Saturday, January 16, 2021

Living under ‘apartheid’: discrimination against detained Palestinian minors

By J.J. Rhies - April 29, 2019
Section: [Main News] [Features]
Tags: [child arrests] [Apartheid]


“[W]hat defines an apartheid state?” asked Lubnah Shomali, the advocacy manager for BADIL Resource Centre for Palestinian Residency and Refugee Rights. “It’s having racial discrimination codified into law. And that is exactly what Israel has done. It has a host of different laws, whether it’s in the ... civil law, or whether it’s in the military orders that it imposes on the occupied territory.”


Israel’s “apartheid” conditions have a severe impact on the treatment of detained and arrested children, Shomali said. “[T]he punishment of Palestinian children is much more intense,” and “they’re held at completely different facilities than an Israeli child would be held.”


According to Military Court Watch (MCW), a non-profit organisation that monitors Israeli military courts, more than half of Palestinian child detainees who are arrested in the West Bank, which falls under Israeli military legislation, are transferred to Israeli prisons - a violation of the Fourth Geneva Convention.


“[T]here is discrimination not only at the legal level, but, of course, it’s a practiced discrimination, or they’re treated differently because they are Palestinians,” Shomali added.


Same crime, different system


Ayed Abu Eqtaish, the accountability director of Defence for Children International-Palestine (DCIP), made almost identical statements. He said Israel’s dual-legal system has a disproportionate - and negative - effect on Palestinian children, whose conditions and prison sentences vary considerably from their Israeli counterparts who commit the same crimes.


“In theory,” Israeli and Palestinian children in East Jerusalem guilty of the same crime should be treated equally and receive the same conviction. But “in practice,” he said, they do not.


“Israel is employing two legal systems in the same geographical area,” he explained. “The Israeli military legal system,” which “has been designed to deal with people who are under occupation[,] ... is applied to Palestinians who are living in the West Bank [excluding East Jerusalem], while the Israeli civil system is applied to Israeli citizens,” including West Bank settlers, and Palestinians living in East Jerusalem.


East Jerusalem, which has been occupied by Israel since 1967, falls under civil legislation, and hence all residents, Israeli and Palestinian alike, are tried under civil law. “In theory,” Eqtaish explained, Palestinians living in East Jerusalem “have all the rights enshrined in the Israeli civil system, while in practice they are treated like their counterparts from the West Bank.”


During detention and interrogation, Palestinian children withstand “ill-treatment” and “torture” from Israeli authorities, who use these methods to compel them to confess to a crime, Eqtaish said. DCIP has reported that between 500 and 700 Palestinian children are detained by the Israeli military each year.


MCW found that in 2018, 70 per cent of Palestinian child detainees were physically abused, up from 60 per cent in 2013. Additionally, 70 per cent were threatened in 2018, compared to 47 per cent in 2013.


Such child detainees are exposed to these treatments, which violate international law, under both legal frameworks, but Palestinian children are afforded fewer rights by Israeli military law. Israeli authorities have claimed that some aspects of civil law are applied under military law, however. They have also released standard operating procedures noting that “detainee[s] must not be subjected to physical or verbal violence, or any other inappropriate behaviour.”


Distinct legal codes, dissimilar rights and protections


Until 2011, 16 and 17-year-olds were tried as adults under Israel’s military framework. An amendment that year modified the definition of a prosecutable minor to include all individuals ages 12 to 18, but “for the purpose of other proceedings - arrest, detention and interrogation - the age of majority is still 16,” the Association for Civil Rights in Israel (ACRI) found in a 2014 report.


By contrast, Israeli civil legislation has always regarded individuals under 18 as minors. Roni Pelli, an ACRI attorney, said most Palestinian minors are arrested for stone-throwing. “The difference between the [Israeli] kids who arrested and the Palestinian kids is quite extreme.”


Under civil law, minors can face up to 10 years for stone-throwing if intent to harm is not proven, and 20 years if it is. Military courts can also mete out a maximum 20-year sentence for the crime.


The treatment of Palestinian and Israeli children who have allegedly hurled rocks diverge in several respects, Pelli said. Foremost, the parents of Israeli children are afforded the right to be present at their child’s interrogation, and Israeli children cannot be arrested at night. ACRI also reported that the parents of a detained child must be notified of the child’s arrest, and that the child has a right to an attorney.


Palestinian children tried under military law, on the other hand, are “often” arrested at night. The military system does not stipulate an appropriate time for the arrest of a minor, yet the United Nations Children’s Fund has advised that all arrests should occur during the daytime, “notwithstanding exceptional and grave situations.”


Furthermore, Palestinian children detained in the West Bank do not have the legal right to speak with their parents before the interrogation or have their parents present during the interrogation. Mohammed Mahmoud, then an attorney for Adameer, a Palestinian prisoners’ rights group, told Human Rights Watch that Israeli personnel can choose to prevent a detainee’s parents from being present at an interrogation.


This order, as far as we see, is used against Palestinian children in political cases only,” Mahmoud said. “[A]nd it gives the interrogators the freedom to harass, scream, threaten the children and push them to confess to crimes they have not committed out of fear.”


Under military law, Palestinian minors have the right to consult with an attorney before their interrogation, but are expected to have the “details of a defence attorney” that they can contact for representation, ACRI said in 2014. It is “highly doubtful” that most minors will be in possession of contact information of a lawyer, however.


Israeli authorities at the Ministry of Public Security and the Israeli Prison Service could not be reached for comment.


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