The military law applied to Palestinians must provide rights and protections no less favorable than those afforded to Israeli citizens living in the settlements.
By Gerard Horton
Last month, Israeli housing minister Uri Ariel announced the approval of 1,200 more houses for settlers in East Jerusalem and the West Bank, adding to the 520,000 already living there, including Mr. Ariel himself. Only time will tell, but this announcement, like the many that proceeded, may one day prove to contain a fatal sting in the tail for the idea of Israel as a democratic state with a Jewish majority. For there is one inescapable feature of Israel’s settlement activity that will have far reaching consequences based on a simple legal principle: no state is permitted to discriminate between those over whom it exercises penal jurisdiction based on race or national identity.
This point was recently highlighted in a report submitted to the UN by Military Court Watch. The report notes that in most conflict situations, the question of unlawful discrimination does not arise. The issue did not arise in Afghanistan or Iraq for the simple reason that U.S. civilians never relocated and settled in those regions. However, once civilian settlement does take place, whether it’s viewed as legal or not, the principle of non-discrimination will inevitably arise.
So what does discrimination look like in the West Bank? Well, take the example of a Palestinian child who throws a stone at a child from a settlement, or visa versa. Under the principle of non-discrimination, both children should be dealt with equally under the law. This does not mean that Israel must apply its civilian law to Palestinians, as this would be viewed as annexation, but the military law applied to Palestinians must provide rights and protections no less favorable than those afforded to Israeli citizens living in the settlements. However, the current reality in the West Bank is that Palestinian children accused of throwing stones are prosecuted in military courts, whereas their Israeli counterparts living in the settlement next door, are dealt with in Israel’s civilian juvenile justice system.
Not surprisingly, the civilian system has far greater rights and protections than its military counterpart, as the examples below illustrate:
• Settler children cannot be interrogated at night, whereas a Palestinian child can be;
• Settler children can consult with a lawyer prior to questioning, whereas a Palestinian child rarely does;
• Settler children are accompanied by a parent when questioned, a Palestinian child is not;
• Settler children see a judge within 12-24 hours following arrest, whereas Palestinian children must wait at least twice as long;
• Settler children can not be imprisoned if under 14, whereas a 12-year-old Palestinian child can be; and
• If convicted Israeli children stand a 6.5 percent chance of imprisonment, whereas 90 percent of Palestinian children are incarcerated.
In addition to these examples, recent reports by UNICEF and the U.S. State Department indicate that Palestinian children are subjected to high levels of abuse in the military system. So serious is the problem, that following a review of over 400 cases, UNICEF concluded: “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 has called for immediate reform. Thankfully, Israeli children face few of these problems in the civilian juvenile system.
While many Palestinians and Israelis have little faith in the current peace talks, even U.S. officials are now openly suggesting that this may be the last chance to salvage a viable two-state solution. If these talks do not succeed, and given the Israeli housing minister’s recent announcement, the prospects are not encouraging, then there is likely to be a seismic shift in the discourse towards equal rights for all between the Jordan River and the Mediterranean; half of the inhabitants will have been left without any viable alternative, and will no longer tolerate their children being treated as second class individuals.
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.