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Home » Public statements »

The right to a lawyer - Case analysis

[26 June 2018] – This month marks 6 years since a delegation of UK lawyers reviewed the treatment of Palestinian children under Israeli military law and published their findings and recommendations. The original delegation was comprised of 9 lawyers: Greg Davies, Jayne Harrill, Marianna Hildyard QC, Judy Khan QC, Jude Lanchin, Marc Mason, Frances Oldham QC, the Rt Hon the Baroness Patricia Scotland of Asthal QC (former Shadow Attorney General and Attorney General of England, Wales and Northern Ireland and the Rt Hon Sir Stephen Sedley (formerly Lord Justice Sedley).

The Foreign Office funded report – Children in Military Custody – found undisputed evidence that the military detention system violated at least 6 articles under the UN Convention on the Rights of the Child and 2 articles under the Fourth Geneva Convention. The delegation made 40 recommendations relating to, inter alia: summonses in lieu of night arrests; reasons for arrest; blindfolds and restraints; physical abuse; the right to silence; access to a lawyer prior to interrogation; discrimination based on national identity; and the location of detention facilities outside occupied territory in violation of the Fourth Geneva Convention.

Following the launch of the report, the Israeli Embassy in London issued the following press release: “A wide range of senior Israeli officials met with the delegation and openly shared Israel’s dilemmas on these issues. Israel, as an open society, has an ongoing dialogue with civil society representatives in Israel and from the international community, including the UK. Israel notes the detailed recommendations in the report and will study them closely as part of its ongoing efforts to find the most appropriate balance between preventing violence and treating perpetrators with humanity.”

In the immediate years following the report there were a number of positive developments in the system including: a new military order reducing the time within which a child must be brought before a judge following arrest; the introduction of a form notifying parents of the reason for arrest and place of detention; re-issuance of the military’s standard operating procedures for the arrest of children to all military units serving in the West Bank including a reminder of the prohibition against physical abuse and procedures for restraining children; the introduction of a form notifying children of their legal rights; and a pilot scheme to issue summonses in lieu of night arrests.

With the full support of the Foreign Office the delegation sought to return to Israel/Palestine in February 2016 in order to review progress in implementing the report’s recommendations. With some members of the original delegation unavailable for the trip, additional members joined the group, including: Lord Falconer (former Lord Chancellor); Sir Mark Hedley (former High Court Judge of the Family Division); Sir Keir Starmer QC MP (former Director of Public Prosecutions), Paul Storey QC (Children Law Barrister and Deputy High Court Judge); and Martha Cover (Children Law Barrister and Association of Lawyers for Children).

However, several days before the delegation was due to arrive in Tel Aviv they were informed that the Israeli government was unwilling to engage with the lawyers and as a result the trip was cancelled. The delegation issued a statement saying they would prepare a brief updating report on the 40 recommendations and would welcome the opportunity to meet with Israeli officials in the future.

During the intervening 6 years the UK Government has been actively engaging with Israeli officials on the issue of child detention. As recently as 7 February 2018, a Foreign Office Minister informed parliament that “Israel’s treatment of Palestinian minors, particularly the practice of holding them in military detention, remains a human rights priority for this Government.” During the same statement, the Minister indicated that, in addition to sponsoring the lawyers’ report, the Government had invited Israeli officials to attend expert discussions with the Metropolitan Police to “share more than 30 years of UK experience of implementing regulations designed specifically to protect the rights of minors in detention.” However, this invitation was declined.

It must also be said that in recent years, both before and after the report, successive UK governments have taken active steps to avoid accountability for violations of international law such as those found in the UK lawyers’ report. For example: in 2011 the UK amended the law to ensure, in effect, that any attempt to issue an arrest warrant for a war crimes suspect entering the UK will need prior government approval; in January 2016, a Foreign Office Minister announced that there were no plans to establish a watch list of possible war crimes suspects entering the UK; and in March 2018, a Foreign Office Minister announced that the Government “does not hold any information on whether any British, or British-Israeli citizens are serving as Judges in Israeli military courts”, even though the Government is aware that these courts are knowingly involved in the transfer children out of occupied territory in violation of the Fourth Geneva Convention.

In circumstances where there is a virtual guarantee of immunity from accountability for violations of international law, even when these violations may be committed by UK citizens, it is perhaps unsurprising that just 1 of the report’s recommendations has been substantially implemented in 6 years – an implementation rate of 2.5 percent. Further, across a number of measures, the situation for children in military detention has in fact deteriorated supported by the following evidence: average detention rates have risen by 69 percent; reports of physical abuse have risen by 17 percent; use of blindfolds has risen 11 percent; night arrest rates remain relatively unchanged; 71 percent of parents are still not notified in writing of their child’s arrest; and 80 percent of children continue to be denied prompt access to a lawyer with 85 percent not being informed of their right to silence. Further, the legal systems applied in the West Bank (military law for Palestinians, civilian law for settlers) continue to discriminate based on national identity.

Recently it was reported that UK security ties, arms sales and trade links with Israel have reached an all-time high. While it comes as no surprise that security ties, trade and arms sales are generally prioritized over human rights, this becomes problematic when the prioritization is at the expense of the UK’s own binding legal obligations under international law. The result is likely to be a further erosion of the credibility of the principle of the rule of law and the effectiveness of the institutions designed for its promotion.


Links

• MCW Annual Report (2017/18)