konference i København 22.-24. oktober 2010
Internationalt Forum om Politiske fanger
Sandbæk, Human Rights March, oplæg på work shop om palæstinensiske børnefanger
is well known that what is to-day
and the occupied
used to be a British mandate handed over by the Brits to UN which in
1947 established United Nations Special Committee on
.Palestine was to be partitioned into an Arabic and a Jewish
was to be placed under International trusteeship. As we all know it
did not happen that way.
declared its independence. The Arabic countries launched a war
against the newly proclaimed state of
. According to Israeli historian Ilan Pappe´ the war was started
because prior to the declaration of the Israeli state an ethnic cleansing
had taken place. The Arab states lost the war which meant that Israelexpanded
its territory beyond the UN plan of partition ,and
was partitioned between
and Jordan .
June 67 the 6-day war broke out , a war between the Arab States and
which again the Arab States lost.Israel took control over
several Arabic areas and subjected them to military administration. What
is to-day known as the West Bank Israel called Judea and
Samaria. Only in 1978
accepted the term the
is NOT an occupied territory because the area did not belong to a
sovereign State. They think that the area should be named as “disputed
territories” That the West Bank is an occupied territory is clear to
. The question is from whom it was occupied. When
occupied theWest Bank in 1967 the area was under Jordanian
administration since 1948. In the 70ties the Palestinian
Liberation Organization known as the PLO was recognized as the
representative of the Palestinian people, and obtained observation status
in the UN. In 1988
lifted all the administrative and legal ties with the West Bank and
king Hussein handed over the
to the Palestinian people as a means for them to build their own
state. The conclusion therefore must be that it is PLO who represents the
Palestinian people in the
and has the territorial and administrative right to the area.
Arabic side claims that Israel must withdraw to the pre 67 borders which
is also what the UN resolution 242 states in two principles for a just and
lasting peace in the Middle East namely 1. the withdrawal of
’s armed forces from occupied territories – notice that the UN
definition IS occupied territory- and 2 the ceasing of all military
actions and the right to live within secure and recognized borders.
the text of resolution 242 is unclear. It mentions withdrawal from
“occupied territories” and not THE occupied territories. And as we
is NOT occupied.
attitude toward the resolution is that
has the right to live within secure and recognized borders. And that
this right is denied
because the Arabs purposefully have ignores the need for peace
will not here mention all the UN resolutions which state that
IS occupying the
. None of them have moved
an inch and that has a strong impact on the way
is treating the Palestinian Population. Because
does not recognize that
is an occupied territory they also do not recognize that the
Palestinian people are protected by International Humanitarian laws to
is a signatory. In particular the 4th Geneva
Convention. Israel is signatory to the convention but Israel has not
signed the Protocol Additional to the Geneva Konvention relating to the
protection of victims of International armed conflict namely protocol 1.
Several of the regulations are however considered customary laws. Among
them is article 75 which contains basic human rights under an occupation.
of the most important conventions which applies under occupation besides
the Geneva Convention is the Haag Convention which
has not signed. But the Israeli supreme court has in several
sentences stated that the convention is customary international law. Other
importantconventions are the convention on the rights of children and the
convention on torture.
has the opinion that international conventions about human rights
are only valid between a state and its citizens and that their validity
does not extend beyond the boundaries of the state.
me just mention another aspect of Human Rights which Israel does not
recognize namely article 1 of the United Nations Universal Declaration of
Human Rights which states that “all human beings are born free and equal
in dignity and rights. They are endowed with reason and conscience and
should act toward one another in a spirit of brotherhood”
international Conventions there are criminal laws with due process rights.
process rights in criminal law constitute an essential part of an
assortment, or “bundle of rights,” granted to all defendants, suspects
and detainees, and is generally known as the right to a fair trial. Due
process rights ensure that every defendant standing trial - in any court -
is granted the means to defend against the charges brought against him.
These means include, inter alia, the rights to understand the charges
brought against him, to present a full defence, to have the effective
assistance of counsel, to interrogate witnesses, and several other rights
regarded as ‘procedural’ rights, relevant to the establishment of
conditions for a fair trial. In their absence, there can be no just trial,
and, likewise, their violation increases the risk of miscarriage of
justice. Basic rights are:
right to a public trial
right to be notified of the charges
right to counsel and the effective assistance of Counsel
right to be tried without undue delay
right to present evidence and witnesses
right to interpretation.
of these conditions are met when Palestinian children are brought to trial
as we shall see, when I shall present two cases of arrests and detention
of Palestinian children.
before I do that I will read out parts of a transcript of a broadcast in
the BBC about the subject.
