There are two Israeli military courts in the West Bank used exclusively to prosecute Palestinians. These courts have been in continuous operation since June 1967, and to date, have processed hundreds of thousand Palestinians, including hundreds of children each year. The youngest child that can be prosecuted in these courts is 12. Although the military courts technically have jurisdiction over Israeli settlers living in the West Bank, in practice this section of the population is dealt with under civilian, not military law, with far greater rights and protections.
The two courts are located in the centre (Ofer military court) and north (Salem military court) of the West Bank (Map). Both locations also include military juvenile courts that were established in 2009. The facilities at the courts are identical for both adults and children. Under military law children can still be dealt with by the adult court in all applications prior to trial, including bail hearings. Entry to these courts is strictly controlled but access is possible on application and approval by the military authorities.
Following interrogation, a child aged 12 or 13 must be brought before a military judge within 24 hours of arrest, 48 hours in the case of children aged 14 or 15, and within four days for older children. These time periods can be doubled in "special circumstances". All children are brought to the court complex in handcuffs and leg shackles, wearing brown prison uniforms. In many cases they are made to wait for hours in uncomfortable surroundings before their cases are heard. On entering the courtroom, the handcuffs are removed but the leg shackles remain until the child is returned to prison at the end of the day. Once inside the courtroom, most children briefly consult with their lawyer for the first time. In most cases two members of the child’s family are permitted entry into the court where physical contact is generally prohibited but limited communication is generally possible. For most children this will be the first time since their arrest that they have seen their parents.
Occasionally children are unrepresented at their first court appearance but subsequently all children will have access to counsel. Many children appear confused as to the status of their case. The majority of defence lawyers appearing in the military courts are Palestinians working for the Palestinian Ministry of Justice or local NGOs. Private Palestinian and Israeli lawyers also provide legal representation to defendants. No legal aid is provided by the Israeli military authorities and so families must either pay for a private lawyer or obtain free legal services from an NGO funded by international donors. Proceedings in court are conducted in Hebrew with simultaneous translation provided by a soldier that can vary greatly in quality. Similarly, much of the court documentation is in Hebrew which places many Palestinian lawyers at a distinct disadvantage.
A child will generally be brought to court on multiple occasions before the case is finalised. In the early stages of the legal process there will be a brief hearing to determine whether or not the child should remain in detention until the conclusion of the case, or be released on bail. Around 86 per cent of children are denied bail
following an arrest hearing and must remain in detention until the conclusion of the legal process that can take many months.
The denial of bail is a critical feature of the system and results in a high proportion of cases being concluded by way of plea bargain. The dilemma faced by many families is that once bail is denied it is generally quicker to plead guilty, whether the offence was committed or not, than to remain in detention waiting for a trial date that could take up to six months to schedule. This explains why as many as 98 percent of cases end in a plea bargain and why, according to the annual report published by the military courts in 2011, the system achieved a conviction rate of 99.74 percent
in the preceding year.
The most common offence for which children are convicted is stone throwing. Although military law provides for harsh maximum sentences for throwing objects (10-20 years, depending on whether a vehicle is involved) in practice a child can expect to receive a custodial sentence ranging from a few weeks up to one year, depending on the nature of the offence. Although custodial sentences for children are supposed to be a last resort under international law, around 90 percent of children convicted in the military courts will be sentenced to a term of imprisonment. In addition to being given a custodial sentence, a similar percentage of children will also receive a fine, which will result in a longer prison term if it remains unpaid by the child’s parents. Any time already served by the child in pre-trial detention is taken into account and included in the final sentence. In addition to a custodial sentence and fine, a convicted child will also be given a suspended sentence usually in the order of an additional five months in prison suspended for five years.
Under international law, no state is entitled to discriminate between those over whom it exercises penal jurisdiction on the basis of race or nationality. For a comparison between the legal rights and protections applicable to Palestinian children under military law and Israeli settler children under civilian law, see discrimination
under the section on law.
Updated: August 2016