The Israeli military has implemented positive developments in its juvenile court system in recent years, and yet, regular allegations of serious abuses persist. A look at what has been done and what still needs to take place.
By Gerard Horton
Since the establishment of Israel’s military juvenile court in September 2009, there have been some noteworthy developments in the way children as young as 12 are treated in Israel’s military legal system. The establishment of the court has led to several changes, including: a reduction in the time in which children must be brought before a military court judge for the first time; a reduction in the time a child can be detained before being charged; a reduction in the time a child can be detained before trial; there have been no children held in administrative detention since December 2011; children are generally being separated from adults in detention; there has been a monthly decline in the number of children detained this year; and for the past two months, there has been no record of any child under 14 being detained in Israeli prisons.
So why do serious allegations of abuse persist?
In March of this year, UNICEF published a report, based on a review of over 400 affidavits, Children in Israeli Military Detention in which it concluded 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.” UNICEF followed up their report in October with a bulletin reviewing subsequent developments.
When it came to the question of ill-treatment, the evidence collected by UNICEF indicated, amongst other things, that 100 percent of children continue to report having their hands painfully during detention, while a similar percentage reported that they are subjected to physical violence, including beatings to the head and face. These new findings were based on 19 affidavits collected by UNICEF though the its Monitoring and Reporting Mechanism on Grave Child Rights Violations.
On December 3, 2013, Military Court Watch (MCW) released a new report (Children in Military Custody – Progress report: 18 months on) which considers each of the developments in the system since a delegation of prominent UK lawyers published a report on the subject 18 months ago.
While noting that there have been some positive legal developments, the evidence collected by MCW confirms UNICEF’s conclusion that ill-treatment is still “widespread, systematic and institutionalized.” For example, according to evidence collected by MCW through a sample of 29 affidavits, 93 percent of children reported being restrained with plastic ties during interrogation, while 83 percent reported being blindfolded or hooded and 55 percent reported being physically assaulted and verbally abused.
But the question still remains, with all the developments that have occurred since September 2009, why has there been no apparent improvement where it most counts – on the level of reported abuse?
Upon closer analysis, the answer to this question is no mystery. None of the developments in the past four years have provided protection to children during the critical first 24 hours following arrest. During this crucial timeframe, the majority of children continue to be arrested at night in what are normally described as traumatic experiences, they are not informed of their rights, including the right to remain silence and all forms of independent oversight are excluded until the conclusion of the interrogation process. Although military court judges are now beginning to voice criticism of the way in which minors are interrogated, they still convict those same children based on improperly obtained evidence.
We fully expect that the MCW will continue to see more developments in the military courts during the next four years. However, unless these developments include the following six points, no one should anticipate a reduction in the level of abuse, or a fall in the conviction rate that hovers around 99 percent:
1. Children should only be arrested during daylight hours, except in rare and exceptional circumstances. SIn all other cases summonses should be used;
2. All children, along with their legal guardian, should be provided with a written statement in Arabic informing them of their full legal rights in custody. This statement must be provided at the time of arrest (or as soon as is feasibly possible) but prior to questioning;
3. All children must be given the opportunity to consult with a lawyer of their choice prior to questioning;
4. All children must be accompanied by a family member throughout their questioning;
5. Every interrogation must be audio-visually recorded and a copy of the tape must be provided to the defense lawyer prior to the first hearing; and,
6. Breaching of any of the above recommendations should result in the discontinuation of prosecution and the child’s immediate release.
Gerard Horton is a lawyer and co-founder of Military Court Watch. Gerard has worked on the issue of children prosecuted in the Israeli military courts for the past six years and is the author of a number of leading reports on the subject.