Efrati is a former commander in
's army. He served in the occupied
a discreet park in Jerusalem BBC meets him to discuss allegations that
soldiers like him often mistreat Palestinian minors, suspected of throwing
Efrati - who left the army five months ago - says the allegations are
never arrested anyone younger than nine or 10, but 14, 13, 11 for me,
they're still kids. But they're arrested like adults.
soldier who was in the
can tell you the same story. The first months after I left the army
I dreamed about kids all the time. Jewish kids. Arab kids. Screaming.
take the kid, you blindfold him, you handcuff him, he's really shaking...
Sometimes you cuff his legs too. Sometimes it cuts off the circulation.
doesn't understand a word of what's going on around him. He doesn't know
what you're going to do with him. He just knows we are soldiers with guns.
That we kill people. Maybe they think we're going to kill him.
lot of the time they're peeing their pants, just sit there peeing their
pants, crying. But usually they're very quiet.''
[the kid is] blindfolded for him not to see the base and how we're working...
But I believe maybe we put the blindfold because we don't want to see his
eyes. You don't want him to look at us - you know, beg us to stop, or cry
in front of us. It's a lot easier if we don't see his eyes.
the kid is sitting there in the base, nobody is thinking of him as a kid,
you know - if there is someone blindfolded and handcuffed, he's probably
done something really bad. It's OK to slap him, it's OK to spit on him,
it's OK to kick him sometimes. It doesn't really matter.''
military denies any suggestion that the abuse of young Palestinians is
routine, but the army says it has to guard against Palestinian children
involved in what it describes as "acts of terror".
Colonel Avital Leibowitz is a spokeswoman for
's military. She says ''Even though it's just a stone or just a
Molotov cocktail, they're deadly weapons. Doesn't matter who did it -
they're deadly weapons," she said.
every other week we find a 14 or 15-year-old carrying an explosive belt or
grenade on his body, in one of the crossings.
is the situation we live in, and since we are defending ourselves and we
want to punish those terrorists, we have no choice but to find them, to
punish them - and hope that we won't return to this."
rights groups are calling on the international community to investigate
what they say are
's violations of children's rights.
when now we are going to listen to 2 cases recorded by Defence for
Children International and Adammeer a prison support and human rights
organization let us remember what the Israeli commander told the BBC that
the children’s reports are authentic.
was asleep when soldiers stormed the family home at 1:00am, back in April
2010. ‘We all came out of the house to the yard and I saw six jeeps a
truck, and many soldiers surrounding the house,’ recalls Jihad. The
soldiers tied and blindfolded Jihad and put him on the floor of a military
vehicle before transferring him to Huwwara Interrogation and Detention
Centre, in the occupied
. Several days later Jihad was taken to another detention centre for
interrogation. ‘The interrogator Saleh accused me of throwing stones and
Molotov cocktails,’ recalls Jihad. ‘He kept shouting and saying he
would send me to the cells in Al Jalame detention centre. He said he would
give me a military interrogation. I became very scared of the interrogator.’
Three hours into the interrogation, Jihad confessed, and on 13 May, he was
transferred to Megiddo Prison, inside
Under Israeli prison regulations, prisoners are supposed to receive a
family visit every two weeks. However, Jihad did not receive his first
visit until more than three months after his arrest. ‘I don’t know why
I was denied family visits,’ says Jihad, I tried to ask around but all
they told me was that there was ‘confidential information’ against me.
I still don’t know what information they are talking about. Jihad’s
mother Najat recalls those three months ‘as the worst three months of my
life. It was the first time any of my children had slept outside the
house. It was a very difficult time.’ Najat recalls that it took the
Israeli authorities more than two-and-a-half months to process her
application to visit her son in prison inside
Jihad was expecting a second family visit but no one from his family came.
‘One of the detainees from my village was told by his family that the
Red Cross had called my mother and informed her that they could not visit
me. I still don’t know why they don’t allow family visits. When the
children in my room receive family visits, I feel terrible because they
get to see their families and I don’t. When they return to the room they
have money and clothes and things get a little better for them. I don’t
know the news of my family, my friends or my school,’ says Jihad. ‘I
feel a huge gap because of the lack of communication. I’m losing so many
details that I consider important to know. I want to see them. I want to
talk to them. I was told that my family is really upset because of this.’
