Analysis: UNICEF report, gray areas and int'l law

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 law.

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.

They 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 judge.

The committee recommends 24 hours for all children under 18.

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 nuances.

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 friction.

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 torture.

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 children.”

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 armies.

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 collateral damage.

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.