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Terrorising children outside rule of law

This is the full report from MCW, following up the UNICEF report. Footnotes and most tables have ben stripped out, but can be seen in the full document by clicking the link below. The recent amended report from the Public Against Torture in Israel (PCATI) has been added at the top.The strange simslarity of the Palestinian boy and Israeli soldier has been noted.


Terrified Palestinian boy in Hebron, arrested and handcuffed with plastic ties. Photo From ISM

Childhood is not a Privilege but a Right!

From PCATI
14 January 2014
8 January footnoted
31 December 2013

The Public Committee Against Torture in Israel (PCATI) Notes with increasing alarm and condemnation Israel’s failure to protect Palestinian children from direct and indirect torture and ill treatment.

Torture Destroys Childhood, Families, Society
With the Israeli Knesset’s Public Petitions Committee (being held today December 31st 2013 [?]) meeting on “Conditions of arrest and imprisonment of Palestinian youth in East Jerusalem and Judea and Samaria (sic)” (1) PCATI reminds Knesset Members and their constituents that torture and ill treatment are absolutely prohibited and that Israel’s legislature must anchor this prohibition in its domestic law.

[PCATI was approached by a media monitoring organization that had concerns about press stories that came out following this statement. We were asked to respond and did so in the 3rd footnote below.]

The Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture raises the following issues regarding torture and children which must be understood:

Perpetrators [of torture] often attempt to justify their acts of torture and ill-treatment by the need to gather information…One of the central aims of torture is to reduce an individual to a position of extreme helplessness and distress … Thus, torture is a means of attacking an individual’s fundamental modes of psychological and social functioning. The torturer attempts to destroy a victim’s sense of being grounded in a family and society as a human being with dreams, hopes and aspirations for the future. In addition, torture can profoundly damage intimate relationships between spouses, parents, children, other family members and relationships between the victims and their communities (Para. 235)… Torture can impact a child directly or indirectly. The impact can be due to the child’s having been tortured or detained, the torture of parents or close family members or witnessing torture and violence. When individuals in a child’s environment are tortured, the torture will inevitably have an impact on the child, albeit indirect, because torture affects the entire family and community of torture victims… Adolescence is a turbulent developmental period. The effects of torture can vary widely. Torture experiences may cause profound personality changes in adolescents resulting in antisocial behaviour. Alternatively, the effects of torture on adolescents may be similar to those seen in younger children (Para. 310 &312).

PCATI has received in its offices dozens of complaints of torture and ill treatment from children in the last 10 years. Currently PCATI is actively working on cases concerning children’s complaints of torture and ill treatment at the hands of Israeli soldiers and interrogators. (2) PCATI is gravely concerned by reports from NGOs such as Psychoactive, Military Court Watch, Breaking the Silence, DCI Palestine, the Israeli Public Defenders office, B’Tselem and other organizations in civil society, of torture and ill treatment of children which included caging prisoners in iron cages (3) (including children) , abusive interrogations, detentions and arrests.

PCATI emphasizes that failure to allow the arrested child or minor to full enjoyment of his or her rights, including the failure to allow for an attorney or accompanying adult at the time of arrest and interrogation places the child in a state of helplessness, distress and increases the pressure being applied to the child by the security forces in order to achieve a confession or information during the interrogation.

PCATI applauds the recently announced efforts of (Defense of Children International) DCI-Palestine and Lawyers for Palestinian Human Rights (LPHR) to initiate a “know your rights campaign”. PCATI similarly points out that the threshold in which an act of abuse would be considered torture in the situation of an adult must be lowered when it comes to children. PCATI further emphasizes that children and adults have the right to rehabilitation and to have their complaints fully examined including by forensic experts as well as the right to be accompanied by a representative of their choosing when giving testimony to an Israeli investigator. PCATI continues to work to insure respect for these principles.

DCI-Palestine [Defence of Children International]and LPHR write:

Israel is the only nation to automatically and systematically prosecute children in military courts that lack basic and fundamental fair trial guarantees. Around 500-700 Palestinian children, some as young as 12 years old, are arrested, detained and prosecuted in the Israeli military detention system each year. The majority of Palestinian child detainees are charged with throwing stones, and 74 percent experience physical violence during arrest, transfer or interrogation, according to evidence collected by Defence for Children International Palestine. No Israeli children come into contact with the military court system.

PCATI reiterates that the right to be free from torture and ill treatment is absolute and calls on the Public Petitions Committee to demand that the right to be free from torture be anchored in Israeli domestic law and that it include specific provisions for the protection of all children who come into contact with any arm of Israel’s security forces.

Notes:
1. This is a link to the statement (Hebrew) put out by the Knesset Committee PCATI further points out the following link to the work of B’Tselem [Allegations of extreme violence in interrogation of Palestinian minors at “Etzion” Israel Police station in West Bankhttp://www.btselem.org/press_releases/20130822_etzion]

2. This includes threats and acts of sexual violence.

3. [PCATI was approached by a media monitoring organization that had concerns about press stories that came out following this statement. We were asked to respond and did so as follows.] “Following your inquiry into media stories which followed The Public Committee Against Torture in Israel’s statement regarding the treatment of Palestinian children under arrest and or interrogation by Israeli security authorities we PCATI’s Executive Director asked to make the following points:

PCATI stands behind the title “The Public Committee Against Torture in Israel (PCATI)
Notes with increasing alarm and condemnation Israel’s failure to protect Palestinian children from direct and indirect torture and ill treatment” and the content of the public statement.
We emphasize that the situation of Palestinian children in Israeli security custody has and continues to present serious problems concerning Israel’s obligations under International human rights law including the Convention Against Torture.

Regarding the specific issue and link in the statement regarding the word “caging,” PCATI notes, in further examination, that the Public Defender’s statement to which we linked regarding this deplorable practice, which has since been ceased, did not mention the word Palestinian. PCATI had been told that this practice did include Palestinian detainees including minors (which is why we included the subject in the statement). We value that this inconsistency was pointed out, however we also believe that in pointing out inconsistencies of this nature it is important to always dig deeper for the truth.