Jihad says he knows many children who are denied family visits.
Jihad’s mother and two younger brothers, Amjad (10) and Abdel Rahman (3)
were finally allowed to visit him again on 21 September 2010. ‘I hardly
had any sleep the night before,’ recalls Najat. ‘I was worried I
wouldn’t wake up in time to catch the Red Cross bus to
. I so badly wanted to get enough sleep to be in good shape the
following day, but I couldn’t. This is what always happens to me the
night before the prison visit.’ Najat left the family home at 6:00am the
next morning, with her two youngest children. ‘I didn’t have anything
to eat or drink, I had nt appetite. We waited 45 minutes for the bus at
the junction and arrived at Qalqiliya checkpoint at around 7:15am. There
were about 100 people at the checkpoint,’ recalls Najat. ‘The
checkpoint was packed and we queued in line and waited our turn. Soldiers
x-rayed our bags, checked our identification card and our Red Cross
tickets on their computers and asked us to go through the turnstiles
without our shoes. Meanwhile, soldiers with big guns shouted at us through
loudspeakers from concrete bridges installed two meters above our heads.
We were caged, and nobody could go in or out. At one point soldiers asked
my two young boys to go through the turnstile on their own, but I refused.
I was terrified to be separated from them; they are too young to go on
their own. In the end they allowed me to keep my youngest son with me, but
insisted that Amjad go through another gate on his own.’
Najat had passed through the checkpoint with her children, she waited
another two hours for everybody else to pass through before boarding the
bus which then took them to Megiddo Prison, where Jihad was waiting.
On arrival outside the prison, Najat bought ten packets of cigarettes to
take to Jihad, ‘not because he smokes, but because he trades cigarettes
for other things that he needs in prison, like shampoo and soft drinks,’
says Najat. ‘I also bought more cigarettes to take to other prisoners
who are deprived of family visits as punishment. Jihad wanted me to do
this as a favor to them. I also had a T-shirt and some underwear for Jihad
’ Once inside the prison, Najat waited for Jihad’s name to be called
and then hurried towards the glass partition separating the visitors from
the inmate. ‘I was so happy to see Jihad,’ remembers Najat, ‘but I
couldn’t touch or kiss him. I spoke to him through an intercom system
which I think is controlled by the soldiers. It was difficult for us to
hear each other because all the other families were talking to their
children at the same time. He asked me about his friends back in the
village and wanted to know the news of relatives and friends. He was very
happy to see his youngest brother; he had asked me to bring him along with
me this time. My youngest son was overwhelmed and confused and didn’t
say a word.’
Najat asked her son how he was, and how he spent his time in prison. ‘He
told me he shared a room with 10 other children and they cooked their own
food. They had an electric kettle in the room which they used to boil eggs
and potatoes and to make coffee and tea. We had hardly started talking
when the intercom was suddenly disconnected. The visit had lasted 4
minutes. I left at 12:00 through another door feeling both happy and sad
at the same time.’
waited outside the prison with her two children until 2:30pm for the bus
to take them back to Qalqiliya checkpoint. ‘It was 6:30pm when we
finally got home completely drained, nearly 12 hours after leaving.’
Najat’s permit to visit Jihad is valid until 29 July 2011, but her
husband was only given a one-time permit to visit their son. ‘Jihad has
still not been sentenced, says Najat. ‘I think he has already had eight
or nine court appearances. I so badly want him out of prison. He missed
the last two months of school when he was arrested. I am worried he might
loose interest in school the longer he stays in jail. I miss him. The
house feels different without him. I regret not having a picture of him
like I do for my other children. The only picture I have of him is the one
on his identification card.’
will be sentenced on 31 October 2010, to 10 months imprisonment and a fine
of 3,000 shekels (US $780), as part of a plea bargain arrangement.
Although Jihad maintains his innocence and says that he was threatened
going to the next case let me say a few words about the judicial system
and plea bargaining.
Palestinian is tried in a military court. Proceedings in the military
courts disregard many basic fair trial rights and general principles of
juvenile justice are simply not applied. It is questionable whether
the use of military courts to try civilians can ever satisfy the
requirements under international human rights law to a trial before an
independent and impartial tribunal, as the judges are all serving officers
subject to military discipline and dependent on superiors for promotion.
