A recent Parliamentary petition regarding the Israel Defence Force’s handling of arrests of Palestinian minors is fundamentally wrong for its misleading allegations and its self-serving omissions, but especially because it exploits Palestinian youth for political gain.
This is ironic, because it represents another form of immoral exploitation of Palestinian youth – that of the Palestinian leadership in the West Bank – that motivates the youth involved to commit the violence that gets them arrested in the first place.
The glaring omission
The petition says “UNICEF reports that ill-treatment of Palestinian children is ‘widespread, systematic, and institutionalized throughout the process'”. But UNICEF made this allegation in 2013 (an assessment which, incidentally, the IDF did not agree with).
Nevertheless, in good faith, the IDF has been working together with UNICEF since the 2013 report to try to find ways to improve its handling of arrests, prosecution and detention of Palestinian youth offenders.
Significant progress has been made in this regard in recent years. These advances have been documented by UNICEF, most recently in a report released in 2015.
UNICEF’s 2015 update used no such harsh language against the IDF.
Would some of the signatories to the petition have put their name to such a one-sided criticism of Israel had they known about the IDF’s cooperation with UNICEF? It appears those who drafted the petition didn’t want them to find out.
At the crux of the petition is a simple premise: That Israel is doing something wrong to Palestinian children that requires Australian parliamentary oversight.
The petition alleges: “Israel is the only country in the world that automatically prosecutes children in military courts. And only Palestinian children.”
Response: The petition insinuates that Israel is doing something uniquely wrong in its prosecution of young accused Palestinians in military courts. This is simply untrue. According to International Law, all of Israel’s dealings with the Palestinian population must be under military auspices exclusively. Were Israel to apply its civilian law and courts to the Palestinian population centres of the West Bank, it would constitute annexation.
Furthermore, the petition neglects to mention that the IDF tries Palestinian minors in a Juvenile Military Court, separate to adults.
Well over 90 percent of West Bank Palestinians live under the governance of the Palestinian Authority (in what is known as Area A), and are subject to a Palestinian policing and justice system. Palestinians who are arrested or detained by the IDF are nearly always suspected of being involved in dangerous and violent activity, including life-threatening acts such as stone- and Molotov cocktail-throwing and stabbing, against Israelis taking place beyond Palestinian self-rule areas.
The second point – that Israeli children are not prosecuted in military courts – is true in reverse. Since the children in question have Israeli citizenship, they are under the jurisdiction of Israeli civilian courts.
The petition alleges: “Up to 700 Palestinian children are arrested each year by the Israeli military, and this number is increasing.”
Response: In the West Bank as anywhere else in the world, the number of arrests directly correlates to the number of alleged crimes being committed. At no point in the petition or motion is the reason for the arrests weighed or considered at all. To cite increasing arrest figures without discussing the corresponding rise in violence creates a malicious perception that the IDF arrests Palestinian minors without just cause.
Moreover, while the number of 700 arrests may sound high, it actually compares favourably to the arrest rate for violent youth offenders here in Australia. According to Victoria’s Crime Statistics Agency, over 5,300 Victorian minors between the ages of 10-17 were arrested or detained for violent crimes alone between April 2015 and March 2016. After taking into account the population size differences as well as the comparatively high number of Palestinians under the age of 18, the simple fact remains that Victoria arrests far more minors for violent crime – and at a higher overall per capita rate – than Israel arrests Palestinian minors for their violent offences.
The petition alleges: “UNICEF reports that ill-treatment of Palestinian children is ‘widespread, systematic, and institutionalized throughout the process’.”
As stated above, it only made that particular claim in its initial report, but not in subsequent updates.
As UNICEF wrote in February 2015:
The Government of Israel has since March 2013, taken a series of initiatives – particularly in terms of military legislation and the reinforcement of standard operating procedures that have addressed issues identified.
The petition alleges: “Children as young as 11 are detained by the military. According to well documented research, almost all children have no parent or legal counsel during interrogation”
Response: Here, the term detained must be separated from that of arrest and incarceration. Under Israeli military law, Palestinians under the age of 12 can’t be arrested and incarcerated. The detention they are describing is at most a number of hours, not days or weeks.
Australia’s minimum age of criminal responsibility is 10, and as you may be aware, here youth as young as 10 can be held in detention centres, and are.
It’s true that the IDF has discretion as to whether to allow a parent or lawyer to be present in an interrogation with a minor over a security offence, and usually doesn’t allow it.
What the petition doesn’t tell you is that this policy is consistent with Israeli law and applies to Palestinians and Israelis alike, whether they are arrested by the IDF or by the Israeli police inside Israel.
