On 23 December 2013, Lawyers for Palestinian Human Rights (LPHR) and Defence for Children International Palestine (DCI–Palestine) launched their ‘Know Your Rights’ campaign.1 This campaign seeks to inform Palestinian children who are arrested, detained, interrogated and tried through the Israeli Military Court system of their legal rights throughout the entire process.
The Israeli Military Court system has undergone heavy international criticism for the failure to protect the fundamental rights of children and adults who are arrested. Most notably, a significant report published by UNICEF in March 2013 found “widespread, systematic and institutionalized” ill-treatment of children within the system.2 LPHR has recently provided an overview of the second update to this UNICEF report which unfortunately concludes that despite minor legislative and procedural changes, the situation remains largely the same two years after the initial report was published.3 This blog will elaborate on some of the key human rights violations affecting children that have been identified by both UNICEF’s 2013 report and LPHR’s ‘Know Your Rights’ campaign with DCI-Palestine.
Vast majority of children are not informed of their legal rights after arrest
Importantly, the second update revealed that a staggering 78% of those surveyed complained of not having been informed of their legal rights upon arrest, despite the assertion that a revised Arabic text has been formulated by the Israeli Police in order to properly inform those arrested of their rights.4
The ‘Know Your Rights’ campaign has attempted to fill the lacunae left by the Israeli state by informing Palestinian children of their fundamental due process safeguards and guarantees. Among these are the right to silence,5 the right to legal counsel,6 and the right to protection from inhumane or degrading treatment.7 More than 5,000 information cards have been distributed to children and their families in the Occupied West Bank, an area which is subject to regular night-time arrest raids of Palestinian children by Israeli armed forces. The information cards provide a 24/7 hotline which can be called in the event of an arrest, along with details informing the child or their family of what their legal entitlements are.
Arrests: Night-Raids and Summons
The initial UNICEF report urged Israel to consider alternative methods for the arrest of Palestinian children, as the practice of night time raids by Israeli military personnel is a prevalent practice which causes a huge amount of distress to children and their families. It is a practice which does not consider the best interests of the child as a primary consideration in accordance with article 3 of the UN Convention on the Rights of the Child, and indeed places the needs and priorities of the Israeli Military above the welfare of the child under arrest.
In response to this criticism, a pilot scheme was announced by Israel in February 2014 which introduced the use of a summons in order to notify children and their families that a child is suspected of committing an offence and is required to attend a police station for questioning.8 The implementation of the summons scheme was short-lived, as it was announced in January 2015 that the scheme has been suspended.9 In the short time in which the scheme was operational, arrests by traumatic night raids were still occurring regularly. The details of the implementation of summons scheme were not published, however the data collected by the NGO Military Court Watch suggests that some summonses were made in person or over the telephone, without any written official documentation.10
Interrogation: The Right to Silence
The right to silence is a fundamental due process right afforded to both adults and children who are arrested on suspicion of committing an offence, in order to grant them privilege against self-incrimination. In the context of interrogating children, this right is arguably even more important as it provides vulnerable minors with necessary protection from undue pressure which may lead to forced, inaccurate or false confessions. The temptation to provide a false account of an event, or to agree with an interrogator during the process of questioning, is an understandable one given the level of fear which a child may be feeling when being questioned by military personnel. The risk of such a situation can only be exacerbated if the child has been arrested in the middle of the night by soldiers, restrained and taken away from their family members on the floor of a military vehicle without being told the reason for their arrest.11 In this context the right to silence is not only important, but critical.
The Israeli Military Court system has a truly disconcerting conviction rate of 99.7%12. Confession evidence is central to the securing of convictions in this process. It need not be emphasised that the highest level of scrutiny of these confessions must be provided in order to ensure that convictions are based on evidence which has been reliably and respectfully obtained. Unfortunately, scrutiny of interrogations and confessions is a difficult exercise to undertake, as many children do not have legal counsel or a family member with them during questioning.
The initial UNICEF report recommended audio-visual recordings of interrogations of children. Military Order 1745 was subsequently published which provides that audio-visual recordings are to be carried out during interrogations. However, an important provision exists within Military Order 1745 which renders its protection largely redundant.13 The requirement of audio visual recording applies to all cases apart from interrogations which deal with ‘security offences’. The majority of Palestinian children are arrested for suspected offences of stone throwing. This is an offence which carries a maximum penalty of 20 years imprisonment and is categorised as a ‘security offence’.14 Military Order 1745 therefore effectively provides lip service to the UNICEF recommendations, but allows for no meaningful protection to be afforded to the majority of children. The situation as it stands allows for children accused of the offence of stone throwing to be interrogated without legal counsel or a family member present and without any oversight provided by audio-visual recordings of the interrogations. Much remains to be desired of all aspects of this process and there is little faith in the legitimacy of the outcomes of such interrogations.
The Right to Legal Counsel
The importance of access to legal representation in the Israeli Military Courts cannot be understated. Notably, the Israeli Supreme Court has recognised the right to meet and consult with a lawyer as a fundamental right, which if breached could lead to the inadmissibility of evidence obtained against the suspect.15 The second UNICEF update notes that Israel’s military prosecutor highlighted a provision of Israel’s military law which provides that a detainee has the right to meet and consult with a lawyer. However, the update does not comment upon the fact that this military law provision16 does not stipulate when this consultation must occur; either before, during or after questioning. There is, therefore, no clear legal requirement under Israel’s military law that a lawyer be present during interrogation. In this context, DCI-Palestine reported a stunning statistic that in 2012, 99 per cent of children stated that ‘a lawyer was not present either before or during interrogation’.17 The second UNICEF update specifies that this issue is “under discussion” as opposed to “in progress”, which suggests there has been no material improvement to this fundamental issue of concern.
International standards provide that interrogations should take place in the presence of legal counsel in order to protect the privilege against self-incrimination and to provide further safeguards against potential ill-treatment or coercion. The right to legal counsel forms the basis of the right to an adequate defence in line with basic and uncontroversial fair trial principles. The exclusion of a lawyer from a fundamental process in the investigation of a suspect provides unequal and unfettered power in the hands of the Israeli military, a dynamic which has allowed for many of the allegations of ill-treatment during interrogations in the past. Unfortunately these allegations continue to be made and have been recognised by UNICEF in their second update.
The situation as it stands
Israel has perpetuated numerous violations of children’s rights in military custody, and thus far the legislative and procedural changes that have been initiated appear to be ultimately unfaithful to the spirit of the recommendations made by UNICEF. The reality of the situation faced by the hundreds of children who go through the military courts each year shows a system which has a material disregard for international human rights standards, including those found in the United Nations Convention against Torture and the United Nations Convention on the Rights of the Child. Within this context the ‘Know Your Rights’ campaign is an incredibly valuable tool to empower children to have a better understanding of the due process rights that they deserve, and which form the fundamental foundations of a fair justice system.
Angelina Nicolaou – LPHR Student Director
5 Convention on the Rights of the Child, article 40(2)(b)(iv)
6 Convention on the Rights of the Child, article 37(d) and article 40(2)(b)(iii)
7 Convention on the Rights of the Child, article 37(a)
14 Military Order 1651 Section 212(3)
16 Military Order 1676