Resort to military tribunals should therefore be exceptional and limited
to cases where regular civilian courts are unable to undertake trials with
regard to the specific class of individuals and offences. Military
tribunals should afford the full guarantees stipulated in Article 14 of
the International Covenant on Civil and Political Rights (1966) (ICCPR).
of this is only heightened in the case of children. The UN Convention on
the Rights of the Child (1989) (CRC), ratified by Israel in 1991,
specifically recognises the particular vulnerability of children by
providing that detention should be a measure of last resort (Article
37(c)) and that states should implement measures whenever appropriate that
steer children away from judicial proceedings (Article 40(3)). These
arguments are all the more compelling when faced with prosecution before a
military tribunal where fewer fair trial protections exist, and juvenile
justice standards appear almost non-existent.
almost all cases, the primary evidence against the children is the
confession extracted during a coercive interrogation........
is rare for a child or his or her family to be told why he or she is being
detained . The most common charge is for throwing stones. The maximum
sentence for throwing stones at a moving vehicle is 20 years.
What all of the cases have in common is that Palestinian children are
arrested either near the Wall, an illegal settlement or a settler by-pass
road, all of which stand as daily reminders to these children that they
are living under occupation.
child is also not told or where he or she is being taken. These journeys
can last anywhere between 20 minutes up to several hours during which
abuse is common.
arrival at an interrogation and detention centre the child is either
placed in a cell or taken straight for interrogation after a brief medical
check. The child is invariably denied access to a lawyer, for days or
weeks until the end of the interrogation process,
children as young as 12 years are denied visits from their families and
will generally not be permitted to see a lawyer until after they have
provided a confession to the interrogator. The military tribunals regard
Palestinians as minors until their 16th birthday, unlike the civil courts
where minors are considered to be minors until their 18th birthday.
But they often arrest children age 12-15 as well.
under interrogation children are subjected to a number of prohibited
excessive use of blindfolds and handcuffs; slapping and kicking; painful
position abuse for long periods of time; solitary confinement and sleep
deprivation; and a combination of physical and psychological threats to
the child, and the child’s family.
2008, lawyers for DCI-Palestine made 75 visits to Israeli interrogation
and detention centres and prisons and met with 169 children in detention.
During these visits the children informed the lawyers about the
circumstances of their arrest and the conditions in detention. Living
conditions for Palestinian children in Israeli detention did not
materially improve in 2008. Common complaints received by DCI-Palestine
include overcrowding, poor ventilation and access to natural light, poor
quality and inadequate amounts of food, harsh treatment by prison
officials and boredom.
sentenced, the overwhelming majority of Palestinian children like Jihad
are detained inside
, All but one of the prisons where
detains Palestinian children are located inside
in breach of Article 76 of the Fourth Geneva Convention, which provides
that an occupying power must detain residents of an occupied territory
inside that territory. The practical consequence of this violation is that
many prisoners do not receive any family visits at all as their relatives
are denied permits to enter
. And only Israeli lawyers and residents of East Jerusalem can visit
prison facilities inside
many children receive very limited education if any at all. Education is
only provided in two out of five of the prisons used to detain Palestinian
children. In the two prisons where education is provided, it is limited to
a few hours per week.
ill-treatment and torture of Palestinian children by Israeli authorities
is widespread, systematic and institutionalised. This system operates
within a general culture of brutality and impunity. Between 2001 and 2008,
over 600 complaints were filed against Israeli Security Agency (ISA)
interrogators for alleged ill-treatment and torture. To date, there has
not been a single criminal investigation.
and until there is some level of accountability for what amounts to
serious breaches of the Fourth Geneva Convention, the UN Convention
Against Torture and the UN Convention on the Rights of the Child, both at
the domestic and international level, the ill-treatment and torture of
Palestinian children at the hands of Israeli authorities will continue
bargain means that the child pleas guilty even if he or she is not guilty
at all. Pleading guilty in the Israeli military court system is usually
the quickest way for children to be released. Gerard Horton who is a
spokesman for Defence Children International tells that
arrested 9,000 Palestinians last year. Seven hundred of those were
children. Since 2000, around 6,500 Palestinian children have
Horton says the military tribunals need to process cases quickly.
believes the system is designed so that it is in an adult or a child's
interest to plead guilty.