Indeed, this is confirmed in UNICEF’s 2015 update on the 2013 report:
The Military Prosecutor and the Israeli police clarified that the same regulations apply for Palestinian children in military detention as for Israeli children under Israeli law: children have the right to consult with a lawyer, but the lawyer does not have the right to be present during the interrogation.
As an aside, this policy is reportedly currently under review by Israeli Justice Minister Ayelet Shaked, and if changed inside Israel may affect IDF policy regarding Palestinian minors as well.
The petition alleges:
“75% [of Palestinian youth offenders] report physical violence”.
Response: While the petition doesn’t disclose where the source of its “well-documented research” this particular statistic shows up in an April 2016 report by Defence of Children International – Palestine. The problem with this statistic is the methodology – it was based on 429 testimonies obtained by the NGO between January 2012 and December 2015. This is just a fraction of the number of Palestinian youth arrested during that period, so the question that needs to be asked is how they got those testimonies. Unless the sample was random – and they do not claim that to be the case – it can’t be considered impartial and representative.
Moreover – and this is important – unlike ordinary youth offenders, Palestinian youth offenders are ideologically motivated against those who arrested them and tried them. For this reason, their claims simply cannot simply be accepted on face value without verification.
There are other problems with DCI-Palestine as a source, most of which can be reviewed in the file published by the NGO watchdog organisation, NGO Monitor.
Petition alleges: A quarter are made to sign documentation in Hebrew, a language they do not understand.
Response: While this claim has been made by a number of NGOs based on allegations by Palestinians, actual proof that this actually occurs, and on the scale that they suggest, is another story. Again, as stated above, due to the nationalistic motivations of the offenders themselves, relying simply on their claims as the basis for condemnation of Israel is insufficient.
Petition alleges: “Sixty percent [of Palestinian youth offenders] are transferred into prisons in Israel meaning family usually cannot visit.”
Response: It’s not clear where this statistic is sourced from, although it is not disputed that some Palestinian prisoners – adults and minors alike – are at times held in Israel at least temporarily. To be clear, however, this number fluctuates constantly and cannot be generalised into a specific percentage as this petition attempts to do. Regrettably – and I take no satisfaction in saying this – evidence would indicate that this occurs due to purely operational issues largely caused by overcrowding throughout the Israeli prisons system. The infrastructure problem has impacted Israeli and Palestinian prisoners alike. It is a problem that is currently being addressed by the Israeli government.
(See this article from the Times of Israel from August 2015.)
Petition alleges: “Military courts have a 99% conviction rate for Palestinian defendants.”
Response: This is one of the most damning of the allegations made in the petition and is what is used to lend credence to the insinuation made in the petition’s last paragraph that Palestinians don’t get a “fair trial”. For this reason, I will explore this at length.
First of all, it may be that the Israeli authorities are very good at weeding out those matters that are unlikely to stand up in court.
This is true in Japan, which has a conviction rate similar to that of the Palestinians in military courts in the West Bank.
As a Canadian government website giving advice to travellers says regarding Japan’s criminal justice system:
If the prosecutor believes that the investigation produced sufficient evidence that you committed a crime, you will be brought before a judge to be formally indicted. Prosecutors in Japan generally do not take a case to trial unless they are convinced they can win. About three quarters of all cases are dropped prior to indictment. Statistics from the Japanese Ministry of Justice show that, between 2002 and 2011, the conviction rate in Japan after indictment was more than 99 percent.
Meanwhile, the conviction rate in US Federal Court during Fiscal Year 2013, for example, was also high, at 92 percent (including plea bargains).
Yet Australian parliamentarians are not lining up to sign petitions implying you can’t get a “fair trial” in Japan or the US, despite their conviction rates. Why the double standard?
Secondly, the Palestinian conviction rate does not include those minors released before trial.
The evidence cited in UNICEF’s 2015 report indicates of 654 Palestinian minors arrested, 98 were released outright by the Israeli Police due to insufficient evidence, 91 were released on bail pending conclusion of the investigation, while 465 were indicted.
But it still begs the question as to why the conviction rate is so high? The short answer is plea bargains.
In 2008, the Israeli left-wing NGO Yesh Din claimed that all but four percent of all cases against Palestinians in military courts ended in plea bargains, and it’s likely that general dynamic continues today.
Indeed, a Times of Israel article from 2013 about an Israeli Arab military prosecutor included insight into this phenomenon by an Arab defence attorney
As in the Israeli civilian criminal courts, the vast majority of the cases are never brought beyond the stage of indictment. Plea bargains prevail. “If we brought even 30 percent of the cases to trial, the entire system would collapse,” said Wissam Egbaria, a defense attorney from the Arab city of Um el-Fahm.
