IDF legal adviser backs detention of 5-year-old Palestinian stone-thrower

"While children are not criminally liable, IDF still has authority to deal with incidents in which they endanger public safety."

July 31, 2013 23:59
2 minute read.
Five-year-old Palestinian boy detained by IDF

Five-year-old Palestinian boy detained by IDF 370. (photo credit: YouTube Screenshot)


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The soldiers who detained a five-year-old Palestinian stone-thrower in Hebron earlier this month were justified, the IDF’s West Bank legal adviser Doron Ben-Barak wrote to NGO B’Tselem in response to a complaint it had filed with him.

“One can’t stand idly by while minors throw stones that endanger bystanders and themselves,” Barak wrote in an opinion dated July 22, which B’Tselem published only on Wednesday.

Minors under the age of 12 bear no criminal liability, he wrote. They cannot be arrested or stand trial, nor can law enforcement make use of existing criminal tools in dealing with them, he explained.

Soldiers have a responsibility to act according to the law and to respect the rights of all area residents, including minors, he continued, adding that there was also an understanding that a certain sensitivity was necessary when dealing with minors, taking into account their young age and well-being.

At the same time, he said, there is a growing phenomenon of unsupervised minors under the age of 12 throwing stones at cars on West Bank roads, at civilians and soldiers, and during riots.

Such incidents endanger bystanders, soldiers, those in vehicles, and the children themselves, he wrote.

Although the children are not criminally liable, he went on, the IDF still has the authority to deal with incidents in which they endanger public safety.

Among the measures soldiers can take to eliminate the danger are removing the minor from the area and handing them over to their parents and/or the Palestinian Authority.

“It would be irresponsible for the soldiers to ignore the situation and leave the child to his own devices, so that he could continue his dangerous activity,” Ben-Barak wrote.

In this instance, the child threw stones and endangered himself and others, he said.

The soldiers took the boy to his parents and then transferred the boy and the father to the Palestinian Authority’s security forces, he wrote, adding that their actions were legitimate.

Ben-Barak noted, however, that soldiers lacked the proper tools to deal with minors under the age of 12 who were involved in stone-throwing incidents.

B’Tselem’s executive director, Jessica Montell, immediately responded with a follow up letter to Ben-Barak, in which she wrote that she was surprised to learn that the IDF believed it had the right to detain minors under the age of 12.

The law clearly prohibits this, she said.

She added that in this case specifically, which was caught on video, the soldiers did not stop the boy in real time, but picked him up after the incident and took him away in a jeep to his parents’ home.

Montell said it was also not clear how dangerous his stone-throwing was, given that he was five years old.

Further, she continued, the soldiers had turned to the wrong branch of the PA to handle the incident. Instead of turning the boy and his father over to the PA’s Social Welfare Department, they handed them over to the PA police.

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