PCATI notes as well, that we raised the issue of the treatment of mionors/children as a concern to the Knesset Committee on Public Complaints, and we remain concerned. The issue of torture and ill treatment in Israel is well documented as well as the ongoing failure of the State to address complaints as we point out in many of our publications.

We further point out that although that Public Defender’s report did not mention Palestinians specifically we thought it important to further understand both what happened and to seek further clarifications. We understand that the linked statement to the Public Defender’s report reflected an event in particular as contrasted to the longer term use of this practice. PCATI has learned from that the IPS, when asked about the circumstances surrounding the report, that it did not distinguish between nationality and age and that there were people in custody who are also from the OPT. Therefore, there is no way out of saying that Palestinians too have suffered under this practice. That is, Palestinians, albeit not security detainees, were subjected to being held under these conditions and there were Palestinian minors as well.

The right to humane detention conditions is universal and PCATI does not distinguish between nationalities nor the reasons for detention. Further, of course we do understand that those being held were held short term, a matter of hours. We also understand that the practice was stopped and that these holding facilities were switched to other kinds of facilities. This should, of course be fully checked. We further emphasize that this practice was brought to the attention of senior officials by a group (the PD) which deals with the human rights of detainees. It is unfortunate that the authorities thought it proper to hold detainees in these conditions to begin with.

Empirically speaking those who most suffer under Israeli violations of the absolute prohibition against torture and ill treatment are Palestinians from the OPT. PCATI continues to work to change Israeli policy and suggests that if one is concerned with or about Israel’s image they be concerned with the human rights of children and adults without regard to their ethnic or national status. PCATI further points out that its statements, regardless of the language of the text are directed at duty bearers, those concerned with human rights and human rights enforcement. Israeli officials who are concerned with legislation and policy are proficient in English as well as Hebrew.

This the update of the PCATI statement made on December 31st 2013 and posted in Israeli NGO condemns lack of rights for arrested Palestinians


The UNICEF Report: Children in Israeli Military Detention pdf file

Progress Report by Military Court Watch
March 31, 2014

1. Executive summary

1.1 On 6 March 2013, UNICEF published the report – Children in Israeli Military Detention.

Following a review of over 400 sworn testimonies and after consulting widely, UNICEF arrived at two conclusions:

A. The ill-treatment of children who come in contact with the military detention appears to be widespread, systematic and institutionalized throughout the process, from the moment of arrest until the child’s prosecution and eventual conviction and sentencing.

B. It is understood that in no other country are children systematically tried by juvenile military courts that, by definition, fall short of providing the necessary guarantees to ensure respect for their rights.

1.2 In recent years there have been a number of noteworthy developments in the military detention system relating to minors, such as: the provision of some education for Palestinian children held in Israeli detention; the establishment of the Military Juvenile Court; new procedures for the use of hand-ties; a partial rise in the age of majority; a reduction in the time in which children must be brought before a military court judge for the first time; remand hearings for children generally held separately from adults; and a reduction in the time a child can be detained before being indicted.

1.3 However, the ultimate litmus test of the system still remains: how are children treated in practice? In order to assess this, Military Court Watch (MCW) has conducted its own review of developments that have occurred since the publication of UNICEF’s report 12 months ago. As part of this process, MCW analysed 60 sworn testimonies from children detained in the system since March 2013, focusing particularly on the first 24 hours of detention. The findings of this evidentiary review are presented in the following table.

#
Description
No
%
1
Hand tied
54
90%
2
Blindfolded
48
80%
3
Signed/shown documents in Hebrew
34
57%
4
Physical abuse
33
55%
5
Arrested at night
28
47%
6
Verbal abuse
26
43%
7
Threats
25
42%
8
Transferred on floor of vehicle
25
42%
9
Strip searched
15
25%
10
Informed of right to silence
5
8%
11
Parent present throughout interrogation
4
7%
12
Consulted with lawyer before interrogation
3
5%
13
Solitary confinement
2
3%

1.4 Also as part of MCW’s review, each of UNICEF’s 38 recommendations has been considered and assessed as to whether they have been substantially or partially implemented, or not implemented at all during the past 12 months. The findings of this review are presented in the following table.

# Compliance Number Percentage

1 Substantially implemented 1 3%

2 Partially implemented 4 10%

3 Not implemented 33 87%

1.5 Whilst it is clear from public statements and certain amendments to the military law that the civilian and military authorities have taken note of UNICEF’s findings and recommendations, it is difficult to point to any changes that have led to any tangible improvement in the way children are being treated during the first 24 hours of their detention when most of the reported violations occur. Accordingly, 12 months on MCW is unable to provide an alternative assessment to UNICEF’s conclusion that the ill-treatment of children in the system still appears to be “widespread, systematic and institutionalized”.

1.6 MCW submits that it is unrealistic to expect any substantive improvement in the way children are being treated until adequate protection is provided during the first 24 hours. There are six core recommendations that, if effectively implemented, would provide additional protection:

(i) Children should only be arrested during daylight hours except in rare and exceptional circumstances. In all other cases summonses should be used;

(ii) All children, and their legal guardian, should be provided on arrest with a written statement in Arabic informing them of their full legal rights in custody;

(iii) All children must consult with a lawyer of their choice prior to questioning ;

(iv) All children must be accompanied by a family member throughout their questioning;

(v) Every interrogation must be audio-visually recorded and a copy of the tape must be provided to the defence prior to the first hearing; and

(vi) Breach of any of the above recommendations should result in the discontinuation of the prosecution and the child’s immediate release.

2. Introduction

2.1 On 6 March 2013, UNICEF published the report – Children in Israeli Military Detention.

Following a review of over 400 sworn testimonies collected through the UN’s Monitoring and Reporting Mechanism on Grave Child Rights Violations and after consulting widely with relevant parties, UNICEF arrived at two conclusions:

A. The ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process, from the moment of arrest until the child’s prosecution and eventual conviction and sentencing.