But why so many plea bargains? From the evidence, the answer is often that the defendants realise that often, the time in prison can be shorter than the trial itself.
In 2015, the Israeli NGO B’Tselem produced a report on the high rate of convictions of Palestinians in IDF Military Courts. While most of the report holds a prejudicial view against the IDF in the way it handles arrests and prosecutions of Palestinians and should be discarded for reasons beyond the scope of this blog, the rationale the report makes about the reason for plea bargains is fairly straightforward and actually explains this phenomenon very well.
The report said (emphasis added):
Defendants know that the court will very likely grant a remand request, and that if they choose to go to trial, they will have to do so while in custody. Furthermore, military court trials are lengthy, so even if ultimately acquitted, defendants may spend more time behind bars in remand than if they take the prison sentence ordered in a plea bargain. Plea bargains are especially attractive to minors charged with stone-throwing or defendants accused of entering Israel without a permit. In these cases, the sentence defendants can expect in a plea bargain is a few months in prison, whereas trials may last longer.
This situation is one of the main reasons why a very large proportion of the cases heard by military courts end in plea bargains. Statistics regarding judicial proceedings against minors between 2010 and 2015 provided to B’Tselem by the IDF Spokesperson indicate that full trials, during which evidence is heard, are extremely rare. Of the 642 cases whose outcomes were provided to B’Tselem, a full trial was held in only five (0.8%). In 13 cases, the defendant pleaded guilty and was sentenced by the judge without a plea bargain. Plea bargains were reached in the remaining 624 cases.
The petition concludes:
We call on the Israeli Government to comply with its obligations under the Convention on the rights of the child and to not arrest or detain Palestinian children unless this is a last resort, and if they are detained, to immediately institute protections for those children including that their safety and best interests are prioritised, and that they are permitted a fair trial.
Response: How very presumptuous and condescending. On what basis is the insinuation that Palestinian minors aren’t arrested only as a last resort, that their safety is not being respected and that they are not being permitted a fair trial? There is none, and the petitioners do not even make an attempt to establish one.
Further, one cannot help but comment on the irony that the petition should infer reference to aspects of the UN Convention on the Rights of the Child. According to Article 36 of that Convention, children should be protected from any activities that could harm their development. In the case of Palestinian youth offenders, Palestinian parents, guardians, educators and other adults of influence have primary responsibility to supervise the activities of minors in their care. Yet Palestinian children are fed a steady diet of incitement and glorification of violence against Israelis in their children’s television programs, classrooms and at home.
Award-winning Palestinian journalist Khaled Abu Toameh has written on numerous occasions about this phenomenon, most recently in October.
Meanwhile, Palestinian Media Watch, which tracks incitement in Palestinian culture, media, and social media, has only this year documented incidents including:
- Palestinian scout leadership conducting a training course dedicated with fanfare to a Palestinian terrorist who killed Israelis on a bus in Jerusalem last year.
- A four-year-old Palestinian boy being traumatised by being forced to walk towards Israeli riot police by his father and urged to throw stones and taunting the soldiers to kill his son.
- A toddler in Gaza recorded waving a long knife urging Palestinians to stab Israelis – the video being circulated on Facebook.
This is just a sample of the kind of indoctrination of Palestinian children taking place in the West Bank daily.
Nobody would say the IDF’s handling of Palestinian youth offenders is perfect or can’t be criticised, but the petition isn’t really about making things better – or it would support cooperative efforts like the IDF-UNICEF collaboration on the issue and track and promote progress when it occurs rather than ignore it.
Instead, however, it cynically manipulates and exploits the sensitive issue for mere petty politics, to collect signatures and flex a political muscle.
It is AIJAC’s belief that petitions and motions of this nature make it harder to bring the Palestinian and Israeli sides together and divert attention to symptoms of the conflict rather than solutions.
The fact remains that the Palestinian leadership has avoided discussing such solutions and walked away from at least three peace offers since 2000 which would have evacuated isolated Israeli settlements, given the Palestinians a state on nearly 100% of the land area of the West Bank after mutually agreed land swaps, a shared capital of Jerusalem, and included concessions on the Palestinian refugee issue.
Political point-scoring and internationalising the conflict will never be a substitute for direct negotiations towards a peaceful resolution that will recognise Israel’s right to exist in peace and security as the homeland for the Jewish people alongside a peaceful Palestinian state.