The Injustice of Nationality Based Justice

On March 28, I posted a blog “They Have Destroyed My Son.”  In it, I wrote about the issue of Palestinian child detention.  It is an issue that continues to pull at my heart.  Simply put, children must be treated with compassion and respect.  Common decency calls for fair and just treatment of all juvenile detainees, regardless of their ethnicity, nationality or any other separating factors.  Inherent in our understanding of democracy is our understanding of justice.  For what is a justice system, if its mandate of justice is not adhered to for all parties?

Prior to having the privilege of living and working in Jerusalem, I did not understand the differences between Israeli civil law that applies to all Israeli citizens and to Palestinians living in Jerusalem, and Israeli military law that is applied to Palestinians living in the West Bank.  The reality is that in the West Bank there are two sets of laws – one for Israeli’s and one for Palestinians.  The one and only criteria that determines which law is applied to an individual living in the West Bank is that person’s nationality.  If you are one of the roughly 2.5 million Palestinians living in the West Bank and holding a West Bank ID card, you are prosecuted through the Israeli military court system.  If you are one of the 500,000 or so Israeli settlers living illegally in the West Bank, you are prosecuted through the Israeli civil law system. 

During my time here, I have heard a number of concerns raised about military law and its highly punitive nature.  While this writing will attempt to explain military law in general, it will focus on the application of military law towards children and illustrate the differences between Israeli penal law and military law. 

“Since the occupation of Palestinian territory in 1967, Palestinians have been charged with offences under Israeli military law and tried in military courts.  It is estimated that 726,000 Palestinian men, women and children have been detained under these orders during the past 44 years.” (UN Special Rapporteur on human rights, found in Bound, Blindfolded and Convicted, DCI, 2012, pg15, found at   http://www.dci-palestine.org/category/publications)

“The authority of Israel to establish military courts in the Occupied Palestinian Territory in which to prosecute local civilian residents is found in international humanitarian law, otherwise known as the laws of war.  Generally speaking, a local population living under military occupation should continue to be bound by their own penal laws and tried in their own courts.  However, local laws may be repealed or suspended by the occupying power “in cases where they constitute a threat to its security” and replaced with military orders enforced in “properly constituted, non-political military courts.” However, it is important to note that this authority rests on an underlying principle that military occupation must be temporary in nature, and cannot be legally maintained indefinitely.”( Bound, Blindfolded and Convicted, DCI, pg 16)

Clearly, Israel does have the right under international humanitarian law to impose military law, although the convenient ignoring of “temporary in nature” may well invalidate this right.  “However, applicable international human rights and humanitarian law nevertheless restricts the jurisdiction of such courts and guarantees certain fundamental fair trail rights.  Furthermore, it is doubtful whether the use of military courts to try civilians can ever satisfy the requirements under international human rights law to a trial before an independent and impartial tribunal, particularly in the circumstances of a prolonged military occupation that is now of questionable legality.” (Bound, Blindfolded and Convicted, DCI, pg 15)

“Military law was imposed on Palestinians immediately on cessation of hostilities in June 1967, with the issuance of a military order empowering the Israeli area commander with full legislative, executive and judicial authority over the West Bank.  Acting on this authority, over the past 44 years, successive Israeli military commanders in the West Bank have issued nearly 1700 orders.  Contrary to basic democratic principles, the local Palestinian population has no say whatsoever in how this legislative, executive, or judicial authority is exercised.  These orders relate to a range of issues, including the authority to arrest and imprison Palestinians for “security offences,” such as: causing death, personal injury or property damage, public order offences; weapon and explosive offences; and organizing and participating in protests.” (Bound, Blindfolded and Convicted, DCI, pg.16)

So what does all of this mean?  What are the differences between Israeli civil law and Israeli military law?   For illustration purposes, let’s imagine that two children in the West Bank become involved in a disagreement.  They are the same age.  One is an Israeli child living in an illegal settlement.  The other is a Palestinian child living in a village his or her family have lived in for generations.  Each child picks up a few stones and hurls them at the other.  No one is hurt.  The army arrive.  In all likelihood, the Israeli child is set free as stone throwing is not an offence under Israeli penal law.  It would only be a problem if an injury or property damage to an Israeli had resulted from the stone throwing.  If the child were to commit a more serious act, their parents would be issued a summons for the child to appear at the police station the next day.  They would then begin the process of dealing with the charges through the Israeli civil law.  However, stone throwing is an offense under Israeli military law and so the Palestinian child will either be arrested at the time, or he will be allowed to go free for the moment, only to be arrested at a later date.  The likely scenario is that a group of soldiers will arrive at his home sometime during the middle of the night, barge into the house and arrest him.    

Let’s assume for a moment that for some unknown reason, the army decided to make a very rare arrest of an Israeli in the West Bank.  How would these two children be treated by the two separate justice systems of Israel?

The Israeli settler child will be treated according to Israeli civilian law.  The Palestinian child will be treated according to Israeli military law.

Both legal systems set the minimum age of criminal responsibility at 12 years, and both systems decree the age of majority to be 18 years. 

During interrogation, neither one has the right to have a lawyer present, although the Israeli child is entitled to have a parent present while the Palestinian is not.  The Israeli child has a partial right to have the interrogation session(s) audio-visually recorded, while the Palestinian is not.