B. It is understood that in no other country are children systematically tried by juvenile military courts that, by definition, fall short of providing the necessary guarantees to ensure respect for their rights.

2.2 Seven months after the publication of the UNICEF Report, the UN agency released an update (UNICEF Bulletin) reviewing progress made in implementing the Report’s 38 recommendations during the intervening period.

In the Bulletin, UNICEF presented additional affidavit evidence collected since the publication of the Report. Although the Bulletin highlights some procedural developments, proposals and consultations, the additional affidavit material presented by UNICEF (19 affidavits) suggested that there had been little change in how children were treated following their arrest by the military. A summary of the new evidence collected by UNICEF is presented in the following table.

UNICEF Bulletin (October 2013) – Analysis of 19 affidavits

# Description No %

1 Painfully hand tied 19,100%

2 Physical abuse 19, 100%

3 Verbal abuse 17, 89%

4 Blindfolded 16, 84%

5 Strip searched 13, 68%

6 Consulted with lawyer before interrogation 0 0%

7 Parent present throughout interrogation 0 0%

To mark 12 months since the publication of the UNICEF Report, MCW has conducted its own review of developments in both law and practice that have occurred during the intervening period. The review pays particular regard to UNICEF’s primary conclusion that “the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process.” The review also considers what progress has been made in implementing each of UNICEF’s 38 recommendations included in the Report. The findings of this review are presented in the following pages.

3. Some key developments

3.1 Since the publication of the UNICEF Report, the UN agency has participated in a number of consultative meetings with the Israeli military authorities in accordance with an announcement made by the Israeli Ministry of Foreign Affairs, which stated that “it would study the conclusions and work to implement them through on-going cooperation with UNICEF.” UNICEF also reports that: “The Military Advocate General (MAG) has designated the Military Prosecutor for Judea and Samaria (West Bank) as the focal point for dialogue on this issue with UNICEF.”

3.2 In recent years there have been a number of noteworthy developments in the military detention system relating to minors, such as: the provision of some education for Palestinian children held in Israeli detention; the establishment of the Military Juvenile Court; new procedures for the use of hand-ties; a partial rise in the age of majority; a reduction in the time in which children must be brought before a military court judge for the first time; remand hearings for children generally held separately from adults; a reduction in the time a child can be detained before being indicted; a reduction in the time between indictment and the conclusion of the trial from two years to one; no children held in administrative detention since December 2011; children generally being separated from adults in detention; an average decline of approximately 8 percent in the number of children recorded as being detained in Israeli Prison Service (IPS) facilities over the course of the previous 12 months; and fewer younger children (12-13 years) recorded as being held in IPS facilities.

3.3 Some of these developments require further consideration:

i) Education in prison (1997) – In a landmark ruling in the Tel Aviv Central Court in 1997, the right of Palestinian child detainees to access education on an equal footing with Israeli children was established.

However, the decision also held that this right would be subject to “security considerations”. Children continue to report that where education is provided in prison, it is generally limited to Arabic, Hebrew and sometimes mathematics and English. The education that is provided falls short of what is required to ensure that children are able to ease back into the Palestinian education system upon their release and a significant number of children subsequently drop out of school.

(ii) Military Juvenile Court (September 2009) – A Military Juvenile Court was established in the West Bank in 2009.

In March 2010, the UN Committee on the Rights of the Child expressed concern at this attempt to “incorporate juvenile justice standards within military courts” and recommended that children should never be prosecuted in military courts.

Also in 2010, the UN Special Rapporteur on the Independence of Judges and Lawyers stated that: “the exercise of jurisdiction by a military court over civilians not performing military tasks is normally inconsistent with the fair, impartial and independent administration of justice. This should even more evidently apply in the case of children.”

In July 2011, B’Tselem concluded that: “the amendments to the military legislation are marginal and have failed to bring about meaningful change in the military system’s treatment of minors.” This conclusion is shared by MCW primarily due to the fact that no additional protection has been provided to children during the critical first 24 hours following arrest. Further, the Military Juvenile Court continues to admit evidence obtained unfairly during the first 24 hours, thereby providing no incentive to the military or police to adopt appropriate investigative procedures in accordance with accepted international norms.

(iii) New procedures for hand-ties (March 2010) – In 2010 the Office of the Israeli Military Advocate General stated that new procedures had been establiished and disseminated on the use of hand-ties, to prevent pain and injury. Under the new procedures, hands should be tied from the front, unless security considerations require tying from behind. Three plastic ties should be used; one around each wrist and one connecting the two; there should be the space of a finger between the ties and the wrist; the restraints should avoid causing suffering as much as possible; and the officer in charge is responsible for ensuring compliance with these regulations.

However, in October 2013, UNICEF reported that in 100 percent of the cases it sampled following the release of its Report, children still alleged being “painfully” hand tied. MCW’s review indicates that in the overwhelming majority of cases children continue to be tied with single plastic ties contrary to army regulations.


Arrest of Palestinian boy, hands strapped by plastic ties. No other details.Photo by Tamar Fleishman

(iv) A rise in the age of majority (September 2011) – Israeli military law applied to Palestinians in the West Bank was amended to extend the jurisdiction of the
Military Juvenile Court to adjudicate in trials involving children aged 16 and 17
years.

This amendment largely reflected existing practice. However, this amendment does not apply to the sentencing provisions. Accordingly, for offences carrying a maximum penalty of five years or more, children as young as 14 can still be sentenced as adults. In this context it should be noted that the maximum penaltyfor throwing stones is 20 years imprisonment, whilst attending an unauthorised protest carries a maximum penalty of 10 years imprisonment.

(v) Translation (2012-2013) – In order to ensure a fair trial, it is essential that all relevant materials and laws are translated into the language of the defendant – in this case Arabic. In 2012, some Israeli military orders were translated into Arabic and made available on the website of the Military Advocate General.

