Children Before The Military Court

30-10-2023

İrem Çakmak

Middle East and Human Rights Researcher

Global Human Rights Defence

Israel has been arresting Palestinians in the West Bank and East Jerusalem as part of its policy of occupation and to restrict any kind of resistance. During the initial four days of the prevailing ceasefire between Israel and Hamas, initiated on Friday, November 24, Israel freed 150 Palestinian detainees, comprising 117 children and 33 women, while concurrently detaining a minimum of 133 individuals from East Jerusalem and the West Bank, as reported by Palestinian prisoner associations. [1] This phenomenon brought to the forefront of the discussion once again the apartheid in the judicial system of Israel, exhibited in high numbers of child incarceration, as well as the trials of civilians before Israeli military courts. 

Since the outset of the occupation in 1967, Israel has implemented two distinct legal systems within the same region, as Israeli settlers in the occupied West Bank are governed by civilian law, additionally, Palestinian children in East Jerusalem are subjected to civilian criminal law while adult Palestinians in the same area are subjected to military law. [2]

With Military Order 101 passed in 1967, shortly after the commencement of the occupation, civic activities such as organising and participating in protests, assemblies, or vigils were criminalised, and any acts that could influence public opinion are prohibited as ‘political incitement.’ [3] Subsequently, Military Courts were established with Military Order 378, with extensive personal, territorial, and subject matter jurisdiction, delineating “security offences” within the applicable criminal code. [4] Nevertheless, it failed to institute a procedure for ascertaining an individual’s combatant status under international law as a basis to be tried in military courts, and it does not acknowledge the potential for a Palestinian to fulfil the specified criteria, opening the way for deeming Palestinian resistance as ‘terrorism’ under this Order. [5] 

Following a period of forty-two years during which Palestinian children were under the jurisdiction of the same courts as adults, Military Order 1644 instituted a first-instance military court specifically for them. [6] A notable modification is the limitation of the personal jurisdiction of the Military Court, which now has standing over Palestinians over the age of 18 whereas previously Palestinian children aged 16 and above were tried and sentenced as adults. [7] 

However, the Order is still far from meeting the international standards for children’s rights, specifically the right to a fair trial. In adherence to international law, individuals should be prosecuted and sentenced based on their age at the time of the purported offence. [8] In contrast, Palestinian children are often charged based on their age at the time of sentencing, typically leading to their being treated as adults in the legal process. [9]

Another primary instrument introduced by Military Order 1644 to implement the system of apartheid is administrative detention. [10] Administrative detention is an arbitrary detention procedure where individuals are held by state authorities on undisclosed security grounds that the accused and their legal counsel cannot access, thus violating the due process guarantees mandated for all individuals deprived of their liberty by international law. [11] Additionally, military court judges, who also serve as active-duty or reserve officers in the Israeli army, possess the power to authorise administrative detention orders of up to six months without restrictions on renewal, contributing to heightened uncertainty and the potential for indefinite imprisonment for children subjected to administrative detention, in addition to the already-existing challenges for child prisoners. [12] Like the Military Courts, administrative detention procedures must be reserved for exceptional and restricted situations while not replacing a judicial process that includes all the due process rights and guarantees. [13]

International Covenant of Civil and Political Rights (“the ICCPR”), which regulates general rules of fair trial, necessitates that military jurisdiction must align with the obligations for the administration of justice and adhere to the imperative of maintaining the independence and impartiality of a tribunal. [15] It is further stated in General Comment No. 13 on Article 14 that although military courts are not expressly forbidden by the Covenant, the outlined conditions strongly suggest that the trial of civilians by such courts should be extremely rare since they may pose significant challenges regarding the fair, independent, and impartial dispensation of justice. [16] A prevalent characteristic in nearly all military legal systems is that the judges are affiliated with the armed forces, which means they remain accountable to military discipline, where their performance is assessed for future promotions; additionally, being generally under the authority of the executive power raises significant doubts about whether military courts can achieve the requisite level of independence and impartiality mandated by human rights law and the legal doctrine of the separation of powers. [17] Therefore, it is further noted by the United Nations Special Rapporteur on the independence of judges and lawyers that ‘international law is developing a consensus as to the need to restrict drastically, or even prohibit, that practice.’ [18]

Additionally, safeguarding the rights of children is also pertinent. In 1991, Israel ratified the United Nations Convention on the Rights of the Child, which encompasses legal safeguards concerning juvenile justice and emphasises that the deprivation of a child’s liberty should only occur as a last resort and must not involve unlawful or arbitrary detention. [19] The UNICEF report on Palestinian children in Israeli military detention characterises Israel’s treatment as ‘extensive, organised, and institutionalised’, scrutinising the treatment over the last decade, highlighting the considerable, uniform, and enduring nature of these accusations, which contradict child rights standards. [20] However, Israel did not comply with the persistent recommendations. [21] Israeli authorities have so far only adopted cosmetic amendments which did not eliminate the non-compliance with international law. [22] 

Sources and further reading

[1] Al Jazeera, ‘Israel Arrests Almost As Many Palestinians As It Has Released During Truce’ (November 28, 2023) <Israel Arrests Almost As Many Palestinians As It Has Released During Truce> accessed 1 December 2023.

