State Department Human Rights Report (2022)
[26 March 2023] – On 20 March 2023, the US State Department published the Country Reports on Human Rights Practices: Israel, West Bank and Gaza (2022) (The Report). The Report is mandated by Congress and documents human rights conditions in nearly 200 countries and territories. Staff in US embassies around the world compile the information contained in the Report. As in previous years the Report highlights human rights violations by multiple actors in the region and considers the treatment of Palestinian children held in Israeli military detention.
Occupied territory and annexation - Consistent with international law, the State Department confirms that the Report covers "the West Bank and Gaza, and East Jerusalem territories that Israel occupied" in 1967. Accordingly, as the occupying power, Israel is subject to all of the duties and obligations contained within the Fourth Geneva Convention. Since 2019, successive US administrations continue to recognise Israel's annexation of the Golan Heights contrary to international law - a position creating a dangerous precedent incompatible with a "rules-based order" and inconsistent with US policy in Crimea and eastern Ukraine. This inconsistency creates ambiguity and increases the prospects of territorial disputes globally.
Application of two legal systems - The State Department confirms that Israel continues to apply two legal systems in the West Bank depending on whether a person is Palestinian (military law), or an Israeli settler (civilian law). While military law technically applies to both groups, Israeli prosecutors have a discretion as to which jurisdiction applies to Israeli citizens. Applying two legal systems in this manner violates the principal that no state is permitted to discriminate between those over whom it exercises criminal jurisdiction based on race or national identity. The application of two legal systems was one factor relied on by Human Rights Watch, Amnesty International and B'Tselem to support a finding of Apartheid.
Unlawful transfer of prisoners - The State Department notes that 67 percent of Palestinian child detainees continue to be "forcibly transferred or unlawfully detained in prisons located outside the West Bank" - in violation of the Fourth Geneva Convention and Rome Statute of the International Criminal Court. It should be noted that on 17 March 2023, the International Criminal Court issued arrest warrants for Russians responsible for transferring Ukrainian children to the Russian Federation in violation of the same legal principal. Based on data released by the Israeli Prison Service, it is estimated that more than 22,000 Palestinian children have been unlawfully transferred since 1967 - the majority of these children report serious abuse.
Specifically in relation to Israel's military detention of Palestinian children, the State Department notes that:
- Use of military courts - The State Department notes that: "Israel has used military courts to prosecute Palestinians from the West Bank since 1967, and 95 percent of cases tried in the military courts ended in conviction." While Israel continues to rely on the Fourth Geneva Convention to justify the use of military courts, the law only permits the use of such courts temporarily.
- Night arrests and summonses - The State Department notes that: "most minors were arrested in night raids" and a 2020 Supreme Court petition seeking the implementation of a policy to use summonses in lieu of night arrests except in severe cases is still pending awaiting scheduling of a final hearing date. No case of a written summons was documented in 2022.
- Notification upon arrest - The State Department notes that: "Israeli authorities stated their policy was to provide written notification concerning the arrest to parents when they arrested a child from home." The evidence indicates that this policy is ignored in nearly half of all cases where children are arrested from home. In no case was a parent informed of their child's legal rights in custody at the time of arrest.
- Physical abuse - The State Department notes that: "67 percent of Palestinian minors detained in the West Bank reported being subjected to various forms of physical abuse during arrest, transfer, or interrogation" including "physical abuse, strip searches, threats of violence, hand ties, and blindfolds." While not reported, the use of solitary confinement as part of the interrogation process remains prevalent.
- Access to lawyers - The State Department notes that: "Detainees often obtained lawyers only after initial interrogations ... and many detainees saw their lawyer for the first time when they appeared before an Israeli military court." The evidence indicates that most minors do not consult with a lawyer prior to interrogation and are generally not informed of their right to silence under Israeli military law.
- Parent present during interrogation - The State Department notes that: "Israeli military law does not require the presence of a parent or guardian during interrogations, while Israeli juvenile law does, unless police anticipate that the adult's presence will compromise the investigation. The evidence indicates that no Palestinian parent has attended an interrogation under Israeli military law since 2019.
- Confessions in Hebrew - The State Department notes that: "At the conclusion of their interrogations, most minors were shown or made to sign confession documents written in Hebrew, a language most of them could not read. In some cases, confession documents written in Hebrew differed from the Arabic transcript of the defendant's interrogation.
- Release on bail - The State Department notes that: "Israeli authorities granted or denied bail to Palestinians ... based on the circumstances of each case, such as the severity of the alleged offense, status as a minor, risk of escape, or other factors, but in most cases, bail was denied. The evidence indicates that Palestinian children are denied bail in 97 percent of cases.
- Administrative detention - The State Department notes that: "Palestinians held by Israeli military authorities in administrative detention have no right to trial and may only challenge their detention before a military court judge." In most cases the evidence is classified. In December 2022, 870 Palestinians were held in administrative detention, including 7 children.
This year's Report published by the US State Department again highlights that while the Israeli/Palestinian conflict may not be the most egregious humanitarian situation in the world today, it does have the potential to establish dangerous precedents and undermine confidence in a genuine "rules-based order". This will have repercussions beyond the region.