However, at the time of writing, Military Orders 1711 and 1726 appear not to be available in Arabic, almost one year after the former came into effect. Further, the simultaneous translation provided by non-professional translators in the military courts remains problematic, with one child recently reporting that the translation was sporadic and made no sense.

In February 2013, the Israeli Supreme Court, sitting as the High Court of Justice, delivered a judgment in Khaled el-Arej v Head of the Central Command in which it ruled that all indictments in the military courts must now be translated into Arabic, although the subsequent amendment to the military law allows for this right to be waived by the defendant – a situation that the Applicant’s legal counsel pointed out is inappropriate in the circumstances.

The Court did not rule on whether interrogation materials, court transcripts or judgments of the military courts have to be translated into Arabic. The decision of the High Court in Khaled el-Arej has itself not been translated into Arabic, even though Arabic is one of the official languages of the State of Israel.

(vi) Time periods to be brought before a judge (April 2013) – Israeli military law
applied to Palestinians in the West Bank was amended to reduce the time period in which some children must be brought before a military judge following arrest.
The new time periods are as follows and can be doubled in “special circumstances”:

• 12-13 years – 24 hours

• 14-15 years – 48 hours

• 16-17 years – 4 days (as adults)

It is relevant to note that these new time periods are still twice as long as those applied to Israeli children living in West Bank settlements. As far as MCW is aware, this amendment has not been translated into Arabic.

(vii) Maximum period of detention between being indicted and conclusion of trial (April 2013) – Israeli military law applied to Palestinians in the West Bank was amended to reduce the time period between indictment and the conclusion of the trial from two years to one. It is relevant to note that the new time period is still twice as long as that applied to Israeli children living in West Bank settlements.

(viii) Remand hearings heard separately from adults (June 2013) – UNICEF reports that it was notified by the Military Prosecutor that remand hearings for children will be held separately from adults as a result of an oral agreement between the prosecution and the military judges. MCW can confirm that remand hearings for hildren are being held separately from adults in about 70 percent of cases.

(ix) Time period for remand reduced (October 2013) – Israeli military law applied to Palestinians in the West Bank was amended to reduce the time period in which a child can be held on remand before being charged from 150 days to 130 days. It should be noted that the new time period is still more than three times longer than the time period applied to Israeli children living in West Bank settlements. As far as MCW is aware, this amendment has not been translated into Arabic.

(x) Pilot scheme to end night arrests (October 2013) – In October 2013, UNICEF announced that the military authorities had agreed to introduce a pilot scheme to end the night arrest of children in the West Bank. Israel’s chief military prosecutor in the West Bank repeated this announcement in February 2014.

At the time of writing MCW has received an unconfirmed report that the pilot scheme may have already commenced but no information has been made public that would announced that the military authorities had agreed to introduce a pilot scheme to end the night arrest of children in the West Bank.

Israel’s chief military prosecutor in the West Bank repeated this announcement in February 2014.

At the time of writing MCW has received an unconfirmed report that the pilot scheme may have already commenced but no information has been made public that would enable the proposal to be independently assessed. Further, MCW has also received an unconfirmed report that a summons was recently served by the military on the family of a boy wanted for questioning in the village of Al Mughayyir at approximately 2:00 a.m. If confirmed that summonses are being served by the Israeli military in Palestinian villages in the middle of the night as part of the pilot study then the bona fides of the scheme must be called into question. According to the military authorities 170 children were arrested from their homes in night-time military raids in 2013, although this figure cannot be independently verified by MCW.

(xi) Audio-visual recording of interrogations – According to information released by Israel’s chief military prosecutor in the West Bank in February 2014, out of the 1,004 children detained in 2013, 343 had at least part of their interrogations audio- visually recorded. However, MCW is unaware of a single case in which an audio- visual tape of an interrogation involving a child was handed over to defence counsel prior to the first hearing in accordance with a recommendation made by a delegation of senior lawyers in 2012.28 Further, the documented practice of conducting multiple interrogations in which only one is recorded renders any audio-visual recording largely ineffectual and highlights the need for the introduction of appropriate protocols for the use of recordings and the rejection of all evidence not collected accordingly.29 Currently there is still no legal duty to audio-visually record interrogations involving minors and interrogations by the Israeli Security Agency (ISA) (Shin Bet) are still not recorded.

. 3.4 Included at the end of this report (Annexure A) is a complete list of all 38 recommendations made by UNICEF with an individual assessment as to whether each one has been substantially or partially implemented, or not implemented at all. A summary of this assessment is presented in the table below.
. …..
. 3.5 It should also be noted that the UNICEF Report is just one, in a long line of reports issued by various UN agencies, officers and mechanisms relating to the treatment of children held in the Israeli military detention system since 1967. Included at the end of this report is a sample of some of these UN reports dating back to 2001. (Annexure B)
# Compliance Number Percentage
1 Substantially implemented 1 3%
2 Partially implemented 4 10%
3 Not implemented 33 87%

4. Detention figures

4.1 Since the publication of the UNICEF Report the number of Palestinian children detained in Israeli Prison Service (IPS) facilities has fallen by an average of around 8 percent over the course of the year. However, it is unclear whether the IPS data reveals how many children were detained by the military for periods of less than one month between official headcounts. It should also be noted that the latest figures for January 2014 show an increase in child detention of 19 percent compared with the preceding month.

4.2 On 26 February 2014, the military authorities released data indicating that 1,004 Palestinian children from the West Bank were detained by the Israeli military in 2013.30 According to the same source, 349 of these children were transferred to the Palestinian Authority. Out of the remaining 655 children, 465 were indicted. No data was provided as to how long the 539 children who were not indicted remained in Israeli custody. However, under Israeli military law a child can be detained for up to 130 days prior to indictment. MCW is unable to independently verify these figures.