Horton says Palestinians tend to end up in jail longer if they try to
fight their case. ''He's a child. His friends are playing in the street
and he is in handcuffs.
no faith in the system and the potential for harsh sentences,
approximately 95% of cases end in the child pleading guilty, whether the
offence was committed or not. Once obtained, it is these confessions
that constitute the primary evidence against Palestinian children in the
military courts. Most children when they confess are forced to sign
confessions written in Hebrew, a language they do not comprehend. These
interrogations are not video recorded as is required under Israeli
second case is the story of Mohammad.
the evening of 6 February 2010, Mohammad Mahmoud Dawoud Halabiyeh was
walking with his friends Anas and Ayyad in their hometown of Abu Dis, an
East Jerusalem neighborhood cut off from
by the Annexation Wall. As they walked past the Israeli military
camp near their town, they were surprised by an Israeli Border Police
patrol coming from behind a nearby stand of olive trees. The soldiers kept
their guns trained threateningly at the boys as they advanced towards
Mohammad and his friends. When they reached the boys, the soldiers first
seized Anas, who raised his arms in surrender. Petrified at their sight,
Mohammad started running in the direction of his home. In the process, he
jumped off an unfinished house and fell face first into a ditch
approximately four to five meters deep, fracturing the tibia and fibula
bones of his left leg, just above the ankle.
after, one of the soldiers threw his steel helmet from above at Mohammad
who lay injured on the ground and then worked his way down. When Mohammad
told the soldier that he broke his leg, he did not believe him and instead
started laughing and threw a sound bomb at him.
soldiers then forced Mohammad to stand, but as he was visibly limping, two
soldiers assented to carrying the injured Mohammad. However, as they
carried him, blows from the other soldiers and sexually degrading insults
against Mohammad’s mother and sisters continued to rain down.
they arrived at the Israeli military base, the soldiers lay Mohammad on
the ground and started shaking his leg while questioning him about his
family and friends. They then reverted back to beating the boy until they
forced him to sit on the ground, blindfolded him and handcuffed his hands
to the front with plastic cuffs, which they tightened painfully.
unrelenting physical and verbal abuse lasted about half an hour until a
white private car arrived to take Mohammad to the Hadassah hospital,
. During the 40-minute drive, a soldier continued to punch Mohammad
in the face and kick at his broken leg. Mohammad’s right eye became
swollen from these punches.
abuse from the soldiers continued even after their arrival at the hospital
where Israeli soldiers accompanied Mohammad during every stage of the
medical examinations.. The soldiers continued to hit Mohammad whenever the
doctor and other medical staff were away, in the X-room and in the patient
room where they hid their actions behind a privacy curtain that they
placed around Mohammad’s bed.
beatings according to Mohammad’s description, were an attempt to coerce
him to remain quiet about the torture he’d endured at the hands of the
Israeli soldiers following the injury of his leg.
when Mohammad told the soldiers that he would disclose everything that was
happening and tried to shout for the doctor, the soldiers covered his
mouth with adhesive tape and handcuffed his hands to either side of the
when Mohammad was taken to have a plaster cast applied to his leg without
the soldiers present, he told the doctor what was happening to him. The
doctor told Mohammad to call him when the soldiers tried to abuse him
again. Mohammad was then returned to a patient room and put in a hospital
bed behind a curtain.
that point, the two soldiers again put the adhesive tape on Mohammad’s
mouth, repeated their threats not to tell anyone what had happened, and
beat him with an iron baton, smeared a tomato they’d brought over his
face and pushed syringes into his hand and leg multiple times.
father Mahmoud arrived at the hospital. Mohammad told his
father that the soldiers were beating him,
used a visitor’s mobile phone, and called the Israeli police three
times, asking their intervention with the soldiers so that they would stop
beating his son. The police never came and the abuse continued.
the rest of the night, the soldiers remained in the hospital with Mohammad
continuing the abuse telling Mohammad they were going to deform his face
and break his other leg. They refused to let Mohammad sleep and would hit
him whenever he dozed off. The abuse and torture was intended to inflict
so much pain and fear in Mohammad so that he would not complain to anyone
about his experience.
