DISCRIMINATION AND DENIAL, ISRAEL AND PALESTINIAN CHILD POLITICAL PRISONERS: A CASE STUDY OF ISRAEL'S MANIPULATION OF THE U.N. HUMAN RIGHTS SYSTEM*

in The Palestine Yearbook of International Law Online
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DISCRIMINATION AND DENIAL, ISRAEL AND PALESTINIAN CHILD POLITICAL PRISONERS: A CASE STUDY OF ISRAEL'S MANIPULATION OF THE U.N. HUMAN RIGHTS SYSTEM*

in The Palestine Yearbook of International Law Online

References

* This paper is drawn from Catherine Cook, Adam Hanieh, Adah Kay, Stolen Youth: The Politics of Israel's Detention of Palestinian Children (2004), published by Pluto Press: London, in association with Defence for Children International/Palestine Section.

I Treaties, guidelines and declarations pertinent to the issue of Palestinian child prisoners, include Universal Declaration on Human Rights (UDHR, 1948), International Covenant on Civil and Political Rights (ICCPR, 1966), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), Convention on the Rights of the Child (CRC, 1989), U.N. Standard Minimum Rules for the Treatment of Prisoners (1955), U.N. Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), U.N. Body of Principles for the Protection of All Persons under Any form of Detention or Imprisonment ( 1988), U.N. Basic Principles for the Treatment of Prisoners (1990), U.N. Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines, 1990), and U.N. Rules for the Protection of Juveniles Deprived of their Liberty (1990).

2 The "last resort" principle is outlined in Article 37b of the Convention on the Rights of the Child (CRC). It is also found in the U.N. Rules for the Protection of Juveniles Deprived of their Liberty and the Beijing Rules. The Beijing Rules further outline in 18.1 that: "A large variety of disposi- tion measures shall be made available to the competent authority, allowing for flexibility so as to avoid institutionalisation to the greatest extent possible." 3 The commentary to the U.N. Standard Minimum Rules for the Administration of Juvenile Justice is included within the text of the document itself, following each point.

4See B'tselem, Torture of Palestinian Minors in the Gush Etzion Police Station (2001 set also 5 Amnesty International, Mass detention in cruel, inhuman and degrading conditions (2002). 5 DCI/PS case file 17A/2001. Translated from Arabic by DCI/PS.

6 See DCI/PS, Status of Palestinian Children's Rights: Israel's violations of the right to life and secu- rity and the rights of children deprived of their liberty during the second Intifada, 2-3 (2004). Available at: http://www.dci-pal.org (Last visited, 28 October 2004). 7 In 1999 and 2000, no Palestinian children were held under administrative detention. In 2001, DCI/PS handled two cases of children in administrative detention; in 2002 the number increased to 32. As of July 2004, around 30 boys, or 9% of all Palestinian child political prisoners, were held under administrative detention. This parallels the overall increase in administrative detention orders for Palestinian prisoners in general: in late 2001, there were 32 Palestinians in administra- tive detention; by May 2002, over 700. As of August 2004, there were over 750. 8 Palestinian residents of East Jerusalem have a legal status distinct from that of Palestinian residents of other parts of the occupied territory, given Israel's extension of civil law to the eastern portion of the city and its annexation of that area. Unless otherwise specified, the content of this section relates to Palestinian non-Jerusalemite residents of the West Bank.