4.3 Concerns remain that the data released by
the IPS and the military authorities does
not provide a comprehensive picture of the
number of children arrested and detained
and may understate the true position. For
example, the figures published by the IPS
only represent the number of children held
in its facilities on a single day of each
month when the children are counted for
the official statistics. Accordingly, children
who enter the system immediately after the monthly official head-count, and are released before the next head-count, approximately 30 days later, may not be recorded in the IPS statistics. So for example in November 2013, MCW documented the case of a 13 year-old boy who was detained for 8 hours and in December the case of a 12 year-old who was detained for 5 hours.31 Neither of these boys were held in IPS custody and do not appear in the monthly statistics presented in the table above. In other cases, boys are transferred to IPS facilities for up to one week and then released without ever appearing before a military court judge. It is unclear how many children fall into these categories and whether they appear in any official statistics.

Routine blindfolding of arrested Palestinian children. No further details

5. Review of the evidence

5.1 As noted there have been a number of key developments in the military detention system in recent years, but the ultimate litmus test still remains: how are children being treated in practice? For many years it has been observed that most complaints of ill-treatment relate to the first 24 hours following arrest. It was during this time frame that some children were arrested in the middle of the night, painfully hand-tied and blindfolded, denied basic care, such as adequate food, water and access to toilets, reported being physically assaulted, and were denied access to lawyers, parents and information about their basic rights, such as the right to silence or access to a lawyer. These children were then interrogated whilst sleep deprived and would frequently provide confessions under coercion. Conviction before a military court judge was then the norm after bail was denied, which would be followed, in many cases, by transfer and detention to prisons inside Israel in violation of the Fourth Geneva Convention.

5.2 Since UNICEF concluded 12 months ago that “the ill-treatment of children who come in contact with the military detention system appears to be widespread, systematic and institutionalized throughout the process,” MCW has collected 60 testimonies from children arrested by the Israeli military in the West Bank, or approximately 6 percent of the total number of children detained in 2013.33 The testimonies were selected randomly in the sense that no prior enquiry was made as to the nature or seriousness of the allegations. The testimonies focus on the initial period of detention with particular regard to the first 24 hours following arrest.

5.3 A summary of the findings obtained following analysis of this evidence is presented in the table below. A comprehensive table of these findings is available at the end of this report. (Annexure C) Analysis of 60 affidavits collected by MCW since March 2013
.
. # Description /No/ %
.
. 1 Hand tied /54 /90%
.
. 2 Blindfolded /48 /80%
.
. 3 Signed/shown documents in Hebrew /34/ 57%
.
. 4 Physical abuse /33 /55%
.
. 5 Arrested at night /28 /47%
.
. 6 Verbal abuse/ 26 /43%
.
. 7 Threats /25 /42%
.
. 8 Transferred on floor of vehicle /25/ 42%
.
. 9 Strip searched /15/ 25%
.
. 10 Informed of right to silence /5 /8%
.
. 11 Parent present throughout interrogation/ 4 /7%
.
. 12 Consulted with lawyer before interrogation /3 /5%
.
. 13 Solitary confinement /2 /3%
.
5.4 Included at the end of this report is also a sample of 12 testimonies given by children arrested during each of the months following the publication of the UNICEF Report – (Annexure D).
.
6. Analysing the evidence
.
The arrest
.
6.1 In the sample of 60 cases documented by MCW since the publication of the UNICEF Report, 28 children (47 percent) report being arrested in the middle of the night in what are frequently described as terrifying military raids. According to information recently released by the military authorities a total of 170 children were arrested at night in 2013.

Assuming children are not being singled out for special treatment and a similar proportion of adults were arrested at night, these figures suggest that multiple night raids are being conducted in Palestinian villages virtually every night of the year.
.
Although a pilot scheme to issue summonses in lieu of night arrests was first recommended in June 2012, it is unclear whether it has been implemented.

6.2 The overwhelming majority of children 
continue to be restrained with either plastic
 hand-ties (80 percent)) or metal cuffs (10
percent). In the remaining cases (10 percent)
 children reported not being restrained at all. In
 the 48 cases in which plastic hand-ties were used, only 13 percent of children reported that the ties were fastened in accordance with Israeli military regulations introduced in March 2010.37 In the remaining 87 percent of cases where plastic ties were used, most children were tied with their hands behind their backs with a single plastic tie and reported the ties were “painful” or “very painful”. In just one case a child reports that a commanding officer appeared to reprimand soldiers because the child’s hands had turned blue due to the ties. In 26 cases (43 percent) children reported that they were restrained during interrogation in a secure facility and in 4 cases (7 percent) children also reported being blindfolded during questioning. In every case (100 percent) children continue to appear in the military courts wearing leg shackles. In the majority of cases (80 percent) children were also blindfolded or hooded upon arrest, treatment that should never occur according to UNICEF.

“I woke to the sound of loud banging at our door. It was around 2:00 a.m. I heard someone say ‘open the door’. My father opened the door and about 13 soldiers entered the house; some wore masks, others had charcoal camouflage on their face.” – (A.A.M. – 12 November 2013)

“I was in pain because of the plastic tie. Although I wasn’t able to see I felt my wrists were bleeding. It was very painful.” – (S.S. – 14 March 2013)

An Israeli soldier stands by blindfolded students from the Palestine Technical College in the Arroub refugee camp, 30 October, 2008. Photo by Mamoun Wazwaz/MaanImages

6.3 The overwhelming majority of
 children continue to report that
 neither they nor their parents were
 informed of the reasons for arrest or
 where the child was being taken.

According to UNICEF, the UN 
agency was given assurances by 
Israeli officials that the military had introduced forms to notify parents of reasons of arrest and whereabouts of the child in April 2013. In spite of these assurances, as of October 2013 UNICEF was unable to find any evidence that these forms were actually being used in the field [our emphasis]. An Israeli official made a similar assurance in February 2014 suggesting that these forms had now been introduced in January 2014.