Two: Torture During Transfer to the Police Station and During
was shuttled into the Israeli military vehicle where the soldiers tied his
hands and covered his eyes with a cap, which they tightened around his
the drive to the Ma’ale Adumim police station the police officers in the
car continued to assault Mohammad and pressure him not to tell anyone the
truth of how he’d sustained his injuries. At one point in the car,
Mohammad vomited from the ongoing beating, though he’d not been given
anything to eat since his arrest the previous day.
they arrived at the Ma’ale Adumim police station, Mohammad was
questioned for several hours by an Israeli interrogator. The interrogator
accused Mohammad of throwing Molotov cocktails at Israeli military patrols
and told him that his friend Anas had already confessed. He further
mentioned that Anas told them that the three boys were on their way to
throw Molotov cocktails when they were arrested the previous day in Abu
Dis. The interrogator also said that Anas told them that Mohammad had
thrown Molotov cocktails 15 times in the past. Mohammad denied the
interrogator then began to write down a false statement himself, writing
that Mohammad said he threw the Molotov cocktails, and tried to force
Mohammad to sign the statement. Mohammad refused to sign. The Israeli
officer began to threaten to beat and kill him. Then he told Mohammad that
he would do ‘sexual things’ to him and that “he liked doing that to
6 p.m. that day, more than 24 hours after Mohammad was arrested, he was
finally given something to eat by officers at the Ma’ale Adumim police
station. Mohammad gave a statement to his nterrogators, reiterating his
earlier denial of any involvement in throwing Molotov cocktails and
seeking action for the torture he’d undergone at the hands of the
Israeli soldiers since his arrest. No copy of this statement was recorded
or provided during pretrial disclosure by military prosecutors.
8:30 p.m. that night, after more than a day with little food and no sleep,
Mohammad signed a confession claiming that he’d thrown Molotov
cocktails. He later told his lawyer, Addameer attorney Mahmoud Hassan,
that he had made this confession out of fear after numerous threats by his
interrogators that he would be subjected to further torture if he did
not. A video of the interrogation at this point shows the Israeli
interrogator drafting the written statement of Mohammad’s confession,
prompting a tired and fearful Mohammad, asking leading questions and
feeding him the words the interrogator wanted him to say. the written
statement taken at this time was drafted by the interrogator in Hebrew, a
language that Mohammad does not understand. The interrogation video,
obtained by Adv. Hassan only after military prosecutors accidentally
exposed its existence to him, reveals that the written statement omits
most of Mohammad’s repeated references to the torture he endured at the
hands of the Israeli soldiers in Abu Dis and at the hospital. The video
also reveals that, although the interrogator indicated in the written
statement that he’d read it aloud to Mohammad before Mohammad signed it,
he did not.
interrogator did not have sufficient Arabic skills to question the boy and
understand his version of events. It is thus likely, that the interrogator
made mistakes in the statement that he wrote, and by doing so, altered
Mohammad’s statement. This is even more problematic when one considers
that this statement serves as the primary evidence against Mohammad in his
trial before the military courts.
one point in the forced confession, for example, Mohammad says he threw
Molotov cocktails with a friend in late 2009; that friend, however, has
been detained by
since December 2008, so this could not possibly have happened.
night, after seven or eight hours of interrogation, Mohammad was taken to
, to a cell holding a number of other detainees who were already
sleeping. Mohammad recalls that the room was extremely cold, but the
guards refused to give him a blanket when he asked. In the afternoon of
the next day, on 8 February 2010, a doctor came, gave Mohammad a
cursory medical examination and gave him a paracetemol tablet with a glass
of water for his pain.
two Nahshon officers took Mohammad for transfer to Ofer Prison, housed in
Ofer Military Base near Ramallah. Mohammad at this point was shackled at
the wrists and had no cane, hopping painfully on his one good leg.
Mohammad arrived at Ofer at around 7 p.m., but was made to wait inside the
Nahshon transfer vehicle until midnight before the Nahshon officers came
to move him into the facility. However, when the prison officer at
Ofer saw Mohammad and the state of his injuries, he refused to admit
Mohammad to the prison there, instead instructing the Nahshon officers
that he should go first to a hospital.
however, the Nahshon officers returned Mohammad to Etzion, where the boy
spent another cold night.
Four: Transfer Back to Ofer Prison
following day, on 9 February, Mohammad was transferred back to Ofer, where
he was held in a room with an iron grid, referred to as ‘the cage’.
