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Home » Public statements »

Military courts ban outside observation of minors

[15 December 2022] – Prior to the Covid Pandemic, public access to hearings involving minors in the military courts was generally permitted, subject to the consent of the child's parents. This position was reflected in information sheets prepared and periodically updated by the military authorities. These information sheets have been distributed to visiting delegations by the military authorities at Ofer military court, near Jerusalem, since 2015. 

Between 2015 and 2018, the Information Sheets (201520172018) distributed by the military authorities relevantly stated that:
 
"5. Trials are held in close session and the parents of the defendant shall be awarded special rights during the trial.  As a matter of policy, people who are not direct family members of the defendant can be present as long as the minor and his family agree."
 
In June 2019, the Information Sheet was updated to include a discretion given to a military judge to exclude non-family members if "it is in the best interests of the child to do so." 
 
"5. Trials are held in close session and the parents of the defendant shall be awarded special rights during the trial. As a matter of policy, people who are not direct family members of the defendant can be present as long as the minor and his family agree. In any event, the judge has the right to deny entry to the court if he feels it is in the best interest of the minor to do so." (emphasis added) 
 
In September 2019, the military order relating to the hearings of minors was amended to reflect the position that trials involving minors in the military courts are to be held in closed session but that the judge retains a discretion to allow non-family members to attend. 
 
MO 1651, article 138 - "(a1) a military youth court will hear the case in camera, however it is authorized to allow a person or types of persons, including the victim of the offense, to be present at the time of hearing, all of it or part of it." (emphasis added)
 
Subsequent to this amendment, the military authorities updated the Information Sheet in December 2019 indicating that the discretion to allow non-family members to attend a minor's hearing should continue to be exercised "in the best interests of the child."
 
"5. Trials are held in close session and the parents of the defendant shall be awarded special rights during the trial. As a matter of policy, people who are not direct family members of the defendant can be present as long as the minor and his family agree. In any event, the judge has the right to deny entry to the court if he feels it is in the best interest of the minor to do so." (emphasis added) 
 
In September 2022, the military authorities again updated the Information Sheet, this time deleting all references to the discretion to permit non-family members to attend hearings of minors, although as far as MCW is aware, no relevant amendments to the military orders have been made since September 2019.
 
"5. By law, trials are held in close session. The parents of the defendant may be present and are awarded special rights during the trial."
 
Since September 2022, MCW has observed a change in policy at Ofer military court whereby non-family members are being excluded from the hearings of minors against the express wishes of parents. For instance, on 23 November 2022, a delegation from the UK parliament was excluded from a hearing as was a delegation of Canadian diplomats on 12 December 2022. On both occasions the only reason the military judge provided to justify exclusion was that she was following the directions of a superior officer, the President of the court. 
 
While hearings of minors inside Israel under its civilian juvenile justice system are held in closed session, as is the case in many jurisdictions, different considerations apply to hearings of minors in military courts in perpetually occupied territory in circumstances where reports of systematic abuse and denial of basic rights are prevalent and the legality of the occupation, questionable.
 
It should be noted that each Information Sheet distributed by the military authorities since 2015 relies on the Fourth Geneva Convention (1949) as the legal basis for prosecuting Palestinian civilians, including children, in military courts - the same Convention that prohibits settlement construction and the transfer of prisoners, including children, out of occupied territory.  
 
MCW will continue to monitor developments.