to protect the lives of human sources of intelligence may occasionally prolong arrest periods or the duration of a proceeding.

Despite the unique dilemmas in the dealing with minor suspects in the Area, Israel makes significant efforts to provide for just and fair treatment of minors throughout the entire military legal process in accordance with international standards. Israel continually reviews its military criminal justice system for minors and will continue to analyze the overall trends and specific cases within its system to balance out various interests and to match, as much as possible, the standards of both Israeli domestic laws and of other military legal systems.

3. Age of minors

Of the 51 indictments submitted by the Military Prosecutor in August and September 2011, only one involved a 13-year-old child; 7 cases involved 14-year-olds; and 5 cases involved 15-year-olds; while the remaining 38 cases were submitted against defendants 16 and 17 years of age.

4. Stone throwing offences

Throwing of stones (which includes small rocks) is an offense that can have lethal outcomes. An unfortunate example of the lethal potential of stone-throwing is the recent murder of Asher Palmer and his infant son, Jonathan, on 23 September 2011. This murder was caused by a stone thrown at their car. The case in this matter is currently pending before a military court, 5347/11 (Judea) Military Prosecutor v. Ali Abed Alhadi Ismail Saada.

Clearly, stone throwing constitutes an offence with significant potential damage. Stone throwing is often carried out by young minors and is a legally complicated offence due to the availability of the weapon, the simplicity of its use and the often easy escape from the scene of the crime. Proving the identity of a suspect is also often difficult, as the offence tends to be carried out from within large crowds.

In 2011, 222 cases of stone throwers were brought before the military court. Out of the 51 cases brought to the Military Prosecutor in August and September 2011, 21 cases involved throwing of objects and stones by minors (10 of these cases were by minors under the age of 16). In 13 cases, objects were thrown at transportation routes endangering motor vehicles. In six of those cases, the suspects were charged with causing actual damage to vehicles.

5. Arrest of minors

a. Duration of initial detention: The duration of the initial detention of a minor under the age of 16 is determined by the Military Prosecutor or by his deputy. If the prosecution decides to issue an indictment, it is to be issued as early as possible and preferably within the initial period of detention.

In August and September 2011, the police received prior approval for initial arrest in every case requiring approval of the Military Prosecutor.

b. Time before being brought before a judge: While legally, the Military Prosecutor has significant discretion regarding the time before a minor appears before a judge, in the majority of cases this period does not exceed 24-48 hours. Out of the 12 cases in which minors under 16 were arrested under the Military Prosecutor approval in August and September 2011; seven minors were brought before a judge within 24 hours; three minors were brought before a judge within 48 hours; and two minors (who were arrested on Thursday nights and had to wait for the courts to open on Sunday morning) were brought before a judge within 72 hours.

c. Issuing of an indictment: The average time for the Military Prosecutor to issue an indictment in August and September 2011 was seven days from the moment of initial arrest.

6. Investigations of minors

a. Video and audio recordings: Investigations of minors are carried out in the Arabic language. The vast majority of investigations are recorded, most by video and others by audio recording. Out of the 51 cases brought to the Military Prosecutor in August and September 2011, in 48 of these cases either a video or audio recording of the investigation or a written record in Arabic was maintained. Of the remaining three cases, two suspects were released without the issuance of an indictment, and in a third case the recording suffered technical problems.

b. Presence of an attorney during the investigation, detention hearings and primary criminal proceedings: Both Israeli law and the military legal system require the investigator to inform a suspect prior to the investigation of the right to consult with an attorney in a language understood by the suspect. During August and September 2011, all minor suspects had legal representation in legal proceedings before the courts.

7. Proceedings in Military Courts

a. Military Court Judges: Military Court judges are independent, impartial and professional. The military courts are not a part of the IDF hierarchy, but rather represent the State of Israel’s judicial authority inside the military. Military courts tend to be consistent in their judgments and committed to basic legal principles such as the rights owed to defendants and to minors in particular.

b. Duration of proceedings: The Military Court has conducted an in-depth analysis of the average duration of minor cases in the years 2007-2011 from indictment to the conclusion of proceedings. It found a 44% reduction in the average duration of proceedings that were closed in the observed period. In 2007, the average duration of proceedings was 167 days. A significant reduction took place when the Juvenile Military Court was established between 2008 (165 days) to 2009 (121 days). Over time, additional reductions in average duration of proceedings have been observed, to 105 days in 2010 and only 92.5 days in 2011. Of course, despite the Court’s efforts to speed up proceedings, in some cases defense attorneys have acted to delay hearings prior to agreeing to plea arrangements or other agreed resolutions.

c. Juvenile Military Court: Established on 29 July 2009 to protect the rights of minor defendants and guarantee adequate professional care for minor detainees, this court considers their welfare and best interests. In practice, the Court has applied new rules and practices regarding minors to all suspects under the age of 18, in accordance with the internationally accepted age of minority.

d. Arrest and Release Procedures: While minors are brought before general military courts for arrest and release procedures, it should be noted that the same practice, of bringing minors to general courts rather than juvenile courts for these specific proceedings, is upheld in Israel as well.

e. Convictions: The Military Court Judges consider the specific circumstances of every minor and use their full discretion in sentencing. A comparatively low percentage of convictions in indictments may be of interest in this context. In 2009, only 62.8% of charges ended in convictions, in 2010, 57.3%, and in 2011, 58.62%.

8. Imprisonment sentences

a. Sentences calling for the incarceration of minors under the age of 14 are rare. In such cases, the duration of the penalty is significantly lower than the maximum sentence of the crime as established under the law.

b. Recent years have witnessed a significant decrease in the imprisonment of minors. While during 2009 and 2010, 539 and 522 minors, respectively, were imprisoned, in 2011 only 315 minors are expected to be imprisoned (this data reflects the extrapolations of the cases closed by 31 August, 2011).

c. The duration of sentences has also shortened significantly. While in 2009 and 2010 the average prison sentence was for 316 and 295 days respectfully, in 2011 the average sentence has been reduced to 181 days (through 31 August).

9. Amendment 10 to the Security Order (Judea and Samaria), 5771-2011

Recently approved Amendment 10 raised the age of minority in the Area to 18, meeting the standards of both international practice and Israeli law. The Amendment provides all minors under the age of 18 with the following rights:

a. A court-appointed defense attorney;
b. The presence of a parent or relative during every hearing;
c. The separation of minors and adults in living quarters in all detention facilities;
d. The separation of minors and adults in all judicial proceedings;
e. The transfer of all cases involving minors from the General Military Court to the Juvenile Court, and re-initiation of proceedings;
f. The notification of a parent about any investigation;
g. The right to be informed of one’s rights prior to an investigation;
h. The issuance of a probation officer report prior to sentencing;
i. A statute of limitations of one year for offences committed by minors.