Later that day, Mohammad saw a prison doctor who promised to bring him a
cane. That evening, prison officials brought Mohammad a pair of crutches,
which he used for two days before obtaining a pair previously used by a
friend from Abu Did
Five: Mohammad Finally Receives Medical Treatment
was taken to Hadassah Ein Karem, a hospital located in the southwest of
. The physicians there took X-rays of Mohammad’s injured jaw and
gave him medication for the pain and to promote healthy repair to the
was then returned to Ofer, where he remains at present. All motions to
release him on bail were so far denied.
16 February 2010, Israeli military prosecutors filed charges against
Mohammad under the Israeli military orders that govern the OPT. Mohammad
is accused of five offenses related to throwing Molotov cocktails in Abu
Dis on a number of occasions between November 2009 and the date of his
arrest in February.
military court trial began on 12 April 2010 with the reading of charges
and the entering of Mohammad’s plea and is currently underway at
Ofer Military Court
inside a military base near Ramallah. Mohammad’s defense counsel,
Adv. Hassan, estimates his trial will take about two months. On 26 August
2010, Adv. Hassan filed a request to the
to release Mohammad on bail until the conclusion of the legal
proceedings. The next hearing in Mohammad’s trial is scheduled for 6
September 2010, where the prosecution’s third witness, a police officer,
is expected to testify before the court.
The arrest, detention or imprisonment of a child … shall be used only as
a measure of last resort and for the shortest appropriate per of
Convention on the Rights of the Child – Article 37(b)
all actions concerning children . . . the best interests of the child
shall be a primary consideration
Convention on the Rights of the Child - Article 3
even the lawyers are treated with respect-
complaints from lawyers appearing in the military courts include:
difficulties in meeting with their clients in detention; the lack of
adequate facilities to take confidential instructions; court documents
written in Hebrew; and the provision of incomplete prosecution material,
such as the absence of interrogation notes. Uْnder
Military Order 378, a Palestinian detainee can be denied access
to a lawyer for up to 90 days. In practice, lawyers commonly take
instructions from their clients minutes before the hearing in the military
court and plea bargains are entered into to avoid harsher sentences.
Israeli law of evidence provides for a presumption of innocence which is
also supposed to apply to proceedings in the military courts, but
according to a recent report, in 2006 full acquittals were obtained in
just 0.29% of cases, suggesting a presumption not of innocence but of
practice, very few full evidentiary hearings are heard by the military
courts. According to Yesh Din, of the 9,123 cases concluded in the courts
in 2006, full evidentiary trials were conducted in only 130, or 1.42% of
cases. The reason: “Attorneys representing suspects
and defendants in the military courts believe that conducting a full
evidentiary trial, including summoning witnesses and presenting testimony,
generally results in a far harsher sentence, as a ‘punishment’ the
court imposes on the defense attorney for not securing a plea bargain.”
child’s right to a fair trial is guaranteed by Article 14 of the
International Convent on Civil and Political Rights and Article 40 of
Convention on the rights of the child and Articles 71 and 72 of the Fourth
Geneva Convention (1949).
lawyers are reluctant to run full evidentiary hearings for fear the child
will remain longer in detention, as is explained by the organisations
chief lawyer, Khaled Quzmar: ‘There are a number of reasons why
we rarely challenge the cases. First, if we challenge the case
and argue that the confession before the court was obtained
through ill-treatment or torture, the interrogator will come and
give evidence and deny any wrongdoing. In over 15 years of experience
practising in the Israeli military court system, I can say that the
military judge will always believe the military or police interrogator’s
word over the word of a Palestinian child.
a child who pleads guilty will normally be sentenced within one month of
arrest. A child who challenges the case, won’t be sentenced for between
five to twelve months, during which time they will normally be kept in
detention. Finally, a child who does challenge the case and is found
guilty, will typically receive a sentence that is double or even triple
what he or she would have received had they pleaded guilty. This is why
few cases are challenged in the military courts, it simply makes matters
worse for the child.’
practice, indictments containing the charge are given to the child’s
lawyer on the day of the hearing to determine whether the child remains in
detention until the end of the proceedings. In the vast majority of cases,
Palestinian children are denied bail and remain in detention until the
conclusion of proceedings.
should be noted that wilfully depriving a person of their fair trial
rights constitutes a grave breach of Article 147 of the Fourth Geneva
Convention (1949) for which personal criminal responsibility applies.
