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Recommendations

In accordance with international law all outstanding UN Security Council resolutions must be fully implemented resulting in the dissolution of the military courts. As an interim measure, the following six non-severable recommendations should be effectively implemented without delay. In considering appropriate interim recommendations the intention must be to avoid entrenching military occupation or facilitating a "best-practices" occupation.

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Recommendations
Status
1
Children should only be arrested during daylight hours except in rare and exceptional circumstances. In all other cases summonses should be used.
In 2016 approximately 50 percent of children detained continue to report being arrested at night. Night arrest operations intimidate and terrify communities and children report being "scared" or “terrified” when confronted with heavily armed soldiers in their homes and sometimes their bedrooms.
 
A pilot scheme to issue summonses in lieu of night arrests introduced in 2014 appears to have declined significantly in 2016. In circumstances where summonses are used they are frequently delivered by the military at night.
2
All children, and their legal guardians, should be provided on arrest with a written statement in Arabic informing them of their full legal rights in custody.
In April 2013 the military authorities announced the introduction of a form, printed in Hebrew and Arabic, which has to be given to the parents when a child is arrested at home. The form is supposed to provide parents with information on the reasons for arrest and where the child will be taken.
 
In 2016, according to the evidence collected by MCW, these documents are being given to parents in just 39 percent of cases where a child was arrested at home and in some cases the relevant material was handwritten in Hebrew. In no case was any information provided about the child’s legal rights while in custody. 
3
All children must consult with a lawyer of their choice prior to questioning.
In 2016 the overwhelming majority of children report being denied access to a lawyer prior to questioning. Under Israeli military law a detainee must be informed of his/her right to consult with a lawyer on arrival at a police station. However, the order does not stipulate when the consultation should take place, rendering the right to consult with a lawyer largely illusory and ineffectual in most cases. Further, the obligation is on the police, not the military, to inform a suspect of this right.
 
Most children continue to see their lawyer for the first time in a military court after the interrogation phase has been completed. 
4
All children must be accompanied by a family member throughout their questioning.
In just 4 percent of cases documented by MCW in 2016 was a child accompanied by a parent throughout their interrogation. Whilst there is no legal right under Israeli military law for a parent to accompany a child during interrogation, the military authorities have acknowledged that there is a discretion to permit parents to accompany children. 
5
Every interrogation must be audio-visually recorded and a copy of the tape must be provided to the defence prior to the first hearing.
Although some cases are being audio-visually recorded, since 2013 MCW has not documented a single case where a tape of an interrogation was provided to the defence prior to the first hearing. Further, there appears to be a practice of conducting double interrogations in which only one is recorded.
 
In September 2014, MO 1745 came into effect amending MO 1651 and providing for the audio visual recording of interrogations involving minors in the case of "non security" offences. The order also stipulates that interrogations should be conducted in the language of the accused. The overwhelming majority of Palestinian minors detained by the military in the West Bank are accused of "security offences", which includes stone throwing and participating in an unauthorised protest.
6
Breach of any of these recommendations should result in the discontinuation of the prosecution and the child's immediate release.
Although military court judges are now being more critical of how children are treated in some cases, evidence obtained in breach of these recommendations is routinely relied on to obtain a conviction.
 
  

 

Updated: August 2016