9 Israeli settlers are subject technically to the jurisdiction of more than one court - for example, local Palestinian courts, Israeli military courts, and Israeli civil courts. In practice, however, Israeli set- tlers are prosecuted through Israel's domestic penal system. See B'tselem, Law Enforcement on Israeli Civilians in the OCCUPIED TfiRRITORIES 8 (1994). U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Israel, U.N. Doc. CRC/C/8/Add.44 (20 February 2001), at 63 (citing Israeli Guardianship and Legal Capacity Law (1962)). 11 West Bank Military Order No. 132 (1967) defines terms such as child, adolescent and teenager. When it was originally ordered, it defined "teenagers" as aged 14-16, omitting those aged 16 and 17. Later military orders amended the definition of teenager to those between 14 and 17, but in practice children 16 and 17 continue to be treated as adults. For example, the age of the child at the time of arrest is one of the criteria determining in which facility the child will be imprisoned. Male children under 16 years are considered minors and imprisoned in facilities administered by the Israel Prisons Service, under the authority of the Israel Ministry of Public Security (Telmond Compound, composed of Hasharon and Ofek facilities). Male children 16 and 17 years are con- sidered adults and are sentenced to military prisons under the authority of Israel's Ministry of Defense (Megiddo, Ketziot, Ofer). The revised versions of the military order are: Military Order No. 235 (1968), which changed the definition of a "teenager" from someone over 14 and under 17; and Military Order No. 311 (1969), which changed the definition again to someone over 14 and under 18. �z U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties, supra note 10, at 318 (citing Penal Law, 1977, the Youth (Trial, Punishment and Modes of Treatment) Law 1971 and regulations enacted thereunder, and the Probation Ordinance [New Version] 1969 and regulations enacted thereunder). 13 /bid.

�° Israel's report to the CRC lists the following agencies that are mandated by law to deal specifically with juvenile suspects: "the Police Force; the Youth Probation Service (a State social welfare ser- vice acting under the auspices of the Ministry of Labor and Social Affairs); the Public Defender's Office; the courts; the Youth Protection Authority (also under the auspices of the Ministry of Labor and Social Affairs, and responsible for juvenile residences); and, in a few cases, the Prison Authority." Ibid., at 319. 15 Ibid. 16 /bid., at 321. 1. �� Ibid., at 319 (citing section 3, Youth (Trial, Punishment and Modes of Treatment) Law, 1971). ). 18 In the West Bank. Military Order No. 132. Revised by Order No. 235 of March 1968, No. 311 of 1969, No. 371 of 1970, No. 417 of 1971, No. 587 of 1975, No. 639 of 1976, No. 863 of 1980, No. 961 of 1982, No. 1083 of 1983, No. 1172 of 1986, No. 1290 of 1989. In Gaza, Military Order No. 424 of 1972. '9 In the West Bank, Military Order No. 1235 enacted April 1988. Revised by: Military Orders No. 1256 of October 1988; No. 1275 of April 1989; No. 1289 of October 1989; No. 1318 of October 1990; No. 1336 of April 1991. In the Gaza Strip, Military Order No. 951, May 1988. Revised by: Military Orders No. 972 of October 1988; No. 992 of May 1989; and No. 1013 of October 1989.

zo The Youth (Trial, Punishment and Modes of Treatment) Law 1971 allows an Israeli police officer to detain an Israeli child without warrant, for example if "it is necessary to do so for the safety of the public or the minor's personal safety, or to keep him away from an undesirable person, or because the minor is suspected of having committed a felony punishable by seven or more years' imprisonment and his release may lead to the concealment of evidence." U.N. Committee on the 21 Rights of the Child, Consideration of Reports Submitted by States Parties, .supra note 10, at 337. 21 see U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties, .supra note 10, at 325 (citing Public Defenders' (Entitlement of Additional Minors to Representation) Regulations of 1998, and section 18(a) of the Youth (Trial, Punishment and Modes of Treatment) Law 1971 (mandating juvenile courts "to appoint counsel for the defence of a minor, if it believes this to be in the best interests of the minor.")).

zz Ibid., at 335. Israel's report to the CRC notes that in a given year, only 291 (5.9 per cent) of 4,940 cases involving children were sentenced to prison. It is unclear to which year the report refers. Z3 Ibid., at 337 (citing Miscellaneous Criminal Applications 1363/93 Y.Z. (Minor) v. State of Israel, P.D. 47(2)71). ). za Order translated from Arabic version into English by DCI/PS. zs Military Order No. 101, "Order Concerning Prohibition of Incitement and Hostile Propaganda," issued on 27 August 1967.