January 2001 and December 2008, over 600 complaints were filed against
Israeli Security Agency (ISA) interrogators for alleged ill-treatment and
torture. The Police Investigation Department of the Ministry of Justice,
the relevant authority charged with investigating these complaints, did
not conduct a single criminal investigation.
statistics accord with the experience of DCI-Palestine lawyers, as chief
lawyer Khaled Quzmar explains: ‘In my experience, complaints
that are lodged with the Israeli authorities result in the
file being closed for ‘insufficient evidence’ and I have had a number
of cases in which the Israelis did retaliate against the complainant. For
example, in November 2008, I travelled on behalf of DCI-Palestine to
with an ex-child detainee for the purposes of speaking to Dutch
school children. The child, Mohammad E. had been arrested and ill-treated
by the Israeli army earlier in the year and lodged a complaint through the
Israeli organisation, Yesh Din. Mohammad was informed that
would only be granted a travel permit if he withdrew his complaint.
Accordingly, he withdrew his complaint and was granted a travel permit. In
the overwhelming majority of cases, Palestinians do not lodge complaints
with the Israeli military or civil administration for fear of retaliation
and the knowledge that the process is totally futile.’
are also not lodged against torture
prohibition against torture is universal and absolute. It can be found in
both customary international law, as well as in a number of treaties
including the Fourth Geneva Convention (1949), the International Covenant
on Civil and Political Rights(1966) (ICCPR), the UN Convention on the
Rights of the Child (1989) (CRC) and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984) (Convention Against Torture).
has ratified, and is bound by these treaties.
addition to prohibiting torture, the Convention Against Torture also
prohibits other acts of cruel, inhuman or degrading treatment or
follows from a combined reading of Article 1 (torture) and Article 16 (ill-treatment)
that torture is an aggravated form of cruel, inhuman or degrading
treatment or punishment. Both torture and the less serious act of
ill-treatment are both absolutely prohibited under the Convention Against
Torture. However, unlike in cases of torture, a finding of ill-treatment
does not require the element of intention
may be caused negligently. Further, degrading treatment or punishment may
be defined as the infliction of pain or suffering, whether physical or
mental, which aims at humiliating the victim.
amounts to torture or ill-treatment will depend on the circumstances of
each individual case. However, it is useful to list some of the types of
circumstances that have been held to amount to torture and ill-treatment
by the Committee as a general guidance:
Restraining in very painful conditions;
Hooding under special conditions;
Playing loud music for prolonged periods of time;
Threats, including death threats;
Kicking, punching and beating with implements;
Using cold air to chill;
Excessive use of force by law enforcement personnel and the military;
Incommunicado detention (detention without access to a lawyer, doctor or
the ability to communicate with family members);
Sensorial deprivation and almost total prohibition of communication;
Poor conditions of detention, including failure to provide food, water,
heating in winter, proper washing facilities, overcrowding, lack of
amenities, poor hygiene facilities, limited clothing and medical care.
finally subjection to painful shackling. The soldiers often leave the
detainee shackled for a protracted period – frequently for many hours,
which is painful and liable to cause permanent injury.
above list is by no means exhaustive and in every case, the particular
vulnerability of the victim, such as his or her young age or medical
condition should be taken into consideration.
on arrival at an interrogation and detention centre, Palestinian children
are given a cursory medical check by an army doctor. Disturbingly, these
doctors appear to turn a blind eye when informed by the child that they
have been mistreated.
has not encountered a single case where an adult in a position of
authority, such as a soldier, doctor, judicial officer or prison staff,
has intervened on behalf of a child who was mistreated. It is overseen
by a military court system that ignores basic principles of juvenile
justice and fair trial rights, whilst willfully turning a blind eyeto the
presentation in court of one coerced confession after another. This system
operates beyond international legal norms and within a general
culture of impunity.
me conclude with the Concluding observations of the UN Human Rights
Committee written september 2010 about
State party should:
Ensure that children are not tried as adults;
Refrain from holding criminal proceedings against children in military
courts, ensure that children are only detained as a measure of last resort
and for the shortest possible time, and guarantee that proceedings
involving children are audio-visually recorded and that trials are
conducted in a prompt and impartial manner, in accordance with fair trial
Inform parents or close relatives of where the child is detained and
provide the child with prompt access to free and independent legal
assistance of its own choosing;
Ensure that reports of torture or cruel, inhuman or degrading treatment of
detained children are investigated promptly by an independent body.
have made these 4 points our own.