Analysis: UNICEF report, gray areas and int'l law
It’s unclear why document on treatment of Palestinian children in IDF courts criticizes Israel despite reforms.
Palestinian children Photo: REUTERS
Overall, UNICEF’s report on Israel’s treatment of Palestinian children in the
West Bank Military Courts, despite some more positive treatment than UN reports
often give, did not give Israel high marks.
The 38 recommendations and
the tone of the document mostly spoke of Israeli violations of international
But reading such a report is tricky.
There are statements
about conditions in the West Bank military justice system, such as that
Palestinian minors have been beaten and forced to sign confessions, which if
true, are unquestionably violations.
Then there are a lot of allegations
interwoven with the more serious allegations that fall in a gray category of
standards that some countries, especially in Europe, are trying to promote, but
that have not been accepted as international law.
For example, the report
compliments Israel on recently establishing a juvenile court system within the
military courts to give special treatment to minors.
But the report then
states Israel violated standards set by the UN Committee for the Rights of the
Child that a juvenile court system must be in completely separate facilities
with separate staff.
The Israeli system currently uses the same facility
and generally has an overlapping staff. But the judges have undergone the same
special training as juvenile court judges in Israel and apply a different set of
more childfriendly procedures and policies.
This is not a clear violation
of international law and it is unclear why the report would criticize Israel on
a specific issue where it has made recent major reforms and is employing similar
policies for Israeli citizens and Palestinians.
Also, unlike the UN
Convention on the Rights of the Child which Israel has ratified and is binding,
recommendations from the committee are just that – recommendations.
certainly have a greater status than recommendations from a less prominent and
multilateral body, but many nations would say that disputing some of those
recommendations is fair game, and many do.
A similar example is the
accusation that Israel violates international law with regard to the minimum
amount of time until which a detained minor must be brought before a
The committee recommends 24 hours for all children under
Israel ensures (or as of April will ensure) that all children under
14 are brought before a judge within 24 hours, and that all minor 14-18 are
brought before a judge within 48 hours.
The differences between the
committee’s recommendation and Israel’s policy are no international law
violation, and are debatable in that Israel can argue there are fundamental
differences in the ability to swiftly bring Palestinians to court from their
villages, in collecting evidence and in the interrogation process from the
process with Israeli citizens.
Maybe these reasons are only sufficient in
some cases, but the report does not appear to delve into such
Another highly controversial Israeli policy is arresting minors
in the middle of the night.
Israel usually explains that prior to this
policy it was difficult to make arrests in Palestinian areas as attempts to do
so in broad daylight were met with village-wide resistance and created greater
Though Israeli officials are also not excited about middle of
the night arrests, again there is no violation of international law, and while
scary and regrettable for children, they are not tantamount to
Finally, there are issues of interpretation of binding
conventions and of theory versus reality.
Recently, the committee
criticized Israel for violating the convention during November’s Operation
Pillar of Defense, whenever homes and schools were bombed – “gravely affecting
Many nations argue that in the context of an armed conflict,
such as during Pillar of Defense, the law of armed conflict applies, not
peacetime human rights law, including the convention.
Although there are
specific provisions against involving children in armed conflict in a protocol
to the convention, these relate more to recruiting children into one’s
They do not preclude an army attacking a legitimate military
target, where the rules of necessity and proportionality are fulfilled, simply
because there will also be an impact on children.
In other words, the
impact on children is part of, not separate from, the general analysis about
The report also appears to assume that because some
minors can theoretically receive a maximum sentence of up to 20 years in prison,
that this might be a common occurrence.
But the vast majority of cases
regarding minors involve rock throwing with no physical harm to a person and a
sentence of only a few months.
Whether Israel’s policies are ideal or
whether they can be improved are important questions, and undoubtedly based on
the many changes in recent years, many more changes can and should be made, In
analyzing the report, keeping in mind the differences between gray issues and
clear international law violations may result in a more constructive debate.