[2] Defense for Children International Palestine ‘Military Detention’ (No Date Indicated) <Military Detention> accessed 1 December 2023.

[3] Israel Defense Forces Order No. 101 Order Regarding Prohibition of Incitement and Hostile Propaganda Actions, (27 August 1967) <https://www.btselem.org/download/19670827_order_regarding_prohibition_of_incitement_and_hostile_propaganda.pdf> accessed 1 December 2023.

[4] Israel Military Order No. 378 Order ConcerningSecurity Provisions, (20 April 1970) <https://www.scribd.com/document/144678918/Israel-Military-Order-No-378-on-Security-Provisions> accessed 1 December 2023.

[5] Prisoner Support and Human Rights Association ‘Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians’ (July 2017) <Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians> accessed 1 December 2023.

[6] Israeli Defence Forces Order No. 1644, (July 29 2009) <https://www.militarycourtwatch.org/files/server/Israeli_Military_Order_1644%20(2).pdf> accessed 1 December 2023.

[7] Prisoner Support and Human Rights Association ‘Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians’ (July 2017) <Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians> accessed 1 December 2023.

[8] Committee on the Rights of the Child ‘General Comment No. 10 Children’s rights in juvenile justice’ para 31, (April 27, 2007) <https://www2.ohchr.org/english/bodies/crc/docs/crc.c.gc.10.pdf> CRC/C/GC/10. 

[9] Prisoner Support and Human Rights Association ‘Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians’ (July 2017) <Israeli Military Orders Relevant to the Arrest, Detention and Prosecution of Palestinians> accessed 1 December 2023.

[10] Israeli Defence Forces Order No. 1644, Arts 285-294, (July 29 2009) <https://www.militarycourtwatch.org/files/server/Israeli_Military_Order_1644%20(2).pdf> accessed 1 December 2023.

[11] Amnesty International, ‘Israel/OPT: Horrifying cases of torture and degrading treatment of Palestinian detainees amid spike in arbitrary arrests’ (November 8, 2023) <Israel/OPT: Horrifying cases of torture and degrading treatment of Palestinian detainees amid spike in arbitrary arrests> accessed 2 December 2023.

[12] Defense for Children International Palestine ‘Military Detention’ (No Date Indicated) <Military Detention> accessed 1 December 2023.

[13] Military Court Watch ‘Administrative Detention of children at 15 year high’ (June 30, 2023) <Administrative Detention of children at 15 year high> accessed 1 December 2023.

[14] International Covenant on Civil and Political Rights, Art 4 <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights > accessed 2 December 2023.

[15] International Covenant on Civil and Political Rights, Arts 14-15 <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights > accessed 2 December 2023.

[16] UN Human Rights Committee ‘CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law’ (12 April 1984) <https://www.refworld.org/docid/453883f90.html> UN Doc.HRI/GEN/1/Rev.1.

[17] International Review of Red Cross ‘The judicial arm of the occupation: the Israeli military courts in the occupied territories’ (June 2007) <The judicial arm of the occupation: the Israeli military courts in the occupied territories> accessed 2 December 2023.

[18] Commission on Human Rights, ‘Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy’ para 78 () <Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy> UN Doc. E/CN.4/1998/39/Add.1

[19] Save the Children ‘Injustice: Palestinian children’s experience of the Israeli  military detention system’ (2023) <Injustice: Palestinian children’s experience of the Israeli  military detention system> accessed 1 December 2023.

[20] UNICEF ‘Children in Israeli Military Detention’ (February 2013) <Children in Israeli Military Detention>  accessed 2 December 2023.

[21] Defence for Children International Palestine ‘Military Detention’ (No Date Indicated) <Military Detention> accessed 1 December 2023.

[22] Save the Children ‘Injustice: Palestinian children’s experience of the Israeli  military detention system’ (2023) <Injustice: Palestinian children’s experience of the Israeli  military detention system> accessed 1 December 2023.