Without considering the legality or desirability of prosecuting children in military courts, a number of binding legal principles apply to the situation that can be stated as follows:
- Israel’s international human rights obligations apply to all persons living in the West Bank. These obligations include those contained in the UN Convention on the Rights of the Child (CRC), which Israel ratified in 1991. The CRC imposes a number of obligations on state parties, including the following:
- In all actions concerning children the best interests of the child shall be a primary consideration (Article 3).
- Children have the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 37).
- Children should only be arrested and detained as a measure of last resort and for the shortest appropriate period of time (Article 37).
- Children in custody have a right to prompt access to legal advice and representation; and to a prompt hearing before an independent court (Article 37).
- Children in custody should not be required to incriminate themselves (Article 40).
- Under international law Israel is not permitted to extend its civilian law to the territory it occupied in 1967. However, Israel is also not permitted to discriminate between those over whom it exercises penal jurisdiction over on the basis of race or nationality. Accordingly, Israeli authorities have no right to treat Palestinian and Israeli children differently under the applicable civilian and military legal systems.
- Palestinian children from the West Bank detained by the Israeli authorities should be held in the West Bank and not transferred to prison facilities inside Israel in contravention of Article 76 of the Fourth Geneva Convention.