Depending upon age, the maximum period of detention before being brought before a judge will be 12 -24 hours for the Israeli child, and 24-48 hours for the Palestinian.  Prior to April 2, 2013, this period for the Palestinian child would have been 4 days.

The maximum period of detention without access to a lawyer for the Israeli child is 48 hours and for the Palestinian child it is 90 days!  In actual fact, the vast majority of Palestinian children only meet their lawyer for the first time when they see them in court.

The maximum period of detention without charge for the Israeli child is 40 days and for the Palestinian child it is 188 days.

The maximum period of time between charge and trial for the Israeli child is 6 months, whereas for the Palestinian child it is 2 years.

In 20% of Israeli child cases, bail is denied, meaning that 80 % of Israeli child detainees are granted bail.  It’s quite the opposite situation for Palestinian children, for whom bail is denied in 87% of cases.

There is also a huge difference between the two legal systems in the sentencing of children.  Custodial sentences are imposed on only 6.5% of Israeli child cases, whereas 90% of Palestinian children receive custodial sentences.    (all figures taken from “Rights of Palestinian and Israeli children: Comparative table, DCI pg 61, updated March 2013)

What seems glaringly obvious from these figures are the differences in the rights offered to child detainees and the periods of detention that an Israeli and a Palestinian child face under the two separate legal systems.

What happens to a Palestinian child once they are arrested?  What do they have to face as they move through the military law system?

“The Israeli military detention system consists of a network of military bases, interrogation and detention centres and police stations in the West Bank, East Jerusalem and in Israel.  Palestinians, predominantly from the West Bank, are initially taken to one of these facilities for questioning and temporary detention.  Some of these facilities are inside settlements in the West Bank.  Palestinians, including children, remain at these facilities while awaiting sentencing by the military courts, or are transferred to prisons, most of which are located inside Israel, where they wait to be sentenced, or to serve out their prison terms.  It should be noted that the transfer of Palestinian detainees, including children, to temporary detention facilities and prisons inside Israel violates Article 76 of the Fourth Geneva Convention, which prohibits such transfers.” (Bound, Blindfolded and Convicted, DCI, pg 15) Detention within Israel also makes it extremely difficult for Palestinian children to see their families.  Given the restrictions on movement that Palestinians face, it is often difficult for family members to obtain the appropriate permits to allow them to enter Israel.  As well, many of them find the financial cost of travel to Israel to be a burden.  For these reasons, Palestinian child detainees are often isolated from their families for long periods of time.

I had the privilege of meeting this week with an official from Defense for Children International (DCI).  He explained to us what usually happens to a Palestinian child who is arrested. 

Over half of the child arrests occur between the hours of midnight and 5am from their homes.  79% of the detained children show some form of physical abuse within the first 48 hours after their arrest.  The Israeli army has no obligation to explain why the children are detained or where they are taken.  Usually, they are blindfolded with their hands tied, and forced to sit on the metal floor of an army jeep while they are moved between police stations, interrogation centres and prison, with little if any access to food, water or toilet facilities for several hours.

If the child fails to cooperate with the interrogation, they often are given solitary confinement.  There have been 68 cases of solitary confinement of children since 2008, with 21 cases in 2012 and 7 so far this year.  Periods of solitary confinement vary from 2-29 days, with the average length of solitary confinement of children in Dec 2012 being 15 days.  When in solitary confinement, the only person the child sees is the interrogator.  The cell, containing a filthy mattress, is small and dimly lit with a light that remains on 24 hours a day.  Food, which the young boys report is often inedible, is passed through an opening in the door.  Conditions could easily be defined as deplorable.

The Israeli child, if arrested at all, proceeds through the Israeli penal law system with considerable supports, and spends little, if any time in detention. 

The Palestinian child proceeds through the Israeli military court system, with its documented abuses and extensive periods of incarceration.  (for further documentation of abuses, see March 28 blog posting “They have destroyed my son.”) The usual penalty for stone throwing ranges from 6 months to 2 years, but it certainly can be longer.  While maximum penalties for stone throwing are seldom imposed, it is worth noting that under military law, the maximum sentence  for stone throwing at a solitary object (a military installation, the Separation Barrier, etc) is 10 years, and the maximum sentence for stone throwing at a moving object ( a vehicle, a person) is 20 years.  If an injury is incurred as the result of the stone throwing, the charge can be elevated to attempted murder, with even greater sentences.

Israeli military law appears to hold only a negligible regard for the welfare and care of the children that enter its system.  The concept of justice for ALL seems to have been put aside.  Civilized systems of justice accord fair and just treatment to the youngest and most vulnerable citizens of society. Given the realities faced by Palestinian children in the Israeli military law system, there is a distinct shortage of fairness, of justice, of care and of concern for their well- being.  It is, at best, an extremely punitive system that lacks respect for basic democratic principles, while violating International Humanitarian Law.

The comparison and contrast of justice offered to an Israeli child and a Palestinian child shows a distinct inequality that is determined solely by nationality.  I know what I call it.  What do you?  

 

Peace, Salaam, Shalom,

Jan

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