U.N. Committee on the Rights of the Child, List of issues to be taken up in connection with the consideration of the initial report of Israel (CRC/C/8/Add.44), U.N. Doc. CRC/C/Q/ISR/1 (14 June 2002), at 2. 27 Ibid. z8 While failing to include information on the status of Palestinian children's rights or the negative consequences of Israel's occupation on those rights, Israel, through the opening statement of its Ambassador, did raise their concern about the "indoctrination" of Palestinian children, their partic- ipation in "demonstrations of hate," their textbooks that are "saturated with language encouraging hatred and hostility towards the State of Israel and the Jewish people," and that from "an early age, Palestinian children are educated to hatred and violence." Citing an increase in Palestinian children's participation in acts of violence against Israelis, the statement reads: "This exploitation and manipulation of children, some as young as seven or eight years old, is a blatant violation of basic norms and principles of international law, and of children's rights." Ambassador Yaacov Levy, Opening Statement at the 31st Committee on the Rights of the Child (2 October 2002). z9 State of Israel, Implementation of the Convention on the Rights of the Child in Israel, Response of the State of Israel to the document titled List of issues to be taken up in connection with the consideration of the initial report of Israel, U.N. Doc. CRC/C/8/Add.44 (20 February 2001 at 18.

Ibid., at 19. 31 See Alan Baker & Ady Schonmann, Pre.senting Israel's Ca.se Before International Human Rights Bodies. Available at: http://www.mfa.gov.il (Last visited, 28 October 2004), originally published in 19 Justice - The International Association of jewish Lawyers and Jurists, at 23 (1998).

32 state of Israel, Implementation of the Convention on the Rights of the Child in Israel, Response of the State of Israel, supra note 30, at 20-22. 33 See U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, U.N. Doc. CCPR/C/79/Add.93 (18 August 1998). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (9 July 2004) (http://www.icj-cij.org), para. 113.

3° Israel's initial report to the CRC states that: "Minors are held in only one prison, in a special wing, away from the other prison wings." U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties, supra note 10, at 345. This is incorrect. Minors who are Israeli citizens are detained in only one prison. Palestinian child political prisoners are detained in four prisons in Israel. These facilities are: Telmond compound (Hasharon prison and Ofek Juvenile Detention Center); Megiddo Military Prison; Ramie (Neve Tertze) Women's Prison; and Ketziot Military Detention Center.

3s See Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian territories occupied by Israel since 1967, U.N. GAOR 56th Sess., Agenda Item 119(c), at 5, U.N. Doc. A/56/440 (4 October 2001). ). 36 Israel's initial report to the CRC states that: "At the end of 1998, the population of Israel num- bered 6,041,400 individuals, 4,785,100 (79%) of whom were Jews and 1,256,300 (21%) of whom were non-Jews, primarily Moslem Arabs." U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties, supra note 10, at 26. These figures corre- spond exactly with those available for 1998 from the Israel Central Bureau of Statistics (ICBS) on- line database, under Selected Data. Total Population De Jure at End of Year. Available at: http://www.cbs.gov.iUengindex.htm (Last visited, 28 October 2004). The ICBS elsewhere clarifies what constitutes de jure population, as follows: "De jure population includes permanent residents - Israeli citizens and permanent residents without Israeli citizenship (including those who had been out of the country less than one year at the time of the estimate) - as well as potential immigrants staying in Israel or in Jewish localities in Judea, Samaria and the Gaza Area." Statistical Abstract of Israel 1999. Available at: http://www.cbs.gov.iUengindex.htm (Last visited, 28 October 2004). "Judea and Samaria" is Israel's euphemism for the West Bank. 37 Article 2.1 of the CRC states: "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind." 38 Israel ratified these treaties on 3 October 1991. In its reporting to the U.N. Human Rights Committee, which is responsible for monitoring implementation of the International Covenant on Civil and Political Rights, in addition to population figures, citations of Israel's land size in the report indicate that the OPT is covered in the report, and that the State of Israel considers Area A to be part of Israel. See U.N. Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Israel, U.N. Doc. CCPR/C/81/Add.13 (1998). The figures cited the report correspond directly with those featured on the Israel Ministry of Foreign

Affairs website, the latter of which notes that "Israel's area within boundaries and ceasefire lines, including the areas under Palestinian self-government, is 10,840 square miles (27,800 sq.km.)." State of Israel, Facts About Israel: The Land - Geography and Climate (I February 2004). Available at: http://www.mfa.gov.il (Last visited, 28 October 2004). 39 U.N. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punish- ment, adopted and opened for signature 10 December 1984, art. 20, 21-22.

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