Israel: where your nationality determines which laws apply

A complement to Detained Children of the OPT

by Joseph Markus

A recent report has established—although it was a matter of record before—that Israeli laws concerning the arrest, detention, interrogation and trial of children are discriminatory, contrary to a number of fundamental international human rights law norms.

The delegation, composed of leading UK-based lawyers (several QCs, a Baroness and a retired judge amongst them) took the decision not to base their observations on the wildly different factual accounts that they received. They saw no way to objectively choose between competing stories (mostly from either the Israeli Government or coalitions of NGOs). Instead, the group took the safer option, and observed simply that, as a formal matter, the law treats Israeli and Palestinian children differently. Israeli children are subject to Israeli civilian law and Palestinian children, to Israeli military law.

I say ‘safer’, in that laws are easily changed. What is not so readily changed are public and institutional attitudes and practices which may take some more time and persuasion. A telling example is India and the practice of ‘manual scavenging’—where the Dalits (the so-called ‘untouchables’) traditionally emptied dry-pit latrines by hand. This practice was outlawed in 1993. Nevertheless it continues to this day, with some estimates of how many are employed on this grim task reaching over a million. Changes in law usually are only the first step in any reform and sometimes—and especially if changed in reaction to external pressures—will go no further than the words on the page.

That this is a concern in this case is demonstrated through the ways in which safeguards currently written into the Israeli military laws that apply to Palestinian children are routinely (at least according to NGO testimony) not applied. The examples given are shocking.

– Following successful legal action in early 2010, the use of single handties was banned. The Government altered its procedures to require hands to be tied at the front, using three plastic ties. This is routinely ignored.

– Arrests frequently take place during the night. Interrogations on the other hand are not supposed to take place at night except in exceptional circumstances. The testimony the delegation heard demonstrates that night-time interrogations are routine.

– Abuse of detainees is outlawed, however the delegation heard numerous reports of unlawful abuse and ‘coercive interrogation techniques’.

– The system makes it a near impossibility for parents to visit their children in detention and, additionally, there is no automatic right to have a parent present during interrogation. In fact in most cases the child doesn’t know that a parent can be present.

– Children are entitled to a lawyer. In practice, almost none have a lawyer before or during interrogation due to the practice of not notifying them of this possibility and of requiring the children, in effect, to have the contact details of a lawyer to hand.

– Children, especially those arrested at night, are at times deprived of food, drink and sleep during interrogations.

– Military judges do not routinely appear to have regard to these procedural improprieties when cases finally reach them

There were a number of other worrying examples that appeared (worryingly) to be in conformity with the law.

– The use of solitary confinement on children (considered by the UN Special Rapporteur to be cruel, inhuman or degrading treatment).

– Administrative detention without trial is commonplace.

– Vastly disproportionate sentences for the ‘security offence’ of stone-throwing (as justification the Israeli Government could find only one example of injury from September 2011)

– The governing Military Order 1651 has not been translated from Hebrew (a clear violation of Article 65 of the Fourth Geneva Convention).

– Interrogations sometimes last longer than a week (some went to 12, 13, 22 and 53 days).

– Children can be detained for 8 days before they even see a judge.

The universal justification was repeatedly ‘security’, a usefully nebulous term. Apparently, ‘security’ is why stone-throwing is so harshly punished; it is a reason why children aren’t allowed lawyers or visits from their parents; it is why children are arrested at night; it is why children are interrogated at night. Presumably, as well, if it were admitted, it would also be the reason for unlawful abuse of children.

The conclusions of the group find Israel to be in breach of the UN Convention on the Rights of the Child along with the Fourth Geneva Convention (the list would be longer had Israel ratified other international treaties). Worryingly, they also record that while they had encountered Israeli officials who did not overtly contest the proposition that a state cannot discriminate between individuals on the basis of their race or nationality, they did at least implicitly challenge it. Additionally, the uniform response of Israeli Government agencies was that human rights conventions to which Israel is a party did not apply beyond Israel’s own borders. The Report admirably tries to disabuse the Government of this, relying on the International Court of Justice’s 2004 Advisory Opinion on ‘the Wall’ and European Court of Human Rights case-law.

Evidently, there was some concern in this delegation of esteemed lawyers to make sure that their findings and recommendations were not dismissed as partisan (a common tactic in reaction to opposition). It was important, if it was to make any sort of difference in the legal situation in the Occupied Territories, for its proposals to be considered or accepted by Israel. This task the document certainly achieves. While it accepts certain ‘international-law facts’, such as that settlements are illegal and that the prevailing situation is one of occupation subject to the Fourth Geneva Convention, it treats these as just facts for the purposes of the report and opts to take no stance on contested factual issues.

Concerns could of course be raised about whether highlighting required changes in the law, which are then amended, would, in a sense be ‘blue-washing’. That, by changing the laws so that they are formally in line with UN and other human rights standards, Israel receives the imprimatur of those standards without necessarily having to changes practices and attitudes. But this might fall too far into cynicism. In a situation such as this ‘incrementalism’ is really the only viable solution. Any legal changes are likely to at least make a few Palestinian lives a bit easier. And there is nothing to suggest that Palestinian and Israeli human rights NGOs will stop documenting instances where the strict letter of the law was departed from (something that they already rather successfully do).

The Report usefully sets out a full range of examples where Israeli law, and a few examples in which contradictory evidence was not received, was contrary to the Geneva Conventions and human rights laws. It also demonstrates sensitivity to the nature of the task: the Report is very fair to all viewpoints. That it was a delegation of senior lawyers, with funding from the UK Foreign and Commonwealth Office, can only increase the value of this Report for the Palestinian struggle for equal rights, both in law and in practice.

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