Palestinian Children Do Not Have the Right to a Fair Trial Under the Israeli Military Court System
In the 40th year of Israel's military occupation of the Palestinian territories, Tuesday 17 April 2007 marked Palestinian Prisoner's Day.
Currently there are approximately 380 Palestinian children in Israeli custody, many of whom are awaiting trial or sentence, and others who are serving lengthy periods of imprisonment for such minor offences as stone throwing.
Article 40 of the United Nations Convention on the Rights of the Child, to which the State of Israel is a signatory and State Party, gives children the right to a fair trial, the right to liberty while awaiting trial, the right to be heard, the right to privacy, the right to be informed, to have access to a lawyer and support from family and to be treated with dignity during the trial process.
Israel arrests, detains, interrogates, prosecutes and sentences Palestinian children pursuant to a set of Military Orders issued by commanding officers of the Israeli occupying forces, a system which has existed since Israel's occupation of the Palestinian territories in 1967. Palestinian children who are arrested by Israeli military personnel are deemed by Israel to be offenders against the “security” of the Israeli State and are subsequently prosecuted under the Israeli military system in Military Courts; a system which also prosecutes Palestinian adults.
The Military Court system and procedure, on the surface, can be compared to that of a jurisdiction of criminal prosecution however the specific rules and Military Orders which operate within the Court are conducive to Israel's occupation of the Palestinian territories and cancel out any opportunity or right a Palestinian may have to a fair trial.
Israeli Military Order 132 defines a Palestinian child as a person under the age of 16 and those children over the age of 16 are sentenced as adults and imprisoned with adults. Palestinian children are subjected to the same arrest, interrogation, trial and imprisonment procedures as adults, by the Israeli State.
Palestinian children, when under the arrest of Israeli soldiers, are not advised of their rights, are not given immediate access to a lawyer or contact with a parent, guardian, other adult relative or an independent support person. Palestinian children are deprived the right to a family visit while held in a detention centre for interrogation, which can last several weeks but even after the conclusion of interrogation, a Palestinian child may remain in a detention centre for an indefinite period where family visits are not allowed. Palestinian children can be deprived a visit from a lawyer while under interrogation for security reasons and under Israeli military law, this can last up to 90 days. In some circumstances, a Palestinian child may only meet his lawyer for the first time at the first court appearance in the Military Court.
Most Palestinian children are detained from the moment of their arrest until the end of legal proceedings. They are usually arrested in their homes in the middle of the night by numerous armed Israeli soldiers and are rarely granted bail by the Military Court.
Palestinian children are interrogated in detention centers and in many circumstances are assaulted, beaten and tortured during the interrogation process. Torture methods include psychological threats of harm to or imprisonment of family members.
The Military Court is neither adversarial nor inquisitorial. Military Court judges are Israeli legal practitioners either employed by or members of the Israeli army, and are not independently appointed as judicial officers through the executive authority of the Israeli government. Military Court prosecutors are also Israeli army personnel.
The Military Court (both the judiciary and the prosecution) relies heavily on the confession of a Palestinian child. In this regard, there are no rules of evidence in the Military Court. A confession is obtained by coercion during the interrogation process. A confession is the main piece of information or “evidence” used against a Palestinian child in the Military Court. A confession is in effect, the prosecutor's case and can also be used to implicate other Palestinian child prisoners both in Court proceedings and in interrogation.
The confession, regardless of how it has been obtained, forms the bases of the indictment against the child. It is what the child has to respond to in entering a guilty or not guilty plea before the Military Court. There are no civilian, forensic or military personnel witness statements, whether oral or written, presented to the Military Court or a Palestinian child's Defense lawyer before this plea is entered. In effect, this shifts the burden of proof on the Defense making it extremely difficult to challenge a confession.
All Palestinian children brought before the Israeli military court are sentenced to a term of imprisonment. Israel uses imprisonment as a measure of first resort for Palestinian children; there are very few cases of children who receive alternative sentences.
During their imprisonment, Palestinian children are exposed to varying forms of punishment for minor offences including being placed in solitary confinement, deprivation from family visits, financial penalties withdrawn from their prison accounts, and ongoing restrictions to going outdoors. Palestinian child prisoners also do not have the same rights as Israeli child prisoners, for example they do not have the right to make telephone calls.
Defence for Children International Palestine views the military system imposed on Palestinian society by Israel as a discriminatory system that violates core principals of human rights. Military Orders and Military Order enforcement officials are tools used by the executive authority of the Israeli government in its occupation of the Palestinian territories, to oppress and suppress Palestinian children, and to overall undermine their right to life, survival and development.
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