In the sample of 60 cases documented by MCW, 4 children (7 percent) reported that their parents were provided with a document, which stated where the child would be taken and a telephone number to call. However, in one of these cases when the boy’s father attempted to call the number provided in the document no one answered the phone.41 All four cases in which a document was provided to parents by the army occurred in 2014. A translated copy of the form provided to one of the parents is included at the end of this report. The original form is written in Arabic and Hebrew (Annexure E). The form contains no information about the child’s rights. In a further 3 cases (5 percent) children reported that they were asked to sign a form shortly after being detained stating that they had not been mistreated by the military. In one of these cases the child signed the form even though he alleges that he was mistreated – his explanation for this inconsistency is that he wanted to go home.
.
The transfer
6.4 Nearly half of all children (45
percent) continue to report being
 placed on the metal floor of
military vehicles during their
transfer to an interrogation centre.
Whether a child is placed on a seat or transferred on the floor appears to be entirely arbitrary and dependent on whether there are enough seats in the vehicle for the arresting soldiers. This mode of transport causes additional mental and physical stress to the child who is usually painfully tied and blindfolded at the time.

6.5 Over half of all children (55 percent) report some
form of physical abuse during their arrest, transfer
or interrogation consisting of beating, slapping
and kicking on various parts of the body including
to the head and face. In one case documented by
MCW, a child reported being tasered during his
arrest, and again during interrogation in the police
station in Kiryat Arba settlement in April 2013. In 26 cases (43 percent) children also report being verbally abused, which usually consists of insults directed at the child’s mother or sister.

6.6 In many cases the journey to the
interrogation centre continues to be drawn
out over many hours. During this time
children are taken to military bases or
settlements throughout the West Bank and
put in shipping containers or left outside for
a number of hours. Children generally remain tied and blindfolded and are sometimes kicked or slapped to keep them awake before interrogation. At this stage children frequently go without food or water. It also appears to depend very much on the individual soldier guarding the child as to whether he will be permitted to use the toilet facilities or not at this stage in the process. Children are usually taken to see a medical officer at this point and asked some questions about their 
health. In the presence of the medical officer the child’s blindfold is usually removed but the hands often remain tied. Later on during the day, the child will be loaded back into a military vehicle and the journey to the interrogation centre will resume.

The interrogation
6.7 The evidence indicates that the majority of children are interrogated by Israeli policemen inside West Bank settlements. In only 5 cases (8 percent) documented by MCW were children informed of their right to silence prior to being questioned. Also in only 4 cases (7 percent) were parents permitted to accompany their child during interrogation.42 In just 3 cases (5 percent) documented by MCW were children either permitted to consult with a lawyer prior to being questioned, or at least given the opportunity to do so.43 Most children continue to meet with their lawyer for the first time in a military court room after the interrogation has been completed.

6.8 The evidence indicates that
 children continue to report being
physically assaulted, threatened
and verbally abused during the
course of their interrogation.
Although almost all children
initially deny the allegations put to
them, many ultimately confess
citing the manner in which they
were treated as being the primary
reason for their confession. In the
circumstances it is impossible to
determine the accuracy or
otherwise of this confessional
evidence which must be viewed as inherently unreliable in the circumstances. In 26 cases (43 percent) children report that either their hands or ankles (or both) remained shackled during interrogation, and in some cases children report being tied to a chair. In 4 cases (7 percent) children also report that they remained blindfolded during questioning.

6.9 MCW is unaware of any case in 
which a child’s interrogation was
audio-visually recorded and the
tape was provided to the defence
lawyer prior to the first hearing in
accordance with a
recommendation included in a
report produced by a delegation of
senior UK lawyers in 2012.44 According to data released by the military in February 2014, of the 1,004 children arrested in 2013, 343 had at least part of their interrogations audio- visually recorded.45 MCW cannot independently verify this but notes that none of the tapes were handed over to defence counsel prior to the first hearing.

6.10 Although the interrogations are conducted in Arabic, in 34 cases (57 percent) children report being shown, or made to sign, documentation written in Hebrew at the conclusion of their questioning. The interrogation process takes on a number of different forms and varies from case to case. However, a general description of the manner in which interrogations conducted by the ISA (Shin Bet) and the police are documented is as follows:
.
(i) ISA (Shin Bet) interrogations – ISA
interrogations are usually conducted
in one of five facilities inside Israel.
These interrogations are not audio or
visually recorded, or if they are, tapes
are never provided to defence
counsel. The ISA interrogator
generally writes a summary of the interrogation in Hebrew. An interrogation lasting 10 hours will typically be summarised in 4-5 pages. These summaries are generally not signed by the accused.
.
(ii) Police interrogations – Many
 interrogations conducted by the
 Israeli police in the West Bank
 are audio recorded. This is 
mainly due to the fact that few
 Israeli police can write in
Arabic. The investigations are
 conducted in Arabic and written
 in Hebrew. The accused person 
is then made to sign the document written in Hebrew. Defence lawyers report that most of the time there are significant differences between the audio recording and the statements written in Hebrew. Further, because most of the military court judges do not speak Arabic, they rely on the signed statements written in Hebrew.
.
iii) Double interrogations – MCW has documented a number of cases in which children report being interrogated by a person in civilian clothes where there is no recording or documentation of any description. These interrogations are generally coercive. If the child confesses, he is taken to another room where there is a policeman in uniform who then tells the child to repeat the confession whilst the policeman writes in Hebrew. The child then signs the document. The second interrogation is generally recorded.

6.11 In 2 cases (3 percent) documented by MCW children reported being held in solitary confinement as part of the interrogation process. If one assumes this percentage rate remained constant throughout 2013 and can be applied to the total number of children arrested (1,004 children), then as many as 30 children may have been subjected to this extreme interrogation technique in 2013.

