Discrimination
Under international law, no state is entitled to discriminate between those over whom it exercises penal jurisdiction on the basis of their race or nationality. In the West Bank, Israel exercises penal jurisdiction over Palestinians and Israeli citizens living in the settlements. Technically, Israeli military law applies to both groups. In practice, Israeli military law is only applied to Palestinians, whilst civilian law, with greater rights and protections, is applied to the settlers. Some of the key differences between the two legal systems relevant to children are presented in the following table.
|
Description
|
Israeli child
|
Palestinian child
|
|
1
|
Minimum age of criminal responsibility
|
12[1]
|
12[2]
|
|||
|
2
|
Minimum age for custodial sentences
|
12-14[3]
|
12[4]
|
|||
|
3
|
Age of majority
|
18[5]
|
16-18[6]
|
|||
|
4
|
Prohibition against night interrogation
|
Yes[7]
|
No
|
|||
|
5
|
Legal right to have a parent present during questioning
|
Yes[8]
(exceptions apply)
|
No
|
|||
|
6
|
Legal right to consult with a lawyer prior to questioning
|
Yes[9]
|
Limited[10]
|
|||
|
7
|
Legal requirement for interrogations to be audio-visually recorded
|
Partial[11]
|
Partial
|
|||
|
8
|
Maximum period of detention before being brought before a judge
|
12-13 yrs
|
12 hrs[12]
|
12-13 yrs
|
24 hrs[13]
|
|
|
14-15 yrs
|
48 hrs[14]
|
|||||
|
14-17 yrs
|
24 hrs
|
16-17 hrs
|
4 days[15]
|
|||
|
9
|
Maximum period of detention without access to a lawyer
|
48 hours[16]
|
96 hours[17]
|
|||
|
10
|
First judicial extension of detention for the purpose of investigation
|
10 days[18]
|
15 days[19]
|
|||
|
11
|
Maximum period of detention between being charged and conclusion of trial
|
6 months[20]
|
1 year[21]
|
|||
|
|
||||||
The disparity between the two systems widens considerably when the substantive law relating to offences, penalties and actual practice are taken into consideration. For example, there are a number of offences for which Palestinians can be prosecuted for under military law which simply do not exist under the civilian law applied to settlers. These offences include: a specific offence of throwing stones; organising an unauthorised protest; insulting a soldier; and violating a curfew. These offences carry maximum prison sentences ranging from 1-20 years.
[1]Penal Law (1977) – Section 34F.
[3]Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 1. Amended in November 2015 by the Youth Law (Adjudication, Punishment and Means of Treatment) (Amendment) (Means of Punishment) 5776-2015 which reduced the minimum age for a custodial sentence to 12 years in serious cases involving murder, attempted murder and manslaughter. Under military law there are no limitations on imposing custodial sentences on children aged 12-13 inclusive. This amendment came in response to increased unrest in East Jerusalem.
[6] In September 2011, Military Order 1676 came into effect requiring that all children below the age of 18 be tried before a military juvenile judge. However, provisions relating to arrest, detention, interrogation and sentencing for adults still apply to youths aged 16 and 17.
[8]Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 9H. A parent is allowed to be present at all times in circumstances where the child has not been formally arrested, but may not intervene in the interrogation process. Exceptions include: Parents do not present themselves within a reasonable time; waiting for a parent would harm the investigation, the child, or a third party; parents cannot be located after a reasonable attempt; and a parent can be removed from the interrogation if he/she threatens the child or disrupts the interrogation. Reasons why a parent is not present must be documented in writing by an authorized officer.
[10] Military Order 1676 – Article 136 b(c) – A child must be notified that he has the right to consult with a lawyer, but this right can be suspended for up to 90 days in “security” related offences. (See Military Order 1651 – Article 58(c)). On arrival at a police station a child must be informed that he has the right to consult with a lawyer but there is no stipulation as to when this consultation should take place. The military courts have said on a number of occasions that a child should consult with a lawyer prior to interrogation but this rarely happens in practice. This is due, in part, to the fact that most children are arrested at night and generally will not have the contact details of a lawyer. Further, it is extremely rare for the military courts to reject evidence obtained from a child during interrogation in circumstances where the child did not first consult with a lawyer.
[11] In all cases other than security offences where the maximum penalty is 10 years or more (Criminal Procedure (Suspects Interrogation) Law (2002) – Sections 4 and 17). There is no requirement for the audio-visual recording of interrogations in security cases.
[12]Youth (Trial, Punishment and Modes of Treatment) Law (2008) – Amendment 14. Children aged between 12 and 13 must be brought before a judge within 12 hours, and children 14 years and above must be brought before a judge within 24 hours.
[15]Military Order 1685 as amended by Military Order 1694 (effective August 2012). Note that these time periods in which a Palestinian child must be brought before a military court judge for the first time can be doubled in “special circumstances”.
[16]Criminal Procedures (Powers of Enforcement-Arrests) Law (1996) – Section 34 (criminal offences). In the case of security offences, the time period is 21 days - Section 35.
[17]Military Order 1651 – Article 56(e) (criminal offences). In the case of security offences, the time period is 60 days - Articles 58 and 59.
[20] Youth (Trial, Punishment and Modes of Treatment) Law (1971) – Section 10L; Criminal Procedure (Enforement Powers-Arrests) Law (1996) – Section 61 – 9 months for adults, with possible extensions.
[21] Military Order 1651 as amended by Military Order 1711 (effective April 2013). A minor now can be detained for up to one year between being charged and the conclusion of his/her trial. After one year, a judge of the Military Appeals Court can extend the period of detention every three months, with no limit on the number of extensions.