Military court proceedings


Palestinian child being taken to military court in Nablus.This was in 1987 but, says Military Court Watch, such practices have not changed.Photo by Jean-Claude Coutausse

6.12 In the overwhelming majority of cases children continue to meet their lawyer for the first time in court, after the conclusion of their interrogation. Children are still brought to court in brown prison uniforms, 
handcuffed and shackled by the ankles. Once inside the
courtroom, handcuffs are
removed but the ankle shackles 
remain. Although information
published by the Military Courts
Unit (Updated – April 2013)
states that “as a rule, proceedings
in the Military Courts are open
to the public” and that in camera 
hearings are “done only in special circumstances and where specific strict grounds are met”, MCW has observed that since mid-September 2013, an increasing tendency by some military court judges to exclude observers from attending hearings involving minors, in some cases even when the family has expressed a wish for them to be present.

6.13 The outcome of the entire court process
is generally determined early on during
the initial application for bail. Bail is
frequently denied with the result that
the quickest way out of the system for
less serious offences is to plead guilty, whether or not the offence was committed. For the same reason, few children raise alleged issues of mistreatment during their court appearances as this will simply delay the process.

Imprisonment
6.14 At some stage following arrest the child will be thoroughly searched. Although UNICEF recommended that strip-searching children should only occur in exceptional circumstances and under strict guidelines, this does not appear to be the case.47 In 15 cases (25 percent) children
 reported being strip-
searched and in none of
these cases does it appear
that the guidelines
 recommended by UNICEF
were followed. In some
cases there appears to be a 
deliberate attempt to
humiliate the child whilst he is being strip searched.

6.15 Although UNICEF recommended
that the administrative procedures
 for obtaining a permit to visit a
child in prison should take no more
 than 14 days to process, children
 continue to report delays sometimes
 involving several months before 
their parents are issued permits to 
visit.In 6 cases (10 percent)
 children report that they received
 no visits from their parents due to unspecified “security” reasons whilst in detention for periods ranging from two to six months. In another 4 cases (7 percent) children only received one visit from their parents whilst in detention for periods ranging from three to six months due to the length of time to issue a permit. UNICEF also recommended that children be entitled to regular telephone communication with their families whilst in detention. As far as MCW is aware no steps have been taken to implement this recommendation and there remains a total ban on telephone communication between Palestinian children in detention and their parents.

6.16 As noted above, the education provided to Palestinian children in Israeli prisons remains limited and fails to ensure the child’s smooth transition back into the Palestinian school system upon release.

Release and rehabilitation
6.17 In 9 cases (15 percent) children
 report that their parents were not 
informed of the date of their release 
and accordingly had to make their
own way home. In 4 cases (7
percent) it was reported that parents 
were waiting at one checkpoint, whilst the child was released at another checkpoint, often many kilometres away. Some children who are detained by the army and released within a relatively short period of time report being asked to sign documents prior to release stating that they have not been mistreated whilst in military custody. Some children report signing these documents even though they also allege they were mistreated – the explanation provided by one child being that he just wanted to go home.

6.18 Although UNICEF recommended
that child victims of ill-treatment 
should obtain redress and adequate 
reparation, including rehabilitation
 and compensation, no steps have 
been taken to implement this
 suggestion. The primary
rehabilitation services that are 
available to Palestinian children are provided by Palestinian and international organisations largely funded by U.S. and E.U. donors.

7. Unlawful transfer and detention outside the West Bank

7.1 One of the recommendations made by UNICEF was that Palestinian children from the West Bank must not be transferred or detained in facilities located inside Israel in violation of international law. However, according to data released by the IPS, since the publication of the UNICEF Report an average of 51 percent of Palestinian children held in IPS facilities were transferred and detained inside Israel, rising to over 80 percent in the case of adult Palestinian detainees.

7.2 The transfer and detention of Palestinian prisoners outside the West Bank breaches Article 76 of the Fourth Geneva Convention (the Convention), ratified by Israel in 1951. By virtue of Article 147 of the Convention, the unlawful transfer or confinement of protected persons constitutes a “grave breach” which attracts personal criminal liability for those involved by virtue of Article 146. Individuals directly involved, or who aid and abet this process, are potentially exposing themselves to criminal liability. Unlawful transfer and confinement of detainees is also classified as a war crime under Article 8 of the Rome Statute of the International Criminal Court, which in at least one European jurisdiction carries a maximum penalty of 30 years imprisonment.

8. Unlawful discrimination

8.1 Another recommendation made by UNICEF relates to the non-discriminatory application of rights and protections to all children living in the West Bank.This is based on a fundamental legal principle that no State is permitted to discriminate between those over whom it exercises penal jurisdiction based on race or national identity.

8.2 Since 1967, Israel has exercised penal jurisdiction over both Palestinians and Israeli settlers living in the West Bank. Although Israeli military law technically applies to all Individuals in the West Bank, an “Israeli” (as defined) present in the West Bank can be tried before a civilian court. Accordingly, an “Israeli” in the West Bank is in theory subject to concurrent jurisdiction (civilian and military) but is invariably prosecuted in the civilian jurisdiction as a matter of policy. In most conflict situations the issue of unlawful discrimination does not arise. However, in the context of Israel’s occupation of Palestinian territory, the issue of unlawful discrimination has arisen as a direct consequence of settlement activity in the West Bank. Whilst there is no serious dispute that Israel’s settlements are illegal, there is also no lawful justification upon which Israel can discriminate between persons over whom it exercises penal jurisdiction in the West Bank.

8.3 It should be noted that this does not mean that Israel must apply its civilian law to Palestinians in the West Bank, as this would be viewed as an element of de jure annexation. However, it does mean that the laws applied to Palestinians in the West Bank must contain rights no less favourable than those applied to Israelis in the settlements. It must also be noted that the rights and protections afforded to Palestinians living under occupation are ultimately derived from international law, which may in some cases exceed the rights and protections provided under Israeli civilian law, particularly in the case of a prolonged military occupation.56 The following table presents examples of how Palestinian and Israeli children living in the West Bank are treated differently under the applicable laws. The discrepancies widen when actual practice is taken into consideration.

9. Accountability

9.1 UNICEF made a total of five recommendations relating to accountability in recognition of the importance in holding individuals accountable for their actions. However, according to data released by the Israeli military authorities, out of the 1,004 Palestinian children who were detained by the military in 2013, only 30 children (3 percent) lodged formal complaints relating to their treatment. The question is whether this relative absence of complaints is an indication that the system is functioning reasonably well in accordance with established international norms, or whether there is some other reason to explain the lack of engagement with formal Israeli complaint mechanisms?

9.2 Some other reasons that may shed some light on this absence of engagement by Palestinians with Israeli complaint mechanisms are:

(i) A common response in reply to the question: “would you like to submit a complaint” is: “why would I submit a complaint to the same authorities that abused me?” Anecdotal evidence suggests that after 46 years of military occupation few Palestinians have any faith in Israeli complaint mechanisms.

(ii) According to a number of Israeli organisations there is some justification for this absence of faith in the official complaint mechanisms. Indeed, the success rate is so low that MCW does not currently file any complaints as there are no reasonable prospects of success.

(iii) When individuals do file complaints they are frequently requested to go to an Israeli police station inside a settlement to provide a statement. Although children can generally be accompanied by an adult for this purpose, they are not permitted to be accompanied whilst their statement is being taken. Sometimes they are required to go to the same police station where the alleged abuse occurred. The lack of accompaniment and the general circumstances discourages the filing of complaints. There is a perception that attempts will be made to recruit the child as an informant or place undue pressure on the child to change his story. Settlements, for most Palestinians, are places to be avoided at all cost, as is Israeli military authority.

(iv) Few complaints are raised in court about mistreatment as this tends to delay the court process potentially prolonging the period spent in custody. For the overwhelming majority of children who are facing relatively short prison sentences (2-4 months) it is quicker to plead guilty than to challenge the system in anyway, including by alleging mistreatment or coercion.

(v) Some families are reluctant to file complaints for fear of retaliation. This is particularly the case in situations where a family member has a permit to work inside Israel. There is little hard evidence of actual retaliation against those who file complaints, but the perception is enough to discourage many.

(vi) In February 2014, Amnesty International reported on the available Israeli complaint mechanisms as follows: “The current Israeli system has proved woefully inadequate. It is neither independent nor impartial and completely lacks transparency.”

9.3 In June 2013, the Israeli Ministry of Justice announced that complaints made against Israeli Security Agency (ISA) (“Shin Bet”) interrogators will no longer be conducted by a serving ISA employee. Instead, complaints will now be handled by a Complaints Inspector independent of the ISA.83 Reports indicate that this complaint mechanism became operational in January 2014 and it is still too early to say what impact this change will have.

10. US Department of State – Country Reports on Human Rights Practices – 2013

10.1 In March 2014, the US State Department released its annual global report on human rights including details concerning children held in Israeli military detention in 2013. The State Department noted that reports were received: “that Israeli security services continued to abuse, and in some cases torture, minors who they frequently arrested on suspicion of stone throwing to coerce confessions. Tactics included beatings, long-term handcuffing, threats, intimidation, and solitary confinement.”

10.2 The US State Department also noted that: “Israeli authorities operated under military and civilian legal codes in the occupied territories. Israeli military law applied to Palestinians in the West Bank, while Israeli settlers were under the jurisdiction of Israeli civil law.” The report noted significant differences in the rights and protections provided under these two systems of law, giving as one example Military Order 1711, which provides for time limits under which Palestinian children must be brought before a military judge of at least twice as long as those applied to Israeli children living in the settlements.
.
10.3 The US State Department also noted that the military courts used almost exclusively to prosecute Palestinians in the West Bank have a conviction rate in excess of 99 percent. It remains to be seen what legal implications these reports may have under US domestic law.

11. Concluding words
.
11.1 Evidence collected by MCW since March 2013 indicates that there have been changes in the way some children are being treated in practice. So for example, some parents (7 percent) were given forms telling them where their child had been taken for interrogation; a minority of children were restrained in accordance with army procedures (13 percent); and some children consulted with a lawyer prior to interrogation (5 percent) or were permitted to be accompanied by a parent (7 percent). However, these developments are presently being observed on such a small scale that they can only be described as de minimis at this stage.

11.2 The changes referred to above must also be considered within the totality of the evidence with regard to the cumulative effect of the treatment reported during the first 24 hours (Annexure C). So for example, the overwhelming majority of children continue to be tied and blindfolded, whilst over half also report being subjected to physical violence and denied the most basic of legal rights, such as being informed of their right to silence. The evidence gathered by MCW, and the evidence collected by UNICEF following the publication of the Report, indicates that ill-treatment in the system still appears to be “widespread, systematic and institutionalized”.
.
11.3 The UNICEF Report made 38 recommendations covering all phases of the system. To date, 87 percent of these recommendations remain un-implemented. Whilst every effort should be made to ensure the implementation of all the recommendations, six changes, if effectively implemented, would provide additional protection at a critical stage:

Children should only be arrested during daylight hours except in rare and exceptional circumstances. In all other cases summonses should be used;

All children, and their legal guardian, should be provided on arrest with a written statement in Arabic informing them of their full legal rights in custody;

All children must consult with a lawyer of their choice prior to questioning;

(iv) All children must be accompanied by a family member throughout their questioning;

(v) Every interrogation must be audio-visually recorded and a copy of the tape must be provided to the defence prior to the first hearing;90 and

(vi) Breach of any of the above recommendations should result in the discontinuation of the prosecution and the child’s immediate release.

Links
Children in Israeli military detention, UNICEF, full report [pdf]

How the IDF shrinks Palestinian children through fear, imprisonment and ditching the law.
It would be difficult to imagine a more bizarre press conference…
Fear, pain and broken rights: children in IDF custody

Children in Military Detention, UNICEF, follow-up bulletin, October 2013

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